SMT. ANITHA v. SRI VENKATABYLAPPA

RESPONDENT NOS.4(A) TO 4(C) ARE RESIDING AT NO.636, SRI VINAYAKA NAGAR OPP. TO KENNAMETAL WIDIA INDIA LTD. NAGASANDRA POST, BENGALURU - 560 073.

5. SMT. ARCHANA AGED ABOUT 30 YEARS D/O. LATE INDIRA R/AT SUBHASHNAGAR NELAMANGALA BENGALURU - 562 123.

6. SRI MOHAN GOWDA AGED ABOUT 28 YEARS S/O. LATE INDIRA R/AT SUBHASHNAGAR NELAMANGALA BENGALURU - 562 123. - 4 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018

7. SMT. PRATHANA AGED ABOUT 26 YEARS D/O. LATE INDIRA R/AT SUBHASHNAGAR NELAMANGALA BENGALURU - 562 123.

8. SRI M. S. RAMESH AGE MAJOR R/AT NO.1817, 10TH CROSS KALYANAPURA, T. DASARAHALLI BENGALURU - 560 057.

9. SRI B. P. VIJAYAN AGE MAJOR R/AT 1ST MAIN ROAD KALYANAPURA, T. DASARAHALLI BENGALURU - 560 057.

10. SMT. MUNIYAMMA AGED ABOUT 93 YEARS W/O. LATE CHINNAHANUMAIAH R/AT HANCHIPURA VILLAGE KARAKALPALYA, KASABA HOBLI NELAMANGALA TALUK BENGALURU - 562 123. …RESPONDENTS (BY SRI T. V. VIJAY RAGHAVAN, ADVOCATE FOR R-4; VIDE ORDER DATED 10.08.2023 SERVICE OF NOTICE TO R-1 TO R-3 AND R-5 TO R-10 ARE DISPENSED WITH) THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 27.4.2018 PASSED IN O.S. NO.327/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA, DISMISSING THE SUIT FOR PARTITION. THIS REGULAR FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR HON'BLE MR JUSTICE VENKATESH NAIK T - 5 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the appellants/plaintiff Nos.2, 3, 4 and 5 being aggrieved by the judgment and decree dated

27.04.2018 passed by learned Senior Civil Judge, Nelamangala, (hereinafter referred to as the trial Court, for brevity), in O.S.No.327/2013, wherein the trial court dismissed the suit of the plaintiffs.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are plaintiff Nos.2, 3, 4 and 5 and the respondents are plaintiff, defendant Nos.1, 2, 3, 4, 5, 6, and plaintiff No.1 respectively, before the trial Court.

3. The brief facts of the plaintiffs' case are as under: One Chinnahanumaiah, the husband of plaintiff No.1, the father of defendant No.1 and grandfather of plaintiff Nos.2 to 5 died intestate in the year 1980 leaving behind the plaintiffs and defendants to succeed to his estate. Plaintiffs and defendant No.1 are the members of joint family and the suit schedule properties item Nos.1 to 4 constitute the joint family properties. - 6 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 Chinnahanumaiah during his life time executed a registered Will dated 10.11.1979, wherein, he bequeathed the suit schedule properties in favour of defendant No.1 with a rider that defendant No.1 would get the properties only after his death and plaintiff No.1. Ever since the death of Chinnahanumaiah, the plaintiffs are demanding defendant No.1 for partition and to put them in separate possession. But defendant No.1 failed to do so. In order to defeat the legitimate rights of the plaintiffs and their shares, defendant No.1 conveyed the suit schedule properties in Item No.1 in favour of defendant No.2 in terms of sale deed dated 21.09.1985. In turn defendant No.2 conveyed those properties in favour of defendant No.3 under registered sale deed dated 09.11.1987. Defendant No.3 in-turn sold those properties in favour of defendant No.4 under registered sale deed dated 19.01.2024. In addition to that, defendant No.1 also sold item No.2 in favour of defendant No.5 under registered sale deed dated 28.12.1995. Later, defendant No.1 purchased two sites as per item Nos.3 and 4 and the same was conveyed in favour of defendant Nos.6 and 7. It is contended that since no partition has been effected in the joint family, the plaintiffs have share to an extent of 1/3rd each over the suit properties. - 7 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 In that regard, on 09.02.2012, the plaintiffs demanded their legitimate share. However, defendant No.1 denied the same. Hence, the plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties.

