Sri Dhananjaya Vs Sri T Nagaraj

SRI. T.T. BASAVARAJU, S/O LATE THIPPAIAH, AGED ABOUT 50 YEARS, BOTH ARE RESIDENTS OF NO.815, SHANKARAPPA LAYOUT, TIPTUR TOWN - 572 201, TUMKUR DISTRICT.

¶11

…APPELLANTS Digitally (BY SRI. S.P. KULKARNI, SR. ADVOCATE FOR signed by SHILPABAI S SRI. PAVAN KUMAR YARAGANAVI, ADVOCATE) Location: HIGH COURT OF AND: KARNATAKA

¶12

SRI. T. NAGARAJ, S/O LATE THIPPAIAH (ALSO S/O NINGAMMA W/O THIPPAIAH) AGED ABOUT 52 YEARS WORKING AT BESCOM, NITTUR, GUBBI TALUK

¶13

2 -

¶14

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶15

HC-KAR

¶16

TUMKUR DISTRICT – 572 216.

¶17

…RESPONDENT

¶18

(BY SRI. B.R. RAGHAVENDRA, ADVOCATE FOR SRI. K.S. RAMASWAMY IYNEGAR, ADVOCATE)

¶19

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 12.6.2013 PASSED IN R.A.NO.5/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, TIPTUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 18.11.2006 PASSED IN OS.NO.290/2001 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, TIPTUR.

¶20

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶21

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

¶22

ORAL JUDGMENT

¶23

This Regular second appeal is filed by the appellants challenging the judgment and decree dated 12.06.2013, passed in R.A.No.5/2007 by the learned Senior Civil Judge and JMFC, Tiptur.

¶24

For convenience, the parties are referred to based

¶25

on their ranking before the trial Court. The appellants were the plaintiffs and the respondent was defendant No.2.

¶26

3 -

¶27

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶28

HC-KAR

¶29

Brief facts, leading rise to the filing of this appeal

¶30

are as follows:

¶31

The plaintiffs filed a suit for partition and separate possession. It is the case of the plaintiffs that the plaintiffs and defendant No.2 are brothers and defendant No.1 is their mother. The plaintiffs’ father, by name Thippaiah, had deserted his wife, defendant No.1 and his children and was residing with his second wife and children. Plaintiff No.1, with his hard labour and money, is alleged to have been looking after all the affairs of the family. The family had a petty shop and out of the earnings derived from the said shop, the suit site property was purchased in 1992. It

¶32

is contended that since defendant No.1 was the eldest member of the family, the said property was purchased in the name of defendant No.1. Therefore, the suit schedule property is the joint family property of the plaintiff and the

¶33

defendants, and they are the members of a Hindu undivided joint family and no partition is effected between the plaintiffs and the defendants. It is contended that

¶34

4 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶35

HC-KAR

¶36

without the knowledge of the plaintiffs, Defendant No.1 sold the suit schedule property in favour of defendant No.2. Defendant No.1 had no saleable right to execute the registered sale deed in favour of defendant No.2, the said

¶37

alleged sale deed dated 02.09.1999 is not binding on the plaintiffs. The plaintiffs demanded partition and separate possession, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, pray to decree the suit.

¶38

3.1. The defendants filed a written statement

¶39

contending that the suit schedule property was the selfacquired property of defendant No.1and the plaintiffs have no right to claim any share in the suit schedule property. It is denied that the suit schedule property was purchased in the name of defendant No.1 out of the joint family income. It is contended that defendant No.1 was doing vegetable vending and selling milk and income derived from the said business, she had purchased the suit

¶40

5 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶41

HC-KAR

¶42

schedule property, and she became the absolute owner of

¶43

the suit schedule property under a registered sale deed dated 07.09.1992. Defendant No.1, to discharge the debt, sold the suit schedule property in favour of defendant No.2 under a registered sale deed dated 02.09.1999 and defendant No.2 is the absolute owner in possession of the suit schedule property. Hence, on these grounds, pray to dismiss the suit.

¶44

3.2. The Trial Court, based on the above said

¶45

pleadings, framed the following issues and additional issues:

¶46

1) Whether the plaintiffs prove that suit schedule property was purchased by joint family in the name of 1^st defendant?

¶47

2) Whether the plaintiffs prove that sale deed executed by 1^st defendant in favour of 2^nd defendant is a sham and concocted document not binding on their share?

¶48

3) Whether the defendants prove that this Court has no pecuniary jurisdiction to try the suit?

¶49

4) Whether the plaintiffs are entitled for share in the suit schedule property?

¶50

6 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶51

HC-KAR

¶52

5) Whether 1^st defendant is liable to render accounts?

