Allowed

Sri Venkatarangaiah v. Smt Saraswathi

Karnataka HC2 Apr 2024RSA/103/2015

Case brief

AI extract

What is this about?

Second appeal against concurrent decrees granting a daughter a share in ancestral joint family land sold by her brother to defendants. The High Court held the sales did not bind non-consenting members absent proof of karta status or legal necessity, and clarified each child's entitlement as one-eighth share.

What did the court decide?

Substantial question answered for plaintiff; shares apportioned at 1/8th (11 guntas 14 annas) each to plaintiff and her sisters, remainder to Venkatesh Babu; Registry directed to draw decree according

Sri Venkatarangaiah Vs Smt Saraswathi — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:13488 RSA No. 103 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 103 OF 2015 (PAR-)

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BETWEEN:

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SRI VENKATARANGAIAH, AGED ABOUT 85 YEARS, S/O. DODDARANGAIAH, RESIDING AT VODDARAHALLI, KASABA HOBLI, GUBBI TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER/SON SRI GANGARANGAIAH, S/O. SRI VENKATARANGAIAH, AGED ABOUT 58 YEARS, RESIDING AT VODDARAHALLI, KASABA HOBLI, GUBBI TALUK-572216, TUMAKURU.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed byCHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.04.04 11:22:46 +0530

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SRI THIMMEGOWDA, AGED ABOUT 63 YEARS, S/O. SRI VENKATAPPA, RESIDING AT VODDARAHALLI, KASABA HOBLI, GUBBI TALUK-572216, TUMAKURU.

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(BY SRI SREEDHAR N.G., ADVOCATE)

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…APPELLANTS

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AND:

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SMT. SARASWATHI, D/O. LATE CHIKKAVENKATAIAH, AGED 40 YEARS, RESIDING AT NO.551, PIPELINE ROAD, MUNISHWARA BLOCK, T.DASARAHALLI, BANGALORE-560058.

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2 - NC: 2024:KHC:13488 RSA No. 103 of 2015

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SRI BALAKRISHNA, S/O. LATE B.K. THOLASAMMA, AGED 18 YEARS, R/O. MUDDANAHALLI, KASABA HOBLI, GUBBI TALUK-572 216.

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SRI CHANDRASEKAR, S/O. VENKATESHA BABU, AGED ABOUT 27 YEARS, R/O. MUDDANAHALLI, KASABA HOBLI, GUBBI TALUK-572 216.

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V. LAKSHMI, W/O. K.N. CHIDANANDA, AGED ABOUT 51 YEARS, R/O. PHAMACIST, AYURVEDIC HOSPITAL, BELLARY-583 201.

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SMT. RAJAKUMARI, D/O. LATE CHIKKAVENKATAIAH, AGED ABOUT 44 YEARS, RESIDING AT NO.551, PIPELINE ROAD, MUNISHWARA BLOCK, T. DASARAHALLI, BANGALORE-560 058.

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…RESPONDENTS

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(BY SRI GANGADHARAPPA A.V., ADVOCATE FOR C/R1, 4 & 5; R2 & R3 SERVED)

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THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE TO CALL FOR THE ENTIRE RECORDS IN REGULAR APPEAL NO.37/2009 ON THE FILE OF THE HON’BLE SENIOR CIVIL JUDGE, GUBBI, WHICH IS DISPOSED ON 12/11/2014 AND ALSO RECORDS IN O.S. NO.16/2003 ON THE FILE OF LEARNED ADDL. CIVIL JUDGE,(JR.DN), GUBBI WHICH WAS DISPOSED ON 20.2.2009 AND ADMIT THE ABOVE APPEAL AND FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW AND AFFORD AN OPPORTUNITY TO THE APPELLANT TO SUBMIT HIS CASE AND EXAMINE THE CORRECTNESS, LEGALITY OR OTHERWISE OF THE JUDGMENT AND

