1.
. _] -
IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 24?" DAY OF DECEMBER.' "
PRESENT
THE HONBLE MR.JUsT1{:E "_
AND A
THE HONBLE MR.JUsi'1§fE. S.N.SP;iY'FJ\£AR;A?ANA
R.F.A.NO. 1787~1.9991.'é/W*A--It<FA;QROBEZ1/2000
BETWEEN:
SR1
S /0 LATE NA"R;AYANAPPA__.. ;.V
27 'WARS ' " A
S/C.__LATE NARAYANAPPA
AGED-.ABOU'l'_ 25VYv13ARs
;.iKVU'Iw. SOUBHAWA
M0 [LATE NARAYANAPPA
, V AQEDAABOUT 22 YEARS
'sM"f.';NA¥aASAMMA
w/.0 NARAYANAPPA
AGED 'ABOUT 70 YEARS
mi
siViT.PU'r'rAMMA
'fw/0 LATE NARAYANAPPA
" AGED ABOUT 63 YEARS
ALL ARE RESIDING AT
ALLALASANDRA, GKVK POST
BANGALORE NORTH TALUK - 560 065.
. . APPELLANTS
{SR1 M.S.RAJ.ENDRA PRASAD, ADV.)
-w"2;'\d.§
AND :
1. SRI ASHWATIMNARAYANAGOWDA
S/O LATE NARAYANAPPA
AGED MAJOR
R/A ALLALASANDRA VILLAGE
GKVK POST . A
BANGALORE NORTH TALUK -- 560
2. UNIVERSITY OF AGRICULTIJ__RAI, SCIENCE3S"
HOUSE BUILDING CO«OPE--RATIVE SOCIETY I;TD".;
HEBBAL, BANGALORE -- 560 024., ' I"
REP. BY ITS SECRETARY. --.
' I _..RESPONDENTS
{BY SRI SHASHIKIRAN SI%IEI1*IY_I~'(;)R Mm/'S SIIETTY AND
PIEGDE ASSTS., vADVS._EVOR.VR2_ j' V .,
SR1 C.S.HIREI/LA'I*I,I, AI;)v_,' POR R.1~}__ - *
THIS1RFA_'F51LED"'~«U/S 96 OF CPC AGAINST THE
JUDGMENT I A'£xT13_ DT.I5.12.98 PASSED IN
O.S.NO.'4903/93, QN THE-II'ILE OF XX ADDL. CITY CIVIL
COURT, "BAl'I{GALORE,I_ .."DISMISSlNG THE SUIT FOR
DECLARATION, 'PARTITION AND SEPARATE POSSESSION
IN RESPECT OF.E_XB_T.D1 AND DECREEING IN RESPECT
V' . OIr~T'PIAT REMAINING PORTION ETC,
» R'FAICROB--.<2,1~~,/2000
UI'\?:IVEfESITY OF AGRICULTURAL
EMPLOYEES HOUSE BUILDING CO-OPERATIVE
I SOCIETY LTD,
= I-IEBBAL, BANGALORE -- 560 024.
"REP. BY ITS SECRETARY.
...CROSS OBJECTOR
' {SR} SHASHIKIRAN SHETTY FOR M/S.SHE.I I St AND HEGDE
ASSTS. , ADVS.]
AND :
1. SR1 CHANDRASHEKAR
S /O LATE NARAYANAPPA
AGED ABOUT 27 YEARS
2. SR}. SEETHARAM
S /O LATE NARAYANAPPA
AGED ABOUT 25 YEARS _
3. KUM. SOWBHAGYA
D/O LATE NARAYANAPPA «
AGED ABOUT 22 YEARS
4. SMTNARASAMMA __ .
W/O LATE NARAYANAPPA '
AGED ABOI.:-T 70
5. SMfT.PUT:*;AIM1y1A _ _«
W/O LATE N'A.RAYANA_1?EA
AGEDVVABOUT 63' YEARS
6. SET. ASWATHANARAYANA GOWDA
SA'/O LATE NARAYANAPPA
_ 7LM.AJ_ORV%_ _____ ..
I " .IALL"'A.REVI'REE§-IDING AT
._ GKVK POST
' EANGALORE -- 560 065.
; . 4- ...RE'.SPONDENTS
{SR1 M.S1.RAJENDRA PRASAD. SENIOR ADV., FOR
A DJGANGADHAR, ADV.,)
._ THIS CROSS OBJECTION FTLED {U0 4}. RULE 22 OF
CPC AGAINST THE JUDGMENT AND DEGREE DT. 15. 1.2.98
" '-'PASSED IN O.S.NO.4903/93 ON THE FILE OF XX ADDL.
CITY CIVIL JUDGE, BANGALORE DISMISSING THE SUIT
FELED FOR DECLARATION. PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL AND @1303. HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT 'i'HiS..__ DAY
SATYANARAYANA J PRONOUNCED THE EoLLowo;'o';»t.
JUDGMENT
The plaintiffs in OS.No.49O3/1993_.on:”‘t.he:.A_i’i*ie’_ of
City Civil Court, Bangalore liaas tip-I’i.n.:_.:thisV:”appeal T.
challenging the judgment. _andv4’de’Cree d}a”.te’¢l” *15;:2′;*19’9–8p
passed in the aforesaid wherein for
partition of suit schedule “rrletes fancixbounds and
granting 5 /7:11 share int.”ail’-V»d):fe¢.Lfite’in’s’_;_of suit schedule
pi*operties_}i-sf part and the prayer for
deciaratiopn’that:”the’e»aaieideed dated 16.1.1987 executed by
father piaintifffs V1′.to’f3-~’iand also their brother, 15′ defendant
ivn-ifavourpof Qifidrdsvefenvdant is not binding on them is rejected.
