T312'
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE fDAY OF OCTOBER
BEFORE
THE HON'BLE MR. 3uSTI_CE.\_/.6. _E3}Vfi\"E*3"i'++';13\i';vii'IV"l'
R.P. No.734';_20:)'5R.
_In
R.S.A. i'-Jo'.'4_12/2003 .
BETWEEN:
H. Hanumanthappa, .
S/o late Hanumanthaiéah'
Hanumanthappa, L
Aged about 62»yearS,_~- . '
R/0 HirehafIi..v'%«!.l_a'ge,
Chal|akere4_.Ta|u;k'; . _ _
Chitraduriga D'isVt'r'i'C'-L RETITIONER.
( BY :'SRI--. RA/_"jA~:A'PR'Aee{A*SH,-ADv., )
AND V .. .
1,,4_§H{T.H1PPAIAV_H9 V
310' LATEVVT.HANUMRNTHAPPA,
V.% 'A,GED'A.BC.) UT 68 YEARS,
=R_/A AEGAAAEHISNAGAR,
" ._CHAL'LA
CRITRAQURRGA DISTRICT ~ 577 522
2.T;RAMANANDA,
* A S./__0 H: THIPPAIAH,
RAGED ABOUT 43 YEARS,
R"/A GANDHINAGAR,
ECHALLAKERE,
CHITRADURGA DISTRICT--577 522
3. T. NAGARAJA,
S/O H. THIPPAIAH,
AGED ABOUT 43 YEARS,
R/A GANDHINAGAR,
CHALLAKERE,
CHITRADURGA DISTRICT --- 577 522 (35909 NEE N79
(BY M/s. SUBBA RAO AND (:0, AND SRI D.v.__§§ArI':;V:I.I:__Vj:
REDDY, ADv., FOR R1 TO R3) R- 1
THIS REVIEW PETITION TTLED. «1U'.AiD.:E'RV':O_RDE'R"A7 Y
RULE 1 OF CPC., PRAYING FOR:"RE\;?_IE~'JV #/
JUDGEMENT AND DECREE.'iD-ATEDV"2,7:10.20:05; APIASSJEDCAIAIR»
RSA. N0.412/2003 ON THE'i"EI:'_L'iE OF 1"'H_EV"a;a--{OE\§:TEBLE HIGH
COURT OF :<ARNATAs<A_, BAAAi'GA!.;_jORER.I__ '0
THIS PETITIOAi_* HEARD AND
RESERVED _A.N:L;) "_~COifIIN§Ci_:'t.«iONVA"F(3-R RRONOU NCEMENT OF
ORDER Ti_ri«1E$*v.i:)/3§fi(,*j._S'z¢.§iji_AtiiITIJIQMADE THE FOLLOWING:--
ORDER
_ This””i?evie\Ar is fiied under Section 114 read
ijlfdéij XL\’/II”RéI|e 1 of the Code of Civil Procedure,
review of the order passed by this Court
:’ia$R.s..A}: U,Ra.412/2003 dated 27.10.2005, wherein this
C0ur’i:..V_t_A*Cas a||Owed,the appeal in part and has set aside the
‘§i4dA’gement and decree passed by the first appeilate Court: —
U ___5COurt of the Civil Judge (Sr. Dri.), Chailakere, in RA.
NO.110/2002 dated 27.01.2003, decreeing the suit of the
i5>V9>
«-
43;»
piaintiff in respect of item No.2 of the suit schedule
property is confirmed and the judgement and.–decree
passed by the first appeliate Court decreeing..’t–h’e-j’s*ti.i’t.. of
the plaintiff in respect of item No.1 of
property is set aside and the judgement and:4d:er:’r_ee pTass’ed ii’
by the trial Court dismissing the__ ofthe..p.ia”in’tiffV”§.nV
respect of item No.1 of t–.F1:’e’~~._y5uitV.scheduieR’p’ro’perty
restored, with no ordergas to”‘cois_ts ii’.-.._t_he app’eai”.V4
2. It is averreci».ih~ the”rey«ievir”p,et.ition fiied by the
respondent that the review
petitioner’ head»rriaéd,gg’or..s”.r«..Noi’.118/1988 on the file of the
Civii Jirdge-,VV on 07.07.1988 against the
res%.pon*dentsV”i1erein ‘seeking for a decree for partition and
.’ :p.o_sseissio–rifi*of_ haif share in the suit scheduie properties.
