Smt.Sunita W/O. Nagaraj Badiger Vs Sri.Prakash S/O. Rudrappa Guddakeri

SMT.SUNITA W/O. NAGARAJ BADIGER, AGE: 37 YEARS, OCC. HOUSEHOLD WORK, R/O. GURUDATTA NILAYA, NEAR SIDDARUDHA MATHA, HUBBALLI, DIST. DHARWAD, PIN CODE-580020.

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Digitally signed
by YASHAVANTNARAYANKAR
Location: HIGH
COURT OF
YASHAVANTNARAYANKAR KARNATAKADHARWADBENCH
DHARWAD
Date:
2025.06.16
14:31:23
+0530

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SMT.MAMATA W/O. RAGHAVENDRA KAMMAR, AGE: 32 YEARS, OCC. HOUSEHOLD WORK, R/O. HIREMARALIHALLI, TQ. SAVANUR, DIST. HAVERI, PIN CODE-581118.

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SMT.GEETA W/O. RUDRAPPA GUDDAKERI, AGE: 62 YEARS, OCC. HOUSEHOLD WORK, R/O. HOSANAGAR, 3^RD CROSS, HAVERI, DIST. HAVERI, PIN CODE-581110.

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…APPELLANTS

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(BY SRI. NAVEEN CHATRAD, ADVOCATE)

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NC: 2025:KHC-D:7298-DB RFA No. 100488 of 2019

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HC-KAR

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AND:

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SRI.PRAKASH S/O. RUDRAPPA GUDDAKERI, AGE: 33 YEARS, OCC. DRIVER CAREER, HOSANAGARA, HAVERI,

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TQ. AND DIST. HAVERI, PIN CODE-581110.

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SRI.PRASHANTH S/O. RUDRAPPA GUDDAKERI, AGE: 28 YEARS, OCC. DRIVER CAREER, HOSANAGARA, 3^RD CROSS, HAVERI, PIN CODE-581110.

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SMT.KANTINI @ MANJULA W/O. SHANMUKHAPPA KAMMAR, AGE: 38 YEARS, OCC. HOUSEHOLD WORK, R/O. MELINA PETE, DR.S.S.KAMMAR HOSPITAL, HAVERI, PIN CODE-581110.

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…RESPONDENTS

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(BY SRI. N.P. VIVEKMEHTA, ADVOCATE; R1 AND R2-NOTICE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.07.2019 PASSED IN O.S.NO.64/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, HAVERI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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NC: 2025:KHC-D:7298-DB RFA No. 100488 of 2019

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The plaintiffs in OS No.64/2017 on the file of the Principal Senior Civil Judge and CJM, Haveri [ hereinafter referred to as ‘trial Court’ for short ] have filed this Regular First Appeal challenging the judgment and decree dated 29.07.2019 by which the suit for partition and separate possession of their undivided share in the suit property was dismissed.

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For the sake of convenience and easy

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understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

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The plaintiff Nos.1 and 2 and defendant Nos.1 and 2 are siblings and plaintiff No.3 is their mother. The plaintiffs claim that they all constituted a joint family. They contended that the suit property was a joint family ancestral property and that the same was purchased out of the joint earnings of all the members of the family by

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their father in terms of the sale deed dated 27.07.1993. They contended that their father died in the year 2009 and after the death of their father, they came to know that defendant No.3 took advantage of the fact that their father was addicted to alcohol and obtained a fraudulent sale deed dated 20.08.1988. They contented that they came to know about the fraudulent sale deed only about a month before the suit was filed. They therefore claimed that the suit property was sold without their consent, knowledge and notice and consequently, did not bind their right, title or interest. They also contended that each of them are entitled to an undivided share in the suit property and therefore, filed the instant suit for partition and separate possession of their 1/5^th share in the suit schedule property and to declare that the sale deed in favour of defendant No.3 did not bind their right, title or interest.

