Basappa vs Shantawwa and Others

B.V. Nagarathna, J.—1. This second appeal is preferred by defendant No. 2 in O.S. No. 386/2010, assailing judgment and decree passed in R.A. No. 97/2013 by the Court of Senior Civil Judge, Itinerary Court, Byadgi, dated 04.08.2015, by which, judgment and decree passed in O.S. No. 386/2010 by Civil Judge & J.M.F.C, Byadgi, has been modified and suit filed by plaintiff- respondent No. 1 herein has been decreed completely.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

Respondent No. 1 - plaintiff filed a suit seeking partition and separate possession of her 1/3rd share in two items of suit properties, which, according to her, were ancestral joint family properties, they are agricultural land bearing R.S. No. 58/10+11/A measuring 2 acres 12 guntas and house property bearing V.P.C. No. 168 both situated at Masanagi village, Byadgi taluk, Haven district.

It is the case of plaintiff that said properties originally belonged to Basappa Bannihatti. His wife was Dyamawa. Basappa and Dyamawa had three daughters, namely, Neelawa, Karabasaw and Shantawa, the plaintiff Their father Basappa died on 22.05.1970 and their mother died subsequently in the year 1991. They left behind suit schedule properties to their daughters, who are their legal heirs. After the death of Basappa, katha in respect of suit properties were transferred in the name of Dyamawa, his widow and subsequently on account of old age she transferred katha in the name of Neelawa alone for the purpose of managing suit properties by Mutation No. 1588. Neelawa was looking after the suit properties, as Manager, on behalf of her sisters and mother. Later Dyamavva died. Defendant No. 1 taking advantage of the entry of her name in the record of rights in respect of suit schedule ''A'' properties sold the same by a sale deed on 18.11.2009 in favour of defendant No. 2 and got his name entered in the revenue records without the knowledge and consent of plaintiff and her sister Karabasawa, mother of defendants No. 4 and 5 and wife of defendant No. 3. On coming to know of these facts, plaintiff filed objections before Tahsildar, Byadgi, objecting to the entry of the name of defendant No. 2 in the record of rights in respect of ''A'' schedule property. Defendants No. 1 and 2 refused to give the share of plaintiff and in fact denied her right in suit schedule properties.

On receipt of suit summons and Court notices from trial Court, defendants No. 1, 2 and 3 to 5 appeared through their respective counsel. Defendants No. 3 to 5 filed their written statement supporting the case of plaintiff They admitted the averments made in plaint and also the contentions of plaintiff They sought for decree of suit and also for partition and separate possession of their share in suit properties. They further admitted that defendant No. 1 had illegally transferred suit schedule land in the name of defendant No. 2 i.e., schedule ''A'' property by sale deed dated 18.11.2009. That defendant No. 1 had no absolute right over suit properties. On the other hand, they also have right, title and interest in suit properties. Hence, they prayed for a decree, as sought for, by the plaintiff and also for grant of their share.

Defendants No. 1 and 2 filed their written statement admitting the relationship between parties, but they denied that the suit properties belonged to plaintiff or that they were the joint family properties. They denied the fact that Dyamawa had transferred katha of suit properties in the name of defendant No. 1, as the Manager of family. They contended that defendant No. 1 had absolute right over suit property and she had sold the property in favour of defendant No. 2 on 18.11.2009. That it was not necessary to take any consent from other members of the family for doing so. That the mother of plaintiff and defendants No. 1, 4 and 5, Dyamawa had transferred her right, title and interest in favour of defendant No. 1, for which her other two sisters had consented. As a result, Mutation Entry No. 1537 was effected in the name of Dyamavva. Later Dyamavva had transferred her right, title and interest in favour of defendant No. 1 and consequently Mutation Entry No. 1588 was effected. Hence, defendant No. 1 has absolute right, title and interest in landed property and she had validly alienated the same in favour of defendant No. 2. That defendant No. 1 was enjoying the suit land for over four decades as if it was her absolute property, and therefore, plaintiff and mother of defendants No. 4 & 5 and husband of defendant No. 3 had lost their right, title and interest in said land as they had never been in possession and enjoyment of suit properties. That later defendant No. 1 on account of financial constraints sold ''A'' schedule property to defendant No. 2. She sold it for a sum of Rs. 1,85,000/- on 18.02.2009. Thereafter defendant No. 2 became the absolute owner in possession of suit property. But, plaintiff has filed objection before the Tahsildar, Byadgi, for changing entries in the name of defendant No. 2 as per the sale deed. The said objection was not accepted and name of defendant No. 2 was entered and certified as per Mutation Entry No. 15/2009-10. Hence, defendant No. 2 is the lawful owner in possession of suit land and plaintiff and mother of defendants No. 4 and 5 have no right, title or interest in the same. Hence, on these grounds defendants No. 1 and 2 sought dismissal of the suit.