_ –Z?.I”*¢’ defendant in the said suit has filed cross
.’ .ohjectiontfso.A1’1’ar as the finding on issue Nos} and 2 holding
that scheduie item Nos.I to 3 properties are joint family
if if properties of plaintiffs and 13* defendant and seeking to set
that portion of judgment which declares that suit
H schedule properties are joint family properties purchased by
‘-. /u
1,/’iv: a’?
-5-
investing sale proceeds of the properties beloijigiiig to
plaintiffs’ grand father situated at Tippur Village…._””_»l.l: ”
3. Both the appeal and cross objecti..oVn’=.are.:’takei1%’ti_pD*__
together for consideration. For th_e4’sa};e*’of.__Coiiyeiiience ‘
parties to this appeal as well as cros’sV.objecti!m: “are referred.
to by their respective rank in’V”‘t11:e~o1’iginal._suitV-iwherein all the
parties to the appeal objecltion are parties.
4. Brief facts leadiihligptolvthis and cross objection
are as tU;nd.e”1j:
:”‘._Pl’aii1tiffs’l:’i….1io _;1$.t defendant are children of late
Narayariappa. ll3’l_aiAn_tiff is 15’ wife and Si” plaintiff is 2nd
V.»/iéfg of late “Na.r_ayanappa. Plaintiffs case is that suit
No.1 property, agricultural land bearing
H lrrieasuriiig 10 acres 34 guntas, item No.2,
property bearing Sy.No.108 measuring 4 acres
V ” gulhtas and item No.3 house list No.44 measuring about 7
Pinlianas are the ancestral and joint family properties of
‘T Narayanappa. themselves and IS” defendant. Suit schedule
item Nos} t.o 3 properties were purchased by selling the
‘w_ I ‘)1/E
3
. 7 .
5. In the year 1987 Narayanappa died. Even after his
death suit schedule properties are in joint possess_i”on”*.and
enjoyment of piaintiffs and 15′ defendant. Pla;in~tiff’S::l
during the last days their father late Wash.
addicted to vices, as such he wa:s”gno–.t_’ protecting. the»:V’fi’ntVerest
of joint family. Though therenwas no’-occasion to sell
suit schedule properties, due..to’indu_cement. of 253 defendant
he entered into certainiftransactio’ns:”wi’th respect to portion
of suit schedule vproperties} _thei_r that besides suit
schevdule~-pr’operti:e’s there areseveral houses on the northern
side item ” said properties are all in joint
possession and -en}oyni~ent of plaintiffs and 1st defendant.
tranVsactiAo11.which ES’ defendant and their father late
‘ ,V’Narayanappa._have entered into with 2″” defendant is not
” genuine even if it is genuine, the same is not binding on
plaiintiffsr Item bios} and 2 of suit schedule properties are
if ‘still vacant land except for construction on the northern
side. It is their case that immediately on coming to know of
sale deed dated 16.1.1987 said to have executed by their
father iate Narayanappa and 13’ defendant in favour of 2*?”
‘A?»’;
W” V’;
i
1
-3-
defendant they iiled P.Misc.N0.288/1989 challeriginlg the
said sale deed. Since there was no irnmedi-ate._eth_reat,Al no
interim relief-‘was sought by them in the It
is averred in the plaint subsec[u_entiy_;:
OS.No.423/1992 seeking relief of partition an-é1.thel’saine<vvasrp
withdravm with liberty tollii.1:e"i»a fresh 7_'fhereafter,
present suit is filed c'io'n.tend'inlg_"thjatilsupit schleld-uflle properties
are joint family properltiesltheir father late
Narayanappa' 'byVy:'disp:osingg..bf of their grand father
situated' –vil'lage. Alte1"'Ct)ml11g to know of sale deed
dated' taken steps to prevent 21*'
defendalritl frorn-__ disturbing their possession over suit
prolpe-rties; In this behalf they had initiated
' ;l'proceedings"against 2"" defendant before Government, EDA
* and of Cooperative Societies and other authorities.
6. In the said proceedings, on service of notice 15*
2 it defendant. though served, did not €I’lt€i’ appeaiance. 2″”
l”§dei’endant. House Building Cooperative Society entered
l appearance and filed its wi~1’tten statement contending that
entire litigation is stage inanaged by 15? defendant: through
…’__ K/t
– 9-
plaintiffs. They admit relationship of plaintiffs and Isl
defendant. However, it is contended that since of
5th plaintiff with late Narayanappa has taken’
the subsistence of marriage with ../W’ ‘sam4ej&is”not’ .
a valid marriage and plaintiffs ‘IS
cannot claim to be the member’s’ of fj.oin.t””*~fa:ni1y of
Narayanappa. They admit pyurcAh.ase.._V of ‘ex_tent of 7 acres
14 guntas out of Sy.No.l05 and 2
acres 5 guntas out.014:acr’esfl,3Q..Vguntals in sy.No.108 of
Al1alasari’dré;,villa-ge. lBangalore”I\lorth Taluk, Bangalore. They
contend .that_ have any right over remaining
extent “e..forv’esai_d At~<y'o'survey numbers and item No.3 of suit
sfLcl'1e§1_ule_p_properti.es..« '
_ case is that aforesaid extent was purchased by
'l sale deed dated 16.1.1987 for Valuable
corrsideration of Rs.6,01,662.50 and said land was acquired
lbyythem to form a residential layout for the benefit of the
members of 2*"; defendant society, who are employees of
University of Agricultural Sciences. In all 1458 employees of
said University are the members of 2nd defendant society,
k,.;i..«'1
..][j..
with their money portion of suit schedule property is
purchased. Along with said land they have also purchased
other lands totally measuring to an extent of about’
for formation of residential layout. They pu1’c}iasedfy 4_
extent of land in suit schedule~~ite_1n .2j_af:zerV’f
verifying that the same is self
Narayanappa. They deny s’an’i’e…as joint family properties, in V
this behalf they issued pL1bl_i.cu:notice and”i.n_ reply to that
notice Narayanappa is’sue.d legal}notiC’::’through his counsel
to state” stilriedulellvproperties are his absolute
properties, In of the same his wife, 4″‘ plaintiff
and his “l~’%’p have also affixed their signature
as°eon_sen__ting Witnesses. It is also alternatively contended
‘ eyenjifilflsiiit schedule properties are assumed as joint
the same are sold by late Narayanappa as
a of joint family for the family necessities and for
2 Afthcnjbenefit of the members of joint family. Therefore, the
by late Narayanappa is binding on plaintiffs and ls’
‘H defendant.