4. After institution of the suit before the trial court, the defendant No.1 appeared through his counsel and filed written statement by admitting the relationship pleaded by the plaintiffs. He also admitted that Chinnahanumaiah died intestate in the year 1980 leaving behind him and the plaintiffs, who succeeded to his share. The fact that they constitute joint family and they are in joint possession of the suit schedule properties is admitted by him. He also admits the registered Will executed by Chinnahanumaiah dated 10.11.1979 bequeathing Item Nos.1 and 2 of suit schedule properties. Defendant No.1 also admits execution of subsequent sale deeds dated 27.01.1986 and 28.12.1995.

5. Defendant No.4 D. Vikraman resisted the suit by contending that defendant No.1 and plaintiff No.1 jointly conveyed Item No.1 land bearing Sy.No.102 in favour of defendant No.2 under registered sale deed dated 21.10.1995. - 8 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 Thereafter, defendant No.2 conveyed Item No.1 in favour of defendant No.3 under registered sale deed in the year 1997. Defendant No.3 in-turn conveyed those properties in favour of defendant No.4 under registered sale deed dated 22.12.2003. It is contended that the plaintiffs are challenging those sale deeds after 26 years of sale. Thus the suit is stated to be barred by law of limitation. Further, Chinnahanumaiah bequeathed the properties in Item Nos.1 and 2 in favour of defendant No.1 and plaintiff No.1 with a condition that defendant No.1 shall succeed the same only after the demise of the testator and plaintiff No.1. Further, as per bequest, the outstanding loans at Prathamika Sahakari Krushi and Grameena Bank, Nelamangala was to be discharged by defendant No.1. Thus, in order to discharge the loans, soon after the death of his father, with the consent of plaintiff No.1, considering the age of plaintiff No.1 about 70 years at that time, jointly conveyed item No.1 in favour of defendant No.2 for consideration of Rs.1,50,000/- for their legal necessities. Further, the interest of minor plaintiffs were taken care by depositing Rs.12,500/- each until they attain majority and the recitals of the sale deeds also reiterates the fact that the sale was for legal necessity. Infact, the suit - 9 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 schedule properties were granted to Chinnahanumaiah in terms of occupancy rights on 06.06.1959, Therefore, the suit schedule properties are self-acquired properties of Chinnahanumaiah. Even assuming for a moment that in terms of the Will executed by Chinnahanumaiah, plaintiff No.1 has only life interest over the properties and the properties were sold by defendant No.1 and plaintiff No.1 jointly in favour of defendant No.2, now they cannot question the same after lapse of 26 years. Hence, learned counsel for defendants prayed for dismissal of the suit. So far as other defendants, they remained absent.

6. The trial court based on the rival contentions of the parties, framed the following issues:-

1. Whether the plaintiffs prove that they along with defendant No.1 constitute a joined Hindu Family and the suit properties are their joint family properties?

2. Whether the plaintiffs prove that the Sale Deeds dt:27.01.1986, 09.11.1987, 28.12.1995 and 19.01.2004 are not binding upon their alleged share over suit properties?

3. Whether the defendant No.4 proves that the item No.1 of suit property was the absolute property of Chinnahanumaiah as contended?

4. Whether the defendant No.4 proves that the alienation made in respect of item No.1 of suit property was for the legal necessity and for the - 10 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 benefit of joint family as contended?

5. What the suit is barred by limitation?

6. Whether the plaintiffs are entitled for their alleged share over suit properties?

7. What order or decree?

7. In order to prove their case, plaintiff No.3 was examined as PW.1 and got marked in all 38 documents as per Exs-P1 to P38. Defendant No.4 was examined as D.W.1 and they got marked in all 19 documents as per Exs-D1 to D19. Defendant No.1 was examined as DW.2. The trial court after recording the evidence and considering the oral and documentary evidence answered issues Nos.1, 2 and 6 in the negative, issues Nos.3 to 5 in the affirmative and consequently, dismissed the suit of the plaintiffs. The plaintiffs being aggrieved by the judgment and decree passed by the trial court, have preferred this appeal.

