IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.474/2011 BETWEEN:
1 . SMT. LAKSHMAMMA WIFE OF LATE SRI THIMMAPPA GOWDA AGED ABOUT 53 YEARS, RESIDING AT No.9/1, A CROSS, OPP. SHASTRI MEMORIAL SCHOOL, YESHWANTHPURA, BANGALORE-560 022.
2 . SRI L SRINIVASA SON OF LATE SRI THIMMAPPA GOWDA AGED ABOUT 24 YEARS, RESIDING AT No.9/1, A CROSS, OPP. SHASTRI MEMORIAL SCHOOL,YESHWANTHPURA, BANGALORE-560 022.
3 . SRI NARASIMHA MURTHY SON OF LATE SRI THIMMAPPA GOWDA AGED ABOUT 24 YEARS, R/A No.9/1, A CROSS, OPP. SHASTRI MEMORIAL SCHOOL, YESHWANTHPURA, BANGALORE-560 022. ...APPELLANTS (BY SRI V B SHIVA KUMAR, ADVOCATE) AND:
SMT. LALITHA M HEGDE W/O SRI.M.S.HEGDE AGED ABOUT 61 YEARS R/A No.553, 15TH MAIN I BLOCK, BSK I STAGE BANGALORE-560 050. …RESPONDENT (BY SRI L M RAMAIAH GOWDA, ADVOCATE) THIS RFA IS FILED U/S 96(1), OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:10.01.2011 PASSED IN O.S.No.2244/2007 ON THE FILE OF THE XXX-ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree dated 10.01.2011 passed in O.S.No.2244/2007 by the learned 30th Additional City Civil Judge, Bangalore, wherein the suit filed by the plaintiff came to be decreed and the defendants being the legal heirs of Thimmappa Gowda are held jointly and severally liable to pay a sum of Rs.5,30,000/- together with interest at 6% p.a. from the date of the suit till payment. The defendants being aggrieved of the said judgment and decree have come up before this Court in appeal.
2. In order to avoid confusion and overlapping, the parties herein are referred to with reference to their rankings before the trial Court.
3. The brief and relevant facts of the case of the plaintiffs are that: defendant No.1 is the wife of one Thimmappa Gowda, defendant Nos. 2 and 3 are his sons. The said Thimmappa Gowda is dead and the defendants are his legal heirs and there is no dispute of the said fact of relationship. It is stated that late Thimmappa Gowda was the absolute owner in possession of the site bearing No.13/52 (old No.13) situated at 13th main, Nandini Layout, formerly known as Jareakhbhande Kavala, Goragunte Palya, Yelahanka Hobli, Bangalore North Taluk, measuring East-West 40 feet and North-South 30 feet. The said property was sold by Thimmappa Gowda under the registered sale deed to the plaintiff for a cash consideration on Rs.4,15,000/- on 24.5.2005. However, the possession of the schedule property was not handed over to the plaintiff. The said Thimmappa Gowda and his wife and children misrepresented and created a false document for the purpose of making fraud to the plaintiff. The plaintiff learnt that Thimmappa Gowda has no marketable title or right over the schedule property. In this connection, plaintiff-Lalitha Hegde received summons in O.S.No.4687/2005 that was filed by one B. Kempegowda claiming the schedule property was purchased by one Seethaiah under a registered sale deed dated 12.11.2001 through defendant No.1 Lakshmamma and in turn said Seethaiah sold the property to said Kempegowda on 3.3.2005 by a registered sale deed. In the said suit B. Kempegowda sought for declaration of his title and injunction against the plaintiff.
4. Thus, the plaintiff having realized that late Thimmappa Gowda had no marketable title or right over the said property on the date of execution of the sale deed in her favour, caused a legal notice to him on 7.9.2006 bringing the said fact to his knowledge and demanding refund of sale consideration of Rs.4,15,000/- and other incidental charges in all amounting to Rs.4,87,470/-. Notice was acknowledged by late Thimmappa Gowda but there was no compliance. The said Thimmappa Gowda cheated the plaintiff.
5. It is the case of the plaintiff that she being a physically handicapped and a retired teacher out of her savings she paid the amount to Thimmappa Gowda with an intention to have own abode in the City of Bangalore. After the death of Thimmappa Gowda, plaintiff approached the defendants several times, but they neglected to pay the amount. The defendants being the legal heirs of said Thimmappa Gowda, are liable to pay the said amount and the due amount is: Rs.4,87,460/- towards total sale consideration; Rs.42,450/- towards interest at 18% p.a. from 7.9.2006 to 7.3.2007 and totally Rs.5,30,000/-.