-11-
8. It is the case of 2″” defendant, suit seliiedule
properties were converted for non agriculturalNp”u1fpo.se and
thereafter, it was conveyed in their favour b’j,r__lll\larayanap_gpaV’
after securing permission from G’oy>ernme’.nt Vidle” orderfdated T
4.8.1984, No.HUD 82 cEc.é§3_.°-.’lr”i1e ‘.SVGl.Ci..Tby
Narayanappa was in excesls*.olf”~t_he Urban and
Regulation] Act, 1974-,’ Event-‘othperyri-»se, the landl would not
have enured to the belriefitro1’1.fal’inily€’ for the Government
Order dated 4.8.1984:’tlie’er1ti_re«.ll1andlV’in,tiuestion would have
vested Witiri; ‘:r;j}oye1if1ime’nt”-under’the aforesaid Act, 1974. it is
theirV”cgoritentiorilthlat..piialritiffs have no manner of right to
seek partitioi’i of land is already sold in their favour.
V itis their”c’ase that in P.Misc.288/ 1989 proceedings
9 seelting cancellation of sale deed dated 16.1.1987
h_ad9c:l3§so:ught for declaration and possession of extent
that’~\ya:s conveyed in their favour. This would establish that
.Vplla:’_.ntiffs are not in possession of the extent purchased by
12″” defendant under sale deed dated 16.1.1987 and
dismissal of said P.1\/iisc., on 17.6.1995 is not brought to the
notice of the Court below. it is also submitted by them thkat
1’»/*;;” /3
2
1
– 12 .
15′ defendant had filed suit in OS.No.1403/1989 ,-against
them, wherein he sought for the relief of injL1nct~ion.:ag.ainst
2″” defendant from forming residential layout”
covered under sale deed dated said.4_’_p.rayVer ‘ .
was rejected by order dated 2.3:}-1
defendant got present suit £i1ed…through plaififitiffs;”which is ‘a if
collusive suit. The suit filed__Vfi’A{;y. ‘lift defendant} herein in
OS.No.1403/1989 subseque.nt}y}disrnisste,d for default. It is
their case that p1ain.tiffs~hereinhad yyfaiied to secure any
inteijiarnttterder e§ir~ii’er”‘: suit filed by them in
os.N:(:,42:3/’J there was only an order of
stat.us–quo, affect their right over the suit
proryetrtives… v
if if _ ivficcording to 2″” defendant, much before execution
.’of”sa1efdfeiedddated 16.1.1987 Narayanappa had executed a
general: power of attorney in favour of 2″” defendant, 4″”
i1j1aintiI1″ and 151- defendant were consenting witnesses to said
Adidoucrnent. Under the said general power of attorney they
were put in possession of property and by virtue of said
power of att:o1’r}ey they got. the land converted from
x,r,=”§/…;
E
-13-
agriculture to non agricultural purpose by paying a.-sum of
Rs.2,06.425.5O and secured approval from BDA–jvi-d_”e._o’iider
dated 31.7.1991 in Sub.No.2l20 for i’ormatio’n*
paying a sum of Rs.’7,00,000/– towards ciiargelsl ‘ .
for formation of layout on suit schedulellvprlo~perti’eslarid
have been paying tax regularly in respect oI’l<'»lV AI1lb__lr'tio.n*':of suitl
schedule item Nos.i__ and 2_…pi'voperties;l Whvichfhave been
conveyed to them.
11. denied avelimgni of l’plair1tii’i’s that suit
schedule _Apilvo,perties joint family properties and said
properties ygwerel after sale of the joint family
prgpertieslllsituated at lippur village. They contended that
Efiled”A.againstWthern without issuing proper notice as
Cooperative Societies Act is bad in law. The
s–a_1e_.traln’saction between late Narayanappa and 2″‘
defe’nrcl_ant is genuine as it was for valuable consideration i.e.,
it = only huge sum of money by way of consideration is paid
but also lot of money is invested by them to secure
conversion of same and for permission from Government.
BDA and other authorities for formation of layout thereon. It
a…uV:
‘ .
“‘”m,…
-14-
is their case that layout is being formed for the benefit of
employees of University who belong to middle “:ai’1d’j-rloi.?ver
middle strata of society and large number of 4_
attenders, peons, drivers and iab’ ~-a.ssis_tants’Wor lteaehiers l
working in the university arlq
monetary savings for pu1’Chasle~V.of a site to be fo__rfneu”:in the V
layout.
12. With these ‘:~_;_va1’ the Court below
framed the following
1.._ — the’v..p1aintiffs prove that the suit that
A pp ” M therV_s’uit. schedule properties are the joint family
p’rQp§*rties the plaintiffs, defendant–l and
deceased shri. Narayanappa ?
;’«filWhether the plaintiff further proves that the suit
‘schedule properties have been purchased by
it investing the sale proceeds of the properties
belonging to the grandfather of the plaintiff s–1
to 3 and the I defendant ‘P
3. Whether the plaintiffs prove that the alienations
of the suit schedule items–l and 2 by deceased
shri.Narayanappa and the I defendant infavour
” ‘. 5.
-15-
of II defendant under the sale deed dated
16.01.1987 is not for legal necessitypliapncl the
said transactions are not bindi.:i.g..’_.o-nj’ fthe
plaintiffs’ share ‘?
Whether the plaintift’s»V bp1’oVe’:_thatfitheyvare”iii if
ossession and enio rnent offall , t’i1e’._ suit
P Y . l V .. ~. _
schedule properties on tneldatelfilingpthie suit?”
