DEVIRAMMA v. LAKSHMAMMA

Judgment

1. B. D. NATARAJ, S/O. DYAVEGOWDA, AGED ABOUT 42 YEARS, R/AT MANJENAHALLY KAVALU, Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA …APPELLANTS - 2 - NC: 2024:KHC:42507 RSA No. 1287 of 2021

SRIRAMPURA, GANDASI HOBLI, ARASIKERE TALUK, HASSAN DISTRICT 573119.

2. LATHA W/O. SHIVASWAMY, D/O. DYAVEGOWDA, AGED ABOUT 49 YEARS, R/AT BASAVAGHATTA VILLAGE, DUDDA HOBLI, HASSAN TALUK, HASSAN DISTRICT 573118.

3. RAMAKKA W/O. LATE. KABBATTI RANGEGOWDA, AGED ABOUT 71 YEARS, R/AT ADUVALLI ARALIKATTE ROAD, II CROSS, UDAYGIRI EXTENSION, HASSAN 573202. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.08.2020 PASSED IN RA.NO.78/2019 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, HASSAN DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.02.2019 PASSED IN O.S.NO.582/2014 ON THE FILE OF THE VI ADDL. CIVIL JUDGE AND JMFC, HASSAN. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed by the appellants challenging the judgment and decree dated 17.08.2020 passed in R.A.No78/2019 by the Additional Senior Civil Judge and JMFC, Hassan, confirming the judgment and decree dated 15.02.2019 passed in O.S.No.582/2014 by the VI Additional Civil Judge and JMFC, Hassan.

2. For convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs, respondents 1 to 3 are the defendants 1 to 3.

3. The brief facts leading rise to the filing of this appeal are as follows: Plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that Channegowda was the original propositus and had four sons named Gowdegowda, Boregowda, Ajjigowda and Papegowda. The fourth son, Papegowda, died without marriage, and legal heirs and other sons of - 4 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 Channegowda enjoyed the ancestral property as a Hindu joint family member. The 1st son, Gowdegowda, has two sons by name Dyavegowda and Puttegowda. Boregowda has two sons by name Channegowda and Shamanna. Ajjegowda had two sons by name Dyavegowda and Channegowda. All the six children have enjoyed the ancestral property. After the death of three sons of Channegowda, all six children partitioned their ancestral property on 06.12.1995. As per the partition, all the 6 children have 0-25 guntas each in Sy.No.91/9. After the partition, Sy.No.91/1, measuring 25 guntas was in joint possession and the enjoyment of plaintiffs, and defendant Nos.1 to 3. It is contended that defendant No.4 learned that the suit schedule property belongs to her and claimed that the plaintiffs' father had executed the registered sale deed in her favour. After hearing the contention of defendant No.4, the plaintiffs verified the documents about the suit scheduled property and came to know that their father executed a registered sale deed in favour of defendant No.4 on 01.03.1976. It is contended that the - 5 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 plaintiffs' father had no right to execute a registered sale deed in favour of defendant No.4, and the sale deed executed by the plaintiffs' father in favour of defendant No.4 is not binding on them. Plaintiffs have right to the suit schedule property. Hence, prayed to allow the suit.

4. Despite service of summons, defendant Nos.1, 2 and 3 have failed to appear before the Trial Court, and they are placed exparte.

5. Defendant No.4 filed a written statement contending that the suit schedule property was purchased by her on 03.01.1976 under the registered sale deed, and the same was purchased from the father of the plaintiffs and defendant Nos.2 & 3. She is in possession of the suit schedule property, and the father of the plaintiffs and defendant Nos.2 and 3, Kartha, has the right to alienate the suit schedule property and the said property was sold to repay the mortgage money and the said sale is for family and legal necessity. The registered sale deed executed by the father of plaintiffs and Defendant Nos.2 and 3 is binding on the plaintiffs and Defendant Nos.2 and - 6 - NC: 2024:KHC:42507 RSA No. 1287 of 2021

3. Hence, prays to dismiss the suit. The Trial Court based on the pleadings of the parties, framed issues and additional issues.

6. To prove their case, plaintiff No.2 was examined as PW.1 and marked 10 documents as Exs.P1 to P10. Defendants did not enter into the witness box. The Trial Court, after recording the evidence of PW.1, hearing on both sides and the assessment of oral and documentary evidence, dismissed the suit vide judgment date

15.02.2019.