6. The defendants appeared and filed the written statement denying the claim of the plaintiff and contending that plaintiff is put to strict proof of the averments of the plaint. They also contended that plaintiff is a stranger and that the defendants , they have no transaction with her and suit property was sold in the year 1994 itself and the sale deed executed by Thimmappa Gowda has no value.
7. Basing on the said pleadings and contentions, assertions and denials of the material proposition, learned trial Judge framed issues regarding the execution of the registered sale deed dated 24.5.2005 by husband of defendant No.1 and father of defendant Nos. 2 and 3 Thimmappa Gowda in favour of plaintiff, the allegations of fraud, liability on the defendants to pay the amount together with interest at 18% p.a., and by its judgment on the oral evidence of PW1 –Lalitha Hegde, DW1- Lakshmamma and documentary evidence of Exs.P 1 to P5 and Exs.D1 to D7, in his wisdom decreed the suit on 10.1.2011 with costs, wherein, directed the defendants who are the legal heirs of Thimmappa Gowda to pay a sum of Rs.5,30,000/- along with interest at the rate of 6% p.a. from the date of suit till payment.
8. It is against this judgment and decree, the defendants have preferred the present appeal claiming that suit is barred by limitation and court below failed to notice that the plaintiff failed to establish her claim and the plaintiff has admitted in her evidence that she has verified the title, the plaintiff has further admitted the execution of sale deed in favour of Kempegowda, by Seethaiah, and that she was never a bonafide purchaser never enquired about the state of affairs did not exercised reasonable care and caution and wants to claim against the defendants and they have not received any benefit or have violated any of their rights.
9. Learned counsel Sri.V.B.Shivakumar, appearing for defendants/appellants would submit that no property of the defendants was sold in favour of the plaintiff leading to liability of refunding the purchase money. He would further submit that in any event, the defendants cannot be made liable to pay the purchase money as the learned trial judge has passed the judgment on the erroneous presumption of facts.
10. Learned counsel Sri. L.M. Ramaiah Gowda appearing for the plaintiff would submit that a helpless lady has been deceived in the matter, besides, she is a handicapped person. He would further submit that she was crippled after attack by Polio from her childhood, became teacher and on retirement spent all her emoluments to purchase the suit property with fond hope of establishing a house therein. But to shock and surprise, she did not acquire title over the schedule property for the very reason that it was already sold to one Seethaiah by defendant No.1 who in turn sold the same in favour of Kempegowda.
11. In the context and circumstances of the case, it is necessary to place on record, the admitted facts that, the said Seethaiah who sold the schedule property under the registered sale deed dated 3.3.2005 in favour of Kempegowda had acquired the title under the registered sale deed said to have been executed by defendant No.1 as General Power of Attorney Holder to the said Thimmappa Gowda on 9.1.1974 and on 3.3.2005 said Seethaiah sold the schedule property in favour of Kempe gowda under the registered sale deed. Thus, whatever the title Thimmappa Gowda had over the schedule property, exhausted by selling the same to Seethaiah and the said sale deed has been executed through his power of attorney holder, Lakshmamma, defendant No.1 who is none other than the legally wedded wife of Thimmappa Gowda and daughter of Seethaiah and the purchaser of the property Seethaiah is none other than the father of defendant No.1.
12. No doubt, the way in which the transactions have happened in an undesirable manner. The registered sale deed of the property, Ex.P1 in favour of the plaintiff came to be executed by Thimmappa Gowda on 24.5.2005 for a valuable consideration of Rs.4,15,000/.
It is necessary to mention Section 48 of Transfer of Property Act, which is as under:
“48. Priority of rights created by transfer – Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.”
13. As a priority right holder, the said Thimmappa Gowda would be the better holder of right, title, interest and possession over the schedule property over the plaintiff by virtue of the reason that the plaintiff is a later purchaser. In this connection, the plaintiff cannot get a title over the schedule property. Regard being had to the fact that she has paid sale consideration of Rs.4,15,000/- to Thimmappa Gowda under Ex.P1.
14. Thus, it is a case wherein the purchaser of the property could not get the title due to act of her vendor. Now that amount of consideration and the other expenses incurred by the plaintiff cannot be allowed to collapse as no one can enrich himself unjustly at the cost of others. Thus, being a disappointed purchaser who is fair enough to admit she could not get a title over the property because she had purchased from the vendor without knowing that he had already executed his title over the property by making the same sold to his father-in-law through his wife, who in turn sold the property to Kempegowda, who filed the suit for declaration and injunction against the plaintiff in O.S.No.4687/2005 that came to be decreed. Because of the said decreetal order, plaintiff has filed the suit for recovery of the money in the form of consideration and the expenditure incurred her in connection with the schedule property.