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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DECREE PASSED BY THE HON’BLE FIRST APPELLATE COURT AND ALSO OF THE HON’BLE TRIAL COURT AND BE PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 12/11/2014 PASSED IN R.A. NO.37/2009 ON THE FILE OF THE HON’BLE SENIOR CIVIL JUDGE, GUBBI, AND ALSO THE JUDGMENT AND DECREE DATED 20/02/2009 IN O.S.NO.16/2003 PASSED BY THE LEARNED ADDL. CIVIL JUDGE, (JR.DN) AT GUBBI AND OR REMAND BACK THE SAME TO COURT BELOW WITH THE DIRECTION TO DISPOSE THE SAME AS PER LAW, IF FOUND EXPEDIENT BY THIS HON’BLE HIGH COURT, TOGETHER WITH SUCH OTHER RELIEF OR RELIEF/S AS THIS HON’BLE HIGH COURT DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE, BY ALLOWING THIS REGULAR SECOND APPEAL WITH COSTS IN THE ENDS OF JUSTICE AND EQUITY.

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THIS REGULAR SECOND APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED FOLLOWING:

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JUDGMENT

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Challenging judgment and decree dated 12.11.2014

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passed in R.A.no.37/2009 by Senior Civil Judge, Gubbi, dismissing appeal and confirming judgment and decree dated 20.02.2009 passed in O.S.no.16/2003 by Addl. Civil Judge (Jr.Dn.) Gubbi, this appeal is filed.

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Appellants herein were defendants no.1 and 2, respondent no.1 herein was plaintiff and respondents no. 2

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to 5 were defendants no.3 to 6 respectively in O.S.no.16/2003 and will be referred to as such herein.

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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O.S.no.16/2003 was filed for relief of partition

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and separate possession of 1/4^th share of plaintiff in suit schedule properties namely, lands bearing Sy.no.41/1 measuring 1 acre 6 guntas and Sy.no.22, measuring 01 acre 09 guntas, situated at Vadarahalli, Kasaba Hobli, Gubbi Taluk (referred to as ‘suit properties’ for brevity). In plaint, it was stated that plaintiff, defendants no.5 and 6 and Venkatesh Babu (husband of defendant no.3 and father of defendant no.4) were children of late Chikka Venkataiah through his wife - Rangamma. Said Chikka Venkataiah and his brother – Venkatarangaiah had orally partitioned joint family properties and that suit properties had fallen to share of late Chikka Venkataiah. It was stated that after his death, children succeeded to them. It was further stated that Venkatesh Babu was addicted to bad vices and taking undue advantage of same, defendants no.1 and 2 had enticed him to sell his share to them.

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It was further stated that Smt.Rangamma had filed O.S.no.67/1995 for partition against plaintiff and defendants, during pendency of which Venkatesh Babu died. Subsequently, even plaintiff - Rangamma died and though, present plaintiff had sought to be transposed as plaintiff by filing application, it was rejected. In CRP no.2571/2002 filed against said order, this Court granted liberty to file separate suit and in pursuance of same, present suit was filed. It was stated that as plaintiff was one of four children of Chikka Venkataiah and suit properties were ancestral joint family properties, she was entitled for 1/4^th share.

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On service of suit summons, defendants no.1 and 2 filed written statement stating that defendant no.3 was manager of joint family properties and plaintiff was working in Railways and residing with him at Arasikere. It was stated that prior to his death, Venkatesh Babu had raised loan for performing marriage of defendant no.5 and also for treatment of his father. In order to meet legal necessities and to repay loan borrowed from others,

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Venkatesh Babu, sold item no.1 of suit property to defendant no.1 and likewise, sold item no.2 to defendant no.2 for lawful consideration. Since date of purchase, defendants no.1 and 2 claimed to be in possession of suit properties. It was further contended that even earlier, suit properties were mortgaged with defendant no.1, by Rangamma and Venkatesh Babu, for legal necessities. It was stated that plaintiff and her mother were living in Arasikere, and never cultivated them.

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During pendency, defendant no.3 died and his legal heirs filed written statement through Court guardian admitting relationship as well as nature of suit properties as joint family properties. They further stated prior to their birth and during his lifetime, their father Venkatesh Babu had sold items no.1 and 2 of suit properties to defendants no.1 and 2. They stated that their uncle took care of them and brought them up and they were informed about oral partition effected between their father and plaintiff through their relatives.

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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Based on pleadings, trial Court framed following

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issues:

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Whether defendants no.1 and 2 prove that late Venkateshababu was the Manager of joint family consisting of the plaintiff D-5,6 and mother Rangamma?