7. Plaintiffs aggrieved by the judgment and decree passed in O.S.No.582/2014, preferred an appeal in RA.No.78/2019 on the file of learned Additional Senior Civil Judge and JMFC, Hassan. The Appellate Court, on re-assessing the oral and documentary evidence, dismissed the appeal vide judgment dated 17.08.2020 and confirmed the judgment and decree passed by the Trial Court. Plaintiffs aggrieved by the impugned judgments have filed this Regular Second appeal.

8. Heard the learned counsel for plaintiffs. - 7 - NC: 2024:KHC:42507 RSA No. 1287 of 2021

9. Learned counsel for plaintiffs submits that plaintiffs and Defendant Nos.1 to 3 are the members of the Hindu undivided family and suit schedule property is the joint family property of the plaintiffs and defendant Nos.1 to 3, and they got their share in the suit schedule properties. He submits that the Trial Court has committed an error in recording the finding that the said property was sold for family and legal necessity. He also submits that the marriage was performed two years after the date of execution of the registered sale deed. Hence, the sale was not for family and legal necessity. Hence, the sale executed by the father of plaintiffs and defendant Nos.2 and 3 in favour of defendant Nos.4 is not binding on the share of plaintiffs. Hence, on these grounds, he prays to allow the appeal.

10. Perused records and considered submission of the learned counsel for parties. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW.1, and he reiterated the entire plaint averments in the examination in chief and to prove that the suit schedule - 8 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 property is the joint family property of the plaintiffs and defendant Nos.2 and 3, produced ten documents. Ex.P1 is the certified copy of the registered sale deed dated

01.03.1976, which discloses that the father of the plaintiffs and defendant Nos.2 and 3 have sold the suit schedule property in favour of defendant No.4 and received the consideration amount from defendant No.4. There is mention in Ex.P1 that the vendor had delivered possession of the suit schedule property in favour of defendant No.4. Ex.P2 is the mutation register extract which discloses that based on Ex.P1, name of defendant No.4 is entered in the revenue records. Ex.P3 to P5 are the RTC extracts of the suit schedule property. Ex.P6 is land revenue receipt. Ex.P7 is the Genealogical Tree about the family of the plaintiffs and defendant Nos.1 to 3. Ex.P8 and 9 are the main encumbrance certificates, and Ex.P10 is the transfer certificate.

11. During cross examination, it was elicited that the plaintiffs' father was poor and it was difficult to maintain the family and it was also elicited that the said - 9 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 property was mortgaged and the plaintiffs' father needed money to recover the said property from mortgage and to perform the marriage of first plaintiff which took place within two years from the date of sale deed. Admittedly, the plaintiffs' father, Dyavegowda being Karta, had the right to sell the suit schedule property belonging to the family to discharge the family debts. Admittedly, there is a reference to the mortgage deed executed by Dyavegowda and to clear the debts, the plaintiffs' father sold the suit schedule property. The defendants / plaintiffs failed to establish that the sale was not for family and legal necessity. Further, the sale deed was executed on

03.01.1976, and the plaintiffs were aware of the execution of the registered sale deed by their father in favour of defendant No.4, but the plaintiffs did not choose to file the suit within 3 years from the date of execution of the registered sale deed. The suit was filed on 07.10.2014, and the plaintiffs have sought relief of declaration that the sale deed executed by their father is not binding on the plaintiffs. Plaintiffs should have filed the suit within 3 years - 10 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 as per Article 54 of the Limitation Act. Admittedly, the suit not filed within three years and the suit filed by the plaintiffs is barred by limitation.

12. Admittedly, plaintiffs' father sold the suit schedule property on 01.03.1976. The Hindu Succession Act was amended in the year 2005, and as per proviso to Section 6 of the Hindu Succession Act, it provides 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 20th December 2004.

13. Admittedly, the said property was sold in 1976 and the suit was filed in 2014. Hence, the sale deed executed by the father of plaintiffs in favour of defendant No.4 is saved by the proviso to Section 6 of the Hindu Succession Act, 1956. The Trial Court has rightly recorded the findings that the plaintiffs' father has sold the suit schedule property for family and legal necessity, and the sale is binding on the plaintiffs and defendant Nos.2 and 3. - 11 - NC: 2024:KHC:42507 RSA No. 1287 of 2021 As on the date of filing the suit, the suit property was not available for partition. Both the Courts below have concurrently recorded findings of fact against the plaintiffs. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal. Accordingly, I proceed to pass the following: ORDER i) Appeal is dismissed. ii) The Judgments and decree passed by the Court below are hereby confirmed. iii) No order as to costs. Sd/- (ASHOK S.KINAGI) JUDGE LDC List No.: 1 Sl No.: 7