¶53

6) What order or decree?

¶54

3.3. The plaintiffs, to substantiate their case,

¶55

plaintiff No.1 was examined as PW.1, examined 3 witnesses as PW.2 to PW.4 and marked 6 documents as Exs.P1 to P6. On the other hand, the defendant, examined D! as DW.1, examined 2 witnesses as DW.2 and DW.3 and marked 12 documents as Exs.D1 to D12. The trial Court, after recording the evidence, hearing on both sides and

¶56

after assessing the verbal and documentary evidence, answered issue Nos.1 and 3 in the negative, issue Nos.2 and 4 in the affirmative, issue No.5 kept open to be decided in the final decree proceedings and issue No.6 as per the final order. The suit of the plaintiffs was decreed and it was declared that plaintiff Nos.1, 2 and defendant No.2 are equally entitled to a 1/3^rd share each in the suit schedule property. It is further declared that the sale deed executed by defendant No.1 in favour of defendant No.2 dated 02.09.1999 is not a valid document and binding on

¶57

7 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶58

HC-KAR

¶59

the plaintiffs. A separate inquiry was to be directed to decide the accounts of the income from the suit schedule

¶60

property from the date of suit in final decree proceedings.

¶61

3.4. Defendant No.2, aggrieved by the judgment

¶62

and decree passed in O.S.No.290/2001, preferred an appeal in R.A.No.5/2007 on the file of the learned Senior Civil Judge and JMFC, Tiptur.

¶63

3.5. The First Appellate Court, after hearing the

¶64

learned counsel for the parties, has framed the following points for consideration:

¶65

1) Whether the appellant proves that the sale deed executed by their mother is valid sale deed and the judgment and decree of the trial Court is perverse, capricious and opposed law and existing factual circumstances of this case, does it need interference by this Court?

¶66

2) What order?

¶67

3.6. The First Appellate Court, after re-assessing the

¶68

verbal and documentary evidence, answered point No.1 as per findings, and point No.2 as per the final order. The

¶69

8 -

¶70

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶71

HC-KAR

¶72

appeal was allowed with costs. The judgment and decree

¶73

passed by the trial Court in O.S.No.290/2001 dated 18.11.2006 was set aside. The suit of the plaintiff was dismissed with cost. The plaintiffs, aggrieved by the judgment and decree passed in R.A.No.5/2007, have filed this Regular Second Appeal.

¶74

This Court, on 02.06.2016, admitted the appeal

¶75

to consider the following substantial question of law :

¶76

1) Whether the lower appellate Court is justified in dismissing the suit when the relationship of the parties is not in dispute?

¶77

2) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court, ignoring Ex.D1 sale deed and oral evidence of PWs as contemplated under the provisions of Sections 91 and 92 of the Indian Evidence Act?

¶78

3) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court, holding that the property in question purchased by the family in the name of the first defendant Ningamma in view of provisions of Section 14 of the Hindu Succession Act?

¶79

4) Whether the lower appellate Court is justified in reversing the judgment and

¶80

9 -

¶81

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶82

HC-KAR

¶83

decree of the trial Court in the facts and circumstances of the present case?

¶84

Heard the arguments of Sri S.P.Kulkarni, learned

¶85

Senior counsel for the plaintiffs, and the learned counsel for defendant No.2.

¶86

Learned Senior counsel for the plaintiffs submits that the suit schedule property was purchased out of the joint family income in the name of defendant No.1 and the suit schedule property is the joint family property of the plaintiffs and the defendants. He submits that the plaintiffs

¶87

and the defendants are members of a Hindu joint family

¶88

and no partition is effected by metes and bounds. He submits that defendant No.1 had no saleable right to execute the registered sale deed in favour of defendant No.2 and defendant No.2 had not acquired any right, title or interest in the suit schedule property by virtue of the registered sale deed executed by defendant No.1 in favour of defendant No.2. He also submits that defendant No.2 has not passed the consideration amount as mentioned in

¶89

10 -

¶90

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶91

HC-KAR

¶92

the registered sale deed. Hence, the registered sale deed

¶93

is void. He submits that the First Appellate Court has committed an error in passing the impugned judgment. Hence, on these grounds, he prays to allow the appeal.