8. Learned counsel for the plaintiffs/appellants argued and submitted that the judgment and decree passed by the trial court is illegal and liable to be dismissed. The trial court has failed to take note of the fact that the contents of Ex-P2 Will, which clearly demonstrates that Chinnahanumaiah bequeathed - 11 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 the properties in favour of defendant No.1, which will come into effect only after the demise of plaintiff No.1. Therefore, the properties alienated by defendant No.1 and plaintiff No.1 together is bad in law and the same is void ab inito. This trial court failed to take note of this fact. Further, Item Nos.3 and 4 of the suit schedule properties are the properties acquired from joint family nucleus and despite proving that the sale in favour of defendant Nos.6 and 7 as illegal without adding plaintiff Nos.2 to 5 while alienating the plaint schedule properties and therefore, the sale deeds are not binding on the share of plaintiff Nos.2 to 5, however, the trial court erroneously dismissed the suit of the plaintiffs. Further, the trial court has committed an error in holding that the suit has been barred by law of limitation despite the fact that the subject matter is joint family properties. Thus, the concept of suit for partition and limitation thereof is misunderstood by the trial court. Further, the trial court has wrongly observed that the sale was for the benefit of the family and defendant Nos.1 and 2 have deprived the rights of plaintiff Nos.2 to 5, who are having birth right in the joint family properties. Therefore, without joining plaintiff Nos.2 to 5 to the respective sale deeds and excluding the - 12 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 natural heirs for execution of Will, is also bad in law, but, this fact has been ignored by the trial court. On all these grounds, learned counsel prayed to allow the appeal.

9. Per-contra, learned counsel defendants/respondents vehemently argued and have taken the contention that the beneficiary i.e., defendant No.1 and plaintiff No.1 have alienated the land in favour of defendant No.2 long back and later, it was conveyed to defendant No.3, who, in turn conveyed to defendant No.5. Thus, the schedule properties are not in existence in the nature of the joint family. The trial court considering the oral and documentary evidence on record rightly dismissed the suit of the plaintiffs. Further, the Will as profounded by the plaintiffs is not proved in accordance with law. Thus, learned counsel prayed for dismissal of the appeal.

10. Heard, perused the records and considered the submissions made by learned counsels for the parties. The points that would arise for our consideration in this appeal are:

1. Whether the appellants/plaintiffs prove that they alongwith defendant No.1 constituted joint Hindu Family and the suit schedule properties are their - 13 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 joint family properties, as such, sale deeds dated

27.01.1986,

09.11.1987,

28.12.1995

19.01.2004 are not binding upon their shares?

2. Whether defendant No.4 proves that the suit schedule Item No.1 was absolute property of Chinnahanumaiah and he alienated the said property for legal necessity and also for the benefit of joint family?

3. Whether the suit filed by the plaintiffs is stated to be barred by law of limitation?

4. Whether the judgment and decree passed by the trial Court is perverse, arbitrary and illegal, thus, calls for interference of this Court?

5. What order or decree? Point Nos.1 and 2:

11. As point Nos.1 and 2 are interlinked, they are taken up together for common discussion in order to avoid repetition of facts and law.

12. In order to establish the claim of the plaintiffs, plaintiff No.3 was examined on oath as PW.1. In his evidence, he has reiterated the averments made in the plaint. In his - 14 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 evidence, he has stated that plaintiff No.1 is his mother and plaintiff Nos.2 to 5 are the children of defendant No.1. He states that plaintiffs are seeking for partition of the schedule properties on the ground that the schedule properties are joint family properties and they are in joint possession of the same as on the date of the suit and they are entitled for 1/3rd share in the schedule properties. Further, the sale deeds standing in the name of other defendants executed by defendant No.1 in respect of respective properties are not binding to their extent of land. In support of his oral evidence, he relied upon Ex-P1 Genealogy tree, Ex-P2 Registered sale deed dated 10.11.1979, Ex-P3 copy of the sale deed dated 21.10.1985, Ex-P4 copy of the sale deed dated 14.07.1987, Ex-P5 copy of the sale deed dated 22.12.2003 and Ex-P6 copy of the sale deed dated

28.12.1995, Exs-P7 and P8 mutation extracts, Exs-9 and 10 preliminary records, Exs-P11 -32 RTC extracts in respect of suit schedule properties, Ex-P33 encumbrance certificate, Exs-P34 to P36 electricity bills, Ex-P37 Special Power of Attorney and Ex-P38 death certificate.

