SMT. A. BALAMMA v. H NANJAPPA & Ors.

Judgment

#1. SMT. A. BALAMMA SINCE DEAD BY HER LEGAL REPRESENTATIVES KUMAR R Location: HIGH COURT OF KARNATAKA 1(A) H NANJAPPA S/O LATE HANUMANTHAPPA AGED ABOUT 81 YEARS R/AT No.241 COCONUT GARDEN HUNASANAHALLI BANGARPET KOLAR DISTRICT – 563 114 1(B) SRI. KAVERA MUTHY S/o SRI. H. NANJAPPA, AGED ABOUT 51 YEARS, R/AT NO.01, KAVERI NILAYA, COCONUT GARDEN, NEAR RAILWAY STATION, HUNASANAHALLI, BANGARAPET, KOLAR 563 114. 1(C) SRI. N. RAVINDRA S/O SRI. H. NANJAPPA, AGED ABOUT 49 YEARS, R/AT NO.241, COCONUT GARDEN, HUNASANAHALLI, BANGARAPET, KOLAR 563 114 - 2 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR 1(D) SMT. SHANTHA DAS D/O SRI. H. NANJAPPA, W/O DAS NARAYAN, AGED ABOUT 48 YEARS, R/AT NO.1431, 17TH B MAIN ROAD, J.P. NAGAR, 2ND PHASE, BENGALURU SOUTH, BENGALURU 560 078 1(E) SRI. MANJUNATHA Ν. S/O SRI. H. NANJAPPA, AGED ABOUT 45 YEARS, R/AT FLAT NO.102, SRI SAI PALACE, 8TH CROSS, 3RD MAIN, HOYSALA NAGAR, RAMAMURTHYNAGAR, BENGALURU NORTH, DOORAVANINAGAR, BENGALURU 560 016. 1(F) SRI. ASHOK KUMAR N. S/O SRI. H. NANJAPPA, AGED ABOUT 42 YEARS, R/AT NO.01, KAVERI NILAYA, COCONUT GARDEN, NEAR RAILWAY STATION, HUNASANAHALLI, BANGARAPET, KOLAR 563 114. (BY SRI. MITHUN G A., ADVOCATE) AND:

#1. SRI. B.V. CHENNAKESHAVAIAH S/O LATE N VENKATASWAMY AGED ABOUT 48 YEARS R/A NO.168, FAKIR AHMED ROAD NEW TOWN, BANGARPET …APPELLANTS - 3 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#2. SRI B V SRINIVAS S/O LATE N VENKATASWAMY AGED ABOUT 45 YEARS R/A NO.1049, R H ROAD NEW TOWN, BANGARPET

#3. SRI B V KRISHNA MURTHY S/O LATE N VENKATASWAMY AGED ABOUT 41 YEARS R/A NO.1049, R H ROAD NEW TOWN, BANGARPET

#4. B V NAGARAJ S/O LATE N VENKATASWAMY AGED ABOUT 37 YEARS R/A NO.1049, R H ROAD NEW TOWN, BANGARPET

#5. SRI B V DEVARAJ S/O LATE N VENKATASWAMY AGED ABOUT 37 YEARS R/A NO.1049, R H ROAD NEW TOWN, BANGARPET

#6. SMT B V VARALAKSHMI W/O MUNIRATHNAM AGED ABOUT 43 YEARS R/A B G T HOUSE CORONATION TOWN BANGARPET. …RESPONDENTS

(BY SRI. M R SHALAMALA, ADVOCATE FOR R1 SRI. PRASANNA V R, ADVOCATE FOR R2 TO R5 SRI. C R SUBRAMANYA, ADVOCATE FOR R6) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 21.11.2012 PASSED IN R.A.NO.112/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KGF, ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 15.7.2010 - 4 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR PASSED IN OS.NO.21/2005 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, AND JMFC KGF. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT

#1. This Regular Second Appeal is filed by the appellant challenging judgment and decree dated

21.11.2012 passed in RA No. 112 of 2010 by the learned Fast Track Court, KGF.

#2. For convenience the parties are referred to, based on their rankings before the Trial Court. The appellant was Defendant No 7, Respondent No. 1 was the Plaintiff, Respondents No. 2 to 6 were Defendants No. 2 to 6. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of

#4. - 5 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR the plaintiff that one Police Narayanappa was the propositus of the family. The said Police Narayanappa had only one son by name N.Venkataswamy. Defendant No.1 is the wife of Venkataswamy and Defendant Nos.2 to 6 are the children of said Venkataswamy. It is contended that item Nos.2 to 4 of the suit properties are the ancestral properties of plaintiffs defendants. Late Venkataswamy had purchased item No.1 during his life time. It is contended that Venkataswamy died on

11.10.1983 leaving behind the plaintiff and the defendants as his legal heirs. It is contended that after the death of their father, defendant No.1 managed the family affairs. Defendant No.1 alienated the suit item No.1 property in favour of Defendant No.7 and the same is not binding on the plaintiff. The plaintiff demanded for partition and separate possession. However, the defendants did not give any heed to the request made by the plaintiff. Hence, - 6 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

#5. Despite service of the summons, defendant No.6 remained absent and was placed ex-parte.