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The suit schedule property is a vacant site bearing Plot No.12 in R.S.No.29/B measuring 2 Guntas 2 Annas situated at Ijarilakamapur, Haveri taluk. The

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defendant Nos.1 and 2 filed a written statement, admitting the assertions made by the plaintiffs in the plaint and prayed that their 1/5^th share may be demarcated and separate possession be handed over to them. They also claim that they were not bound by the sale deed executed in favour of defendant No.3.

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The defendant No.3 filed a written statement denying the assertions made in plaint and contended that the father of the plaintiff Nos.1 and 2 and defendant Nos.1 and 2 had lawfully sold the suit property for lawful consideration and that the defendant No.3 was placed in possession of the suit property. She contended that the allegation of the plaintiffs that the sale deed dated 20.08.1998 was fraudulent and that the defendant No.3 had exploited the situation of the father of the plaintiffs and obtained the sale deed was false. She claimed that the father of the plaintiffs did not challenge the said sale deed during his lifetime and that the plaintiffs who were aware of the sale deed and the fact that the defendant No.3 was

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in possession of the suit property did not take any steps from the year 1998 to challenge it till the father of the plaintiff Nos.1 and 2 died in the year 2009 and also thereafter. Therefore, it was contended that the suit was highly belated. She also claimed that the property was not

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the ancestral joint family property as contended by the plaintiffs, but contended that it was purchased by the father of the plaintiffs in terms of a sale deed dated 27.07.1993.

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Based on these contentions, the trial Court

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framed the following;

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ISSUES

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“1. Whether the plaintiffs prove that suit property is ancestral joint family property of plaintiffs and defendant No.1 and 2?

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2. Whether the plaintiffs prove that suit property is in joint and constructive possession of plaintiffs and defendant No.1 and 2?

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3. Whether the plaintiffs prove that alienation made in favor of 3^rd defendant under registered sale deed dated:20.08.1998 is not binding on the plaintiff?

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4. Whether the plaintiffs prove that they are entitled for 1/5^th share each in the suit property?

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5. Whether the plaintiffs are entitled for the reliefs as claimed in the suit?

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6. What order or decree?”

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7. The plaintiff No.3 was examined as PW.1 and

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she marked the certified copy of the sale deeds dated 27.07.1993 and 20.08.1998 as Ex.Ps.1 and 2. She also placed on record Ex.Ps.3 to 5 which were the RTC extracts of the suit property and Ex.Ps.6 to 9 which were the mutation extracts. She examined PW.2 who is the husband of the plaintiff No.1. The defendant Nos.1 and 2 did not adduce any evidence while defendant No.3 was examined as DW.1.

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HC-KAR

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Based on the oral and documentary evidence,

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the trial Court held that the plaintiffs were unable to prove that the suit property was a joint family ancestral property. It is also held that the plaintiffs were not in joint and constructive possession of the suit property and that the sale of the suit property by the father of the plaintiff Nos.1 and 2 to the defendant No.3, was valid and binding upon the plaintiffs and defendant Nos.1 and 2. Consequently, it refused the relief sought by the plaintiffs for partition and separate possession of their 1/5^th share in the suit property. Being aggrieved by the said judgment and decree, the plaintiffs are before this Court in this appeal.

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Learned counsel for the plaintiffs contended that the suit property was conveyed to the father of the plaintiff Nos.1 and 2 and defendant Nos.1 and 2 in terms of the sale deed dated 27.07.1993 and was duly registered before the concerned Sub-Registrar. The market value of the suit property mentioned in the sale deed was a sum of

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Rs.22,500/-. He contends that when the property was conveyed to defendant No.3 on 20.08.1998, the sale consideration shown was a sum of Rs.18,500/-. He therefore contends that this itself indicates that the sale

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deed was unconscionable and was obtained fraudulently.

