Allowed

Mr H B Ashok v. Mr Ramu

Karnataka HC13 Mar 2024RSA/829/2018

Case brief

AI extract

What is this about?

The Court allowed the appeal, setting aside the High Court's order that declared the sale deed null and void. It held that defendant No.2, having a legitimate share of 15 guntas recognized in prior litigation, validly alienated that specific extent. The declaration of nullity was modified to exclude this 15 guntas.

What did the court decide?

The order declaring the sale deed null and void was modified to exclude 15 guntas of land; subsequent sale to appellants upheld.

Mr H B Ashok Vs Mr Ramu — Partition | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2024

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.NO. 829 OF 2018( DEC/INJ)

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BETWEEN:

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1 . MR H.B. ASHOK S/O LATE MR. H G BALRAMA BHAT AGED ABOUT 50 YEARS

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MRS. H.B. MEENA ASHOK W/O H B ASHOK AGED ABOUT 45 YEARS

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APPELLANTS R/AT # 1226/3 GANESHAKRUPA, 2^ND CROSS KRISHNAMURTHY PURAM CHAMARAJA MOHALLA MYSURU-570 024.

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… APPELLANTS

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(BY SMT. S.R. ANURADHA SR. COUNSEL FOR SMT. SABAHATH SULTANA, ADVOCATE)

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AND:

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1 . MR. RAMU AGED ABOUT 58 YEARS S/O DODDAMARIGOWDA

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2 . MRS. THAYAMMA AGED ABOUT 50 YEARS

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WIFE OF SRI. ANNEGOWDA

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3 . MRS. MANNIYAMMA AGED ABOUT 20 YEARS W/O LATE SRI RAJU

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4 . MR. SRIKANTH S/O LATE SRI RAJU AGED ABOUT 20 YEARS

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5 . MS. SWETHA D/O LATE SRI RAJU AGED ABOUT 20 YEARS

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6 . MRS. NAGAMMA AGED ABOUT 44 YEARS D/O LATE MR. RAJU

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DECEASED BY HER LRS

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a) DODDEGOWDA W/O LATE NAGAMMA AGED ABOUT 51 YEARS

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b) BASAVARAJU D., S/O DODDEGOWDA AGED ABOUT 23 YEARS

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RESPONDENT 6(a) AND (b) ARE RESIDING AT KASABA HOBLI AND NAGANAHALLI POST MYSURU - 570 003.

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7 . MR. PUTTU AGED ABOUT 42 YEARS S/O DODDAMARIGWODA

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8 . MR. BEERAPPA AGED ABOUT 38 YEARS S/O DODDAMARIGOWDA

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9 . MRS. LAKSHMI AGED ABOUT 34 YEARS D/O DODDAMARIGOWDA

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10 . MRS. JAYAMMA AGED ABOUT 65 YEARS W/O LATE SHIVANNA

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11 . MR. KARUNA AGED ABOUT 28 YEARS S/O LATE SHIVANNA

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12 . MRS. HEMA AGED ABOUT 23 YEARS D/O LATE SHIVANNA

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RESPONDENTS NOS.1 TO 12 ARE R/AT NO.579, HOSABEEDI MADIKERI MAIN ROAD HINKAL, MYSURU - 570 017.

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13 . MR. A. PAPANNA AGED ABOUT 69 YEARS S/O ANNAIAH R/AT HUNDIBEEDI HINKAL VILLAGE, KASABA HOBLI MYSURU - 570 017.

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14 . MR.BEERAPPA AGED ABOUT 70 YEARS S/O DODDAMARIGOWDA R/AT HINKAL VILLAGE

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KASABA HOBLI MYSORE-570 017.

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15 . MR. JAYAPRAKASH S/O PAPANNA AGED ABOUT 40 YEARS, R/AT HUNDIBEEDI HINKAL VILLAGE, KASABA HOBLI MYSORE-570 017.

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… RESPONDENTS

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(BY SRI. MURUGESH CHARATI, ADVOCATE FOR R1 TO R12; SRI. UMASHANKAR M.N., ADVOCATE FOR R13; SRI. K. ANAND, ADVOCATE FOR R14; SRI. N. MURALI, ADVOCATE FOR R15)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.12.2017 PASSED IN R.A.NO.489/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.04.2016 PASSED IN O.S.NO.470/2008 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 16.02.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is by the defendant Nos.3 and 4 aggrieved by the judgment and decree dated 16.12.2017 passed in R.A.No.489/2016 on the file of the II Additional District Judge, Mysuru (hereinafter referred to as 'First Appellate Court' for short) to an extent of land measuring 15 guntas in Sy.No.262/1 forming part of suit schedule property, whereby the First appellate Court set aside the judgment and decree dated 07.04.2016 passed in O.S.No.470/2008 on the file of III Additional Senior Civil Judge & CJM, Mysuru (hereinafter referred to as 'Trial Court' for short) and consequently decreed the suit.