#6. Defendant Nos.1 to 5 filed a common written statement denying the plaint averments except admitting the relationship between the parties to the suit. It is contended that the plaintiff is not in good terms with the family members and keeps on filing suits together to harass these defendants. It is contended that the suit item No.1 property was sold by defendant No.1 for the legal necessity of the family. It is contended that defendant No.1 had executed the partition deed dated 01.07.2004 wherein B-schedule properties fell to the share of the plaintiff. The plaintiff has filed a frivolous suit. Hence, on these grounds, prays to dismiss the suit. - 7 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#7. Defendant No. 7 filed a written statement contending that the plaintiff, along with defendant Nos.1 to 5, offered to sell suit item No.1 property and accordingly, purchased valuable consideration. He invested a huge amount for its improvement and he is the bonafide purchaser of the suit property. Hence, on these grounds, prayed to dismiss the suit insofar as suit item No.1 is concerned.

#8. The Trial Court, based on the pleadings of the parties, framed the following issues:

#1. Whether the plaintiff proves that the suit schedule properties are the family properties of himself and defendants 1 to 5 and that they are in joint possession and enjoyment of the same.?

#2. Whether the plaintiff is entitled to partition and separate possession of his 1/6th share in the suit schedule properties.?

#3. Whether he further proves that the sale deed dated 4/2/2002 executed by the 1st - 8 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR defendant in favour of the 7th defendant is null and void and not binding on him.?

#4. Whether the plaintiff proves that the 1st defendant is attempting to alienate item 3 and 4 of the suit schedule properties?

#5. Whether defendants 1 to 5 prove that there was already a partition in the joint family on 1/7/2004 and the suit 'B' schedule property was given to the share of the plaintiff.?

#6. Whether the 7th defendant proves that he is a bonafide purchaser of suit item No.1 property from the plaintiff and defendants 1 to 5 under the sale deed dated 4/2/2002.?

#7. Whether the suit is properly valued and the Court fee paid is sufficient.?

#8. What order or decree.?

#9. The plaintiff, to prove his case, examined himself as PW1, examined 2 witnesses as PW2 and PW3, and marked 26 documents as Exs.P1 to P26. Conversely, the defendants, in support of their defence, examined 4 witnesses as DW1 to DW4 and marked 29 documents as Exs.D1 to D29. - 9 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#10. The Trial Court, after recording the evidence, hearing on both the sides and after appreciating the verbal and documentary evidence, answered issue No.1 partly in the affirmative, issue Nos.2, 6 and 7 in the affirmative, issue Nos.3 and 5 in the negative, issue No.4 did not survive for consideration, and issue No.8 as per the final order. The Trial Court partly decreed the suit of the plaintiff vide judgment dated

15.07.2010. It was declared that the plaintiff and defendant Nos.2 to 6 are entitled to 1/6th share in item Nos.2 to 4 of the suit schedule properties.

#11. The plaintiff, being aggrieved by the dismissal of the suit regarding item No.1 of the suit property, preferred an appeal in RA No. 112 of 2010 on the file of the learned Fast Track Judge, KGF. The First Appellate Court, after hearing the learned counsel for the parties, framed following points consideration: - 10 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR 1) Whether the trail Court is justified in holding that sale of item No.1 was for family necessity and it binds plaintiff also? 2) Whether the Trial judge is justified in holding that, defendant No.7 is a bonafide purchaser for value and consequently plaintiff has no share of item No.1 of the schedule? 3) Whether the impugned judgment and decree passed by the Trial Court is illegal, opposed to law and facts hence, needs interference in the hands of this Court? 4) What order?

#12. The First Appellate Court, after re-appreciating the verbal and documentary evidence answered point Nos.1 and 2 in the negative, point No.3 in the affirmative and point No.4 as per the final order. The First Appellate Court allowed the appeal vide judgment dated 21.11.2012 and modified judgment and decree passed by the Trial Court. It was held that the plaintiff is also entitled to 1/6th share in item No.1 property by metes and bounds. - 11 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#13. Defendant No.7, aggrieved by the judgment and decree passed by the First Appellate Court, filed this Regular Second Appeal.

