Bheemanagouda Police Patil and Others vs Laxmamma and Others

S. Sujatha, J.—The judgment and decree dated 21.8.2010 passed by Fast Track Court-II, Koppal, in R.A. No. 56/2009 is assailed in this second appeal.

The facts leading to this case are that the appellants have filed O.S. No. 258/2001 against the respondents for declaration and injunction in respect of item No. 1 to 3 of the suit properties and for possession of item No. 4 of suit property and further to declare that the registered sale deed dated 29.6.1996 said to have been executed by respondent No. 2 in favour of respondent No. 4 is null and void and not binding on the appellants. The suit was contested by the respondents. The trial Court after considering the material evidence on record dismissed the suit. The appellants preferred R.A. No. 56/2009 challenging the judgment and decree of the trial Court before the lower appellate Court. The lower appellate Court after re-appreciating the material evidence on record dismissed the appeal against which this second appeal is filed.

I have heard Sri Hanumanthareddy Sahukar, learned counsel appearing for appellant and the learned counsel Sri V.P. Kulkarni, appearing for respondents. The learned counsel appearing for the appellant mainly contended on two points. Firstly the sale deed dated 25.2.1991 executed by plaintiff No. 1 in favour of respondent No. 1 marked as Ex. P.13 is a sham transaction as no sale consideration is passed on to the plaintiff No. 1 on the said instrument of sale. Secondly defendant No. 2, the daughter of plaintiff No. 1 had no right, title or interest over the suit property item No. 4 to alienate the same to respondent No. 4. The learned counsel vehemently argued that both these sale deeds are not in accordance with law and are not binding on the appellants. The Courts below without properly appreciating the material evidence on record dismissed the claim of the appellants. The learned counsel placed reliance on the following judgments in support of his contention.

"i) Subhra Mukherjee and Another Vs. Bharat Coking Coal Ltd. and Others, AIR 2000 SC 1203 : (2000) 101 CompCas 257 : (2000) 3 JT 55 : (2000) 2 SCALE 259 : (2000) 3 SCC 312 : (2000) AIRSCW 865 : (2000) AIRSCW 3948 : (2000) 7 Supreme 421 : (2000) 5 Supreme 88 .

ii) Judgement passed by this Court dated 23.2.2000 in RFA No. 441/1997, Smt. Flora Margaret W/o. Sri Zachariah v. Sri A. Lawrence S/o. late A. Arokiaswamy.

iii) T.S. Prameela Vs. Balakrishna and Another, (2001) 6 KarLJ 102 : (2001) 3 KCCR 2007 .

iv) Basalingappa Channappa Mamale Pattan Shettar and Others Vs. Dundappa Puttappa Panchappanavar, AIR 1998 Kar 321 : (1998) ILR (Kar) 2650 : (1998) 4 KarLJ 368 .

v) Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others, AIR 1997 SC 2719 : (1997) 5 JT 703 : (1997) 4 SCALE 388 : (1997) 7 SCC 137 : (1997) 2 UJ 96 : (1997) AIRSCW 2690 : (1997) 6 Supreme 385 ."

On the contrary, the respondents counsel contended that the suit was barred by limitation. The sale consideration amount of Rs. 31,000/- was paid to the appellant No. 1 which is clearly indicated in the recitals of the sale deed Ex. P.13. The suit property No. 4 was allotted to the share of defendant No. 2 at the time of her marriage for ''Arishina Kumkuma'', further acknowledged by appellant No. 1 in Ex. P. 19. By virtue of which, property was mutated in the name of defendant No. 2 and she was enjoying the same as the exclusive owner with the knowledge of plaintiffs. The respondent No. 2 has the absolute right to execute Ex. P. 14 dated 29.6.1996 in favour of respondent No. 4. The said sale deed is executed for a valuable consideration of Rs. 96,000/- and the possession of the property is handed over to the respondent No. 4. The Courts below after appreciating the evidence on record had rightly dismissed the suit. In support of his contention the learned counsel placed reliance on the judgment of this Court passed in RSA No. 5129/2011 disposed of on 16.7.2014 in the case of Shri Nagendra Thakappa Bobate v. Smt. Demakka w/o. Nagendra Sawant.

After considering the rival submissions of the parties the points that arise for determination before this Court are:

"i) Whether the sale deed dated 25.2.1991 Ex. P.13 executed by appellant No. 1 in favour of the respondent No. 1 is a sham document or is legally valid?

ii) Whether the respondent No. 2 had a right to execute the sale deed dated 29.6.1996, Ex. P. 14 in favour of the respondent No. 4?"

The arguments advanced by the learned counsel for the appellant revolves round these two points. The undisputed facts in this case are that the respondent No. 1 is the 1st wife of appellant No. 1. Respondents 2 and 3 are the daughters of the appellant No. 1 through his 1st wife, respondent No. 1. Respondent No. 4 is the purchaser of suit property No. 4 from respondent No. 2 purchased for a valuable consideration of Rs. 96,000/- through a registered sale deed dated 29.6.1996. During the subsistence of the marriage with respondent No. 1, the appellant No. 1 is said to have married Smt. Virupamma. Appellant No. 2 is the son of the appellant No. 1 through the 2nd wife. Appellant No. 1 after having married the 2nd wife executed the sale deed dated 25.2.1991 in favour of respondent No. 1 with respect to suit item No. 1. The relevant recital of Ex. P. 13 reads thus:

The said recitals of the registered sale deed clearly elucidates that an amount of Rs. 31,000/-, the sale consideration amount was received by the appellant No. 1 and the possession of the property was handed over to the respondent No. 1. It is also made clear that the said sale was made for the family necessity.

