IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO R.S.A. No.899/2009 BETWEEN:
1. SAVITHRAMMA N D/O LATE NARAYANA REDDY AGED ABOUT 48 YEARS SINCE DEAD HER LRs.
1(a) SMT. N. ASHAPRAY, W/O. J.M. SUDHAKAR REDDY, AGED 40 YEARS, R/O. JIGALA VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT – 562 107. AMENDMENT AS PER ORDER DATED 21.8.2014.
2. SRI J. M. SUDHAKAR REDDY S/O MARI REDDY AGED ABOUT 43 YEARS, BOTH THE APPELLANTS ARE R/A JIGALA VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.
… APPELLANTS (BY SRI JAI VITTAL RAO KOLAR, SENIOR COUNSEL FOR SRI A. VIJAYA KUMAR BHAT, ADVOCATE) AND:
1. P. SRINIVAS S/O PILLAIAH AGED ABOUT 53 YEARS R/A No.23, 9TH A CROSS WILSON GARDEN, BANGALORE-560 023.
2. SMT. VANITHA PARISHANA FATHER’ S NAME NOT KNOWN TO APPELLANTS, MAJOR No.401, SILVER OAKS GARDEN GRANT ROAD BANGALORE-560 001.
3. SMT. VIMALA D/O GOVINDARAJU MAJOR, No.19, 7TH MAIN, 16TH CROSS, LAKKASANDRA, BANGALORE-560 030.
4. SRI K NARAYANARAO S/O YALANDAIAH No.183, 2 ‘C’ MAIN, 9TH BLOCK, KORAMANGALA, BANGALORE-560 095.
5. S.K. KASIPATHI S/O BABU, MAJOR No.161/1, NEW THIPPASANDRA BANGALORE-560 075.
6. SRI KRISHNAMURTHY, S/O MUNIDEVARAO MAJOR, No.399/1, 13TH MAIN, 14TH CROSS, WILSON GARDEN BANGALORE-560 030.
7. SRI SURESH KUMAR S/O DHASARATHARAMAIAH MAJOR, No.183, 2 ‘C’ MAIN ROAD, 8TH BLOCK, KORAMANGALA BANGALORE-560 095.
…RESPONDENTS (BY SRI.ZULFIKR KUMAR SHAFI, ADV., FOR R3 R - 2 SERVED, V/O DTD. 7.10.14 SERVICE IN RESPECT OF R1 AND R4 TO R7 HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.3.2009 PASSED IN R.A.No.207/2006 (OLD N.96/2006) ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC., ANEKAL DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:12.1.2006 PASSED IN O.S.No.120/2001 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC., ANEKAL.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree passed in R.A.No.207/2006(old R.A.No.96/2006) on the file of Civil Judge (Sr.Dn.) and JMFC., Anekal wherein the appeal came to be dismissed on 20.3.2009 and the judgment and decree dated 12.1.2006 passed in O.S. No.120/2001 by the Prl. Civil Judge (Jr.Dn.) & JMFC., Anekal came to be confirmed.
2. In order to avoid the confusion and overlapping, parties are addressed in accordance with their status and ranking as stood before the trial Court.
3. The suit filed by one Smt.Savithramma N. D/o. Late Narayana Reddy and J.M. Sudhakar Reddy S/o. N. Mari Reddy in O.S.No.120/2001 for declaration of title and possession of the suit schedule property before the learned Prl. City Judge (Jr.Dn.), Anekal, came to be dismissed. Being aggrieved by the same, an appeal was preferred by the plaintiffs in R.A. No.96/2006 which was later renumbered as R.A. No.207/2006 on the file of Civil Judge (Sr.Dn.) and JMFC., at Anekal.
4. The learned Civil Judge (Sr.Dn.) dismissed the appeal by confirming the judgment and decree of the trial Court. Being aggrieved by the judgment and decree passed by the 1st appellate Court, the plaintiffs have come up before this Court. Meanwhile, it is seen that plaintiff No.1 (appellant No.1), Smt.Savithramma N. is reported to be dead and is represented by her legal representative Smt. N. Asha Pray.