#14. This Court admitted the appeal on 01.06.2016 to consider the following substantial questions of law:

#1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court while allowing the appeal and granting 1/6th share in suit Item No.1 when the Trial Court refused to grant the same?

#2. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court holding that the alienation made by defendant No.1 along with defendant Nos.2 to 5 in favour of 7th defendant cannot be treated as legal necessity of the joint family and the same is not binding on the plaintiff ?

#3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court ignoring the contents of the sale deed Ex.P7 in view of the provisions of Section 91 of the Indian Evidence Act, 1872? - 12 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#4. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court in the facts and circumstances of the present case?

#15. Heard the arguments of the learned counsel for defendant No.7 and the learned counsel for the plaintiff.

#16. Learned counsel for defendant No.7 submits that the plaintiff and defendant Nos.1 to 5 offered to sell suit item No.1 property and accordingly, defendant No.7 agreed to purchase the same. He submits that defendant No.1 sold item No.1 of the suit property for the legal necessity of the family in favour of defendant No.7. He submits that defendant No.7 is the bonafide purchaser of the suit item No.1 property. He submits that defendant No.1 sold the said property to defendant No.7 through the sale deed dated 04.02.2002 and in the light of proviso to sub section (1) of Section 6 of the Hindu succession - 13 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR (Amendment) Act, 2005, the said alienation is saved. He submits that any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 is saved. To buttress his arguments, he placed reliance on the judgment of the Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma reported in AIR 2020 SC 3717. He submits that the First Appellate Court without considering the said aspect adequately has passed the impugned judgment. The First Appellate Court was not justified in passing the impugned judgment. The impugned judgment passed by the First Appellate Court is perverse and arbitrary and the same is liable to be set aside. Accordingly, prays to allow the appeal.

#17. Per contra, learned counsel for the plaintiff submits that alienation of suit item No.1 property by defendant No.1 in favor of defendant No.7 cannot be - 14 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR treated as an alienation for meeting legal necessity of the family. He supports the impugned judgment passed by the First Appellate Court and submits that the First Appellate Court after re-appreciating the entire evidence has record, has rightly passed the impugned judgment. The impugned judgment passed by the First Appellate Court is just and proper and do not call for any interference at the hands of this Court, and accordingly, on these grounds, prays to dismiss the appeal.

#18. Perused the records and considered the submissions of the learned counsel for the parties. Reg. Substantial Questions of Law 1 to 4:

#19. Since, substantial questions of law Nos.1 to 4 are interlinked with each other, they are taken together for a common discussion to avoid the repetition of facts. - 15 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#20. The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the suit properties are the ancestral and joint family properties of the plaintiffs and the defendants and no partition has taken place between the parties to the suit. The plaintiff to substantiate his case examined himself as PW1 and reiterated the plaint averments in the examination-in-chief and produced the documents. Ex.P1 is the Geneological tree, Exs.P2 to P11 are the RTC extracts, Ex.P12 is the Mutation Register extract which discloses that after the death of Venkataswamy, defendant No.1’s name was entered. Exs.P13 and P14 are the Demand Register Extracts, Ex.P15 (Ex.D7) is the copy of the sale deed dated 04.02.2002 executed by defendant No.1 along with other defendants in favour of defendant No.7. Ex.P16 is the copy of the Notice, Exs.P17 to P19 are the postal acknowledgments and cover. Ex.P20 is the copy of the Notice, Exs.P21 to - 16 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR P24 are the postal acknowledgments and Exs.P25 and P26 are the Tax assessment register. During the course of cross-examination of PW1, he admits that he did not take care of his mother since 1997 and also elicited that he occupied the major portion of the joint family properties.

#21. One K.M.Paramesh was examined as PW2 who deposed that he has produced Ex.P25 and a perusal of which discloses that defendant No.1 is drawing pension of Rs.1636/-. One P.M.Hanumappa was examined as PW3, who deposed on the same lines of PW1.

#22. Conversely, the defendants to prove their defense, defendant No.3 was examined as DW1 who reiterated the written statement averments in the examination-in-chief and produced the documents marked as Exs.D1 to D29. Ex.D7 is the sale deed dated 04.02.2002 executed by defendant No.1 along with other defendants in favor of defendant No.7. - 17 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR The power of attorney holder of defendant No.7 was examined as DW2 who deposed that the sale deed executed by defendant No.1 in favour of defendant No.7 is for legal necessity and defendant No.7 is the bonafide purchaser of the suit item No.1 of the property. The Bond/Deed writer was examined as DW3 who deposed that defendant Nos.1 and 7 approached him to prepare the sale deed and as per the instructions given by them, he has prepared the sale deed. The contents of the sale deed were read over to them and after having understood the contents they have affixed their signature to the sale deed and one Antony Das was examined as DW4 who deposed the electricity connection of the property stands in the name of defendant No.7.

