Dodda Basaiah Vs Thippamma

(BY SRI. B.M. SIDDAPPA, ADVOCATE FOR R5; MS. ARCHANA MURTHY P, ADVOCATE FOR R1 TO R4; VIDE ORDER DATED 09.06.2016, R1 TO R4 ARE LEGAL REPRESENTATIVES OF R6)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 23.9.13 PASSED IN R.A.NO.98/2010 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 4.9.2010 PASSED IN OS.NO.60/2006 ON THE FILE OF SENIOR CIVIL JUDGE, CHALLAKERE.

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

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

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 23.09.2013 passed in R.A.No.98/2010 by the Additional District and Sessions Judge, Chitradurga (for shot, ‘the First Appellate Court’), confirming the judgment and preliminary decree dated 04.09.2010 passed in O.S.No.60/2006 by the learned Senior Civil Judge at Challakere (for short, ‘the trial Court’).

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2. For convenience, the parties are referred to as

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per their ranking before the trial Court. The appellants were defendant Nos.1, 2, 6 and 7, respondent Nos.1 to 4 were the plaintiffs and respondent No.5 was defendant No.4 and respondent No.6 was not a party.

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3. Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit for partition and separate possession and declaration that the registered sale deed dated 26.08.1991 executed by defendant No.5 in favour of defendant Nos.6 and 7 are nominal and not binding on the plaintiffs. It is the case of the plaintiffs that the plaintiffs are the daughters of defendant No.5. Plaintiff Nos.1 to 3 are married and living with the husband and the marriage of plaintiff No.1 was held in the year 2000 and plaintiff Nos.2 and 3 was held in the year 2006. It is contended that the suit schedule properties are the ancestral properties of the plaintiffs and defendant No.5 and are all of them are having equal right share in the suit lands. It is contended that defendant No.5 and his father filed a suit against defendant Nos.1, 2 and 4 and another for partition and separate possession of the suit schedule properties in the Court of Munsiff at Molakalmuru in O.S.No.27/1987 and the said suit was decreed vide judgment dated

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12.04.1990 and as per the decree, defendant No.5 and his father and defendant Nos.1 and 2 and their father have got half share each in the item No.1 suit lands. Item No.2 fell to the share of defendant No.5 as per registered partition deed dated 26.08.1991. After the death of father of defendant No.5, defendant No.5 cultivated all sorts of bad habit and addicted to bad habits and defendant Nos.1 to 4 and 6 and 7 have colluded with other and created a registered sale deed bearing Nos.348 and 349 dated 26.08.1991. It is contended that no consideration was passed under the registered sale deed executed by defendant No.5 in favour of defendant Nos.6 and 7 with respect to the suit item No.1 property in the year 1991. The sale deed executed by defendant No.5 in favour of defendant Nos.6 and 7 are not binding on the plaintiffs as they were minors at that time. It is also contended that the plaintiffs and the defendants are the members of the Hindu Joint Family and no partition is effected. The plaintiffs demanded for partition and separate possession.

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Defendant No.5 refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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3.1. Defendant Nos.1, 2, 6 and 7 filed a written statement denying the averments made in the plaint. It is contended that one Giddamuthaiah has got two sons by name Eraiah and Bommaiah. The said Eraiah married with Basamma having children Doddabasaiah, who is defendant No.1 and Sannabasaiah, who is defendant No.2. Giddamuthaiah’s 2^nd son Bommaiah has got only son Basaiah, who is defendant No.5 and the said Basiah married Palamma the guardian of plaintiff No.4. It is contended that suit properties item No.1 was sold to one Palaiah on 26.12.1986 and khatha and pahani was transferred in his name. It is contended that Eraiah and Bommaiah sons of Giddamuthaiah were in joint family and they were orally partitioned, then defendant No.5 Basaiah and his father Bommaiah filed the suit for partition and separate possession of joint family properties. Defendant

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No.5 acquired the suit land mentioned in item No.1 property through the Court decree passed in O.S.No.27/1987 dated 12.04.1990 and item No.2 property fell to the share of defendant No.5 as per registered partition deed dated 26.08.1991. Defendant No.5 sold 2 acres on 26.08.1991 in favour of Eranna i.e., defendant No.6 for a valuable consideration of Rs.6,000/- and 4 acres sold to defendant No.7 Banja Obaiah for a valuable consideration of Rs.12,000/- and executed the registered sale deed and based on the registered sale deed executed by defendant No.5 in favour of defendant Nos.6 and 7, mutation was effected in favour of defendant Nos.6 and 7. The plaintiffs have not challenged the mutation. Hence, defendant Nos.6 and 7 are paying the land revenue and they are in possession of the suit schedule properties. Hence, prays to dismiss the suit.