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The above suit in O.S.No.470/2008 is filed by the plaintiffs/respondents 1 to 6, and 7 to 12 against the respondent Nos.13, 14 and the appellants herein who are defendants 1 to 4 before the trial Court for the relief of declaration that deed of sale dated 23.08.2004 executed by the defendant No.2 in favour of defendant No.1 in respect of plaint schedule property namely land

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measuring 3 acre 15 guntas in Sy.No.262/1 of Hinkal Village, Kasaba Hobli, Mysuru Taluk as null and void and not binding on the plaintiffs and also for the relief of permanent injunction restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property.

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It is the case of the plaintiffs that one Doddamarigowda also known as Marigowda had two wives namely, Smt.Mayamma (first wife) and Smt.Muddamma (second wife) the plaintiff No.1. That Beerappa-defendant No.2 is the son of Doddamarigowda through his first wife-Smt.Mayamma. That the plaintiffs 2 to 7 are the children of late Doddamarigowda through his second wife Smt.Muddamma, plaintiff No.1. It is contended by the plaintiffs that during his lifetime Doddamarigowda was managing the family properties and being in sound mind of disposition on 21.08.1998 Doddamarigowda had executed a Will bequeathing his properties in favour of his son Beerappa-the defendant

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No.2 and his second wife Smt.Muddamma- the plaintiff No.1. Accordingly both Beerappa-defendant No.2 and said Smt.Muddamma-the plaintiff No.1 were enjoying their respective shares received by them under the Will.

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It is further case of the plaintiffs that defendant No.2 had filed a suit in O.S.No.1956/1989 on the file IV Additional I Civil Judge (Jn.Dn.) Mysuru against his father Doddamarigowda claiming partition of properties including suit schedule property and said suit was dismissed on merits.

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That in the year 2004 plaintiffs for the first time

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learnt that defendant No.2 had sold the suit schedule property in favour of the of Papanna-defendant No.1. That on obtaining the documents from the office of SubRegistrar, it was found that defendant No.2 claimed right over the suit schedule properties in terms of a Will purportedly executed by his father in his favour. That Doddamarigowda desired that after his demise the suit schedule property should devolve upon his second wife

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Muddamma and her children. That plaintiffs had caused issue of a legal notice on 30.12.2004 to the Tahsildar not to change the khatha in favour of defendant No.1. Thus,

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it is contended that deed of sale executed by the defendant No.2 in favour of the defendant No.1 was null and void.

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That defendant No.1 appeared through his counsel and filed written statement denying the plaint averments contending inter-alia that plaintiffs had suppressed true facts. It is contended that plaintiffs had entered into an agreement of sale with the mother of defendant No.1-Smt. Chikkamma and with the defendant No.1 jointly agreeing to sell land bearing Sy.No.262/1 and another land in Sy.No.262/2 totally measuring 5 acres 0.28 guntas situated at Hinkal village and had also received advance sale consideration. Subsequently plaintiffs failed to come forward to execute a registered deed of sale and later defendant No.1 paid an amount of Rs.3 Lakhs through cheque in favour of Smt.Muddamma

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which was dishonoured in respect of which a case in CC.No.412/2004 was filed. That defendant No.2 since succeeded to the estate of his father by virtue of Will executed by Doddamarigowda, he had sold the suit schedule property in favour of the defendant No.1. As such, defendant No.1 was the bonafide purchaser and hence, sought for dismissal of the suit.

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That defendant No.2 had also filed written statement denying the plaint averments and contended that suit schedule property was self acquired property of his father Doddamarigowda who bequeathed the same in his favour in terms of a Will dated 10.06.2001. That Doddamarigowda passed away on 15.08.2001, thereafter in terms of Will the defendant No.2 had obtained the khatha changed in his name. That on 23.08.2004 he sold the schedule property in favour of the defendant No.1 for valuable sale consideration to meet the financial necessities. That defendant No.1 thereby obtained

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change of khatha in his name. Hence, sought for dismissal of the suit.