13. Per-contra, defendant No.4 was examined as DW.1. In his examination-in-chief, he has reiterated the averments - 15 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 made in the written statement, he relied upon in all 19 documents. Exs-D1 to D4 are the certified copies of the gift deeds dated 10.11.1979, Exs.D5-D8 are the mutation registration extracts, Exs-D9 to D11 are the tax paid receipts, Exs-D12 to 17 are the RTCs, Ex-D18 the official memorandum dated 31.08.2013, Ex-D19 is the original sale deed dated 21.10.1985. To rebut the claim of the plaintiffs, defendant No.1 was examined as DW.2, who corroborated the oral testimony of DW.1.

14. From the perusal of the material available on record, it appears that plaintiff Nos.2 to 5 being the children of defendant No.1 are challenging the alienation of lands made by their father Chinnahanumaiah, which took place in the year

1985. Plaintiff No.1 Muniyamma is none other the mother of defendant No.1 Sri. Venkatabylappa, who is the beneficiary under the Will-Ex-P2. From the material available on record, defendant No.1 and plaintiff No.1 have jointly conveyed item No.1 in favour of defendant No.2 Ashok M. Kondikoppa under the registered sale deed dated 21.10.1995. Thus, it is clear that both the plaintiff No.1 and defendant No.1 have jointly - 16 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 conveyed the schedule properties in Item No.1 in favour of defendant No.2, who in turn, sold the same in favour of defendant No.3 E. Jayasheelan under registered sale deed dated 09.11.1987. Defendant No.3 inturn sold those properties in favour of defendant No.4 by sale deed dated 19.01.2004. Later, defendant No.1 also sold Item No.2 in favour of defendant No.5 under registered sale deed dated 28.12.1995 as per Ex-P6. In the instant case, learned counsel for the appellants/plaintiffs contended that the sale is opposed to the terms of the Will. However, the very fact that the sale was by both beneficiaries under the Will for legal and family necessity, is not in dispute. From the perusal of Ex-D19 sale deed dated

21.10.1985, it clearly establishes that the sale was for the purpose of discharging bank loans and other private parties and so as to clear other properties. These factual aspects of the matter are not disputed. The plaintiffs have not placed any kind of evidence on record to show that the sale was not for the benefit of the joint family or for legal necessities. As it could be seen from the registered instrument i.e.,Exs- P3 to P6 and Ex-D19, plaintiff Nos.2 to 5 were minors at the time of sale deeds. At the time of institution of the suit, plaintiff No.1 was - 17 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 aged 88 years, Plaintiff No.2 Anitha, 36 years, plaintiff No.3 Prasad V, 32 years, plaintiff No.4 Nethravathi.V, 30 years and plaintiff No.5 Dayananda. V, 28 years, and they have not filed the suit within three years from they attaining majority. More importantly, the sale was by their father Venkatabylappa and their grandmother Muniyamma for their family necessities. Thus, it can be borne out from the documents itself that the plaintiffs have not placed any material to show that the sale is opposed to the Will. The plaintiffs on the one hand have taken the contention that their father Chinnahanumaiah died intestate in the year 1980 and on the other hand, they have taken the contention that Chinnahanumaiah executed a Will bequeathing the schedule property in favour of defendant No.1 and plaintiff No.1. In order to establish the contents of the Will and proving Will, plaintiff No.3 Prasad V, was examined as PW.1 and he relied upon Ex-P2 registered Will dated 10.11.1979. Infact, the plaintiffs have not got examined any of the attesting witnesses to Ex-P2 as required under Section 68 of The Indian Evidence Act, 1872. In order to prove the Will, atleast two attesting witnesses have to attest the Will under Section 65 of the Indian Succession Act and atleast one of the attesting witnesses shall - 18 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 have to be examined, whereas, the plaintiffs have not examined any attesting witnesses. Hence, the contents of the Will Ex-P2 is not proved.

15. In this case, the plaintiffs are claiming their shares in respect of suit schedule properties. Infact, there are many transactions effected one after another among defendant Nos.2 to 5 in respect of Item No.1 of the schedule property.

16. Insofar as, Item No.2 of the suit schedule properties is concerned, the sale was effected in the year 1985 in favour of defendant No.5 and sofar as other properties are concerned, there are no materials available on record to show that the properties are still existing in the joint family. Hence, the plaintiffs have failed to prove the joint ancestral nature of the properties and also to the effect that various sale deeds executed in respect of the properties are not binding on them. Further, it is evident on record that item No.1 was conveyed in favour of defendant No.2 for a consideration of Rs.1,50,000/- for their legal necessity, inasmuch as, the interest of minor plaintiffs were taken care of by depositing Rs.12,500/- each, until they attained majority. Thus the recitals of sale deeds - 19 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 reiterate those facts about legal necessity. In this case, there is nothing brought on record to show that the amount is not utilized for the legal necessity or for the benefit of the family. Under such circumstances, the trial court has rightly analyzed the facts and evidence both oral and documentary and has come to the right conclusion and consequently dismissed the suit of the plaintiffs. Hence, no interference is called for in that regard.