Vifhether the proV’e–..th€:1t they are
entitled V’t~o_zV:partlitiQ–n . and separate possession of
their 5/?” share in_~«._lvall.:’V.~.the suit schedule
” « .V
* VWhether”the’»«[lI»~”defendant proves that the suit is
.i i3arredA”ay’t.}de law of limitation ?
Whetherl the II defendant proves that the suit is
‘«.hn__ot: maintainable as notice under section 125 of
f.:tvh’e Karnataka Co-operative Societies Act has not
1- ‘jbeen issued prior to the filing of the suit ‘P
What decree or order “P
Thereafter, the matter went into trial. The plaintiffs in
support of their case examined 151 plaintiff as PW.l and one
-15-
Venkatararnanappa as PW.2 and produced and marl_<'.e__d in all
30 documents. On behalf of 2"" defendant, twijl'\e.it<ii.esAses
were examined as DWs.1 and 2 and
marked in all 100 documents as EXS»..D'1
13. The evidence on behalf pllaintiffs
PW.1 who is 15′ plaintiff reiterated” the _plaintj”‘aver:ment’s».f’
However, in the evidence he…cllarifie_d rega*rdiAng_ithe date of
purchase of propertiesfpbyl’. irgranidlpffasther Mariyappa at
Tippur as in the year”:’that his mother 5th
plaintiff rnar17″i.ed_:’Naraynappa in the year 1952 Le. prior to
Hindu wlV4larrilag,e into force which prohibited
secoild m;§m~:.a’gef ‘l”.hereby plaintiffs tried to establish that
is legitimate wife of late Narayanappa. Plaintiffs
it upon the pleadings by stating that there was
threat Di1’ectors of 2″” defendant society to the life of their
AA pfat.her«:’i.e., they assaulted their father and forced him to
* .e>_§ecute sale deed in favour of 2″” defendant. He reiterated
plaint averment that suit schedule properties are joint: family
properties and recital in the sale deed dated 16.1.1987 that
they are the self acquired properties of Narayanappa is
– .17 –
incorrect since the sale deed was prepared by 2″” defendant
and as their father was not knowing English
at-‘fixed his signature. Therefore, no title has«’.__pa.ssedtoilgnésx
defendant society in suit prop’ertie’s..& “..pln_:.the._eoursexljofbi’ it
evidence he also produced the d’oct’1rnents”i..e.’;,sale,_’deeds,
EXs.P7 and P8 whereunder_w}g..iS grand’ .fgtthel’:vV4’Vpurehasedl
properties at Tippur and also”‘prodii(;-ed certiiledwcopy of sale
deed whereunder his grand properties which are
at Exs.P9 and P10 ‘sale deedlvlunder which suit
schediile*t.p:ffiopei?ti’es””were ‘purchased and the revenue
docuvfnerits their claim that they are joint
family properties;V._ A
is an independent witness and
V ‘from Tippur Village has given evidence to
that properties at Tippur Village belonged to
grand {either of plaintiffs 1 to 3 and 15? defendant. He also
to the extent of saying that pressure was put by
Directors of 2″‘ defendant society on Narayanappa to sell his
property to the society.
-13-
15. As against this, President of 2% defendant is
examined as DW.1 who is also Associate Professor of the
University of Agricultural Sciences, Bangalore}
reiterates the defence taken in written i.nr”his.
evidence. He further clarifies i’hat._on1ylportionfiof
schedule item Nos.1 and 2 are purchasedlffby'”2l:l”
2″” defendant is in possession of said _ext_en-t, –‘i\leither’
plaintiffs nor 151- defendanty_hafve_ any rilghtoveri the same.
The entire property N’ar’ayanappa as it was his
self Vaclcflireitl total extent of land of 19 acres
33 <;giin'tasl "Narayanappa, only a portion is
purchasedlbvyyfiflfi fdeiendant and remaining land continued
to'3'«:.be__pAy'i1<i_possession of plaintiffs. He st.ates that plaintiffs
' ,.fi'iavev.__i'r1ialfinitiated three proceedings earlier to this i.e.,
*i=;Mi§c.é's8}%=1989, OS.No.423/1992 and os.No.7s32/1995.
Besidveyshthe aforesaid proceedings 1" defendant had filed a
if 'ls-Liit OS.No.1403/1989 and also got filed public interest
"Z litigation through one Lalithamrna in writ
petition.No.15267/1994, which was dismissed. DW.1
further sated that from out of sale consideration received by
~20-
defendant, which are answered in the ?,1fl”i1’I”1″1{3.:t_’i’w’.€’_’.”‘ Thiifd
issue is with regard to sale deed dated
by Narayanappa in favour of 2″(*;defendan«t a’nd:_iWhi3t:her_ti1e it
same is for legal necessity and Whether :s’a1°ne’;is’anotp
biding on plaintiffs’ share a1″idVdV..’bu1’den” .o:f”pAro\riiig the same
was put on p1aintif;ts.’~~.__ “Ih_e”sa1d’:¢i.sjsi’u._e is an’s\i}ered in the
negative against the piaii-it’1_ffsi.’
17: Vregiarding possession and
e11joym_.evntV~.oi’spit and plaintiffs right to
see1{,v_sepai’ate’.{3«artitionjavn_d– possession to the extent of 5/71″
sharein suit ‘1te4In’.Nos.1 to 3 are answered partly in
af;§i’1″mative andpa1’tiy in negative for the reason that court
«.heio\i}’i:’pi1as«._eonfirrned the sale of an extent of 7 acres 14
q SyNo.105 and 2 acres 5 guntas in Sy.No.105 i.e,
suit s’e’h.ednie item Nos} and 2 in favour of 2*!” defendant
_ and with reference to the said extent which is sold in favour
V’ =of.:’2*1<3 defendant. it is held that 2"" defendant is in possession
F of the same and plaintiffs and 1" defendant. are not in
possession of said portion. as such they are not entitled to
share in the said properties. However, it is held that the
– 2.1. —
remaining extent in the said suit schedule item_..Nos.tl’ 2
Continued to be in possession of plaintiffs V’
and item No.3 of suit schedule also held’ h_e_iVn:l’th.e’i1″
possession and it was held that eachlof theni1_’i_iAhaVe~ in
the said property which has to. decided’ in decree
proceedings.