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Defendant Nos. 3 and 4 filed written

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statement alleging that they purchased 15 guntas of land out of 3 acres 15 guntas in Sy.No.262/1 of the suit schedule property from defendant No.1 for valuable sale consideration and khatha has been mutated in their names in accordance with law. Hence, sought for dismissal of the suit.

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9. Based on the pleadings the Trial Court framed the following issues for its consideration;

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"1. Whether the plaintiff is entitle for the relief of declaration that, the sale deed dated 23.8.2004 executed by 2nd defendant Beerappa in favour of defendants in respect of plaint suit schedule property is null and void and not binding on the plaintiff?

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2.Whether the plaintiff proves that, he is in possession of the suit schedule property as on the date of filing of the suit?

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3.Whether the plaintiff proves the alleged interference by the defendant?

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4.Whether the 2nd defendant proves that, he acquired the suit schedule property under the Will dated 10.6.2001 executed by his father Sri Doddamarigowda?

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5.Whether the 1st defendant proves that, he is a bonafide purchaser of 3 acres 0.15 guntas in suit schedule property by sale deed dated 23.8.2004?

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6.Whether the defendant no.3 and 4 proves that they are bonafide purchasers of 0.15 guntas in suit Sy.No.262/1 from 1st defendant?

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7.Whether the defendants prove that, suit is properly valued and court fee paid is insufficient?

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8.Whether the defendant no.2 proves that, suit of the plaintiff is not maintainable as the relief of declaration of title is not sought?

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9.What order or Decree?"

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That plaintiff No.7 has been examined himself

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as PW.1. Four witnesses have been examined on behalf

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of the plaintiffs as PW.2 to PW.5 and 19 documents have been marked as Ex.P1 to P19. Five witnesses have been

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examined by defendants as DW.1 to DW.5 and 44 documents have been marked as Ex.D1 to D44. The Trial Court on appreciation of the evidence on record answered the issue Nos. 1 to 3 and 8 in the negative and issue Nos.4 to 7 in the affirmative and consequently dismissed the suit.

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Being aggrieved by the same, plaintiffs preferred regular appeal in R.A.No.489/2016 before the First Appellate Court. Considering the grounds urged in the memorandum of appeal, First Appellate Court framed the following points for its consideration;

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"1.Whether the lower court was justified in holding that plaintiffs have failed to prove Ex.- 16 Will?

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2.Whether the lower court was justified in holding that Ex.D-14 Will has been proved by the defendants?

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3.Whether the lower court was justified in holding that the plaintiffs have failed to prove their possession over the suit property as on the date of institution of suit?

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4.Whether the lower court was justified in holding that without declaration of their title and without appropriate consequential relief the suit was not proper?

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5.Whether sufficient grounds are made out to allow IA No.6?

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6.Whether sufficient cause is shown to entertain IA No.9?

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7.Whether sufficient cause is shown to entertain IA 11 and 12?

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8. What order?"

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Sri.H.P.Jayaprakash, S/o Papanna, the

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defendant No.1 has been impleaded as respondent No.5

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before the First Appellate Court in view of defendant No.1 executing a deed of gift conveying 3 acres of suit schedule property in his favour in terms of deed of gift dated 28.04.2016.

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On re-appreciation of the pleadings and the evidence on record First Appellate Court answered the point No.1 in the affirmative and point Nos.2 to 7 in the negative and consequently allowed the appeal setting aside the judgment and decree dated 07.04.2016 passed in O.S.No.470/2008 and decreed the suit with costs and also declared that the sale deed dated 23.08.2004 at Ex.D2 between defendant No.1 and defendant No.2 dated 23.08.2004 and sale of 15 guntas out of suit property by defendant No.1 in favour of defendants 3 and 4 through sale deed dated 23.08.2007 at Ex.D38 as null and void and not binding upon the plaintiffs. The gift of suit property by defendant No.1 in favour of his son namely, respondent No.5 was consequently declared as

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void by its order dated 16.12.2017. Being aggrieved by

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the same, defendants 3 and 4 are before this Court.