.was transferred and numbered as 05.
on the fiie of the Prl. Munsiff, Chitradurga.
* Thereafter, the suit was transferred to the Court of the Prl.
‘7-:CivAi’l 3udge (Jr. Dn.), Chailakere and numbered as 05.
“‘ii\io.1678/1994. It is averred that the piaintiff (review
petitioner) and the first defendant (first respondent) are
\sJ>
44’.»
brothers and defendants 2 and 3 (respondents 2 and 3)
are the sons of the first defendant. It is the case-__of the
plaintiff that himseif and the defendants cor:’sVti’tu:t.e’d,, a
Hindu undivided famiiy and the suit schedufe,rproipert_i’esV
were purchased by the father ‘”‘and, b’.r’otheru’j
(Giddappa) of the -plaintiff under’a-A.’_fregistered.,
dated 28.05.1952. TheVe!.d’e.r, brothe’r–._of_, t’ne””‘pI’aintiff,’f
namely, Giddappa died’ duringi..t,_h–eV’\,’.e_ar i965 eyen before
his marriage. The the manger of
the Hindu joiiitjyfiamiiyf. the plaintiff that
the suit :ah_re'{,the’ joint famiiy properties
and the sha re in the suit properties.
“It is in the review petition that
the1su~it vva”‘5~.._,.?:eVsist:ed by the defendants (respondents
.A1’hereinjf.by”*fii_ing written statement. They admitted the
2relationas”i%i.p’;i;=.Wihe first defendant, apart from other things,
rn’ain|y:A.Co”ratended that the suit item No.1 property had
‘beyenvvflimortgaged by his father and elder brother —
‘AA’–:C§idAdappa in favour of one Virupanna and Virupanna had
“filed 0.53. No.350/1960 for recovery of the amount and the
-: 5 ;,
said suit had been decreed on 15.09.1966 and that he had
paid the decretai amount of Rs.1600/– in Ex. No.425_{_1972.
It was furthet contended that: the father otj’:t–hfe._tirst
defendant had borrowed a sum of
Thippeswamy on 19.08.1951 and-“had. .pi*onote;VV’
Thippeswamy had filed o.s. E\i0.138(‘3:’,’.’A.A_199:569y”vyl’i–icti..
be decreed and item No.1V»o.t:”‘t~he stjit.xschyedtiI”eiV”p’ropjerties’V
had been sold in e)<ecutionii*of*–the_.saiddecree in Ex.
l\io.719/1960 and "t'iie_teattge'r}; of the suit
schedule by him from
Thippeswarny_«i._Vtitiatjetgf saie deed dated
father for name sake as he
was in
trial Court, by its judgement and decree
Rdatediid'1§i.';iro8e;g:1is98, dismissed the suit holding that the first
deufendantxx had contributed for purchase of the suit
A'sch.edtiie properties to his father and therefore, the suit
Arscheduie properties are the self acquired properties of the
9' Viflfirst defendant and the plaintiff cannot ciaim any share in
the said properties. Being aggrieved by the said
ttfi
~'. 6 H
judgement and decree, the plaintiff fiied FLA. l\io.110/2002
on the file of the Civil Judge (Sr. Dn.), Challakere, The
learned Civil Judge (Sr. Dn.), by his judgement
dated 27.01.2003, reversed the finding oft
and decreed the suit as prayed.-fo":'».—.'Le-'arne'di~VICivVi'ii.,}iL.icfg.e,VVf
on appreciation of the oral andliidyoczimlentayy .,evvi.,de.h'ce"'l'o.n
record, has held that thereyyais, absoliiteiyl' rio'"'~.ev'i'de'nce on
record to come to tvlTi,e..vC0f'l'Cl'ii.'si.'C_).f1'VVt'l*].E.lt the'fi.rs.t'§deferidarit
had contributed any to purchase the
suit sched"u,:.:e;: by him.
