IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL No.319/2004 BETWEEN:
Sri.Dodda Thayappa Since deceased by his LRs 1. Sri.H.T.Narayana Reddy S/o late Dodda Thayappa Reddy, Aged 60 years, R/o Hoodi Village, Whitefield Road, Mahadevapura Post, Bengaluru – 560 048.
(By Sri.T.S.Harish, Advocate for Sri.Shanmukhappa, Advocate) AND:
1. Sri. H.N.Venkatesh Reddy S/o H.M.Narasimha Reddy Major, R/o Hoodi Village, Whitefield Road, Mahadevapura Hobli, Bengaluru – 560 048.
…Appellant 2. H.M.Narasimha Reddy Dead by his LRs (a) Smt.Savithramma W/o late H.M.Narasimha Reddy, Aged about 66 years, (b) Bhagyamma D/o late H.M.Narasimha Reddy, Both 2(a) and 2(b) are residents of Hoodi Village, Whitefield Road, Mahadevapura Post, Bengaluru – 560 048.
(c) Smt.Lakshmamma D/o late H.M.Narasimha Reddy, W/o. Narayana Reddy, Aged about 47 years, R/o Singanayakanahalli Village, Yelahanka Hobli, Bengaluru North Taluk.
(d) Smt.Padmavathi D/o late H.M.Narasimha Reddy, W/o Lakshmana Reddy, Aged about 37 years, R/o Koothaganahalli, Sarjapur Hobli, Anekal Taluk.
3. Sri.H.N.Narayanaswamy S/o H.M.Narasimha Reddy, Major, R/o Hoodi Village, Whitefield Road, Mahadevapura Post, Bengaluru – 560 048.
4. Sri.H.T.Jayappa Reddy S/o late Doddathayappa 5. Smt.Parvathamma D/o late Doddathayappa, W/o Srinivasa Reddy 6. Smt.Shanthamma D/o late Doddathayappa, W/o Narayanaswamy No.4 to 6 are residents of Hoodi Village, White Field Road, Mahadevapura Post, Bengaluru – 560 048.
Respondents 4 to 6 are placed exparte.
(By Sri:D.V.Sadashiva Reddy, Advocate for R1;
…Respondents Sri:K.B.Venkata Reddy, Advocate for R2(a) to (d); Sri:M.G.Suresh Holla, Advocate for R3) This Regular First Appeal is filed under Section 96 of CPC against the Judgment and decree dated 12.12.2003 passed in O.S.No.1419/1993 on the file of the XX Additional City Civil Judge, Bengaluru (CCH No.32) decreeing the suit for partition and separate possession.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The appeal is directed against the judgment and decree dated 12.12.2003 passed in O.S.No.1419/1993 by the learned XX Additional Civil Judge, Bengaluru, wherein the suit for partition came to be decreed and plaintiff is held entitled for 1/3rd share in the plaint schedule property.
2. Insofar as schedule properties are concerned, there are four items, namely:-
1) Land bearing Sy.no.2/2 of Hoodi Village measuring to an extent of 5 guntas, 2) R.C.C roofed house with vacant land attached thereto property bearing House List No.86 of Hoodi Village, 3) House and Vacant land in property bearing House List No.87 of Hoodi Village and 4) Land bearing Sy.no.185/2 measuring 1 acre 2 guntas of Hoodi Village, K.R.Puram Hobli, Bengaluru South Taluk.
3. In order to avoid confusion and overlapping, the parties are addressed in accordance with their ranking and status as held in the trial Court.
4. Suit was filed by Sri H.N. Venkatesh Reddy, S/o.
H.M. Narasimha Reddy, who is the plaintiff against H.M. Narasimha Reddy, defendant No.1- he is the father of the plaintiff. Now by virtue of death of defendant No.1, he is represented by legal representatives viz., Smt. Savithramma, Smt. Bhagyamma, Smt. Lakshmamma, Smt. Padmavathi and other defendants are Sri. H.N. Narayanaswamy, Sri. Dodda Thayappa, Sri. H.T. Jayappa Reddy, Smt. Parvathamma, Smt. Shantamma. The claim of the plaintiff is as under:-
Plaintiff is the son of first defendant Sri. H.M. Narasimha Reddy and defendant No.2 Sri. H.N. Narayanaswamy is the brother of the plaintiff or another son of first defendant.