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Whether defendants 1 and 2 prove that in the capacity as a Manager Venkateshbabu sold the suit items to them for the joint family necessity?

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Whether plaintiff entitled for 1/4^th share in the suit properties?

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Whether plaintiff is entitled for mesne profits?

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What order or decree?

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During trial, plaintiff examined herself as PW.1

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and got marked Exs.P.1 to P.5. Defendants examined five

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witnesses as DWs.1 to 5 and got marked Ex.D1 to D7.

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On appreciation of evidence and material on record, trial Court answered issues no.1 and 2 in negative, issues no.3 and 4 in positive and issue no.5 by decreeing suit granting 1/4^th share in each of suit properties.

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Aggrieved thereby, defendants no.1 and 2 filed R.A.no.37/2009 on several grounds including that finding

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of trial Court was grossly erroneous, perverse, illegal and

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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opposed to law. It was contended that there was gross error while answering issues no.1 and 2 in negative and 3

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to 5 in affirmative. It erred in not properly appreciating specific defence taken by defendants no.3 (a) and 4 and erroneously applying ratio of decision reported in AIR 1986 Kar. 90. It also failed to notice that defendants no.1 and 2 were bonafide purchasers from karta of joint family.

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Based on contentions urged, first appellate

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Court framed following points for consideration:

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Whether the impugned is against to the established principles of law?

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Whether the impugned Judgment requires interference at the hands of this Court?

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What order?

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On consideration, first appellate Court answered points no.1 and 2 in negative and point no.3 by dismissing appeal. Assailing same, defendants no.1 and 2 – purchasers are in second appeal.

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Sri N.G. Sreedhar, learned counsel for

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defendants no.1 and 2 submitted that appeal was against

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9 - NC: 2024:KHC:13488 RSA No. 103 of 2015

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concurrent findings against decree in suit for partition and separate possession. It was contended that impugned judgment and decree were contrary to pleadings and evidence on record.

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It was submitted, as on date of alienation, plaintiff and defendants no.5 and 6 were not in joint possession. And as per recitals in sale deeds, alienation by husband of defendant no.3, who was acting as Karta of joint family for legal necessity and to clear loan, would render defendants no.1 and 2 as bonafide purchasers for value. Such being case, both Trial Court and first appellate Court committed error in holding that alienation was unjustified.

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It was submitted present suit was admittedly second suit for partition, with first suit O.S.no.67/1995, filed by Smt.Rangamma having been dismissed earlier and said dismissal barring present suit under provisions of Order II rule 2 of CPC.

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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It was further submitted that as per ratio laid down in Santosh Hazari Vs. Purushottam Tiwari¹ , first appellate Court was required to re-appreciate entire material on record. It was submitted that there was no proper re-appreciation and which calls for interference.

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It was further submitted in view of decision of Hon’ble Supreme Court in Prakash Vs. Phulavati² , daughter could not claim equal share prior to amendment of Section 6 of Hindu Succession Act (‘HSA’ for short) and would be entitled to share in notional partition i.e. from share notionally apportioned in favour of deceased father.

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It was submitted appeal was admitted on 11.06.2015 to consider following substantial question of law:

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“Whether the plaintiff/respondent no.1 is entitled for partition and separate possession of suit schedule properties having regard to Hindu Succession (Amendment) Act, 2005?”

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1 (2001) 3 SCC 179

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2 (2016) 2 SCC 36

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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On above grounds, learned counsel sought for answering same in favour of appellant and to allow appeal.

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On other hand, Sri A.V.Gangadarappa learned counsel for respondent contended that no substantial question of law arose for consideration and sought for dismissal of appeal.

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It was submitted relationship between parties was admitted, there was no dispute about suit properties being joint family properties and there was no defence of prior partition. Therefore, plaintiff would be entitled for relief. Insofar as substantial question of law framed, it was submitted, same would not arise for consideration in view of authoritative clarification by Hon'ble Supreme Court in case of Vineeta Sharma Vs Rakesh Sharma³ , about scope and applicability of amended Section 6 of HS Act to claims of daughters for equal share in joint family properties. Thus, grant of equal share by trial Court and confirmation of said decree by first appellate Court would

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3 2020 (9) SCC 1

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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not call for any interference. It was submitted that appeal was admitted on above substantial question of law, in view of subsequent prevailing legal position as per decision in Phulavati’s case (supra). In view of Larger Bench decision in Vineeta Sharma’s case (supra), it requires to be answered in affirmative and consequently, appeal requires to be dismissed.