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This Court by order dated 20.12.2023

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admitted the appeal for consideration of the following substantial questions of law:

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" 1. Whether the finding of the Appellate Court that defendant No.2 has no right in the suit schedule property bearing No.262/1 in the light of judgment rendered in earlier round of litigation more particularly O.S.No.1956/1989 and therefore, the sale deed executed by defendant No.2 in favour of defendant No.1 and defendant No.1 in turn in favour of defendant No.3 is null and void is perverse, palpably erroneous and contrary to the conclusions arrived at in O.S.No.1956/1989, wherein the Court while answering issue No.1 in the affirmative, has held that the present suit property bearing No.262/1 is an ancestral property and the present defendant No.2, who was plaintiff is entitled to an extent of 20 guntas in Sy.No.262/1?

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2. Whether the Appellate Court erred in decreeing the suit, thereby declaring the sale deed of defendant No.3 to an extent of 15 guntas as null and void and the Appellate Court, while granting the declaration, has virtually misread the conclusions recorded in O.S.No.1956/1989, vide Ex.P.12?

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3. Whether the Appellate Court failed to note that defendant No.3, who is tracing title through defendant No.2, his sale deed cannot be declared as null and void as defendant No.2 tentatively had share to an extent of 20 guntas in Sy.No.262/1 and

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the sale by defendant No.2 in favour of defendant No.1 and the same in turn in favour of defendant No.3 being only to an extent of 15 guntas is found to be well within the legitimate share of defendant No.2 and therefore, defendant No.3's sale deed cannot be declared as null and void?

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4. Whether the Appellate Court, having disbelieved the Will set up by the plaintiff, erred in granting relief of declaration when the entire suit seeking relief of declaration questioning the sale deed is based on a Will?

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5. Whether the consequential relief of injunction granted by the Appellate Court suffers from serious perversity when the clinching rebuttal evidence let in by defendant Nos.1 and 2 clearly indicates that their vendor, defendant No.2 has a legitimate share to the extent of 20 guntas, which is also rightly taken note of by the Appellate Court?".

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Smt.S.R.Anuradha, learned Senior counsel

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appearing for Smt.Sabahath Sultana, learned counsel for appellants reiterating the grounds urged in the memorandum of appeal submitted that:

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a) The First Appellate Court ought not to have

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reversed the finding and conclusion arrived at by the trial Court and consequently decreed the suit without appreciating the very pleading of the plaintiffs in the plaint.

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b) That plaintiffs ought to have come clear as to the basis on which they are claiming relief of declaration with regard to validity of the deeds of sale. In the absence of any material evidence the First Appellate Court grossly erred in holding the suit schedule property as ancestral property of deceased Doddamarigowda and plaintiffs are the co-parceners. While it is an admitted fact that the suit schedule property is the absolute property of Doddamarigowda. That even in the plaint the plaintiffs have contended

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that the suit property was absolute property of Doddamarigowda who had executed Will dated 21.08.1998 and intended that after his demise the suit schedule property should devolve on his second wife and her children, the plaintiffs.

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c) That the interpretation and construction of the Judgment and decree in O.S.No.1956/1989 as made by the First Appellate Court to come to the conclusion that the suit property is ancestral property is

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erroneous and perverse. That in the said suit issue No.3 was framed casting the burden on

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Doddamarigowda to prove if the suit property was his self acquired property and that the said issue has been answered in the affirmative in favour of Doddamarigowda holding the property to be his absolute property. Thus, the very premise on which the First Appellate Court has proceeded to consider the suit property to be the ancestral property and that Doddamarigowda was not having right to execute the Will in favour of defendant No.2 is erroneous.

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d) That the First Appellate Court ought to have appreciated the rights of the parties with respect to the suit schedule property in that in an earlier round of litigation in O.S.No.1956/1989, it was categorically held that Beerappa-defendant No.2 herein was entitled for 20 guntas of land forming part of the suit

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schedule property and the said finding had attained finality.

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e) That though the said suit in O.S.No.1956/1989 resulted in dismissal there being no severance of the joint family status. That being the fact, the First Appellate Court could not have come to the conclusion by wrongly reading the said Judgment to hold that Beerappa-defendant No.2 had allegedly severed from the joint family.

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f) That the First Appellate Court having held that the suit property was the ancestral property and that Doddamarigowda could not have executed the Will to the entire extent of suit property and that even in terms of Section 30 of the Hindu Succession Act, 1956 Doddamarigowda could have executed Will only to the extent of his share, ought not to have held that he had no right to execute Will at all.

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g) That the suit for mere declaration of sale deeds as not binding, without seeking declaration of title, the suit of the plaintiffs could not have been entertained.