5. Defendant No.1 H.M. Narasimha Reddy is dead and he is survived by his legal representatives which includes plaintiff and defendant No.2 as well. Further claim of the plaintiff is that the properties mentioned in the schedule morefully stated above are two viz., land in Sy.Nos.37/3 and 37/4 at Hoodi village, Krishnarajapuram Hobli, Bengaluru South Taluk. The same was sold to the then Mysore State Electricity Board under a registered sale deed dated 17.06.1971 by the first defendant and his brother H. M. Muniyappa Reddy for themselves and on behalf of their respective children and sale consideration have been divided between defendant No.1 and his brother.
6. Out of the said sale consideration, first defendant purchased land bearing Sy.No.185/2 situated at Hoodi village under the sale deed dated 12.07.1971.
7. It was sold for Rs.42,525/- which is stated to have been equally distributed between siblings Sri. H. M. Narasimha Reddy and his brother H.M. Muniyappa Reddy. The property bearing Sy.No.185/2 of Hoodi village was purchased by the first defendant. Insofar as other properties of the joint family are concerned, they were divided between first defendant and his brother H.M. Muniyappa Reddy under a registered partition deed dated 01.05.1972.
8. The plaintiff further claims that there was sufficient nucleus to buy said property in Sy.No.185/2 and other properties and hence they belonged to joint family consisting of plaintiff and defendant Nos.1 and 2. His further claim is as members of the joint family, said properties are in possession and enjoyment of them. However, the land in Sy.No.185/2 to an extent of 1 acre 2 guntas at Hoodi Village, K.R. Puram Hobli was sold by defendant No.1 H.M. Narasimha Reddy in favour of defendant No.3 Sri. Dodda Thayappa. Rest of the averments are that plaintiff claims to have demanded for partition and same was not responded on merits, hence suit came to be filed.
9. Defendant Nos.1 and 2 placed their appearance.
However, defendant No.1 who is the father of plaintiff died on 19.04.1993 after the filing of the suit, but before filing his written statement and in his place, his legal representatives including the plaintiff and defendant No.2 are as stated in the present cause-title. In the judgment, it is stated that defendant No.1 has filed his statement. However, on perusal of the written statement, said written statement is filed by the legal representatives of first defendant. Incidentally, they endorsed the version of claim of the plaintiff. Similarly, defendant No.2 has adopted submissions and contentions of the said written statement.
10. The 3rd defendant in his written statement who came on record has claimed that the suit of the plaintiff is not maintainable and he is not entitled for any of the reliefs and that it is bad for misjoinder and non-joinder of parties. However, it is claimed by defendant No.3 Dodda Thayappa that land in Sy.No.185/2 situated in Hoodi village was purchased by the first defendant from his own earnings and it is his self-acquired property and he had all the rights to purchase from his own funds and to dispose of the same. Accordingly, defendant No.3 purchased the said property on 20.11.1990 for cash consideration of Rs.53,000/- and took possession of the schedule property.
11. In the year 1992, the plantiff and his father approached the third defendant and made illegal demand of Rs.1.00 lakh, since he refused, they have filed a suit. Thus the claim regarding joint family property for joint possession and demand for partition by the plaintiff or legal representatives of defendant No.1 or defendant No.2 are baseless and they are not entitled for possession or partition. Third defendant also claims that the property was purchased by him from defendant No.1 as the latter wanted to counter finance for legal necessities and benefit to the estate.
12. Learned Trial Judge framed the issues on the nature of the schedule properties, joint possession and non-binding nature of the sale deed by defendant No.1 in favour of defendant No.3 and also to the effect as to whether the land in item No.4 which is Sy.No.185/2 to an extent of 1 acre 2 guntas at Hoodi village was sold for legal necessity and benefit to the estate and entitlement of the plaintiff for his share.
13. Learned Trial Judge on the basis of the oral evidence of PW-1 H.N. Venkatesha Reddy-plaintiff and DW-1 H.T. Narayana Reddy and documentary evidence of the following Exs-P1 to P7 for plaintiff and Exs-D1-D16 for defendants, decreed the suit of the plaintiff as stated above, against which, defendant No.3 is in appeal.