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3.2. Defendant No.4 filed a written statement contending that defendant No.4 had purchased the land in Sy.No.88 measuring 8 acres 14 guntas under a registered

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sale deed in 1986. From the father of defendant Nos.1 and 2 and husband of defendant No.3 and by virtue of sale deed, defendant No.4 is in possession of the suit schedule properties. Defendant No.5 obtained a decree for his half share in O.S.No.27/1987. The registered sale deeds of defendant No.4 and one Chinnagurappa to the extent of share of defendant No.5 is not binding as per the judgment. Hence, prays to dismiss the suit against defendant No.4.

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3.3. Defendant No.5 filed a written statement

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denying the averments made in the plaint and contended that defendant Nos.1 to 4, 6 and 7 called defendant No.5 for getting the partition of the decreed lands. Defendant No.5 being having no worldly knowledge believed their words and went along with them and they have obtained the signature on the stamp paper and told that the signature of defendant No.5 for partition deed. Defendant No.5 came to know about the sale deeds executed in favour of defendant Nos.6 and 7 only when received a

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summons in the suit. It is contended that the plaintiffs and defendant Nos.1 to 5 are in possession of the suit schedule properties. Hence, prays to dismiss the suit.

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3.4. The trial Court, based on the pleadings of the

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parties framed the following issues and additional issue No.1:

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1. Whether the plaintiffs prove that the suit schedule properties are the ancestral properties of themselves and the defendants?

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2. Whether the plaintiffs prove that item No.2 of the suit property fallen to the share of 5^th defendant under the registered partition deed dated 26.08.1991?

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3. Whether plaintiffs prove that the defendant No.1 to 4 and 6 and 7 have colluded with each other and by taking advantage of the bad habits of the 5^th defendant have created false sale deeds dated 26.08.1991 in respect of item No.1 of the suit schedule property?

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4. Whether the plaintiffs prove that the sale deeds are nominal one and not binding on the rights of the plaintiffs?

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5. Whether the plaintiffs are entitle for 4/5^th share in the suit schedule properties?

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6. Whether the defendant No.1 and 2 prove that they have sold the properties for their family necessity?

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7. Whether the 5^th defendant proves that the defendant No.1 to 4 and 6 and 7 have obtained the sale deed by playing fraud on him by taking advantage of the illiteracy and ignorance of this defendant?

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8. Whether the defendant No.6 and 7 prove that they are the bonafide purchasers of the suit schedule properties for valuable consideration?

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9. Whether the suit is bad for mis joinder of unnecessary parties i.e., 4^th defendant?

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10. What order and decree?

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Additional Issue No.1 :

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1. Whether the suit is barred by limitation.

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3.5. The plaintiffs, to prove their case, plaintiff No.1

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examined herself as PW.1, examined one witness as PW.2 and marked 10 documents as Exs.P1 to P10. In rebuttal, defendant No.4 was examined himself as DW.1, defendant

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No.7 was examined as DW.3, defendant No.6 was examined as DW.4, defendant Nos.1 and 2 examined themselves as DW.5 and DW.6, they have examined one more witness as DW.2 and got marked 24 documents as Exs.D1 to D24. The trial court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue Nos.1 to 5 in the affirmative, issue Nos.6 to 9 in the negative, additional issue No.1 in the negative and issue No.10 as

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per final order. The trial Court decreed the suit and it is declared that two sale deeds dated 26.08.1991 executed by defendant No.5 in favour of defendant Nos.6 and 7 are nominal and not binding on the plaintiffs. The plaintiffs are entitled for partition and separate possession of plaintiffs 4/5^th share in the suit lands by metes and bounds through the Deputy Commissioner, Chitradurga.

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3.6. Defendant Nos.1, 2, 6 and 7, aggrieved by the judgment and preliminary decree passed in

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O.S.No.60/2006, preferred an appeal in R.A.No.98/2010

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on the file of learned Additional District and Sessions Judge, Chitradurga.

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3.7. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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1. Whether the plaintiffs prove that the sale deed dated 26.08.1991 alleged to have been executed by defendant No.5 in favour of defendant No.6 and 7 are not binding on the plaintiffs?

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2. Whether the plaintiffs have got right and share in the schedule properties?

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3. Whether the judgment and decree passed by the trial Court requires any interference by this Court?

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4. What order?

