IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2785/2006 BETWEEN:
1.SMT. OBALLAMMA AGED ABOUT 51 YEARS W/O LATE MALLESHAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK – 577522.
2.SRI CHALESWAMY AGED ABOUT 38 YEARS S/O LATE MALLESHAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK-577522.
3.SRI GURULINGAPPA AGED ABOUT 35 YEARS S/O LATE MALLESHAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK – 577522.
4.SMT. HANUMAKKA AGED ABOUT 44 YEARS W/O GOVINDAPPA RESIDING AT MUDAGALLU KAMMADUR POST(A.P)- 577522.
5.SMT. NAGARATHNAMMA AGED ABOUT 28 YEARS W/O CHALLAMALLESHAPPA RESIDING AT MAHADEVAPURA P R PURA HOBLI CHALLAKERE TALUK-577522.
6.SMT. HAMPAMMA AGED ABOUT 26 YEARS D/O LATE MALLESHAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK-577522.
7.SMT. PUTTEERAMMA AGED ABOUT 21 YEARS D/O LATE MALLESHAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK-577522.
8.SRI NAGENDRAPPA AGED ABOUT 20 YEARS S/O LATE MALLESHAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK-577522.
9.SRI ERANNA AGED ABOUT 34 YEARS S/O LUNKAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK-577522.
10.SMT. SHIVAMMA AGED ABOUT 44 YEARS W/O HANUMANTHARAYA RESIDING AT VADERAHALLY P .R. PURA HOBLI, CHALLAKERE TALUK-577522.
11.SMT PARVATHAMMA AGED ABOUT 40 YEARS W/O KRISHNAPPA RESIDING AT KAMASAMUDRA P R PURA HOBLI CHALLAKERE TALUK-577522.
…APPELLANTS (BY SRI. N SHANKARANARAYANA BHAT, ADVOCATE) AND:
1.SRI LINGANNA S/O LATE MURUKANNAPPA RESIDING AT HARAVIGONDANAHALLY CHALLAKERE TALUK-577522. SINCE DECEASED BY L.RS (A) SMT. GANGAMMA, AGED ABOUT 53 YEARS, D/O LATE LINGANNA W/O LATE NARASIMHAPPA, RESIDENT AT HARAVIGONDANAHALLI CHALLAKERE – 577522.
CHITRADURGA DISTRICT.
(B)SMT. BORAKKA AGED ABOUT 45 YEARS D/O LINGANNA RESIDING AT GORIVUR VILLAGE & POST CHALLAKERE TALUK, CHITRADURGA DISTRICT – 577538.
2. SRI NARASIMHAPPA S/O LATE MURUKAPPA SINCE DECEASED BY L.RS (A) SMT. LAXMIDEVI, AGED ABOUT 70 YEARS W/O LATE NARSIMHAPPA RESIDING AT HARAVIGONDANAHALL VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRCIT.
(B) SMT JAYAMMA D/O LATE NARASIMHAPPA W/O MADAPPA AGED ABOUT 42 YEARS RESIDING AT JUNJUNGUNTA VILLAGE & POST CHALLAKERE TALUK CHITRADURGA DISTRICT.
(C) SRI MUNIKANNAPPA S/O LATE NARASIMHAPPA AGED ABOUT 40 YEARS (D) SRI THIPPESWAMY S/O LATE NARASIMHAPPA AGED ABOUT 38 YEARS (E) SRI NAGARAJA S/O LATE NARASIMHAPPA AGED ABOUT 34 YEARS (C)TO (E) ARE RESIDING AT HARAVIGONDANAHALLI VILLAGE CHALLAKERE TALUK, CHITRADURGA DISTRICT.
(F) SMT SHIVAMMA D/O LATE NARASIMHAMPPA W/O OBANNA AGED ABOUT 36 YEARS RESIDING AT T N KOTE VILLAGE & POST CHALLAKERE TALUK, CHITRADURGA DISTRICT-577538.
AMENDED THE CAUSE TITLE V.C.O 10.04.2015.