18. So far as ‘it is in respect of
limitation. The same is held
in the defendant holding that the
suit:’filec__l period of limitation. 7″1
issue in maintainability of the suit for non
issue _of anoticlell under Section 125 of the Karnataka
«_CoopEei’atiVe_Societies Act. In the said issue burden to prove
‘V ‘l;l_1€’1 on the defendant and the same is held in
ri«egat_ive.pa~’gainst the 2″” defendant. As a result, the suit of
AA plaintiffs is decreed in part holding that plaintiffs 1 to 5 have
l’–ri§nt to seek partition of suit schedule item Nos.i and 2
excluding the extent of land which is sold by their father
Narayanappa in favour of 2″” defendant and they have right
14,, ‘\,.
I
§
-23..
to seek partition in item No.3 by initiating proceedings in
final decree.
19. The plaintiffs being aggrieved by of the
court below so far as it pertainsfto haye 1
filed the present appeal chalfllengiriglthe upvliollding ‘£;)i’f’sa1et.
deed dated 16.1.1987 in portion’iovf schedule
item Nos.1 and 2 in;fav_our_L:ofV_;2″‘l._d<%lEf1dE111tHi511Vvthe ground
that appellants 1 to and are the brothers
and sisters.;_"Appp:ellan3ts 4 rVth_eifr mothers. That suit
Wasifiled 'parftition and separate possession
on the=.g1'ound V suit schedule properties were
ppugrchasedu E'ff)1fV1'1V Voutlof the joint famiiy funds 1'.e., from the
oflllltfippur viliage properties which were
A name of grand father of appellants 1 to 3 and
respondent, who died in the year 1955. Thereafter, their
to ggrandfirnother Akkayyarnma decided to shift her residence
1' Tippur to Allalasandra atong with her son
Narayanappa. From out of the sale proceeds oi'Tippu1'
prope1'ties they purchased suit schedule properties as
supported by Exs.P7. 8 to 10.
e/t’eL_/3
.23-
20. It is also their case that properties acquired by
Srnt.Akkayarnrna and her son Narayanappa are 7].oiii.t]i’a_mily
properties in which appellants have
properties being agricultural properties and—-h.gjps3e’properties p
are included in the schedule of the suit l
separate possession of plaintiffs. llitpis theiVrv~l’–i;_;;a,sel.thlat
have right and claim over _jpoint’iarrnilv properties. In
that behalf they filed: t’p.arti’tion after death of
Narayanappa, in which 2’ml_re”spond–ent’AA–h*erein is also a party.
The visalCi”St:fit is7I’deci’ele’d inllrespeci. of the suit schedule
properties andl1’einain_ingplc.1aim is dismissed. It is also their
case that’a2″<l defen~:la'n.t'lherein is taking advantage of the
Claim over..t.he suit properties. The trial Court did not
' ,lappreciate«..t:he_same in proper sense. On the contrary it has
" shhownl1"av*ou§ritis111 to 2"' defendant in wrongly appreciating
the z pleadings, documentary evidence and submission
2 it supporting their claim which are at i31xs.P}, 2, 3, 6, 7, 8, 9,
ii. The trial Court has also not properly appreciated
"the fact that Ex.Pl4, the registered sale deed in favour of 2""
defendant has come into existence in iiiegai and improper
-24-
manner and the legality of said sale deed is also questioned
by the plaintiffs is not properly appreciated. Ther_e».i_s-«al*s_o an
error in appreciation of facts, staternents_.~§and’V.’e’vtdez1ce
including the depositions of witnesses. .’Co1:–sequentih , ,_th’e.
finding of trial Court on issues isialso-er2?oneous}”
21. Though the courfbelow a’11s\’2vered’Vi’sst1e, _l\l0s.1
2 in favour of appellants 3″‘ issue hueingfdisputed} fact raised
by 2nd defendant is no1;hprop–§erlyanswered. Inasmuch as, 21361
defendant did not proyethey tra1rsaction’:is—-for legal necessity.
Though ‘l’ex/idence against the officials of 2nd
defendant the sanie’ appreciated in proper sense. The
admission ‘V of _ 2’15 defendants witnesses going against the
ofagnd defendant is ignored and over looked by the
trial -C’o:;r’i: affecting minors’ interest. The order passed in
earlier”C)S.;l\lo.423/1992 and in P.Misc.288/1989 are not
A appreciated in proper sense and the Cornmissioner’s report
“in the said suit is also ignored. The court: below did not even
__§consider the option of ordering return of the funds if any
paid by 2″” defendant to them and to save the suit schedule
properties for the benefit of the minors whose interest was
my/iv’;
§
7
-25-
over looked. There is no proper appreciation of the finding
given by the High Court in a public interest litigpa1i;»ioon in
W.P.No.15267/1994 in respect of same p1*opertiesp»..of
the fact that appellants having established
partition and separate possession of ‘the7.su:it– pr0.p.eVr’ty and ‘d
that the suit properties are jointlfaniily propjerty. ‘
Court has ignored the”‘v.rsame. the
appellants/plaintiffs’ *h~.a_ve chaliclngegd-.the disrnissal of their
suit on all the ai”o1’esaidlbaifailab:le:V
t’lié’V’2.r.’_d defendant being aggrieved by the
finding ‘thelc’oui*i;l’bellox2§}’ far as it pertains to issue Nos. 1
and 2 _hO1Cl\lI’lg_ that the suit schedule properties are the joint
., A ¢fa’1ni1§¥’lpy§jpe_rties olflate Narayanappa challenged the same in
on the ground that though the suit of the
p*laint_iifs_:fisA dismissed the contention raised by the 2″”
AA defendant to the effect that the sale proceeds of Tippur
“village is only to the tune of Rs.1,500/–, whereas the suit
fschedule properties are purchased for Valuable consideration
of Rs.2,50O/«M and the difference of Rs. 1 ,OOO/M as on the date
of purchase of suit schedule properties being sizable. it is
it/1.»;
E
-35.