On the basis of aforesaid pleadings, trial Court framed the following issues and additional issues :

"1. Whether the plaintiff proves that, she and the defendants are the members of Hindu undivided joint family and the suit schedule A'' and ''B'' properties are their joint family properties?

Whether the plaintiff proves that she is entitled to get partition and separate possession of her 1/3rd share in the suit schedule ''A'' and ''B'' properties?

Whether plaintiff is entitled for the reliefs as prayed for?

Additional Issue No. 1:

Whether the defendant No. 2 proves that, he is the bona fide purchaser of the suit schedule A'' property for valuable consideration?

What order or decree?"

In support of her case, plaintiff examined herself as P.W.1. She produced 7 documents, which were marked as Exs.P-1 to P-7. Defendants examined five witnesses. Defendant No. 1 was examined as D.W.1. Defendant No. 2 was examined as D.W.3. They produced 8 documents, which were marked as Exs.D-1 to Exs.D-8(a) to 8(f).

On the basis of said evidence, trial Court answered issues No. 1 to 3 partly in affirmative, additional issue No. 1 in affirmative and partly decreed the suit in following terms :

ORDER

"The suit of the plaintiff is hereby partly decreed.

The plaintiff is held entitled to get 1/3rd share in the suit scheduled property.

Further the defendant No. 3 to 5 are together held entitled to get 1/3rd share in the suit scheduled property.

It is held that, plaintiff and defendant No. 3 to 5 are not entitled to get partition in suit schedule-A property. The defendant No. 3 to 5 directed to pay the Court fee of their share within the period of one month.

The plaintiffs and defendant No. 3 to 5 can get partition and separate possession of their 1/3rd share in the suit schedule-B property as provided U/s.54 of C.P.C

No order as to cost.

Draw preliminary decree accordingly."

Being aggrieved by the trial Court not granting a decree in respect of A'' schedule property i.e., landed property, plaintiff preferred R.A. No. 97/2013 before First Appellate Court, which, on hearing learned counsel for parties framed the following points for its consideration:

"1. Whether the plaintiff proves that she and the defendants are the members of Hindu undivided joint family and the suit schedule A and B properties are their joint family properties?

Whether the defendant No. 2 proves that he is the bonafide purchaser of the suit schedule A property for valuable consideration?

Whether the plaintiff proves that she is entitled to get partition and separate possession of her 1/3rd share in the suit schedule A and B properties?

Whether the judgment passed by lower court is perverse, capricious, illegal one and opposed to the facts and circumstances of the case?

Whether there are sufficient grounds for interfering with the judgment and decree passed by the trial court?

To what order or decree?"

It answered points No. 1, 3 to 5 in the affirmative, point No. 2 in the negative and allowed the appeal and decreed the suit of plaintiffs by modifying the judgment and decree of trial Court.

Being aggrieved by the judgment of First Appellate Court dated 04.08.2015, defendant No. 1 had preferred this second appeal.