ACCOFCI5i’|Eil”i/ifl~–.,fAii0?V’.,__ “*3P’i;i_<'1'lii'§ite_"Court reversed the
judgierraentnoa"i:.aji-..:dec'reAe'apassed by the trial Court and
granted"?dlelcrelelsgforjillpartition and possession of the
p,l.ajnVtiff' s halfshflarei in the suit schedule properties. Being
.0 the said judgement and decree passed by the
V"'a'p;p__e'i*l;,a'te Court, the defendants filed R.S.A.
before this Court.
“.233 This Court by judgement dated 27.10.2005,
set aside the judgement and decree passed by the first
__5appellate Court and has restored the decree of the trial
Lea;
–I7I~
Court in respect of item No.1 of the suit scheduie
properties. Being aggrieved by the said finding, thcureyiew
petition is filed by the plaintiff (revie_\_r§i””‘ifiefitioneir)
contending that: the specific contentio-n,.A)_:foyfV’the
defendant throughout has beenT_tha:t..4iterri-ioNo;1.4o’f”tihVe..,siiit ‘
schedule properties had been purchased
own earnings in the nameury his fat-he:r”v’as’:fhe was in
Government service’ not a joint
family property and vit…vya:s property; the
first .tal<én"uD_.:_the':'pieaww:that the Durchase of
item Pff0l5'erties was made by him
beriami -in father; after coming into force
of the 'aenagnii (Prohibition) Act, 1988
(hereirsafterure-fer_red, to as 'the Act' ), it is not opera to the
i ;'i'i.r_st dAeAferrda.nt to take up the plea of benami. Section 4(2)
if2o'f-.yithVe'AVA'ict"prohibits any defence based on any right in
reéspect ofllany property held benami, whether against the
" piersoyn in whose name the property is held or against any_
ti'-Zolthier person and in view of the same, the defence put
H forward by the first defendant that the purchase was made
by him in the name of his father is totaliy prohibited. It
Lu/E.
~28?
is further contended by the ptaintiff (review petitioner)
that; Sections 3, 5 and 8 of the Act came into force with
effect from 05.09.1988 when the Act received -ti’ief”a:s’sent
of the President and the remaining
Section 4 of the Act are deemed’~to–.hav’_emco’i*n’e4 i.nt.oji«.fo’r..CeV’..
with effect from 19.05.1988 and Si-éct’iVon00″4_:(2«j.yVof’:the:::A.ct
nuliifies the defenses based.,o”n,_any.”rightin’-,re’s;p’e’ct”of any 0
property heid benami whether .a’ggai”n.st the’perso’En in whose
name the property “4wa_s* the person in
whose name,tjhe_propertyi;wa’sV:jhieid ijfagainst any other
person in'”ar.yisui-t,”cia.i__rn.._or” a-«c’tio_ri by or on behaif of a
person ciaimiiwj’-.t:oi ‘reai owner of the said property.
Once a””p._ropVert’=,( is.’ to have been held benami, the
o’wnerdeprived of such a defence against the
real
» :V’p.ersovn=.in.:wh__ose name the property is heid or any other
H 2 Aperso’n’.éV”_”_~i_n’yiew of the same, it is clear that it is not open
to'”t.he_fi’rs.t defendant to raise the piea of benami in the
“suit and the suit has been filed on 07.07.1988 after
0″‘-Zcoiming into force of Section 4 of the Act. it is further
H averred that the provisions of the Act have not been
considered by this Court whiie disposing of R.S.A. on
W
«.9»
27.10.2005 and wherefore, petition is fiied for review of
the order passed by this Court in R.S.A. No.41}./2003
dated 27.10.2005.