5. Brief facts of the case in O.S.No.120/2001 are that, the plaintiff No.1 is the unmarried daughter of one late Narayana Reddy who had two sons and six daughters in all. Except the plaintiff No.1 other daughters are married and settled. The plaintiffs state that other daughters are not having any claim over the suit properties as they are well settled in their lives. After the death of Narayana Reddy, his two sons and 1st plaintiff constituted the joint family. However, Gopal Reddy the elder son of Narayana Reddy took his share and parted from the joint family.
6. Second plaintiff is the son of 2nd defendant.
Plaintiff Nos.1 and 2 and defendant No.2 constituted joint family having rights over the suit schedule properties, which is said to have constituted a potential zone and the 2nd defendant converted the lands into non agricultural land and formed into house sites. Defendant No.1 under the guise of helping the 2nd defendant, created General Power Attorney (for short ‘GPA’) in his name and sold certain residential sites after coming to know of the sale notice. The defendant Nos.3 to 30 are stated to be the purchasers of the schedule properties in bits (residential sites) from the 1st defendant as a power of attorney holder representing defendant No.2.
7. The plaintiffs claim that neither defendant No.1 had authority to represent the defendant No.2 in the matter of ownership of the suit properties nor to sell the same in whole or in bits on behalf of defendant No.2. If any sale deed is effected, the same would be without a legal recognition. The 1st plaintiff is stated to have the half share in the property, whereas 2nd defendant and 2nd plaintiff have 1/4th share each and insofar as the sale deed in favour of defendant Nos.3 to 30 are concerned, they do not confer any right over the properties.
8. After issuance of summons, the written statements are filed by defendant Nos.1, 11, 13, 17 and 25 on the one hand and defendant Nos.3 and 4 on the other.
9. They claimed that the sale deed executed by the 1st defendant the power of attorney of 2nd defendant was at the legal efficacy and validity. The GPA said to have been executed by the 2nd defendant in favour of 1st defendant is stated to be a registered one executed in the office at Anekal. It is contended that the children of late Narayana Reddy divided the family properties and each of them including the 2nd defendant have obtained their shares. It is further contended that suit properties are the exclusive properties of defendant No.2/ N. Mari Reddy and it is claimed by defendant No.1 that he had alienable rights to sell it and he is a legally appointed attorney for selling the property and in accordance with the same the plaintiff – defendant No.2 has sold the schedule properties to defendant Nos.3 to 30 through power of attorney holder i.e. defendant No.1.
10. Based on the material propositions asserted by one and denied by the other and the available material on record, the learned trial Judge framed the issues relating to the ownership of schedule properties and the execution of power of attorney and it is binding nature of the sale deed in favour of the defendant Nos.1, 3 to 30.
11. The oral evidence available before the trial Court is of one J.M. Sudhakar Reddy who is plaintiff No.2 as PW.1. The documents marked on behalf of plaintiffs are as under:
Ex. P1 – CC of the Special Power of Attorney Ex.P2 - CC of the Sale Deed Ex.P3 – CC of the Legal notice Ex.P4 – Postal Receipt Ex.P5 - Cancellation letter Ex.P6 – Ration Card Ex.P7 – Voters list Ex.P8 – Photo Ex.P9 – Cash Bill 12. On behalf of defendants, 1st defendant – P.Srinivas Rao is examined as DW.1 and following documents are marked on behalf of the defendants:
Ex.D1 – Xerox copy of the sale agreement Ex.D2 – Agreement of sale Ex.D2(a) to (f) – Signatures of PW1 Ex.D3 – Original GPA Ex.D4 – CC of the conversion order by DC Ex.D5 – Approved Layout Plan Ex.D6 – Demand Register Extract Ex.D7 – Demand Register Extract Ex.D8 – Mutation Ex.D9 – Encumbrance certificate Ex.D10 – Sub Registrar letter Ex.D11 – CC of the sale deed Ex.D12 – Objection letter Ex.D13 – Objection letter 13. The learned trial Judge answered the issues against the plaintiffs and dismissed the suit on 12.1.2006.