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He contends that the plaintiff No.3, though being a housewife, was also earning from tailoring work, which she contributed for purchasing the suit property. He contends that the plaintiff No.3 cannot be expected to produce proof in respect of the tailoring work that she undertook and the income she generated. He contends that plaintiff No.3 has categorically deposed that she was doing tailoring work and was earning income therefrom, which she contributed for purchasing the suit property. He contends that from the date of purchase, the funds of the family was utilized for paying the property tax and for maintenance of the suit property and therefore for all practical purposes, the suit property was construed as the joint family property, where each member of the family

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was entitled to an undivided share. He therefore contends that the trial Court committed an error in not noticing the evidence adduced by the plaintiff No.3. He further contends that in the sale deed dated 27.07.1993, a specific condition was prescribed that the property shall not be sold without prior permission of Haveri Taluka Suvarnakarara Kaigarika Kelasagarara Sanga Niyamita. Therefore, he contends that the suit property could not have been sold and the sale in favour of defendant No.3 is unenforceable and does not bind the right, title or interest of the plaintiffs on the suit schedule property. He further contends that the suit is not barred by the law of limitation as the plaintiffs are residing in the adjacent portion of the suit property and that they came to know about the claim made by the defendant No.3 only when the defendant No.3 attempted to enter upon the suit property. Thus he contends that the suit is not barred by the law of limitation.

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Learned counsel for defendant No.3 on the

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other hand contended that the suit property was part of a larger area which was allotted to father of plaintiff Nos.1 and 2 and defendant Nos.1 and 2 by the Haveri Taluka Suvarnakarara Kaigarika Kelasagarara Sanga Niyamita, which was followed by a sale deed dated 27.07.1993. He contends that the father of plaintiff Nos.1 and 2 and defendant Nos.1 and 2 was a Goldsmith and was earning from his avocation. He contends that there is no evidence on record to establish that other than the father of the plaintiff Nos.1 and 2 and defendant Nos.1 and 2 any member of the family was earning any income which he or she contributed for purchasing the suit property. He contends that in order to meet the necessities of the family, the father of plaintiff Nos.1 and 2 had lawfully conveyed the suit property to the defendant No.3 on 20.08.1998. He contends that the suit property that was allotted to the father of the plaintiffs was 4 guntas out of which, a portion of the property was conveyed to the

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defendant No.3 for valid consideration. Therefore, he contends that there is no illegality in the sale in favour of the defendant No.3 warranting any declaration that the same is not binding on the plaintiff Nos.1 to 3 and defendant Nos.1 and 2. Precisely, he contends that the sale in favour of the defendant No.3 was on 20.08.1998 and the father of plaintiff Nos.1 and 2 and defendant Nos.1 and 2 did not question the same during his lifetime, till he died in the year 2009. He contends that the plaintiffs are in possession of the adjacent portion and that they were fully aware of the claim of defendant No.3 to the suit schedule property. He contends that the plaintiffs also did not take any steps from the year 1998 till the year 2017 when they filed the instant suit for partition and separate possession. Therefore, he contends that the suit is highly belated, mischievous, intended to harass and cause inconvenience to the defendant No.3. This apart, he claims that though the plaintiffs claim that the suit property was a joint family ancestral property, nothing is

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placed on record to establish that the family possessed any other property from which, the suit property was purchased. He therefore contends that the plaintiffs have failed to establish that the suit property belongs to the family and that they were entitled to an undivided share therein. Further, he contends that the suit property was sold for a valid consideration in order to enable the father of the plaintiff Nos.1 and 2 to meet the family necessities and hence is binding upon the plaintiffs, even if the property is assumed to be the property of the joint family. He therefore contends that the trial Court has considered all these contentions and has rightly held that the plaintiffs are not entitled to any share in the suit property.

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Having heard the learned counsel for the plaintiffs and the learned counsel for defendant No.3, the following point arises for our consideration;

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“Whether the plaintiffs have produced

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any material evidence before the trial Court

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to establish that the suit property is belongs

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to the joint family and also whether the plaintiff No.3 had produced any material to show that she had contributed for purchasing the suit schedule property and therefore, the sale in favour of defendant No.3 does not bind upon the plaintiffs?”