17. In order to prove that the alienation of schedule properties was for legal necessity and for benefit of the joint family, the defendants have relied upon Ex-D19 sale deed dated

21.10.1985, wherein at pages 5 and 6, it is recited that plaintiff No.1 and defendant No.1 intended to sell Item No.1 property in order to clear the loan of one Ramchandra, which was borrowed in the year 1984 for a sum of Rs.20,000/- and to pay the loan of Govindaraju, which was borrowed in the year 1983 in a sum of Rs.15,000/-, to pay the loan of Grameena Bank and Sahakari Sangha in a sum of Rs.12,950/- and Rs.6,500/-. There is also recital that in order to acquire the property in item Nos.3 and 4, they sold item No.1. Defendant no.1 in his pleadings admitted Ex-D19 sale deed and he has not disputed any recitals found - 20 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 therein. Now the plaintiff No.1 cannot dispute the contents of Ex-D19. Since defendant No.1 is a party to the sale deed Ex-D19, plaintiff Nos.2 to 5 being his legal representatives, cannot question the validity of the said sale deed. Therefore, the contents of Ex-D19 itself clearly establish the fact that the sale was for necessity of the family so as to discharge the debt and it was for family necessity.

18. So far as limitation aspect is concerned, plaintiff No.1 and defendant No.1 sold suit schedule properties in the year 1985 and the suit of the plaintiffs was instituted in the year 2013 i.e., after lapse of in all 26 years. Admittedly, plaintiff Nos.2 to 5 are the children of defendant No.1. In categorical terms, it is contended that the sale deed executed by plaintiff No.1 and defendant No.1 is not binding on them. Plaintiff No.1 who was beneficiary under Ex-P2 Will, she herself has executed Ex-D19-Original Sale deed in favour of defendant No.2 in the year 1985. Paintiff Nos.2 to 5 or defendant No.1 have not taken contention that the sale deed was executed by plaintiff No.1 in favour of defendant No.2 by fraud or coercion and undue influence and there is no pleading to that effect as required under Order VI Rule 4 CPC. As the plaintiff No.1 was a party to - 21 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 Ex-D19 sale deed, under what circumstances and in what capacity she challenged those sale deeds is not forthcoming from the records. Neither plaintiff No.1 nor defendant No.1 have lodged any complaint against defendant No.2 alleging any threat or coercion. Admittedly, at the time of execution of sale deed Ex-D19, plaintiff Nos.2 to 5 were minors. From the perusal of Ex-P6 sale deed, plaintiff No.3 was aged 13 years, plaintiff No.5 was 9 years in the year 1985. Whereas, the plaintiffs have instituted the suit in the year 2013. Infact, they ought to have challenged the sale deeds within three years after they attained majority. Even on the ground of limitation also, the suit of the plaintiffs was barred by limitation. In this case, defendant No.1 was manager of the family and in the capacity of manager, he alongwith his mother sold the schedule properties in favour of defendant No.2 for the benefit of family and for legal necessity. Since the schedule properties were not available for partition, the benefit of ratio laid down in the cases of Prakash & Others v. Phulavati & Others reported in AIR 2016 SC 769, Vineeta Sharma v. Rakesh Sharma and others reported in AIR 2020 SC 3717, Danamma Alias Suman Surpur And Another v. Amar and Others reported in (2018) 3 SCC 343 - 22 - NC: 2025:KHC:13710-DB RFA No. 1111 of 2018 and Arunachala Gounder (Dead) by Legal Representatives v. Ponnusamy and Others reported in (2022) 11 SCC 520 are not available to the appellants/plaintiffs. Hence, we find no merit in the appeal. Accordingly, we proceed to pass the following:- ORDER

1. The appeal is dismissed.

2. The judgment and decree dated 27.04.2018 passed in O.S.No.327/2013 by learned Senior Civil Judge, Nelamangala, is confirmed.

3. No order as to costs. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 29