also contended that Narayanappa father of plaintiffs’ 1 to 3
and if” defendant. being gainfully employed has incolrnéeof his
own. which was sufficient to acquire the
properties by him in the name of his hinzseif.
which has course on record infthe:..forrri’–_oi’_pieadingsw.,and l
evidence. Further facts and circumstances _under whlgchithle;
said property was acquiredi’i=.,and_ how-. arnount was
mobilized are not p;roperl;_;}l appreciated before answering
issues 1 and 2 againstflthe
–t.hlewlcase°o’f cross objector that by a perverse
finding theiicolurtl strangely held that purchase by
Narayanappa ., the name of his mother is benami
«transalctidrnshould have been mentioned in the said sale
‘V deed i.rz..t’he absence of the same, the said contention
cannot’ accepted, is Without basis. That as on the date of
AA salezof properties in Tippur, suit schedule properties were
l’alr_leady purchased by father of plaintiffs 1 to 3 and 15*
ddelendant, which is totally ignored by the court below.
Therefore, in the light of that question of suit. schedule
properties purchased from out of the sale proceeds of Tippur
‘{/K’/'{,_,/1
E
-37-
properties is totally ruled out. It is also its case that despite
all these material facts available on record the Vtrial”Court:
has not appreciated the same in propei: perspectij/e._,:
has resulted in the erroneous finding on~the”2part: of court
below on issues 1 and 2, which, is requtired”to*be=.set aside. ‘
Hence, the 21″ defendant hasflfiledfthe”cross.o~hj.elctdion:’;on
aforesaid grounds. _
24. In this procpeedidngsfVfldefendants i and 2 after
service of notice entered” a,pplela:}bance.’ counsel. The
cross 21″‘ defendant. Thereafter, the
entireltrialttCot1rt””rec.ords’were secured. On going through
grounds”appe’al and as well as cross objections and
the court below with reference to issue Nos.1
‘V to court below, the points that arise for
c’o_nsid’ei*ation in this appeal and cross objection are as
V pp und er: s
1) Whether the finding of the court below with
reference to issue Nos.3, 4 and 5 holding that sale
of portion of suit schedule item Nosl and 2 in
favour of 2″” defendant is for legal necessity and
‘~e~u
E
-28-
that p1ai.nti.ffs are not in possession of portion of
suit schedule i.tem Nos} and 2 over ar’n”‘»rextent
covered under sale deed dated
same is in possession of 2″‘ defe’ndani”~ and the
plaintiffs are not enti.tl:edHVto”see’i'<_ s-hare'–i_ij. said T.
properties is just and vprolper or does 'itv'.:a.l1'f'orp
interference in th.is''appeal? '
2) Whether tl*ieV_ fiilciilnglfthe cotirtdbelow with
reference to issue Nosfil andf2.vso__ far as it pertains
“toiefnatufre ofgsuit schedule properties is just and
l._propeix”‘oIf'”does_i: call for reconsideration in the
fc.ro’ss objeictiori?
is necess–ai*y’ to mention that in this appeal also 15′
V .V.re’spoi1den’t:TWho i.s lst defendant in the court below though
ilientered ‘appearance through counsel did not participate in
the proceedings.
Heard the Counsel for appellant and 2″” respondent in
“iappeal and cross objector and contesting respondents in
cross objection. perused the findings of court below on
‘W/av,-5
‘E
-29-
issues framed for its consideration in the light of oral and
documentary evidence available on record.
On reappreciation of the pleadings..’_or_aii’V.j’ and
documentary evidence of court below with__yr’eference< to the
aforesaid points for consideration this 'court 'ans__Vwei'V they said '
points 1 and 2 for consideration7i.n:"t.he affirrrnatifvev
following:
25. On reappreciationf” of documentary
evidence’ –a,yailalj:lie”on’–record”clearly disclose that there is a
consistenét erf§a’r;£dI’;;.:; of plaintiffs and 15′ defendant to
some see th.a’t’«.t.”transacti0n entered into between
Ncfifayaliappa i”.’e._.___father of plaintiffs and 151 defendant with
‘ K2’??? dVefenda”nt_ is set aside. As could be seen from the
* of an extent of 9 acres 19 guntas in all in suit
sohediulehvitent Nosl and 2 is conveyed by late Narayanappa
” infaxvrour of 2″” defendant under sale deed dated 16.1.1987.
transaction has not come into place in one day. It
Hfcomrnenced in the year 1983 when property was an
agricultural land. In the year i983~84 itself Narayanappa
:__ any E
\
-39-
has entered into an agreement for sale of said land to 2″”
defendant. In connection with that he has e11te1’ed:”into an
agreement of sale and as well as executed a gene1§a1.p’oi7.rei’.. of
attorney in favour of 21’I(l defendant authoifising get
land converted from agriculture {to non agific’t1ltu1’aipurpose. ‘
so that it will be convenient to getfthe sarn.er’A’regist’ef,g.d in
their name for the purpose ovfifoifrnatiori._of’*residential layout
thereon.