#23. From the perusal of entire evidence on record, it is undisputed that one Police Narayanappa was the propositus of the family. The propositus had only one son namely, Venkataswamy. The plaintiff and - 18 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR defendant Nos.2 to 6 are the children of Venkataswamy and defendant No.1 is the wife of Venkataswamy. After the death of Venkataswamy, the properties stood in the name of defendant No.1 i.e., his wife. Defendant No.1 sold item No.1 of the suit schedule property in favour of defendant No.7 vide sale deed dated 04.02.2002.

#24. It is the contention of the learned counsel for the plaintiff that defendant No.1 along with other defendants, sold item No.1 property in favor of defendant No.7, not for any legal necessity, but behind the back of the plaintiff. During the course of cross-examination of PW1, he clearly admitted that he did not take care of his mother i.e., defendant No.1 since 1997 and also admitted that the house in which he resides has 3 portions and he occupies the major portion of the house. From the perusal of the written statement filed by defendant Nos.1 to 5, it discloses that the plaintiff has filed many suits - 19 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR against the defendants before filing the present suit for partition. A perusal of Ex.P25 discloses that defendant No.1 is drawing the pension of Rs.1600/- per month. However, having regard to the pleadings in the written statement and Ex.P25, it is clear that the plaintiff got involved the defendants in many round of litigations and the fact that defendant No.1 is drawing the pension of Rs.1,600/- would not disentitle defendant No.1 from coming under the umbrella of ‘legal necessity’. Merely because defendant No. 1 is drawing pension it does not prove that there is no legal necessity. Ex.P7, the sale deed dated 04.02.2002 also contains the recital to the effect that the sale was made for legal necessity of the family.

#25. The First Appellate Court without considering the above said aspects has proceeded to pass the impugned judgment. The First Appellate Court ought - 20 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR to have considered the admission of PW1 while passing the impugned judgment.

#26. Now, from the perusal of Ex.P15 i.e., Ex.D7, it is evident that defendant No.1 along with defendant Nos.2 to 5 has sold item No.1 of the suit property in favor of defendant No.7 vide registered sale deed dated 04.02.2002. Admittedly, the said alienation took place on 04.02.2002 i.e., before 20.12.2004 as contemplated by Section 6 of the Hindu Succession (Amendment) Act, 2005 . At this juncture, it is necessary to examine the provisions of Section 6 of the Act of 2005, which reads as follows: “6. Devolution interest coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 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 in the same manner as the son; - 21 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary 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.

#27. Provisio to sub-section (1) of Section 6 of the Act of 2005 saves the alienation or disposition including partition or testamentary disposition of property made before 20.12.2004. Admittedly, in the case on hand, a perusal of Ex.D7 (Ex.P15) discloses that it was executed on 04.02.2002. The said sale deed was executed before 20.12.2004 as contemplated by Section 6 of the Act of 2005. Therefore, the said - 22 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR alienation is before the Amendment Act came into force and further the said sale is for family necessity and the sale deed is binding on the plaintiff. Therefore, the alienation dated 04.02.2002 cannot be invalidated in view of proviso to Section 6 of the Act.

#28. The Trial Court, after appreciating the entire evidence on record, has rightly recorded the finding of facts that the plaintiff failed to prove that the sale deed dated 04.02.2002 executed by defendant No.1 in favour of defendant No.7 is null and void and not binding on the plaintiff. The Trial Court was justified in passing judgment. However, the First Appellate Court ought to have passed the impugned judgment taking into account the provisions of Section 6 of the Act of 2005. The First Appellate Court committed an error in passing the impugned judgment without considering the said aspect and the judgment passed by the First Appellate Court is perverse and arbitrary. - 23 - NC: 2026:KHC:4606 RSA No. 194 of 2013 HC-KAR

#29. For the foregoing discussion, the judgment passed by the First Appellate Court is liable to be set aside. Accordingly, I answer Substantial Questions of Law Nos.1 to 4 in the negative. In view of the above discussion, I proceed to pass the following order:

#4. ORDER The Regular Second Appeal is allowed. The judgment and decree passed by the First Appellate Court in RA No. 112 of 2010 is hereby set aside. The judgment and decree passed by the Trial Court in OS No. 21 of 2005 is hereby restored. Pending application(s), if any, shall stand disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE PA [ONLINE] CT:KHV List No.: 2 Sl No.: 32