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3.8. The First Appellate Court, after re-appreciating

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the entire evidence on record, answered point Nos.1 and 2 in the affirmative, point No.3 in the negative and point

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No.4 as per the final order. The appeal was dismissed and the judgment and decree passed in O.S.No.60/2006 by the learned Senior Civil Judge, Challakere was confirmed vide judgment dated 04.09.2010.

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3.9. Defendant Nos.1, 2, 6 and 7, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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4. Heard the arguments of the learned counsel to

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the plaintiffs, and also learned counsel for the defendants.

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5. Learned counsel for the defendants submits

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that the suit filed by the plaintiffs is not maintainable in view of proviso to Section 6 of the Hindu Succession Act, 1956. He submits that defendant No.5 executed a registered sale deed in favour of defendant Nos.6 and 7 in 1991. To buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of V INEETA S HARMA VS . R AKESH S HARMA reported in 2020(2)

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Kar LR 161 (SC). He submits that both the Courts below

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have failed to consider the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005. As per proviso to section 6 of the Act of 1956, any alienation taken place prior to 20.12.2004 is saved. He submits that the suit filed by the plaintiffs against defendant Nos.1 to 5 is collusive suit. Though defendant No.5 has executed a registered sale deed in favour of defendant Nos.6 and 7 and defendant No.5 himself has got filed a suit through the plaintiffs. Hence, the said fact was not properly considered by the Courts below and committed an error in passing the impugned judgments. He submits that the impugned judgments passed by the Courts below are arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.

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6. Per contra , learned counsel for the plaintiffs submits that the suit schedule properties are the ancestral properties of the father of defendant No.5, he had no right to execute a registered sale deed in favour of defendant Nos.6 and 7. Further, she submits that no consideration

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was passed under the registered sale deed executed by defendant No.5 in favour of defendant Nos.6 and 7. She submits that the suit schedule properties are in joint possession of the plaintiffs and defendant Nos.1 to 5 and no possession was delivered to defendant Nos.6 and 7

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under the registered sale deed. She submits that defendant Nos.1 to 4 had no right to execute a registered sale deed in favour of defendant Nos.6 and 7 and the defendants have admitted in the course of crossexamination that defendant Nos.1 to 4 have no right to execute a registered sale deed. She also submits that both the Courts below have concurrently recorded a finding of facts against defendant Nos.1, 2, 6 and 7. She submits that the impugned judgments passed by the Courts below are illegal and there is no error in the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal.

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7. Learned counsel for defendant No.5 submits that defendant Nos.6 and 7 have not paid the

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consideration amount to defendant No.5. He submits that

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both the Courts below have concurrently recorded a finding of facts that the sale deed executed by defendant No.5 in favour of defendant Nos.6 and 7 are nominal. Hence, on these grounds, he prays to dismiss the appeal.

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8. This Court, vide order dated 16.12.2020,

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admitted the appeal to consider the following substantial

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questions of law:

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1. Whether the judgment and decree of both the courts below is sustainable in law in view of the law laid down by the Hon'ble Apex Court in the case of V INEETH S HARMA V S . R AKESH S HARMA reported in 2020(2) K AR LR (SC) ?

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2. Whether the findings by Court of facts vitiated by non-consideration of relevant evidence on record?

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3. Whether the First Appellate Court is justified in reversing the judgment and decree of the trial Court?

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9. Regarding substantial question of law

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Nos.(a) & (b) : Substantial question of law Nos.(a) & (b)

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are taken together for common discussion as they are interlinked with each other to avoid the repetition of facts.

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10. It is an undisputed fact that the plaintiffs and defendant Nos.1 to 4 are the children of defendant No.5 and the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendant Nos.1 to 5. The plaintiffs and defendant Nos.1 to 5 are the members of the joint family and no partition is effected. It is also contended that the joint family properties of the plaintiffs and defendant No.5 are the members of the Hindu undivided family and no partition is effected. It is contended that defendant No.5 alone has no right to execute a registered sale deed in favour of defendant Nos.6 and 7 and further, defendant Nos.1 to 4 have no right to join with defendant No.5 in executing a registered sale deed in favour of defendant Nos.6 to 7. The sale deeds are nominal sale deeds. The said sale deeds are not

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binding on the plaintiff’s share. On the other hand, defendant Nos.1, 2, 6 and 7 filed a written statement contending that defendant No.5 had acquired the suit schedule properties under a partition and he was in need of money for family necessity and sold the said land in favour of defendant Nos.6 and 7 under a registered sale deed dated 26.08.1991. It is also contended that defendant No.5 had acquired the property vide judgment and decree passed in O.S.No.27/1987. Admittedly, there is no dispute in regard to the property acquired by defendant No.5 in the judgment and decree passed in O.S.No.27/1987. The plaintiffs have produced the certified copy of the judgment marked as Ex.P6, which clearly discloses that defendant No.5 had acquired the property in a partition. Defendant No.5 admittedly executed a registered sale deeds in favour of defendant Nos.6 and 7 on 26.08.1991. The defendants have produced the registered sale deeds marked as Exs.D7 and D15. The sale deed executed by defendant No.6 is marked as Ex.P3 and