14. Against the judgment and decree passed by the learned trial Court in O.S. No.120/2001 plaintiffs filed Regular Appeal before first appellate Court in R.A.No.96/2006 renumbered as R.A. No.207/2006 which came to be dismissed. Against which, plaintiffs filed this Regular Second Appeal.
15. Sri Jai Vittal Rao Kolar, learned Senior Counsel appearing for Sri A. Vijaya Kumar Bhat for the appellants would submit about the effect of sale deed, if any, made in favour of defendant Nos.3 to 30 either by 2nd defendant through 1st plaintiff. He would further submit that the properties belonged to Narayana Reddy at the time of his death was devolved upon plaintiff Nos.1 and 2. Insofar as plaintiff No.2/J.M.Sudhakar Reddy is concerned, he is having two sons.
16. This Court admitted the appeal on 30.10.2015 to consider the following substantial question of law:
“Whether the findings recorded by both the Courts below that the properties are not the joint family properties is perverse in the face of admission of DW1 and that the suit schedule properties are ancestral properties?”
17. The relief sought for in the suit is as under:
a) Declaration of the title of the plaintiffs in the schedule property by adjudicating the alleged G.P.A. dated 18.5.1992 and the sale deed executed thereunder, in favour of defendants, as not binding on them, and they are null and void.
b) Permanent injunction against the defendants restraining them, their agents, servants and their henchmen, or anybody claiming under them, from entering into or interfering with the possession of the plaintiffs, or trespassing upon, or changing the nature of, the suit schedule land.
c) Any other relief, as this Hon’ble Court deem fit and proper under the circumstances of the case.
18. The plaintiffs seek their title over the suit properties by adjudicating the power of attorney dated 18.5.1992 and the sale deeds executed thereunder in favour of defendants as not binding and null and void. Further, injunctive relief to restrain the defendants or anybody claiming under them from trespassing upon or changing the nature of suit schedule land.
19. Learned counsel for plaintiff would further submit that insofar as another brother of 2nd defendant is concerned, i.e. Gopala Reddy obtained his share and has no claim over the suit properties.
20. The other five daughters of Narayana Reddy are settled separately living with their respective families and they do not have any claim over the suit property.
21. Learned counsel would further submit that there was no exclusive right available to defendant No.2 to dispose of the schedule properties through defendant No.1 and even if such a sale deeds are executed, they do not carry any right, title and interest. He further submits that the paternal relationship between Narayana Reddy on the one side and plaintiff No.1 – Smt. N. Savithramma, defendant No.2, her brother N. Mari Reddy is not disputed.
22. Shri Zulfikar Kumar Shafi, learned counsel for respondent No.3 would submit that a plain reading of the plaint itself disclose the right of the plaintiffs. The plaintiffs do not have joint or separate interest over the schedule properties. He would further states that the defendant No.2 had absolute right of ownership and possession over the suit properties and the concerned sisters were legally sold through defendant No.1 to defendant Nos.3 to 30.
23. Now to assess the title over the suit properties, the same has to be considered in light of the admitted facts.
24. Now coming back to the rights of the plaintiffs, first of all, plaintiff No.1 - Smt. Savithramma is the sister of defendant No.2 and plaintiff No.2 – Shri Sudhakara Reddy is the son of defendant No.2- N. Mari Reddy. In the present case, significantly, the son and sisters are plaintiffs. The blood relationship is not disputed. But it is not a suit for partition. They are seeking declaration of title over the entire suit schedule properties in this case along with the relief of permanent injunction.
25. Two items of suit schedule properties out of nine items of property that fell to the share of N. Mari Reddy – defendant No.2 and the fact that partition deed though not averred or relied upon in the suit.
26. Further, it is not the case of the plaintiffs that they are seeking cancellation of the said partition. Insofar as the registered partition as admitted by the plaintiffs concerned, it is of the year 1980 i.e. 26.11.1980. It is in this connection, it is necessary to go through the amendment of Hindu Succession Act, 1956 in the form of 6 (a) (b) (c) which came into force on 09.09.2005.