15. The further agony for plaintiff is, that Thimmappa Gowda is dead earlier to filing of the case, defendant No.1 is his widow and defendant Nos. 2 and 3 are his sons who are entitled to inherit the estate of said Thimmappa Gowda.
16. Learned counsel for plaintiff Sri. L.M. Ramaiah Gowda would submit the defendants have inherited the estate of Thimmappa Gowda of both moveable and immovable. In this connection, an application is also filed by the plaintiff under order 41 Rule 27 read with section 151 of CPC with the additional documents to fortify that the defendants have inherited the property that stood in the name of Thimmappa Gowda as on the date of his death as under:
“1. True copy of the record of rights;
2. True copy of the index of land;
3. True copy of the tax paid receipts (3 in Nos.);
4. True copy of the encumbrance certificates ( 4 in Nos.);
5. True copy of the khatha certificate issued by BBMP;
6. True copy of the khatha endorsement dated 9.5.2003;
7. True copy of the notice dated 31.5.2003 issued by BBMP;
8. True copy of the paper publication and acknowledgement for having filed the police complaint by Thimmappa Gowda;
9. True copy of the mutation register extract in MR No.1/1994-95;
10.True copy of the RTC in respect of Sy.No.41/8 situated at Pannasandra (2 in Nos.);
11. True copy of the mutation register extract in MR No.7 dated 10.1.2007situated at Pannasandra;
12. True copy of the RTC extract in respect of Sy.No.541/8 situated at Pannasandra;
13. True copy of the MR No.09/2007=08 in respect of Sy.No.365/1 situated at A.K.Kaval;
14. True copy of the MR No.H18/2014-15 in respect of Sy.No.365/1 situated at A.K.Kaval;
15. True copy of the RTC extract in respect of Sy.No.465/1 situated at A.K.Kaval (4 in Nos.);
16. True copy of the encumbrance certificate in respect of Sy.No.465/1 situated at A.K.Kaval.
17. In the circumstances of the case, no prejudice would be caused if the aid application is allowed. Accordingly, the same is allowed and the documents produced along with the said application are taken on records and perused the same.
18. The defendants despite their stance cannot be accepted to undergo coercive steps or to pay from personal kitty insofar as decreetal amount is concerned. The normal rule is that, on the basis of doctrine of pious obligation, when a holder of peculiar liability or debt dies without discharging possessed the assets which form the estate left by him, are liable to answer to the extent of their value or liability.
19. Learned counsel Sri. L.M. Ramaiah Gowda for the plaintiff would submit that defendants have inherited the property morefully stated in the documents which are filed during the pendency of the appeal through an application under Order 47 Rule 27 read with Section 151 CPC. The said documents were not the point of issue as they are not filed before the trial court. In the circumstances, the rule application to the case on hand is that, the defendants are not personally labile in the lines of personal liability to fulfill the decreetal amount. However, the estate of late Thimmappa Gowda consisting of moveable or immovable properties definitely answerable and accountable to satisfy the decreetal amount. In case, the defendants are in possession of the property forming part of the estate of deceased Thimmappa Gowda then they are answerable to the extent of the value of the properties left by Thimmappa Gowda as stated above. In the circumstances, the learned trial Judge while framing the operative portion has ordered as under:
“The suit of the plaintiff is decreed with costs.
The defendants who are the legal heirs of late Thimmappa Gowda are jointly and severally liable to pay a sum of Rs.5,30,000/- (Rupees Five Lakhs Thirty Thousand only) along with interest at the rate of 6% p.a. from the date of the suit till payment.
Draw decree accordingly.”
20. Thus, the said order is not properly framed and not acceptable to the said extent. In the circumstances, it is held and ordered that the estate of late Thimmappa Gowda husband of defendant No1. and father of defendant Nos.2 and 3 are liable to answer and to clear the decreetal amount through and out of the estate of Thimmappa Gowda.
21. Accordingly, the appeal is disposed of. The impugned judgment and decree passed by the trial Court is modified to the said extent. There shall be no personal liabilities. Defendants are liable to the extent of the value of the estate left by Thimmappa Gowda.
No orders as to costs.
Sd/- JUDGE tsn*