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The plaintiff Nos.1 and 2 and defendant Nos.1 and 2, who claimed that the suit property belonged to the joint family, did not step into the witness box. Even otherwise, going by their age mentioned in the cause title of the plaint, it is more than evident that plaintiff Nos.1 and 2 and defendant Nos.1 and 2 were minors as on the date of the sale of the suit property by their father in favour of defendant No.3. Thus, it cannot lie in their mouth that they had contributed for purchasing the suit schedule property. The plaintiffs have not disclosed whether their family had any other source of income from which the suit property was purchased. They have also not

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disclosed whether their family was possessing any other property, the income from which was ploughed into purchase the suit schedule property. The solitary evidence adduced by plaintiff No.3 discloses that she was a house wife but, was doing tailoring work and was earning, which

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she contributed to purchase the suit property. The relevant portion of the evidence is extracted below;

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“6. £À£ÀUÉ ªÀÄ£ÉUÉ®¸À ©lÖgÉ ¨ÉÃgÉ GzÉÆåÃUÀ §gÀÄªÀÅ¢®è JAzÀgÉ ¸Àj. ¸ÁQë ªÀÄÄAzÀÄªÀgÉzÀÄ £Á£ÀÄ mÉæÃ®jAUï PÉ®¸À ªÀiÁqÀÄwÛzÉÝ JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. £Á£ÀÄ mÉæÃ®jAUï PÉ®¸À ªÀiÁr ¸ÀA¥ÁzÀ£É ªÀiÁqÀÄwÛzÉÝ JAzÀÄ AiÀiÁªÀÅzÉÃ zÁR¯É ºÁdgÀ¥Àr¹®è.”

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Plaintiff No.3 though did not have produce any

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documentary evidence to establish that she was earning income from tailoring work, she could have adduced evidence of any of her customers who had availed her services to drive home the fact that she was earning income from tailoring. Except the self-serving statement of PW.1 that she was also earning income from which she

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contributed to purchase the suit property, no tangible evidence was placed on record before the trial Court in proof of their contention that the property belonged to the joint family.

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It is now well settled that a ‘Karta’ allowing the

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members of his family to stay in a property owned by him, does not impress it with the seal of a joint family. In order to construe that a property belongs to a joint family, there should be an active participation by all members in acquiring, possessing and enjoying the property. In the instant case, we do not see any of the ingredients to treat the suit property as a joint family property of the plaintiffs and defendant Nos.1 and 2.

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It appears that the suit property was part of a larger area that was granted to the father of the plaintiff Nos.1 and 2. It also appears that the possession of the property was delivered to the defendant No.3 as on the date of the sale deed. The father of the plaintiffs and

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defendant Nos.1 and 2 was alive till the year 2009. There is no material on record to establish that the father of the plaintiffs had ever made any attempts to unsettle or challenge the sale deed executed in favour of defendant No.3. A meek claim is made that the defendant No.3, taking advantage of the addiction of the father of the plaintiffs to alcohol, had obtained the sale deed dated 20.08.1998. Unfortunately no evidence is produced before the trial Court to establish the said fact. Therefore, the trial Court had no other option than to reject the claim of the plaintiffs that the suit property was a joint family property and the plaintiffs had contributed for purchase of the suit property. In view of the fact that the suit property was conveyed by the father of plaintiff Nos.1 and 2 and defendant Nos.1 and 2 to the defendant No.3 for consideration, which apparently was for meeting the necessities of the family, the trial Court was well justified in dismissing the suit filed by them.

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In view of the aforesaid, we answer the point

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for consideration stated above in the negative and consequently, no interference is warranted with the impugned judgment and decree passed by the trial Court. Hence, the appeal is dismissed .

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Sd/-

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(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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PJ/ CT:PA LIST NO.: 1 SL NO.: 39

Smt.Sunita W/O. Nagaraj Badiger v. Sri.Prakash S/O. Rudrappa Guddakeri

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Smt.Sunita W/O. Nagaraj Badiger v. Sri.Prakash S/O. Rudrappa Guddakeri

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