I have heard Sri Laxman T. Mantagam, learned counsel for the appellant. He contended that there is no dispute with regard to the relationship between parties. Basappa and Dyamawa had three daughters, namely, plaintiff, defendant No. 1 and Karabasawa mother of defendants No. 4 and 5 and husband of defendant No. 3. That on the demise of their father Basappa, name of their mother Dyamawa was entered in respect of suit schedule property. She had right, title and interest in the properties and she had, in turn, transferred her rights to Neelavva, defendant No. 1. Therefore, appellant herein had acquired absolute right, title and interest in suit land and house property. This was consented to by plaintiff and their other sister. Being the absolute owner in possession of suit land and having financial necessity defendant No. 1 sold the suit land to defendant No. 2 appellant herein under a registered sale deed dated 18.11.2009. Since then he has acquired valid title and he is in possession of suit land. Plaintiff had lost her right, title and interest in respect of suit land, way back in the year 1970, when she consented for the entry of her mother''s name in the record of rights. Therefore, suit filed by plaintiff seeking partition and separate possession was not maintainable. Trial Court was justified in not granting a decree in respect of A'' schedule property. But the First Appellate Court has modified the decree of trial Court and has granted a decree in respect of A'' schedule property also which is now in the ownership and possession of appellant herein. He submitted that the judgment and decree of trial Court is contrary to law. That substantial questions of law would arise in the appeal, and hence, appeal may be admitted for a detailed hearing.

Having heard learned counsel for the appellant and on perusal of the material on record, it is noted that suit schedule properties, namely, landed property, which is ''A'' schedule property and house property, which is ''B'' schedule property are ancestral properties and originally it was in possession of Basappa and on his demise, Dyamawa and their three daughters Neelawa, Karabasawa and plaintiff - Shantawa succeeded to the same in equal measure. The daughters, out of regard for their mother Dyamawa, got the name of Dyamawa entered in the revenue records insofar as landed property is concerned. Mere entry of the name of Dyamawa in mutation records does not imply that she became the absolute owner in possession of properties. It was done for the sake of convenience. On account of her age, she, in turn, got the name of Neelawa entered in the revenue records for the purpose of managing suit properties. Though Karabasawa and Shanthawa, sisters of Neelawa may have consented to it, that would not by itself mean that they had relinquished their right, title and interest in favour of Neelavva or that Neelavva became the absolute owner in possession of suit properties. The entry of Neelavva''s name in revenue records in no way denuded the plaintiff and her sister''s right in suit properties. Therefore, Neelawa continued to have her right, title and interest in suit properties in the same manner as Karabasawa and Shantawa had, i.e., they each had 1/3rd right in suit properties after the death of their parents. But, taking advantage of the fact that her name was entered in the revenue records, Neelawa sold the suit land to appellant herein, the same was not known to plaintiff On coming to know about the sale, plaintiff sought for her share in suit property. Trial Court was not right in declining to grant partition and separate possession in respect of suit land. First Appellate Court, taking note of the aforesaid facts, has rightly held that all the three daughters of Basappa and Dyamawa had an equal share in suit properties i.e., 1/3rd share in both Items of suit properties, and therefore, decreed the suit of plaintiff by holding that she had 1/3rd share in suit schedule properties. I do not find any infirmity in the reasoning of First Appellate Court, which has granted a decree to plaintiff in respect of both Items of suit property. This is because the First Appellate Court has rightly concluded that Neelavva had no absolute right, title and interest in suit land, and therefore, she could not unilaterally alienate the suit property to defendant No. 2, appellant herein. Therefore, that alienation was not binding on the plaintiff and her sister i.e., Karabasawa, husband of defendant No. 3 and mother of defendants No. 4 and 5. At best, it was binding only on defendant No. 1 Neelawa to the extent of her share in the suit A'' schedule property. The judgment and decree of First Appellate Court, is therefore, just and proper and no substantial question of law would arise in the appeal. Appeal is dismissed.

In view of dismissal of appeal, I.A No. 1/2015 would not survive for consideration and is also dismissed.