2115 “‘defendant is a registered
Coopleratiye’ Society the employees of University of
Ag1°icultu’1=al It is also not in dispute that
transaction pertaining to purchase of 9 acres 19 guntas in
‘ yfsuit –sVci1ed_ule.._item Nos.1 and 2 from Narayanappa by 2″”
” defendaiit the purpose of formation of a residential
layout.th.e4i’eon. The agreement of sale and General Power of
if Attorney initially executed by Narayanappa in favour of 21″‘
Zsdlelfendaiit is not in dispute. Incidentally to the said
documents is’ wife of late Narayanappa ie., 4″‘ plaintiff and
elder son of Narayanappa ie., 1591- defendant have joined as
x.-La»;
-3.1-
eonsenting witnesses. It is necessary to note that they are
not the Vendors along with Narayanappa. the
consenting witnesses to said transac_tion;”»~d.’jwf1e.rein
Narayanappa projected hirnslef as absol–utev~ of said,
properties sold in favour of 2″” defendant4§’ate.’i’i1’e”-e§:eV(§u_tion»fof if
agreement of sale and Generai Powerof Attcrrneyiivs not at
challenged in the suit. Whatffisieilallengedfiis only execution
of sale deed by plaintiffs 1 to 3§V._a,re«.adrnitted1y minors as
on the date when the said place. Before
proceedmg;”further neeessfary to see the conduct of
parties w4i1e11_saie~ commenced in the year 1983
which efulfminatedf’, in…~7″t11e execution of sale deed by
Nafaytgfifippaff”i11v…favour of 2″” defendant in 1987 under
‘ uregiystered’«sale deed dated 16.1.1987, which is EXP14. It
” app’earsf*.V–a*i1VA’tiie problems have started thereafter to the 21″?
defendant’ society.
Initially the suit to challenge the sale in favour of
“”–2′”‘;~1″;’l390. it is seen that thereafter said
case was not pursued at all as he failed to secure an exparte
‘ d.er’vQl’*te1njj’orary injunction against 2″‘ defendant who was
“thesolefieféndant in the said suit. it is also seen that
plaintiffs pill to 3 filed P.Mise.288/1989. Certified copy or said
it xpletition is at Ex.D14, wherein plaintiffs 1 to 3 sought for a
utptayer to set aside the sale deed dated 16.1.1987. in the
said proceedings they did not succeed to get any exparte
interim order. Thereafter, plaintfifs filed OS.N0.423/1992
-33-
against 21″‘ defendant with reference to same property,
wherein after failing to obtain an interim order _t.’h__ey
the same. It is also seen that a
W.P.NO.i5267/1994 was also [i1ed'”i’:1_&_the .;gu.§ise1§t’-~1;;ul511c’i’
interest litigation to promote the oflpl_ain.t.iffs
defendant in this suit. pétinon..,gi’i_s5″*:eéi:hé to be
dismissed, wherein p.oszsessio’n -9ll”ac1’es alfiguntas of suit
schedule item Nos.1 b3r_i21}l1′ is confirmed by
order of this Court V’St;bVsequer1tly it is seen
that,Vthere’~ anloltl;er’«i.:suit filed in OS.No.7632/1995 by
plaintiffs ‘-agairiystijyflyilcl’–~._defendant and others. Again the
exparte inter_in1.o.rde*; secured therein by them was Vacated
czonterst bylV”:7;1’i<l defendant. herein by order dated
failure in the said suit, present suit is filed.
' V'28u_;'_v».ln',the court below, wh.ere the relief sought is for
pa"i'€;iti'o:n the ground that suit schedule properties are
. njoriunt farnily properties and plaintiffs 1 to 5 and 13* defendant
a share in the same. wherein, it is urged that the
-“transaction for saie of a portion of suit schedule properties
K4}./3,
-34-
by late Narayanappa in favour of 2″” defendant is not for
legal necessity of the family, it is against the interest of
plaintiffs and the same is required to be set..~«~£’-…’:.”»_ip’u:l,e.’=,h’_t\-.m’;h€
present suit, they have also gone to the eX_t.Ven:”t~.ofthatf
their father Narayanappa Was ~’.r1p¢:s”i;1_ the it.
later part of his life and with anintention :1ioAfsqtiari=de;: the
properties of joint family he”‘so’l’d the :.Hei”,CefVthe said
sale is not for the benefit of”the'”fan1ily and’its members
and the same is not the.rr’1.:_’;v.Ttiey also contended
thatentireresult.’iifsfehefdule properties being purchased from
out of sale proee_edls”–.re”eei:=Ved by sale of properties of their
grand fatfherfu~n.derA’E;§s’.:P9 and P10, suit schedule properties
are acqufiredffunder EX.P11 is joint family properties.
V father Could not have sold the same against
‘ ‘ their 1_r1t’e:§i.%_e§t.
29 “The entire plea of plaintiffs was neither denied nor
.. ,s_upp”orted by 1*” defendant. The conduct of 15′ defendant in
f ‘filing Various suits in his inctivictual capacity contending that
sale deed dated 16.1.1987 vide EXPI4 is not binding on him
‘»/M/1
-35-
has subsequently chosen to stay away in this proceedings.
This clearly indicates that present suit is filed byypllaiylntiffs 1
to 5 in collusion with 1st defendant who
but did not choose to either deny or the case’
plaintiffs. The evidence available onirecfordp ivdVi.scl.ois.es
that property of plaintiffs grand
under Ex.P6 to P8 at Tippur was Narayanappa
and his mother Akkayyarrixna vthe 1956″ tinder Exs.P9
and P10 for Valuable .1–l;500/–. However,
the 3 are purchased by them
under;E1x.’P11’forva1i1abl’e«consideration of Rs.2,50O/W. That
is by payiizglva11otherlRs.1,000/– over and above the sale
‘1 V’ _ c-o.nsid-eravtion that”‘i’sreceiVed by them.
what is to be seen is the defence taken by 211’!
if 2″” defendant in their written statement
have pleaded that Narayanappa was an employee of KSRTC.