3. SRI YENJARAPPA AGED ABOUT 58 YEARS S/O LATE MURUKANNAPPA RESIDING AT HARAVIGONDANAHLLY CHALLAKERE TALUK-577522.
...RESPONDENTS (BY SRI. P H VIRUPAKSHAIAH, ADV., FOR R1(A&B), R2(A-F) & R3) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.07.2006 PASSED IN R.A.No.41/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.12.2002 PASSED IN OS.NO.219/1995 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(JR.DN), CHALLAKERE.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree dated 12.7.2006 passed in R.A.No.41/2003 by the learned Civil Judge (Sr.Dn), Challakere, allowing the appeal preferred by the plaintiffs by setting aside the judgment and decree of dismissal of original suit passed by the learned Civil Judge (Jr.Dvn.), Challakere, in O.S.No.219/1995 on 9.12.2002.
2. To avoid confusion and overlapping, the parties hereinafter are referred with their rankings as stood before the trial court.
3. The suit schedule properties are the land and properties which are three in number viz., Item No.(i): Land bearing Re.Sy.No.143 measuring 32 acres 38 guntas:
Item No.(ii): Land bearing Sy.No.131/1 measuring 09 acres 13 guntas:
Item No. (iii): Land bearing Sy.No.160 measuring 0 acres 30 guntas.
All the properties as mentioned in item Nos. 1 to 3 are situate at Haravigondanahalli, P.R. Pura Hobli, Challakere Taluk.
4. In the suit, plaintiffs have sought the relief of declaration of title, permanent injunction and cancellation of the partition deed said to have been entered into by the plaintiffs and defendants under voidable circumstances. The cause of action and the facts of the case as pleaded is, the properties shown in ‘A’ schedule to the plaint as stated above belonged to the father of the plaintiffs who acquired the same under Dharkasth and thus, it is his self acquired property. Item Nos. 2 and 3 are the self acquired properties of the plaintiffs as they were purchased by the first plaintiff through registered sale deed dated 16.7.1956 from one Hanumanthappa and dated 28.6.1956 from one Veerabhadrappa respectively and have been in possession and enjoyment of the properties as owners. It is further claimed that defendants have created the fraudulent partition deed on 21.7.1994 in which suit properties have been allotted to the plaintiffs. Claiming interference to the possession of the schedule properties by the plaintiffs and denial of title by the defendants, plaintiffs seek the relief of declaration of title, permanent injunction and for cancellation of the alleged partition deed dated 21.7.1994.
5. The defendants entered appearance and denied the claim of the plaintiffs and submitted that the suit was not maintainable and contended that defendants are said to be the cousin brothers of the palitnfifs and they have exclusive right, interest and possession over the schedule properties.
6. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 3 and DWs 1 and 2 and documentary evidence of Exs.P1 to P10 and Exs.D1 to D5. The learned trial Judge after considering the oral and documentary evidence available before him, dismissed the plaintiffs’ suit by a judgment dated 9.12.2002.
7. Aggrieved by the same, plaintiffs preferred an appeal before the learned Civil Judge (Sr.Dn) Challakere, in Regular Appeal No. 41/2003 which came to be allowed on 12/07/2006 with costs by setting aside the judgment and decree of the trial Judge passed in O.S.No.219/1995 on 09-12-2002 and the suit of the plaintiffs was decreed declaring the plaintiffs as owners of the suit schedule properties and that the partition deed dated 24.7.1994 is not binding on the plaintiffs and restraining the defendants from interfering in the suit schedule properties. The said judgment and decree was challenged before this court in this appeal by the defendants.
8. Plaintiffs claim that item No.1 of the suit schedule was granted to their father by Dharkasth and other two properties are purchased by them. Admittedly, there are three items of land and properties in the plaint schedule. First Item is the property said to be an agricultural land measuring 32 acres 38 guntas in Sy.No.143 situate at Haravigondanahalli, P.R. Pura Hobli, Challakere taluk and at the same time, the other two properties are said to have been purchased by the plaintiffs under the registered sale deed morefully stated above. On the other hand, defendants claim that they have legitimate share in the suit schedule properties.