27. Plaintiff Nos.1 and 2 are sister and son of defendant No.2. Regard being had to the fact that plaintiff No.1 – Savithramma N was unmarried, plaintiff Nos.1 and 2 together claim half share in the schedule property is i.e., 1/4th share each of them. Defendant Nos.3 to 30 are stated to be the purchasers of the schedule properties in bits from defendant No.2 being represented by defendant No.1 as a Power of Attorney Holder. Thus, plaintiffs together lay their claim for half share in the entire schedule properties. Regard being had to the fact that they also plead 1/3rd share each in the schedule properties.
28. The suit is for declaration of title over the schedule properties and also the relief like consequential one in the form of declaring the Power of Attorney said to have been executed by defendant No.2 in favour of defendant No.1 and also the sale deeds executed in favour of defendant Nos.3 to 30 by defendant No.1 as null and void.
29. Here, the significant factor is, admittedly, defendant No.1 is stated to be Power of Attorney Holder of defendant No.2 and defendant Nos.3 to 30 are the purchasers of the schedule properties. Regard being had to the fact that one of the prayer is for the prayer includes for nullifying the Power of Attorney and the sale deed. The effect of nullifying the Power of Attorney in accordance with the prayer is, the situation would be reverting the ownership to defendant No.2 and the cancellation of the sale deed as sought by the plaintiffs. Again, the title being vested with the hands of the 2nd defendant and the cancellation of sale deed of the said property are sought to be declared by the plaintiffs. Here, the plaintiffs fail to mention the logic behind it. Plaintiff No.1 is unmarried daughter. The report suggests that she also died during her unmarried status. She is the sister of defendant No.2. Plaintiff No.2 – J.M.Sudhakar Reddy is the son of defendant No.2 whereas J.M.Sudhakar Reddy who has joined the camp of his Maternal Aunt – plaintiff No.1 and his claim of 1/4th share in the schedule property in addition to 1/4th share for the plaintiffs does not sink. Defendant No.1 concludes the total off springs. Narayana Reddy has admittedly has six daughters including plaintiff Nos.1 and 2 and sons including defendant No.2.
30. It is further admitted case of the parties that one Gopal Reddy who stated to be the eldest son of Narayana Reddy and he got released under the registered Partition Deed dated 26.11.1980. It is stated that there was a partition of 19 properties under the said registered Partition Deed, wherein nine items of properties fell to the share of present defendant No.2 and ten items of properties fell to the share of the said Gopala Reddy. Admittedly, for all the purposes that was the last partition effected in the family. The schedule properties under the suit are also stated to be item Nos.1 and 2 of the nine items of properties that fell to the share of defendant No.2. Plaintiff No.2 seeks relief but in accordance with the claim of his Maternal Aunt Savithramma who is the plaintiff No.1. It is stated that the said Savithramma died on 04.11.2011 and she is stated to be survived by one Ashapray. It is further stated that the said Asha Pray is none other than the wife of plaintiff No.2 – J.M. Sudhakar Reddy and she has come as legal representative of plaintiff No.1 under Testament that was said to have been executed by plaintiff No.1 in favour of Asha Pray and basing on such Will, the said legal representative of plaintiff Ashapray has come on record as appellant No.1(a). According to plaintiff No.1, her other sisters are married and settled with their respective families and her brother Gopal Reddy got his share under the Partition Deed mentioned above. The properties that fell to the share of defendant No.2 is available for partition and she claims title over it.
31. Circumstance is that it does not claim to be another partition after the partition dated 26.11.1980. Under the said circumstance, going by understanding of plaintiff No.1, defendant No.2 is retaining her share of the property. In this connection, the sequences of dates were to be mentioned:
“Narayana Reddy – the Propositous died during the year 1970 (however, the exact date not known to the parties) and in the year 1980, his two sons i.e., 2nd defendant – Marireddy and Gopalreddy partitioned the properties of the joint family, which consisted of nineteen items and thus, the relationship of the joint family properties got terminated between them.”