3. I have heard the iearned counsei a~p.pea__riri’g_fdr
the review petitioner (respondent in
the iearned counsei appearing for; *t_he’A=.responduen}:s’
(appeiiants in RSA.412/200.3)’,
4. Learned __counsei_._iappearing “for the review
petitioner (respondentiin submitted that
the review .peti’tione»r'”seeks review of the order passed by
this Court on 27.i’o..2rjo_,5’in RSA No.412/2003, in so far as
itdjeiates toV”th.i:s Court setting aside the judgement and
. :V’d.eci’e:e’A«.passe_d in RA. No.110/2002 dated 27.01.2003 in
~.Ar’e-spe”cta7of No.1 of the suit scheduie properties and
re4stoi–5i:ng””the judgement and decree passed by the trial
1 ” Courtiiidismissing the suit of the piaintiff in respect of item
of the suit scheduie properties. The contention that it
“was not open to the first defendant to take up the plea
that he had purchased item No.1 of the suit scheduie
kiss’
£10?
properties in his father’s name benami, has not been
considered by this Court and the said contention was
materiai for the decision of the case as the deCision_”oVf””this
Court would have been otherwise if the vco’nteindt’i”on’v.’
regarding the prohibition contained
applying the same to the facts
5. Learned counsel a’ppea.ring”‘t’orf:th:e respondents
(appeilants in RSA.4-J..2;’2Of)3}Vi_is’u’bmAi.tt~ed that there is no
error or iiiegaiity as t.o.–caii for :re\’r.i’evii”‘Vio»f- the order passed
by this Court iii’6.4j’2/2’eb’3i”‘ion 27.10.2005 and
ail the : Co.nt’evri’t.io’iiiis’°~.:a’i’se’d’i in the appeal have been
consider’ed”by and the review petition is without
rnerit arid’i–és_i’i_ab.*e to be dismissed.
‘ have given carefui consideration to the
the iearned counsei appearing for the
parties scrutinized the materiai on record.
.. 7} The materiai on record wouid cieariy show that
2 t’h”e_triVai Court had dismissed the suit of the piaintiff in O.S.
awe
»: 11:–
No.1678/1994 seeking for half share in respect of two
items of the suit scheduie properties by metes and bounds.
Item No.1 is the Eand bearing Sy. No.62/1 0f”rElijrehally
village, Thalak Hobli, Challakere Taluk, meas.;ii*=ino::§E§”
04 Guntas and item’i\lo.2 is the..h»ouse and’
demand register i\lo.160/258 si:t«uat’ef”i’ri 1H~iteheiig;¥§zii.i5ge,
Thalak Hobli, Challakereff-Tia-~l.tik, A’bo__unded.: “aS”‘”~pe:r the’
description given in the sch-eduflie t–o__the”pEva.i.nt…:§ It is the
case of the plaintiff No.1 are
brothers. _Tfhe_\_/ iianumanthappa.
Defendari-t’si”2.__V5a.n’d defendant No.1.
Giddappa. Hanumanthappa and brother of
the pa.-;.;nt;{%rraadfi;e,t.[d.erendant died in 1965. The suit
sc«ii::edu~ie proioerfies are the properties belonging to
i V1’riant.i.n’iaprith’appa, the father of the plaintiff and the first
“‘–defen’daint.. they are joint famiiy properties and
w.he.reVfore”,: the plaintiff is entitled to half share in the suit
” sehedtiie properties. It is the further case of the piaintiff
fitgthhait the names of the plaintiff and the first defendant have
N been entered in ali the revenue records and the said
properties are in the joint possession of the plaintiff and
\;_/3’.
-: 12 :-
the first defendant and they have got equal share in the
suit schedule properties. The defendants with a mala fide
intention, have partitioned the suit schedule prorp’ertie:9_by
means of partition deed dated 23.11.1987 arid
not binding upon the plaintiff. – _ ._ V,
8. The defendants resi£;ted:_,the s_ui”t_i)y’f.ii~i.ng,rh?e
written statement denying the,__aver’mVent madveixin4_thelT;pi.aint”i.
that the suit scheduie provpiertles are-the joint family
properties. Relationsh_i’p ar.fiongVi”th,e-.,,lp”art_ies was admitted.