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In view of above, when plaintiff was also having share in joint family properties, its alienation by only one coparcener without consent of all members of joint family would be null and void and not binding on them. Even insofar as contention that alienation by Venkatesh Babu was in capacity as Karta, it was firstly submitted, defendants no.1 and 2 had failed to substantiate Venkatesh Babu had alienated joint family properties for legal necessity of joint family. It was submitted, Exs.D1 and D4 – sale deeds executed in favour of defendants no.1 and 2 respectively, merely recited that sale was for purposes of generating money to repay loans taken by

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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executant and on ground that he was unable to manage same, as he was residing far away from said lands. It was submitted, neither of said reasons would justify alienation, without specific proof that he was acting as Karta of joint family.

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It was submitted that suit properties totally measured 95 guntas. Admittedly, right to partition would open upon death of Chikka Venkataiah. As widow of deceased, though alive as on date of his death, had died during pendency of proceedings, only children would be entitled to equal share at 1/4^th each, which would be 23 guntas 9 annas (1/4^th of 95 guntas). Learned counsel therefore sought for dismissal of appeal by clarifying shares of each of children.

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Heard learned counsel, perused impugned judgment and decree and records.

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From above submission, it is seen that there is no dispute about relationship between parties. There is

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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admission in pleadings that suit properties were ancestral joint family properties. Even recitals in Exs.D1 and D.4sale deeds under which appellants herein are claiming, there is mention about suit properties being ancestral joint family properties. None of parties have pleaded and established prior partition. And as rightly submitted, wife of deceased Chikka Venkataiah, namely Smt.Rangamma died during pendency of her suit i.e. O.S.no.67/1995 filed for partition. Hence, there would be only four sharers namely four children of Chikka Venkataiah.

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It is seen, alienation in favour of appellants under sale deeds at Exs.D1 and D4 were on 16.02.1994 and 16.03.1994 respectively, when as per age mentioned in cause title of plaint, plaintiff would be about 25 years of age.

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In absence of pleading and proof that executant of Exs.D1 and D4-sale deeds was acting as Karta of joint family, or that such alienation was for legal necessity or welfare of joint family. Thus, alienation by one of member

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NC: 2024:KHC:13488 RSA No. 103 of 2015

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of joint family, without consent of other members would not bind them and remedy available for purchasers is to plead equity in final decree proceedings.

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Finding of both Courts on above aspect is concurrent. Insofar as substantial question of law, it is rightly submitted by learned counsel for respondent, that in view of decision in Vineeta Sharma’s case (supra), substantial question of law would have to be answered in negative.

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Insofar as shares, according to appellants, Chikka Venkataiah had four children, i.e. one son - Venkatesh Babu and three daughters including plaintiff - Smt.Saraswati. Since succession opens on death of Chikka Venkataiah, as per notional partition, Chikka Venkataiah and Venkatesh Babu would get half share each. And in ‘½’ share of Chikka Venkataiah, all four children would get equal share i.e. 1/4^th share each. Thus, Venkatesh Babu would get (1/2 + 1/8), while other three sisters would get 1/8^th share each (since widow of Chikka Venkataiah has

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already died intestate). It was submitted, total extent of both suit properties put together would be 95 guntas and 1/8^th of 95 guntas will be ‘11 guntas 14 annas’ each to plaintiff and her sisters and remaining extent would fall to share of Venkatesh Babu. Such apportionment is not opposed. In view of above, substantial question of law is answered in affirmative. Hence, following:

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ORDER

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Appeal is allowed to above extent.

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Registry is directed to draw decree accordingly.

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Sd/JUDGE

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Psg*

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List No.: 19 Sl No.: 1

Sri Venkatarangaiah v. Smt Saraswathi

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Sri Venkatarangaiah v. Smt Saraswathi

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