32. Now, the learned Senior Counsel for appellants would submit that in case, if the relief entitled by the appellants either in the capacity of the plaintiffs or appellants is not properly moulded, the Court is having ample power to grant the relief what a party is entitled within realm of law.
33. In this connection, it is necessary to mention that plaintiff Nos.1 and 2 are the contenders of 1/4th share each. The tone and tenor of the plaint is not to the effect that the suit schedule properties consisting of two items of the properties fell to the share of plaintiffs.
34. In so far as to the choice of plaintiff No.2, the emotions are not having place to consider the right of plaintiff Nos.1 and 2 together for reckoning the share in the company of defendant No.2, whether as a joint family or others.
35. In this connection, insofar as the plaintiff No.1 – Savithramma is concerned, her rights will have to be considered and reckoned as on the date of filing of the suit i.e., on 14.06.2001. Admittedly, after passing the Hindu Succession Act, 1956 but before the amendment dated 09.09.2005, wherein Section 6(a), (b) and (c), to the said Act are inserted by way of an amendment. The said amended provisions are worthy to be mentioned here, which is as under:
“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,― (a) by birth become a coparcener in her own right the same manner as the son;
(b) have the same rights in the coparcenery property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
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.”
36. Going by the amended provision of Hindu Succession Act, 1956 (2005), it is necessary to mention the date of partition between defendant No.1 – Marireddy and his brother Gopalareddy is 16.11.1980, which is almost 25 years earlier to the Amendment to the Act. Further, regard being had to the fact that the other criteria of unmarried status remained with Savithramma but she fails in the other aspect of partition that was taken place long back prior to amendment.
37. The scope of the suit is, declaration of title and if the appropriate relief is not sought by the plaintiffs, without prejudice to the rights and duties of the parties to mould appropriate relief. If same is within the domine of this proceedings or to see that the same is adjudicated before the competent Court.
38. Learned counsel for the appellants filed an application under Order LXI Rule 27 of CPC seeking permission to adduce additional evidence in the form of documents, namely; Partition Deed dated 26.11.1980 and connected Revenue Documents.
39. The said documents are stated to be in support of existence of properties partitioned in the year 1980 and defendant No.2 obtaining share.
40. In the circumstances of the case, no prejudice will be caused to the ends of justice if the documents are perused. Moreover the said application aims at producing the certified copy of the Partition Deed and connected Revenue Documents. In the ends of natural justice, application is allowed and the documents are taken on record and perused the same.
41. The participants are one Gopal Reddy elder son and Mari Reddy son of Narayana Reddy Insofar as these two items of schedule properties, the suit item Nos.1 and 2 are said to have been allotted to the share of N.Mari Reddy as item Nos.1 and 2.
In further circumstances of the case, under the partition deed, 19 items of properties came to be divided and ten items tell to the share of Gopal Reddy and the remaining nine items tell to the share of defendant No.2 – N. Mari Reddy which invariably includes the suit property in this case.
42. The Partition Deed is to the effect of severance status with reference to joint family properties and defendant No.2 got the property fully stated above under the partition dated 26.11.1980.
43. In the circumstances, the suit is presented for declaration of title and again it get mixed with the declaration of title relating as stated above. But, plaintiff Nos.1 and 2 go on presenting the case as each of them are entitled for a particular share. It is also necessary to make a mention that rest of the sisters of plaintiff No.1 are stated to have been married earlier to 1980. Thus, on the basis of the pleadings and the submissions of the parties regarding right to claim in the same factor of son, all the daughters are in same flat.
44. The next aspect is insofar as plaintiff No.2 is concerned, he has not pleaded the facts in clear and precise manner. On the other hand, he joins his voice in seeking declaration of the title in respect of the properties, but along with plaintiff No.1 which appears un-understandable. Regard being had to the fact that the 2nd plaintiff remains with his rights along with defendant No.2 in respect of the joint family properties, presumably the schedule properties in the present suit are nothing, but the part of the joint family properties that fell to the share of the present defendant No.2 under the Partition Deed dated 26.11.1980. Insofar as the share of plaintiff No.1 is concerned, under the above circumstances it is clear that she seeks declaration of title and the same may relieve and may not be available to her in the present texture of the suit. Insofar as plaintiffs are concerned. It is in the light of the admitted relationship existence of properties, properties belonging to joint family.