14. Learned counsel for the appellant/defendant No.3 Sri.
T.S. Harish for Sri. Shanmukhappa would submit that there is perfect collusion between plaintiff, defendant No.1 (vendor of defendant No.3) in respect of land in Sy.No.185/2 of Hoodi village and it is actively and strongly supported by defendant No.2 who is none other than sibling of the plaintiff.
15. Learned counsel would further submit that the suit is filed as defendant No.3 did not heed to the blackmailing tactics of the plaintiff and defendant No.1. It is also submitted that item No.4 of the schedule property which is the landed property in Sy.No.185/2 to an extent of 1 acre 2 guntas of Hoodi village is situated at a plum locality of Hoodi village and false claim is laid by the plaintiff and he is actively supported by defendant No.1 and as defendant No.1 H.M. Narasimha Reddy-vendor of defendant No.3 is dead and could not file his written statement, however, is survived by plaintiff, defendant No.2 and legal representatives of defendant No.1 which invariably include plaintiff and defendant No.1.
16. Learned counsel would further submit that because of shooting up of the prices at lucrative rate, plaintiff, defendant No.2 and the legal representatives of defendant No.1, have given a second thought with a malafide intention and have filed a suit. It is also stated that defendant No.3 Dodda Thayappa verified from all quarters as in case of a bonafide purchaser and has paid full lawful consideration to first defendant and he is not bound by collusive claim of the plaintiff and defendant No.2.
17. Sri. D.V. Sadashiva Reddy, learned counsel appearing for the plaintiff/respondent No.1 would submit that the suit is exactly in accordance with the principles of joint family.
18. There are abundant oral evidence to confirm that the suit properties belonged to joint family and plaintiff, defendant Nos.1 and 2 earlier were in joint possession and naturally, after the death of defendant No.1 H.M. Narasimha Reddy, his legal representatives plaintiff, defendant No.2 and legal representatives of defendant No.1 are in joint possession and enjoyment of the property.
19. Learned counsel Sri. D.V. Sadashiva Reddy would further submit that sale consideration of the sale deed Ex.P1 in the year 1971 in favour of Mysore State Electricity Board relating to two items of property bearing Sy.Nos.37/3 and 37/4 under sale deed dated 17.06.1971 was Rs.42,525/- and that amount was equally shared in the proportion of Rs.21,262.50 paise. Said sale deed Ex-P1 is the copy of the sale deed wherein said properties were sold by defendant No.1- H.M. Narasimha Reddy-
father of the plaintiff and his other legal representatives. The other joint seller Sri. H.M. Muniyappa Reddy is none other than brother of H.M. Narasimha Reddy.
20. Learned counsel also would submit that item No.4 of the plaint schedule to an extent of 1 acre 2 guntas was purchased by first defendant H.M. Narasimha Reddy on 12.07.1971 under a registered sale deed, which is marked as Ex- P2 for valuable consideration of Rs.2,000/-. Thus there was huge joint family financial resources available to H.M. Narasimha Reddy to purchase the suit item No.4 of the schedule properties and item Nos.1 to 3 are undisputedly joint family properties under Ex-P3. Thus, it is seen that in this case, the plaint schedule item No.4 is held to be joint family property along with item Nos.1 to 3. Not only the plaintiff, but also defendant No.2 alongwith all the legal heirs of H.M. Narasimha Reddy-defendant No.1, which include plaintiff and defendant No.2 also are entitled for the share. In the context and circumstances, the contesting defendant is defendant No.3 who is the purchaser. It is he who claims that the property was sold by defendant No.1 to counter legal necessities and benefit to the estate of his family and also that the property was his self-acquired one.
21. Per-contra, it is vociferous case of the plaintiff that suit property are all joint family properties as existed earlier insofar as item Nos.1 to 3 are concerned and insofar as item No.4 is concerned, it was purchased from the funds belonging to joint family, particularly from the proceeds of sale of the property bearing Sy.Nos.37/3 and 37/4 of Hoodi village in favour of Mysore State Electricty Board under Ex-P1.