The fact that the fath,et,:of.,th_e plai”nti’ff».’ja-ri’d the defendant
and :t..hei:r’ e.ider’f-.p’ro.t’h’e.f2.._(‘Giddappa had purchased suit
schedule”,i_tem Vixioiil ‘property under registered sale deed
i’~28.0u7.’1.f,ii§2 ‘was admitted. However, it was
i V:VconVte_rid«ed,:that the father of the plaintiff and defendant
amount and had mortgaged the said
property in favour of Virupanna and since the amount was
“no.t_ repaid, Virupanna filed the suit against the father of
htheiiplairitiff and the first defendant. The said suit was
if “ldecreed arid the first defendant had paid the decretai
amount of Rs.1600/– in Ex. No.425/1972. It is further
–;13;i
averred that the father of the plaintiff and the first
defendant had borrowed amount from Thippeswanfiy and
since the amount was not repaid, Thippeswamy'”fii’ed*–suit
against the father of the plaintiff and the
and in execution, the suit scheduieitem was ‘ .
sold in favour of Thippeswamy. :”The._’_’fi”rst
his own earning, purchased_,_v’th_e suit__sc:hed,ul”e;”iteriij No.”.i~’
property from ThiDP§3warp.~,;.u:u’~nd’e..r. the” –registered sale
deed dated was purchased
in the l1ai’3’ie.vO’I£::}il.S father «éioyernment service.
Item is not at all the
the seif–acquired property of
the férst’d_’efe,nd’an.t;V.’.T’he”_;spiaintiff is not entitled to any share
‘suit sohediule ‘properties.
V” .._The Trial Court framed appropriate issues. On
th.e_i.~piaEntiff, the piaintiff examined himself as
Wt/.1:_ar1d’,j’..i1e also examined PWs.2 and 3 and got marked
AA fixs..’Pv1.«:’to P37. On behalf of the defendants, defendant
Ҥ\i_o:51 was examined as Di/v.1 and he aiso examined DWs.2
gito 4 and got marked Exs.D: to D29. The trial Court, by
-1141-
judgement and decree dated 14.08.1998, dismissed the
suit of the plaintiff. Being aggrieved by the said
judgement and decree, the plaintiff preferr’e.d}_:’R,’A.
No.110/2002 on the file of the Civil Judge
Challakere. The first appellate Ce-u_rt andf”
decree dated 27.01.2003, held that :t’_’_he’l’p|ai.nvt’iff’g is
to share in both the suit sclhed-.u_ie pr0pertiesy_Aa’s’the:”e was’
no severance of status ‘thgen.’j’oi~n,tg famiiy and
Exs.D15 and D16 V-~4’=iettersf{–“;.veiret;_ helpful to the
defendants tosluljstaritEa’te:V:their:iiConlteijihon that there was
severance. theifa joint family and
accoridingiyy.Viifaiioyved'”‘V–A:.:li¢-e’ “appeal by reversing the
judgemferfiand’dfeegreeigelelesed by the trial Court dated
14..00.1~998. ~f
aggrieved by the above said judgement
and ad’-eVcr’e’e passed by the first appeilate Court, the
“defendants preferred R.S.A. No.412/2003 on the fiie of this
“Vfiourt, which was admitted on 22.08.2003 for
1′ “consideration of the following substantial question of law:
kt}
-1152-
” Whether the appeliate Court committed
error in holding that the plaintiff is entitled to
half share in the suit property and thatvVtij:e’»..
Appeliate Court was not justified in
aside the judgement and decree of is
Court in that regard ?” if .