The learned counsel for the appellant in support of his contention placed reliance on the Apex Court judgment in the case of Subhra Mukherjee (supra), wherein it is held as under:

"There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts; the first part says, ''whether the transaction, in question, is bona fide and genuine one, which has to be proved by the appellants. It is only when this has been done that the respondent has to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the Court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious."

This judgment was rendered in the context of the Coal Mines (Nationalization) Act 1973 which came into force on 1.5.1973 and from that date, the right, title and interest of the owners in relation to the coal mines specified in the schedule appended to the Act vested in the Central Government. Subsequently under the order of the Central Government, the vested properties stood transferred and vested in the Government company. In order to save the suit property from vesting in the Central Government the directors of the said company and the appellants therein, no other than husband and wife entered into a sale transaction to save the suit property. In such circumstances, the Apex Court held that lifting of corporate veil to find the transaction of sale of immovable property by company is sham and collusive is justifiable.

In the case of T.S. Prameela v. Balakbishna (supra) it is held as under:

"4. HOWEVER, the plea of title set up by the appellant in the petition property does not appear to be tenable and acceptable in law. The property in question is an immovable property valuing more than Rs. 100/-, it is necessary that any transfer of interest in an immovable property under Section 17 of the Registration Act, 1908 has to be by a registered document. Therefore, any claim of right or interest in the immovable property by way of oral gift or oral transfer is totally untenable and it is not also the case that the transfer of interest by way of family partition and as a part of the transaction of oral partition or oral family settlement.

....xxx....xxx...."

The judgment is rendered in a case where plea of transfer of right over immovable property was purely by way of gift, not supported with family partition, oral partition or oral settlement.

The appellant No. 1 has proved in her evidence that she had sufficient means to purchase the suit item No. 1, not disputed by the appellants. The only dispute is that the sale consideration was not received by the appellant. In view of acknowledgement made by appellant No. 1 for having received the sale consideration amount as per the registered sale deed Ex. P. 13, the appellant is estopped from denying the receipt of sale consideration at this length of time, after a lapse of nearly 10 years. No evidence is produced by the appellant No. 1 to prove that no sale consideration was made by respondent No. 1 towards the sale transaction. The challenge made to the said document Ex. P. 13 is also time barred as per Article 59 of the Limitation Act.

The suit property item No. 4 given to respondent No. 2 at the time of their marriage towards ''Arishina Kumkuma'' was admitted by the appellant No. 1 and the mutation was transferred in her name, RTC was standing in the name of respondent No. 2 for several years. The respondent No. 2 being the absolute owner of the suit item No. 4 alienated the property in favour of the respondent No. 4 on 29.6.1996, Ex. P.14. The challenge made to this document is also time barred. It is true that mutation entry itself does not prove the title to the property but in the present case it was within the knowledge of the appellants and the same is reflected in the registered partition deed Ex. P. 19 effected between appellants 1 and 2. The said admission made by the appellant No. 1 in the said document proves that there was a partition effected between the appellant No. 1 and his 1st wife and daughters from 1st wife. In view of the said registered partition deed Ex. P. 19, the argument of the learned counsel for the appellant that respondent No. 2 had no right or title over the suit item No. 4 does not hold water. It is settled law that mutation entry does not confer any title over the property, however, it has to be examined with the context of the case. In the present case, mutation entry presupposes an oral partition, acted upon by the parties, acknowledged by the appellant in the registered partition deed executed between appellants 1 and 2 (Ex. P. 19). Both these documents Exs. P.13 and P. 14, challenged herein were within the knowledge of the plaintiffs.

On the question of limitation though the trial Court held against the respondents, the lower appellate Court reversed the said finding and held that the suit instituted by the appellants challenging the sale deeds is barred by limitation. Now it is argued by the learned counsel for the appellant that in the absence of cross objections or cross appeal filed by the respondents, the lower appellate Court had no jurisdiction to reverse the finding on the issue of limitation. Order 41 Rule 33 of CPC reads thus:

"33. Power of Court of Appeal--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

(Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.)"

A plain reading of Order 41 Rule 33 of the Code of Civil Procedure makes it clear that the lower appellate Court had jurisdiction to reverse the finding on the limitation despite, non filing of the cross appeal or cross objection by the respondents.

This Hon''ble Court in the case of Shri Nagendra Thakappa Bobate (supra) has held that "it is true that, a party can support a judgement of the trial Court notwithstanding one of the issues has gone against him, under Order 41 Rule 33 of CPC". I have carefully examined all the judgments cited supra by the parties. The judgments relied on by the appellants have no bearing to the facts of the present case and in no way enure to the benefit of the appellants.

In the circumstances, I do not see any merit in the appeal warranting interference of this Court against the concurrent findings of the Courts below. No substantial question of law arises in this second appeal. Accordingly the appeal is dismissed.