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h) That the reasoning and conclusion arrived at by the First Appellate Court is erroneous for the reason that the plaintiffs who apparently sought for declaration based on the Will dated 21.08.1998 allegedly executed by deceased Doddamarigowda and the First Appellate Court having concurred with the trial Court and concluded that the said Will was not proved by the appellants ought to have dismissed the suit. The First Appellate Court thus erred in proceeding further to enquire into the entitlement of defendants in executing the sale deed which is contrary to settled principles of law that the plaintiffs seeking relief of declaration is required to discharge the burden, only thereafter the other issues would be adverted to. Thus, the very approach of the First Appellate Court is erroneous and unsustainable.

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j) that the finding of the First Appellate Court that defendant No.2 did not have any right in the schedule property is unsustainable and contrary to the finding arrived at in O.S.No.1956/1989 wherein while answering issue No.1 it has been held that the defendant No.2 herein was entitled for 20 guntas of land. Thus, the sale deed executed by defendant No.2 in favour of defendant No.1 conveying the suit schedule property measuring 3 acres 15 guntas could not have been held to be invalid in its entirety inasmuch as defendant No.2 was entitled for an extent of 20 guntas in suit schedule property even as held in the Judgment passed in the said O.S.No.1956/1989.

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k) Learned Senior counsel relied upon the following authorities:

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Ramdayal v. Mannaklal reported in AIR 1973 MP 222

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Anathula Sudhakar v. P Buchi Reddy (dead) by Lrs and ors. in Civil Appeal No.6191/2001 dated 25.03.2008

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Union of India and ors. V. Vasavi Co-op. Housing Society ltd. and ors. in Civil Appeal No.4702/2004 dated 07.01.2014.

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Janki Narayan v. Narayan Namdeo (2003) 2 SCC 91

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Raniammal v. A.Saroja reported in 2019 SCC Online Mad 11921

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Mahesh Kumar (dead) by Lrs v. Vinod Kumar and ors. in Civil Appeal No.7587-88/2004 dated 13.03.2012

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On the other hand Sri.Murugesh V. Charati, learned counsel appearing for the respondents/plaintiffs justifying the Judgment and order passed by the First Appellate Court submitted:

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a) That deceased Doddamarigowda had executed a Will dated 21.08.1998 in terms of which he had bequeathed his properties in favour of Beerappa- defendant No.2 and his second wife Muddamma- plaintiff No.1. In terms of

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the said Will three items of the properties namely (i) land in Sy.No.268/1 measuring 1 acre 6 guntas (ii) Sy.No.268/2 measuring 0.01 gunta and (iii) a house property were bequeathed in favour of Beerappa while eight items of properties namely (i) Sy.No.262/1

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measuring 3 acres 15 guntas, (ii) Sy.No.262/2 measuring 2 acres 13 guntas (iii) Sy.No.269/5A measuring 15 1/2 guntas (iv) Sy.No.269/5B measuring 15 1/2 guntas (v)Sy.No.269/3C measuring 25 guntas (vi) Sy.No.269/A measuring 24 guntas and (vii) Sy.No.269/4B measuring 24 1/2 guntas (viii) three shops and a house were bequeathed in favour of Muddamma, plaintiff No.1.

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b) That the Will dated 21.08.1998 was a registered Will and upon the demise of said Doddamarigowda on 15.08.2001 the Will was given effect to and the properties were being enjoyed as per the bequeath made in the said Will.

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c) That the claim made by defendant No.2 of Doddamarigowda executing Will dated 10.06.2001 was not tenable as the said Will was unregistered Will. Referring to the reasoning assigned by the First Appellate Court at paragraphs 29, 30 and 36 of the Judgment he submitted that as rightly held by the First Appellate Court when defendant No.2 was admittedly prosecuting the

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litigation against his father Doddamarigowda in O.S.No.1956/1989 which was disposed of on 30.11.1998 that is for nearly about 10 years and even thereafter when the appeal was filed by the defendant No.2 against the dismissal of the said suit, there was no possibility of said Doddamarigowda executing the said Will in favour of defendant No.2. Thus, he submitted that the reliance placed on the Will by defendant No.2 and based on the said Will he conveying the suit property in favour of defendant No.1 on 23.08.2004 was untenable. Thus, he submitted that the sale of the property by defendant No.2 in favour of defendant No.1 and by defendant No.1 in favour of defendants 3 and 4 who are the appellants in this appeal is one without authority.