9. Learned counsel for the appellants would submit that the First Appellate Court has erred seriously in allowing the appeal of the plaintiffs by setting aside the judgment and decree passed by the trial Judge and in decreeing the suit of the plaintiffs granting the reliefs as prayed. He would further submit that plaintiffs are absolutely rightless persons and do not have any right over the same, more particularly, to exclude the defendants. As stated above, father of the plaintiffs and defendants are said to be brothers and dharkasth grant was made in favour of the plaintiffs father.
10. Learned counsel for respondents/plaintiffs would submit that the suit schedule properties never belonged to the joint family and item No.1 was granted in the year 1948-49 exclusively to the father of the plaintiffs. They further claim that though there is a relationship between plaintiffs and the defendants, that does not exclude the plaintiffs from enjoying the rights of ownership and possession of the suit schedule properties.
11. In the context and circumstances of the case, the substantial question of law framed by this Court on 29.02.2008 is as under:
“Whether the judgment and decree of the lower appellate Court that the registered partition deed is a result of the misrepresentation, fraud and coercion as alleged by the plaintiffs is established from the material on record?”
On perusal of the available materials on record, I find that the substantial questions of law are reframed as under:
(i) Whether there can be a presumption regarding the non existence of joint family or its properties for some of the members to seek partition?
(ii) Whether the earlier partition entered 11 years back during 1994 when challenged on the ground of voidable and sham document can plaintiffs maintain the suit for declaration of title and injunction?”
In addition to the substantial question of law framed by this court on 29.02.2008, the additional substantial questions of law framed today have to be considered.
12. Admittedly, plaintiff Nos.1 to 3 are the sons of one Murukannappa. The claim of the plaintiffs regarding the ownership of the property to the extent of 32 acres 38 guntas in Re.Sy.No.143 is that they have succeeded to the same as it was granted to their father under Dharkasth. The extent of said land is not small, but totally, it is 32 acres 38 guntas. Item Nos. 2 and 3 are said to have been purchased by the first plaintiff and he claims as self acquired properties.
13. The defendants also claim that the property was granted to their fore fathers in the year 1948. In this connection, it is necessary to have a cursory glance on the Genealogical tree produced by the plaintiffs as Schedule “A” to the plaint, which is as under:
SCHEDULE-A NARASAJJA (DEAD) Narasanna Sidda- Dodda Kurkanappa Guru Died issue- lingappa Obaiah. (dead) sidappa. less (Thimmajji (dead) (dead) (Wife not wife) known to Plaintiff) (Erajji) Hanumakka Wife Wife (issueless) (died) Malle- Lunkappa* Shappa Lungappa* (adopted son) Lingappa Narasimhanna Yanjar -appa
13. Thus in the circumstances, the common answer is, one Narasajja, who is no more had five sons, viz., Narasanna, Siddalingappa, Doddaobaiah, Murukannappa and Gurusiddappa. It is thus necessary to chalk out the relationship between the plaintiffs and defendants. Plaintiffs- Linganna, Narasimhappa and Junjeshappa are the children of Murukanappa. Defendant No.1 Malleshappa S/o. Doddaobaiah, and after his death, his legal representatives have come on record.
14. Another factor that came for consideration is, the partition deed dated 21.7.1994. It is also sought to be cancelled, as the plaintiffs allege that defendants exercised fraud and mis representation and that they were taken to Sub Registrar’s office and took signature on blank papers and told them that the signatures were required in connection with the alienation of the property.
15. The plaintiffs allege that defendants played fraud and they boiled down to the undue influence of the defendants and in the said unworthy and unholy circumstances, partition deed came into existence on 21.07.1994. Thus, according to the plaintiffs the said deed is sham and bogus and all the properties included therein are the self acquired properties of the plaintiffs. The properties that were subjected for partition find place in Ex.P2 registered partition deed dated 21.7.1994. The schedule properties stated there in are:
A schedule gone in favour Malleshappa S/o. Doddaobaiah.