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the sale deed executed by defendant No.7 is marked as Ex.P4. From the perusal of Exs.P3 and P4, there is a recital in the sale deeds regarding passing of consideration by defendant Nos.6 and 7 in favour of defendant No.5. Defendant No.5 has contended that no sale consideration amount was passed under the registered sale deeds marked as Exs.P3 and P4. Both the Courts below have failed to consider Sections 91 and 92 of the India Evidence Act, 1872 (for short ‘the Act’). Section 92 provides exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms.

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11. Admittedly, Exs.P4 and P5 are the documents

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reduced into writing. Any amount of oral evidence to contradict the terms of contract is not admissible as per Section 92 of the Indian Evidence Act, 1872. Defendant No.5 is estopped to contend that defendant Nos.6 and 7

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have not passed any consideration under Exs.P3 and P4. Admittedly, defendant No.5 executed a registered sale deed on 26.08.1991. Section 6 of Hindu Succession Act was amended in 2005.

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12. Section 6 of Hindu Succession Act, 1956 (for

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short, ‘the Act of 1956’), which reads as follows:

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6. Devolution of interest in coparcenary property.―(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

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(a) by birth become a coparcener in her own right the same manner as the son;

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(b) have the same rights in the coparcenery property as she would have had if she had been a son;

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(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son,

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and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

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Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

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(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―

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(a) the daughter is allotted the same share as is allotted to a son;

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(b) the share of the pre-deceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be

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allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

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(c) the share of the pre-deceased child of a predeceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.

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(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

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Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect―

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(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

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(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the

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same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.

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(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

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(emphasis supplied)

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13. Provided that nothing contained in this sub-

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section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of a property which had taken place before 20.12.2004. Admittedly any transaction which has taken place before 20.12.2004 is saved.

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14. Admittedly, the impugned registered sale deeds were executed in 1991. As per Proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005, the said sale deeds are saved. The said aspect was not considered by the Courts below.

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15. Further, the Hon'ble Apex Court in the case of V INEETA S HARMA (Supra) held in para 62 of the judgment

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that “the proviso to section 6(1) of the Hindu Succession (Amendment) Act, 2005, (for short ‘the Act of 2005’) any alienation effected before 20.12.2004. The said alienation is saved. Both the Courts below without considering proviso to Section 6(1) of the Act of 2005 has proceeded to pass an impugned judgments. The impugned judgments passed by the Courts below is contrary to the mandate laid down by the Hon'ble Apex Court in the case of V INEETA S HARMA (Supra). The findings recorded by the trial Court is without considering the relevant provisions and evidence placed on record. Defendant No.5 had executed a registered sale deed in favour of defendant Nos.6 and 7 in 1991 and got filed the present suit through children in 2006 by showing the age of the plaintiffs as 20, 19 and 18 years to see that the suit is filed well within limitation as per Article 59 of the Limitation Act. To substantiate their age, the plaintiffs have not produced any birth certificate to show that they have attended the majority in 2006. All these aspects were not considered by the Courts below

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and committed an error in passing the impugned judgments. In view of the impugned judgments passed by the Courts below are arbitrary and erroneous and same are liable to be set aside.

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In view of the above discussion, I answer substantial

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question of law Nos.(a) & (b) in the affirmative.

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16. As far as substantial question of law of No.(c) is concerned, though both the Courts below have concurrently passed the judgments, wherein due to oversight or due to inadvertence, substantial question of law No.(c) has been framed by the earlier bench. Hence, the question of answering substantial question of law No.(c) does not arise.

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17. Accordingly, I proceed to pass the following:

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ORDER

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i. The Regular Second Appeal is allowed.

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ii. The judgment and decree dated 23.09.2013 passed in R.A.No.98/2010 by the Additional District and Sessions Judge, Chitradurga, confirming the judgment and preliminary decree dated 04.09.2010 passed in O.S.No.60/2006 by the learned Senior Civil Judge at Challakere are set aside.

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iii. Consequently, the suit of the plaintiffs is dismissed.

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iv. Pending applications, if any, stands disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Dodda Basaiah v. Thippamma

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Dodda Basaiah v. Thippamma

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