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d) Further referring to the observation made with regard to entitlement of defendant No.2 to an extent of 20 guntas of land as made in the Judgment in O.S.No.1956/1989, he submitted that there was a severance of joint family status as such, defendant No.2

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cannot claim to be member of joint family and even on that basis could not have alienated the suit property. Thus, he submitted that the substantial questions of law needs to be answered against the appellants and in favour of the respondents/plaintiffs.

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Heard and perused the records.

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There is no dispute of the fact that suit schedule property belonged to late Doddamarigowda and that plaintiffs and defendant No.2 are his legal heirs.

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The trial Court has held that the Will dated 21.08.1998 propounded by plaintiffs as not proved.

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However, the trial Court has held the Will dated 10.06.2001 propounded by defendant No.2 as proved. Based on this finding the trial Court dismissed the suit and declined to grant the relief as sought for by the plaintiffs.

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Contrary to the above, the First Appellate Court has found both the Wills dated 21.08.1998 and

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10.06.2001 as not having been proved. Further the First Appellate Court found the suit schedule property to be the ancestral property. The basis for the reasons assigned by the First Appellate Court to arrive at such a conclusion of suit property being ancestral property is, that in O.S.No.1956/1989, which was initiated by defendant No.2 for partition against his father, he had claimed the property to be the ancestral property. Further at page 16 of Judgment in the said suit O.S.No.1956/1989 at Ex.P.12, there is an observation that defendant No.2 had already got his share in the ancestral property and was not entitled for partition.

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The First Appellate Court thus having held the suit schedule properties to be ancestral property further proceeded to observe, that since the suit schedule property is ancestral property, even in terms of provisions of Section 30 of the Hindu Succession Act, 1956 deceased Doddamarigowda could not have executed the Will in excess of his entitlement.

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The First Appellate Court has further held that the plaintiffs 2 to 11 being children of Smt.Muddammaplaintiff No.1, who is the second wife of Doddamarigowda, were also coparceners being entitled for share in the ancestral property and as such and Doddamarigowda could not have executed a Will depriving them of their share and entitlement.

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The First Appellate Court having thus held, proceeded further to examine the entitlement and authority of defendant No.2 in executing the deed of sale dated 23.08.2004 conveying 3 acres 15 guntas in Sy.No.262/1 in favour of defendant No.1. Since the First Appellate Court had already concluded that the suit schedule property was the ancestral property and the defendant No.2 had severed from his family, it opined that there was no question of defendant No.2 having any share and entitlement in the suit schedule property. It has further held that since Doddamarigowda could not have executed a Will even in terms of Section 30 of the

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Hindu Succession Act, 1956, defendant No.2 could not have derived right, title and interest either under the Will or otherwise and the sale made by him was thus not valid and sustainable.

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However at paragraph 40 of its Judgment referring to Section 44 of the Transfer of Property Act the First Appellate Court has held that defendant No.2 was not competent to sell more than his share and if he had sold the entire property then the sale deed against the co-owners was void ab initio and that the purchaser cannot have more right than his vendor could convey.

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Relevant at this juncture to note the findings arrived at in the Judgment rendered in O.S.No.1956/1989 which is produced at Exhibit P-12. Relevant also to refer to issue Nos.1, 2 and 3 framed in the said suit which are as under:

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Whether the plaintiff proves that the plaint schedule properties are the ancestral joint family properties and are in joint possession and enjoyment of the plaintiff and defendant?

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Whether the plaintiff further proves that he is entitle for half share in the plaint schedule properties by metes and bounds separately?

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Whether the defendant proves that S.No.262 and 269 of Hinkal village are his self acquired properties as contended in para 13 of the written statement?

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While answering said issues, the Court therein in its Judgment at paragraphs 16, 17 and 18 has held as

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under:

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Out of the suit schedule property the plaintiff can only claim his share in item no.1 of Part I of schedule 'A' and item no.2 of Part I schedule A and item No.1 of Part I schedule 'B'. About other items no.3 and 4 of Part I 'A' schedule are self acquired property of the defendant as admitted by the plaintiff himself. About item no.5 of Part I 'A' schedule property no survey number is mentioned. Hence this Court cannot pass any orders of the property without survey numbers. About Part II of schedule 'A' as there is no numbers given by the plaintiff the Court cannot pass orders on any item without numbers and about item no.2 to 6 of schedule 'B' property no documentary evidence had been produced by the plaintiff that these properties are owned by the defendant. Hence, as the plaintiff had already residing in 5 ankanams house and sold 1 acre 8 guntas of property to one Papanna. About item no.1 of Part I of A schedule the plaintiff and not produced any document as to in whose names the property stands. Hence, as the plaintiff is already go his share in the ancestral property he is not entitled for partition. But the