¶94

Per contra, learned counsel for defendant No.2 submits that the suit schedule property was purchased by defendant No.1 as defendant No.1 was doing a vegetable business and milk vending business and out of the income derived from the business, defendant No.1 had purchased the suit schedule property under a registered sale deed. He submits that she has become the absolute owner of the suit schedule property by Section 14 of the Hindu Succession Act, 1956 (for short ‘the Act of 1956’). He submits that defendant No.1, to clear the debts, sold the suit schedule property in favour of defendant No.2 for valuable consideration and accordingly, executed a registered sale deed in favour of defendant No.2, and he submits that defendant No.2 became the absolute owner of the suit schedule property by registered sale deed

¶95

11 -

¶96

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶97

HC-KAR

¶98

executed in 1999. He submits that the plaintiffs have filed

¶99

a suit solely with an intention of harassing the defendants. He also submits that defendant No.1, mother, who is a party to the proceedings, has herself filed a written statement stating that defendant No.2 paid the valuable consideration amount to her and also submits that there is a recital in the registered sale deed regarding the payment of sale consideration amount. He submits that any amount of oral evidence contradicting the recitals of the written instrument is inadmissible evidence as per Section 92 of the Evidence Act, 1872. He submits that if at all, if the defendant No.2 has not passed the consideration amount to defendant No.1, defendant No.1 is the aggrieved party and not the plaintiffs. The plaintiffs have no locus standi to claim a share in the suit schedule property. He submits that the First Appellate Court was justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.

¶100

12 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶101

HC-KAR

¶102

8. Substantial questions of law No.2 and 3 :

¶103

Substantial questions of law Nos.2 and 3 are taken together for common discussion as they are interlinked with each other to avoid the repetition of facts.

¶104

The plaintiffs, to prove their case, plaintiff No.1 was examined as PW.1. He has deposed that the family had a petty shop and out of the income derived from the said shop, they have purchased the suit schedule property in the name of defendant No.1 and the said property is the joint family property of the plaintiffs and the defendants. There is no partition effected by metes and bounds. The plaintiffs and the defendants are the members of a Hindu Undivided Joint Family and to prove that the said property was purchased out of the joint family income, the plaintiffs

¶105

have produced the documents, Exs.P1 is the assessment list of buildings and lands liable to taxation, which discloses the name of defendant No.1, Ningamma, as the owner of the suit schedule property and later on, her name was rounded off and the name of defendant No.2

¶106

13 -

¶107

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶108

HC-KAR

¶109

was shown as the owner based on the registered sale deed executed by defendant No.1 in favour of defendant No.2, Ex.P2 is the assessment list of buildings and lands liable to taxation which discloses the name of defendant No.2 as the owner of the suit schedule property, Ex.P3 is the tax paid receipt for 1999-2000 to 2001-2002, which discloses that defendant No.2 has paid the tax of suit schedule property, Ex.P4 is the postal cover, Ex.P5 is the certified copy of the sale deed dated 02.09.1999 which discloses that defendant No.1 sold the suit schedule property in favour of defendant No.2 for valuable consideration and there is a recital in Ex.P5 regarding passing of consideration amount by defendant No.2 in favour of defendant No.1, Ex.P6 is the original registered sale deed dated 04.10.1991 executed in favour of plaintiff No.1. During the cross-examination, it was suggested to PW.1

¶110

that the suit schedule property is the self acquired property of defendant No.1, and she is the absolute owner of the suit schedule property. The said suggestion was

¶111

14 -

¶112

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶113

HC-KAR

¶114

denied by PW.1 and, further, the plaintiffs also examined 3 witnesses as PW.2 to PW.4 to establish that the suit schedule property was purchased by the plaintiffs in the name of defendant No.1 and the suit schedule property is

¶115

the joint family property of the plaintiffs and the defendants and no partition is effected between the plaintiffs and the defendants.

¶116

In rebuttal, defendant No.1 was examined as DW.1, and she has deposed that the suit schedule property is the self acquired property of defendant No.1, and she was doing business and, out of the income derived from the business, she had purchased the suit schedule property under a registered sale deed. She became the absolute owner of the suit schedule property and, to clear the debts, she sold the suit schedule property in favour of defendant No.2 under a registered sale deed. She has stated that defendant No.2 became the absolute owner of the suit schedule property, and he is in possession of the suit schedule property. The plaintiffs

¶117

15 -

¶118

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶119

HC-KAR

¶120

have no right to claim a share in the suit schedule

¶121

property. The defendants also examined two witnesses as DW.2 and DW.3, who deposed that defendant No.1 is the absolute owner of the suit schedule property, and she had purchased the suit schedule property out of the income derived from the business carried by her and the suit schedule property is the self acquired property of defendant No.1. She sold the suit schedule property in favour of defendant No.2 by executing a registered sale deed and received the consideration amount. To prove the defence, the defendants have produced the documents, Ex.D1 is the original registered sale deed dated 07.09.1992, which discloses that defendant No.1 had purchased the suit schedule property under the registered sale deed dated 07.09.1992 and paid the entire sale consideration. The said registered sale deed does not disclose that the plaintiffs have contributed for purchasing the suit schedule property, Ex.D2 is the endorsement issued by TMC dated 16.07.1999 which discloses that