22. Insofar as Ex-P4 is concerned, it is the certified copy of registered sale deed dated 20.11.1990 of the suit property wherein item No.4 of the plaint schedule which is land in Sy.No.185/2 to an extent of 1 acre 2 guntas was sold by defendant No.1 in favour of defendant No.3. In respect of said property whereunder in the recitals, vendor H.M. Narasimha Reddy defendant No.1 stated that he was selling said property for cash consideration of Rs.53,000/- for his requirement (£À£Àß zÀgÀzÀÄ ¤«Äv) . But, plaintiff does not accept it to be sale for legal necessities or benefit to the estate of the family and he is not bound by it.
23. Insofar as sale of the schedule property is concerned, when there are ample evidence to hold that said property item No.4 in the schedule was sold to counter legal necessity and for benefit of the joint family, the sale made by defendant No.1 would be binding on the entire family and said property will not be available for partition. However, in case the property sold was not meant for legal necessity and benefit to the estate, the same would not be binding on the joint family and right of seeking partition by the members of joint family is not deprived of. Further, as per Mithakshara law, joint family property would be available for partition among members of the joint family. Insofar as relationship between defendant No.1, plaintiff and defendant No.2 are concerned, it is not disputed.
There is no allegation of vices against defendant No.1 and if the sale or disposal is made by a member of a joint family and when it is stated to be for legal necessity and benefit to the estate, other members are not at all bound by such sale. In the present case, there is no character mischief against defendant No.1. But insofar as material evidence are concerned, it is controlled by Doctrine of legal necessity and benefit to the estate. Insofar as title of the property is concerned, there cannot be any dispute as against item Nos.1 to 3 which are the plaint schedule. They are part of the schedule property which was acquired by defendant No.1 in the partition Ex-P3. Insofar as the trial court is concerned, it has ordered 1/3rd share to the plaintiff in item Nos.1 to 4. It is necessary to place on record that where there is no allegations of vices, equal purpose of legal necessity and benefit to the estate, defendant No.1 by his sale deed cannot bind the shares of the plaintiff and defendant No.2. Joint family properties are always available for partition among the members of the Hindu Mithakshara joint family. The plaintiff, defendants 1 and 2 are Hindus and the principles of Hindu law are applicable to them. The Hindu Joint family properties which are also known as co-parcenary properties generally consists of:-
1. Ancestral properties succeeded by the ‘Karta’ (management of the joint family).
2. Properties earned out of income from such ancestral properties.
3. Properties acquired from the income of the joint family.
4. Separate properties and income from such properties of its members but contributed to the common basket of the joint family.
But the schedule item number cannot be branded as the separate and self acquired property of defendant No.1.
24. Insofar as decree passed by the trial court is concerned, it is a preliminary decree wherein the entitlement of the plaintiff is held to be 1/3rd, which means, partition by metes and bounds is to be effected in the ratio of 1/3rd share for plaintiff, defendant No.1 (Now the legal representatives of defendant No.1 which includes plaintiff and defendant No.2) Thus on such an incident happening of partition by metes and bounds, the value of the share has to be calculated considering the utility and benefit and value of all the properties without causing prejudice to any of the members.
25. Under the circumstances, defendant No.1 is dead. He is survived by his legal representatives as stated above. That all those who stand at par with plaintiff, defendant No.1 and legal representatives of defendant No.1 are entitled for 1/3rd share.
26. Insofar as sale deed dated 20.11.1990 in favour of defendant No.3 is concerned, there is no material at all as to the existence of vices by defendant No.1 nor was there bonafide legal necessity and benefit to the estate, in which event, the estate share of defendant No.1 is bound by his act, at the same time, any amount of extent in item No.4 of the schedule property cannot be sacrified from the share of plaintiff and defendant No.2. In other words, the share of defendants at the time of actual demarcation on the basis of entitlement of 1/3rd share of defendant No.1 could be applied to the share of defendant No.3 herein. Otherwise, I do not find any infirmity, illegality or perversity in the judgment and decree dated 12.12.2003 passed in O.S.No.1419/1993 by the XX Addl. City Civil Judge, Bengaluru and it deserves to be confirmed.
Accordingly, the appeal is dismissed. No order as to costs.
Sd/- JUDGE *UN/MN/-