1 ” He had his own income with which he has purchased suit
lsschedule items along with his mother. Therefore, it is clear
“that though there is joint nucleus, apart from the sale
at ”
-36..
proceeds of joint family properties Narayanappa had also
invested his self earned money in acquisition.ffof”-suit
schedule properties. Further it
Smt.Akkayyamma in whose name..p_rope’rty”is:’_pu’i’chaseedV _
also a si nato to sale deed, which ‘was ‘e:<ec.i1te'df.Ab
Narayanappa in favour of Zijfldzefendant. V if A A
31. Now what be Aiwhether Narayanappa
sold portion of iternVAl\los,i- and=._2 vsuitllproperties for the
benefit of’ .for..’_’his The evidence on record
clearly disclosesltliaftl’~Iaray’anappa is not at all a squanderer.
Out; of the”icovtalextentfoff 19 acres 33 guntas owned by him,
only ‘acres 19 guntas to 2″” defendant retaining
n_orl.h’ern..”‘t’pyoi’t.ion of suit item Nos} and 2 property
“méasuri’r1g’ nearly 10 acres. The evidence on record clearly
disc~loses that he has developed said property by
yyconstrticting 28 houses thereon. Even assuming that he is
an employee of KSRTC. his salary, income and savings would
definitely not provide the funds required to construct 28
houses. Obviously he has utilised the income derived from
-37-
sale of a portion of suit schedule properties for development
of remaining portion. The development of reniainirlgpart of
suit schedule properties by constructing sev.e4ral’_’r-hjouses
thereon is not disputed. It has also come on
said development plaintiffs andl$i”de_fe<ndant:_"arelearning T.
huge income of Rs.l8000/is to RsL5.._'-O:0QnO/*
clearly negates the allegation'–«ni'ade the the effect
that their father Narayana'pp'af'isl'"*a_ squariderer, a man
addicted to vices and a person' wh_ohas "taken a decision to
disp;osellot"V.suit properties for his personal vices
than 'for the ?:\ene_titleof._;:jeo~ini family. The evidence available
onprecorcl' clearly d'i.scl'oses that Narayanappa was a wise
rrii.an.i,.A'-eHe"~–had nolintention of squandering any portion of suit
V s_c'he:cl'uLle »vp'11o:p_crties even assuming that they are joint family
l'propertiesl§.V_ Nodoubt said Narayanapa has utilised his
savings. and also utilised proceeds from sale of ancestral
_pr"o_perties which stood in the name of his father and
itherefore, his earnings and savings has also gone into
acquisition of the same.
Edvi,/1
.33.
32. Therefore, t.he entire property cannot be considered
as self acquired property. At best it could be co1_is~i:dered as
property acquired by him from out of joint 4′
also investing personal funds Which._will f
benefit of the joint family. Therefore,1’_th*e
court below that suit sc’hed~ule item ‘*:and.. 2 have
partaken the nature of joint_u”fa_1fnil.y propexftiesis correct.
However, it is seen sale in favour of 2″”
defendant is for theA”benjefit*.yof_ consisting of
plaintiffs til” 4″>r’..’_’deferr_dfant along with Narayanappa
and the fact that’ ‘uti’lised the entire proceeds thereon
forV.deve1ao’pInent..’oft rernaining extent of suit property,
V’ . th.e{re£ore,’vi–iAt canno’t”be held that the sale is bad in law.
1 “.33. iis-also seen that at the time of execution of sale
“deed 1.1987 possession of entire extent of 9 acres
l9″gunt.as is delivered to 2%” defendant by Narayanappa, his
2 if 1’fS*'<.wife and eldest; son 13'' defendant in the court below. The
is evidenced by documents which are produced by
'society. In the court below Court Commissioner was
'»i «E
appointed to inspect and report the status and possession of
property in dispute. The Court Commissioner With..d:n.otice to
all the parties to the suit has conducted__–inspeciZioi1f'7and
submitted his report. The Cornrnisbsioneri's"'1'eport'=W'hich his
prepared and submitted by none
{Vigilance}, High Court is
discloses about the formatiovnddf of the
sites with roads, drains to confirm
that the possession pof..:'t_lj1e under sale deed
dated the purchaser, the 2"'; defendant
society it way back in 29.9.1995 itself there
is an observation" offlthisf court in W.P.No. 15267/1994 so far
aslpoysvsession olf"9"'acres 19 guntas is with 2"" defendant.
9 not been challenged by plaintiffs and 15*
clearly establishes that aforesaid extent. is
with' _2l*%." defendant on which they have formed layout and
.vall"otted the sites formed thereon to its various members.
9971' herefore, the contention of plaintiffs regarding possession of
entire extent of suit schedule item Nos} to 3 with them is
rightly negated by the court below while answering issue
««.,-mt
-40-
Nos.4 and 5 which cannot be gone into in this appeal and
accordingly said point for consideration is answeredyin the
negative.
34. In the result, it is seen that b
plaintiffs and 151 defendant is ayAAycbonso1f’t’ed”*joint”=effO1’t.vton’
deprive legitimate right of 2″” defendant’ tor ‘portiloriie—of”<st1it
schedule item Nos.l and 2'lV_v'vhVich morefL1;lly.i:described
EXP14 measuring to an extentcf acresléi gnfntas under
the g'tii'se'ithTat "sa'mye'-is joirit' Iamily properties which has
been"-sold_ "fprhhis personal vices and not for
the benefit of joint is rejected.
” 35. cross objection filed by 2″” defendant so
.V’f’:’gt1″ on issues 1 and 2 is rejected the sale deed
executed and registered in its favour by
N’arayarial’}5pAa is held to be valid and subsisting and the same
is eitectited by him for the benefit and Welfare of the minor
if -..Vf’c.hi5idren, which has been concurred by his 15* wife and major
‘Lav;
.41-
son by joining him as consenting witnesses to the said sale
deed at E3x.Pl.4.
36. With these observations the appHe_alVfil_edl:»y
plaintiffs is dismissed and the cross 0bject1’on
defendant is also dismissed witl’1″”£h’e« .afores:–.xi_d*obsenraiionbT
that the sale deed executed inbA:’i.hei._fz’fa\rou_f is «vall:id..Vband
binding on plaintiffs 1 to 5 land defendanfig