¶122

16 -

¶123

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶124

HC-KAR

¶125

defendant No.1 is the absolute owner of the suit schedule property, Exs.D3 and D4 are the receipts, Ex.D5 is the tax paid receipt, Ex.D6 is the patta book, Ex.D7 is the original registered sale deed dated 02.09.1999 executed by defendant No.1 in favour of defendant No.2, which discloses that there is a recital in the Ex.D7 that defendant No.2 had paid the entire consideration amount, and defendant No.1 delivered the possession of the suit schedule property in favour of defendant No.2, defendant No.2 is in possession and enjoyment of the suit schedule property under Ex.D7, Ex.D8 is the nil encumbrance certificate which discloses that there was nil encumbrance

¶126

on the suit schedule property from 01.04.1986 to 01.12.1999, Ex.D9 is the tax assessment register, Ex.D10 is the house building license, Ex.D11 is the house building approved plan, Ex.D12 to D13 are the tax paid receipts.

¶127

From the perusal of the entire evidence on record, it is evident that defendant No.1 had purchased the suit schedule property out of her income under a

¶128

17 -

¶129

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶130

HC-KAR

¶131

registered sale deed as per Ex.D1. Further, defendant No.1, by filing a written statement and also by entering into the witness box, has deposed that she purchased the suit. By virtue of Section 14(1) of the Act of 1956, she became the absolute owner of the suit schedule property. The plaintiffs have contended that they contributed to the purchase of the suit schedule property. The plaintiffs have not produced any records to establish that they have contributed to purchasing the suit schedule property. As observed above, defendant No.1 is the absolute owner of the suit schedule property and, due to family and legal necessity, she had sold the suit schedule property in favor

¶132

of defendant No.2. Defendant No.2 paid the entire consideration amount to defendant No.1. The plaintiffs contended that no consideration amount was passed to defendant No.1. As there is a recital in Ex.D7 regarding

¶133

the passing of the consideration amount. Any oral evidence offered to contradict, vary, add to, or subtract from those terms of the written instrument inadmissible as

¶134

18 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶135

HC-KAR

¶136

per Sections 91 and 92 of the Evidence Act, 1872 (for

¶137

short ‘the Act of 1872’). The First Appellate Court was justified in recording its finding that defendant No.1 was the absolute owner of the suit schedule property, and she sold the suit schedule property in favour of defendant No.2. After receiving the entire sale consideration amount,

¶138

they executed a registered sale deed, marked as Ex.D7 and also held that the plaintiffs had failed to prove that the suit schedule property is the joint family property of the plaintiffs and the defendants. The First Appellate Court was justified in dismissing the suit of the plaintiffs. I do not find any error in the impugned judgment. In view of the above discussion, I answer substantial questions of law Nos.2 and 3 in the affirmative.

¶139

Reg. Substantial Question No.1 : There is no

¶140

dispute about the relationship between the parties to the suit. The plaintiffs contended that the suit schedule property is the joint family property. As observed above in substantial questions of law No.2 and 3, this Court has

¶141

19 - NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶142

HC-KAR

¶143

held that the suit schedule property is not a joint family of the plaintiffs and the defendants, and it is the self acquired property of defendant No.1, and she became the absolute owner of the suit schedule property by virtue of Section 14(1) of the Act of 1956. Merely, the plaintiffs have proved the relationship between the parties to the suit, is not a ground to decree the suit of the plaintiffs. It is well settled that, in a suit for partition and separate possession, initially, the burden is always on the plaintiffs to establish the relationship between the parties to the suit along with the nature of the suit schedule property.

¶144

Admittedly, the plaintiffs have failed to prove

¶145

the nature of the suit schedule property as a joint family property. The First Appellate Court has rightly recorded a finding that the plaintiffs have failed to prove that the suit schedule property is the joint family property of the plaintiffs and the defendants and have rightly dismissed the suit of the plaintiffs. In view of the above discussion, I

¶146

20 -

¶147

NC: 2025:KHC:25410 RSA No. 1471 of 2013

¶148

HC-KAR

¶149

answer the substantial question of law No.1 in the

¶150

affirmative.

¶151

14. Reg. Substantial Questions of law No.4 :

¶152

The First Appellate Court, considering the entire evidence on record, and also Section 14 of the Act of 1956 and Section 91 and 92 of the Act of 1872, has rightly passed the impugned judgment. I do not find any error in the impugned judgment. The judgment and decree passed by the First Appellate Court is just and proper and do not call for any interference. In view of the above discussion, I answer the substantial question of law No.4 in the affirmative.

¶153