Land in Re-Survey No.143 to the extent of 08 acres 07 guntas and to the extent of 3 acres 01 guntas in Survey No.131/1;
Land and properties that went in favour of Murkhanappa’s son Linganna are:
Land in Re.Survey No.143 of Haravigondanahalli to the extent of 05 acres 18 guntas and in re.Survey No.131/1 measuring 3 acres 01 gunta Land and properties that went in favour Narasimhanna s/o. Murkhanappa are:
Land in Re.Survey No.143 measuring 05 acres and 23 guntas; Land in Re.Survey No.160 of the said village went to the extent of 30 guntas; and land in Re-survey No.131/1 to the extent of 03 acres 01 gunta:
Land and property that went in favour of Enjeerappa S/o. Murkhanappa are:
In Re-survey No. 143 to the extent of 05 acres 13 guntas; in Re.Survey No. 131/1 to the extent of 03 acres 01 gunta and ;
The land and property that went to Lunkappa S/o. Gurusiddappa are:
Land in Re.survey No.143 to the extent of 08 acres 07 guntas:
16. Suit is filed in respect of land bearing Re.Survey No. 143, Sy.No.131/1, and Re.Survey No.160 and out of them item No.1 land in Re.Survey No.143 of Haravigondanahalli. The partition deed is at Ex.P2. In case that there was a partition of the schedule properties wherein the plaintiffs and defendants have shared the properties as mentioned above.
17. Thus, the common ancestor is Narasajja and plaintiffs hail under Murukhannappa and defendants hail under Malleshappa. Claim that once partition deed was entered into and that has been challenged by the plaintiffs in original suit No.219/94-95. Regard being had to the fact that the partition is dated 23.7.1994.
18. Learned first Appellate Judge failed to notice the basic principles of joint family and joint family properties.
19. When the evidence regarding fraud or coercion or undue influence being established, he makes of casual observation to come to a finding that the partition came into existence under assailable circumstances and was not genuine.
20. Further the prayer of the plaintiffs is peculiar and the very suit in the circumstances is against the notion of Mitakshara Joint Hindu Family. Item No.1 of the schedule properties was granted to Murkhanappa, S/o Narasajja. The said Murkhannappa is none other than the brother of Dodda Obaiah. Thus, without examining the legal position and also the right the plaintiffs filed the suit that was opposed to the principles of joint family and coparcenary property. At the same time, the injunction could not have been granted to the plaintiffs against their cousin brothers. In the light of the fact that the grant is of the year 1948, Column No.10 in all the RTC Extracts marked as Exs.P5 to 10 insofar as land in Survey No.143 is concerned, it is shown as ‘Dharkasth’. Ex.P1 is the copy of the grant letter in favour of Murkhanappa but the original document was not produced. Thus in the over all circumstances of the case, original grant letter and other connected documents such as index prior to coming into force of RTC are not produced.
21. In the over all circumstances of the case, I find that plaintiffs fail to establish their title and possession over the schedule properties and have not made out any ground as such to set aside the partition deed dated 21.7.1994, the position would be that the joint family existed and partition was effected. As the plaintiffs are seeking injunction against the shares under partition, I hold that first Appellate Judge erred in holding that the properties were self acquired properties and partition deed is vitiated as it was signed by undue influence or fraud or mis representation and it is liable to be set aside. Hence, I answer the substantial questions of law raised in this appeal accordingly.
22. For the foregoing reasons, the appeal filed by the appellants/defendants is allowed.
The judgment and decree dated 12.07.2006 passed in R.A.No.41/2003 by the learned Civil Judge (Sr.Dn), Challakere, is set aside and consequently, the judgment and decree dated 09.12.2002 passed by the learned Additional Civil Judge (Jr.Dn), Challakere, in O.S.NO.219/1995 is confirmed. No costs.
tsn* Sd/- JUDGE