This Court after considering the ;t:oii’:i_eii*.t’iorr»s orjitrigé .i”e–arfied
counsel appearing for the ‘pa’r~t.i..es, p’asse.d_ a.de_tai.ied–‘order’
on 27.10.2005, wherein thAe…:éiAp.pea_lgA ha.s”«been_fi§ali0wed in
part and the by the first
appellate Cou_rtV__in 27.01.2003
respect of item No.2 of
the been confirmed and the
judgemeritand’d._ecr,ee’~:–‘passed by the first appellate Court
theAsuit.–«of’the plaintiff in respect of item No.1 of
V =tAhe_s’u.i:_t”schedule properties has been set aside and the
.’j=4’d%gemeVpt_a:’nd decree passed by the trial Court dismissing
the of the plaintiff in respect of item No.1 of the suit
.Vsc’h«edule properties has been restored. This Court while
Vlgarriving at the said finding, held that item No.1 of the suit
schedule properties was soid in execution of the decree
passed in the suit filed by one Thippeswamy and the
\,.)i
w:16;w
father of the plaintiff and first defendant was not keeping
well and he had no income of his own and the said item
No.1 —- landed property was purchased L:-in’de_’r*«_;”‘t,he
registered saie deed on 29.01.1962 out of trie
the first defendant and the piaintiff»vfa.i4ledIuto1co’ritl’i’b’uiteg.ahyf
amount, which fact is admitted
wherefore, item No.1 of th1e.,:_suVi%t SC.h3§iU!.€JVD:|’C5:{1él’t’lBé’> hadr
ceased to be the joint famggiily-Vlliproperty afindv..it..i§s the self
acquired property of held by the
trial Court ant]? the was not at all
justified in” However, the
substiaT_lC’e” of the defendants that the
propertyVV”w.as,V the first defendant benami in
th.e-ipnarne of ‘hi’s.fa__i_:_gh,er as he was in Government service,
i has’ no_t«.be.en considered by this Court while reversing the
first appellate Court and restoring the
jud”gerhen’tfi.and decree passed by the trial Court in so far
1′ na’s–..it relates to item No.1 of the suit schedule properties.
Atjitllis clear from the defence taken by the first defendant in
V “the written statement as also the evidence adduced before
the trial Court that the substance of the defence taken by
K);
»: 17 :-
the first defendant that he had purchased item No.1 of the
suit scheduie properties behami out of his earnings,___in the
name of his father as he was in Government ser’v”i.de«i._i’~Tifhe
question as to whether the said transaction;-.
under the provisions of the….B4enami'”‘fi’an’sa’ctio.hs”i
(Prohibition) Act, in view of the :’p«roi{{is*ions’~o_f’ S’ectio_i’i.?i;1»i.of
the Act has a materiai b’ea’ri.ng on ‘as to’
whether such defence that.”‘the’u._first”defendant had
purchased item No.i’V:’pfsti’it’:_.:’.sc»h_edu|e properties
benami in the::’n.a’me:’.’bf” be taken. The
effect of defence taken by
the first’– of item No.1 of the suit
schedule’».proppert_i.es_c’a:ri_’d44acceptance or otherwise of the
Cv{3FijI€’_’Vi’iiA’Cii’)|’i of ‘t”i%€…’.?5.»rned counsel appearing for the review
‘ ;Vp’e.tVitio_vn’er«fpviaintiff) in that regard, wouid have reievant
“5.ea’rin’gif-‘ojn’c’oth’Ve decision to be arrived at in the Reguiar
séaqriidip Appeal l\io.412/2003. Therefore, : hold that the
2 iicorderiiipassed by this Court dated 27.1o.2oo5 in R.S.A.
A”‘§i\i’o”.412/2003 suffers from error apparent on the face of
H the order for non–consideration of the material contention
about the applicability of the provisions of the Behami
WA
‘ with faw. A.
H182-
Transactions (prohibition) Act and the effect___of the
provisions of Sections 3, 4, 5 and 8 of the A_’ct.i:’jofn”–Vthe
defence taken by the first defendant in
No.1 of the suit schedule prope_rti.e.s.’ Acco’rd:ii’.rigiy,.’_’_I»_
that the judgement and decree’:.«pas_’sefd
R.S.A. No.412/2003 dated__V:”2.7.10A.’2():0S_i’s_’i’ia’b«ie. “to be
recalied and the appear is epntit’i’ed”‘t_o be heiaprdlafresh and
disposed of, and pass
The Rev.i:ew_ judgement and
decree No.412/2003 dated
27.1ej.i’2o0s}’s__V No.412/2003 is restored
to R.S.A. No.412/2003 shalt be
posted fo4r’fi_na!..’hea’rin§. for fresh disposal in accordance
Sd/*
EUBGE
Surriaf