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plaintiff is entitled for half share being a son through first wife of defendant. Hence as the defendant had allotted 1 acre 8 guntas of land in his ancestral property, the plaintiff is entitled only to an extent of 20 guntas of land in sy.no.262/1 measuring 3 acres 15 guntas, Hinkal village which is the item no.2 of Part I 'A' schedule which is the ancestral property admittedly by both the parties. Hence I answer this issue in the affirmative.

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17. Issue No.2:

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Basing on the evidence on record it is seen that there is already one partition took place and hence when the joint family is not in existence there is no question of once again partition the joint family or to severe the status of joint family arise at all. Hence, I answer this issue in the negative.

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18. Issue No.3:

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For this the defendant had brought to the notice of this Court about admission made by the plaintiff during the course of cross examination in para 2 at page no.6. zÁªÁ µÉqÀÆå¯ï ¸ÀévÀÄÛ ¸ÀªÉð £ÀA.262 ªÀÄvÀÄÛ 269 £ÀªÀÄä vÀAzÉAiÀÄ ¸ÀéAiÀiÁfðvÀ D¹Û JAzÀgÉ ¸Àj.

¶177

He further volunteers and says that his grand father had purchased the items on behalf of his father. But no documentary evidence has been produced by the plaintiff in support of his version. Whereas the defendant had produced Ex.D-2, Ex.D-3 which are the document clearly goes to show that the defendant had purchased these two items. Hence, I answer this issue in the affirmative.

¶178

¶179

Necessary to note that the said suit in O.S.No.1956/1989 was dismissed holding that the suit was bad for non-joinder of necessary parties namely Smt.Muddamma the second wife of Doddamarigowda and her children.

¶180

Thus, what emanates from the reasoning and conclusion arrived at in the Judgment passed in O.S.No.1956/1989 is that the suit schedule property was the absolute property of Doddamarigowda. Further even as found in the said Judgment defendant No.2 herein was entitled atleast to an extent of 20 guntas of land in the schedule property.

¶181

In the light of the above, the reasoning assigned by the First Appellate Court at paragraph 39 of its Judgment that "No doubt in Ex.P.12 there is an observation that defendant No.2 might at the most was entitled to 20 guntas in the instant suit properties. Such observation does not create any right in favour of defendant No.2. It was a passing of observation. In the

¶182

¶183

very judgment when it was already concluded that defendant No.2 herein has been severed from family there was no question of such entitlement. Further, the other sons of propositus who are co- parceners, were not party to it to determine exact extent," to hold that defendant No.2 is not entitled for any share in the suit schedule property is incorrect and erroneous.

¶184

Relevant also to note that when both the trial Court as well as the First Appellate Court have held that the Will dated 21.08.1998, based on which plaintiffs claimed the relief in the suit, as not proved, there is no basis for grant of any relief in favour of the plaintiffs. There is no challenge to the said finding and conclusion arrived at by the trial Court and First Appellate Court by the plaintiffs.

¶185

On the other hand, as regards the Will dated 10.06.2001 set up as defence by defendant No.2, though

¶186

¶187

the trial Court held it to be proved the First Appellate Court reversed the said finding.

¶188

Thus the claim of both the plaintiffs and defendant No.2 on the issue of Wills dated 21.08.1998 and 10.06.2021 have been negated by the First Appellate Court.

¶189

The effect of the above, findings and conclusions arrived at by the First Appellate Court is that the suit schedule property of Doddamarigowda has remained intact. It is nobody's case that suit schedule property has been partitioned earlier or subsequent to demise of Doddamarigowda.

¶190

Further revenue records, produced at Ex.D-18 and 19 reveal that name of Doddamarigowda being reflected till the year 2003-2004, though he stated to have been passed away in the year 2001.

¶191

Thus, from the records, more particularly from the Judgment in O.S.No.1956/1989 as noted above, what

¶192

¶193

emanates is that, the suit schedule property belonged to Doddamarigowda. Plaintiffs and defendant No.2 are his only legal heirs. That upon the demise of Doddamarigowda his property having remained undivided devolved upon his legal heirs. Notwithstanding the fact that the two Wills propounded by the plaintiffs as well as defendant No.2 were held to be invalid and the finding by the First Appellate Court that the schedule property was ancestral, plaintiffs and defendant No.2 being his legal heirs were definitely entitled for their specified shares in the properties left behind by Doddamarigowda.