45. The learned counsel for the appellants at this stage would submit that insofar as the family of defendant No.2 is concerned, Sudhakar Reddy plaintiff No.2 is the only person who has not secured his share from the joint family properties. Regard being had to the fact that the position of law applicable would be on the basis of his rights in the joint family and the share of properties, in the circumstances may not be as prayed in the present suit. In the set of circumstances, it appears he qualifies all the eligibility criteria in the family of his father. For a share in the joint family properties as his paternal relationship defendant No.2 and plaintiff No.2 is not disputed. Existence of property is not disputed. It is in these circumstances, the matter ought to have been considered by the learned trial Judge in nature of suit schedule properties’ pre-existing rights of plaintiff No.2 and the right of defendant No.2 as well. Irrespective of the nature of the suit, it was necessary on the part of the learned trial Judge to mould the relief which the parties are entitled on the basis of available of evidence and material documents where no prejudice is caused to either of the parties.
46. In the said connection, I find the judgment and decree passed by the learned trial Judge is incomplete, besides infer. Thus, the findings of both, the trial Court and the first Appellate Court, even legal position regarding the pre-existing party to the suit and irregularity in seeking relief which the party is entitled and the ambiguity in adjudicating the share is apparently seen from the judgment and decrees.
47. Insofar as the other defendants No.3 to 30 are concerned, it is necessary to place on record that there is no allegations of vices, being vagabond against defendant No.2. Thus, the other aspects that has to be considered are, the rights that are available to defendant No.2 with reference to alienated rights and existence of other factor which should have been adjudicated in the trial Court. As the present judgments sans of the said relevant factors, the learned trial Judge erred in dismissing the suit and the first appellate Court in confirming the dismissal in appeal.
Substantial question of law is answered accordingly. The appeal deserves to be allowed and the judgment and decree passed by both the Courts below are liable to be set aside. The matter deserves to be remanded to the trial court for fresh disposal considering the rights of both, plaintiff No.2 – Sudhakar Reddy and defendant No.2 Mari Reddy and the rights available to other defendants i.e. defendant Nos.3 to 30.
48. At this stage, learned counsel Sri Zulfikar Kumar Shafi for respondent No.3 would submit that the 2nd plaintiff is estoped from claiming share in the light of his consent being given for the said sale agreement. Contrary to this, learned Senior Counsel for the appellants would submit that, the said agreement in respect of suit schedule property was executed by both, father the defendant No.2 and the son plaintiff No.2 respectively. The same was not acted upon and was duly cancelled.
49. Under the circumstance the said submissions in my considered view may not leave impact on the facts of the case, more particularly, agreement.
Regard being had to the fact that rights and duties, if any, already vested, or conferred on the parties remain open under the agreement.
50. Accordingly, the appeal is allowed.
The judgment and decree dated 20.03.2009 passed in R.A. No.207/2006 (Old R.A. No.96/2006) on the file of the Civil Judge (Sr.Dn.) & J.M.F.C., Anekal, confirming the judgment and decree dated 12.01.2006 passed in O.S. No.120/2001 on the file of Prl. Civil Judge (Jr.Dn.) & J.M.F.C., Anekal, is hereby set aside.
Matter is remanded to the trial Court for fresh consideration in accordance with law.
No order as to costs.
In the light of the age and stage of the case and in order to avoid wastage of judicial time, both the parties are directed to appear before the trial Court on 28.01.2020 without waiting for further notice from the trial Court.
Considering the pendency of the suit is from 2001, the trial Court shall try and dispose of the matter as expeditiously as possibility, within an outer limit of six months from the date of receipt of a copy of this judgment.
Sd/- JUDGE Bs/nbm/Sbs*