¶194

The appellants who are defendants 3 and 4 claimed to have purchased 15 guntas of land from defendant No.1 in terms of deed of sale dated 23.08.2007. Defendant No.1 in turn had purchased entire extent of 3 acres 15 guntas from defendant No.2 under deed of sale dated 23.08.2004. The fact remains that defendant No.2 was indeed entitled for his share atleast

¶195

¶196

to an extent of 15 guntas of land in suit schedule property measuring 3 acres 15 guntas in Sy.No.262/1, which has been purchased by the defendants 3 and 4 who are appellants before this Court.

¶197

Relevant at this juncture also to note that aggrieved by the Judgment and decree of the First Appellate Court defendant No.1 -Papanna had filed Regular Second Appeal in RSA No.448/2018 and his son Jayaprakash filed appeal in RSA 635/2018. Defendant No.2 -Beerappa had filed appeal in RSA No.76/2018.

¶198

RSA No.635/2018 has been disposed of on 23.06.2022, in view of the parties therein having entered into a compromise in terms of which an extent of 1 acre

¶199

30 guntas of land has been allotted to the share of Jayaprakash, S/o Papanna, respondent No.15 herein. An extent of 1 acre 10 guntas has been allotted to the children of Smt.Muddamma, respondents 1 to 12 herein. The remaining extent of 15 guntas has been kept vacant.

¶200

¶201

A sketch in this regard has also been enclosed to the said compromise petition filed in RSA No.635/2018.

¶202

Consequent upon disposal of the said RSA No.635/2018 as above, the other two RSA No.448/2018 and RSA No.76/2018 have been dismissed as withdrawn upon the memo filed by the appellant therein.

¶203

The aforesaid subsequent developments in the nature of compromise entered into between the contesting parties leaving out the extent of 15 guntas of land would also have bearing on the outcome of the present appeal.

¶204

As already noted the entitlement of Beerappadefendant No.2 to an extent of 15 guntas having been recognized in the suit in O.S.No.1956/1989 which extent has been purchased by the appellants herein through and under respondent No.13 herein, cannot be found to be one without authority.

¶205

¶206

There is yet another aspect of the matter which requires to be taken note of, that is, even if the finding of the First Appellate Court regarding suit schedule property being ancestral property and plaintiffs, being the legal heirs of Doddamarigowda are the coparceners is to be accepted, same under no circumstances can be held to mean that Beerappa-defendant No.2 is neither member of the joint family nor is he entitled for any share in the property as understood by the First Appellate Court. As already noted after the demise of Doddamarigowda the suit schedule property devolved upon the plaintiffs and defendant No.2 being his legal heirs. It is settled law even if one member of the joint family alienates the joint family property such alienation would be valid and binding to the extent of the share he is entitled for. This aspect of the matter has been taken note of even by the First Appellate Court in paragraph 40 of its Judgment in the context of Section 44 of the Transfer of Property Act as noted above. As such, alienation of property by

¶207

¶208

Beerappa-defendant No.2 atleast to an extent of 15 guntas cannot be held to be invalid.

¶209

In that view of the matter, this Court is of the considered view that the First Appellate Court has lost sight of these aspects of the matter while decreeing the suit by setting aside the Judgment and decree passed by the trial Court.

¶210

The substantial questions of law framed are thus answered accordingly.

¶211

Hence, the following:

¶212

ORDER

¶213

Appeal is allowed.

¶214

The Judgment and order dated 16.12.2017 passed by the First Appellate Court in R.A.No.489/2016 holding that the alienation by defendant No.2 in favour of defendant No.1 vide deed of sale dated 23.08.2004 at

¶215

Ex.D2 in respect of the suit schedule property as null and void and not binding on the plaintiffs is modified to the

¶216

¶217

extent excluding 15 guntas of land forming part of suit schedule property; and

¶218

Consequently, the order of the First Appellate Court holding that the subsequent sale by defendant No.1 in favour of defendants 3 and 4 in terms of deed of sale dated 23.08.2007 at Ex.D38 as null and void is set

¶219

aside.

¶220

Sd/JUDGE

¶221

RU/SBN

Mr H B Ashok v. Mr Ramu

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Mr H B Ashok v. Mr Ramu

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