Chempawwa and Others vs Channawwa and Others

S.N. Satyanarayana, J.—The purchasers of a dwelling house belonging to the joint family of Fakkirappa Madalli who are defendants 5(a), 6(a) to (g) and defendant No. 7 in O.S. No. 146/1993, on the file of Civil Judge (Jr. Dn.), Laxmeshwar, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiffs for the relief of partition and separate possession in the dwelling house of the joint family.

The undisputed facts are that the suit schedule property is a residential property, which was in possession and occupation of the great grandson of propositus Fakkirappa Madalli. It is stated that the said Fakkirappa had a son by name Ganalingappa who in turn had 5 children. The 1st of them is a son by name Mahadevappa and other four are daughters by name Ningavva, Neelavva, Savakka and Nagawa. Admittedly Ganalingappa died in the year 1974, Mahadevappa died in the year 1984 Ningavva died in the year 1983, Neelavva; died in the year 1987, Savakka died in the year 1979. It is only the last daughter of Ganalingappa who was alive as on the date of filing of the suit. The suit is filed by Nagawa as 4th plaintiff along with her brother''s two daughters namely Channabasavva and Basavva as plaintiffs 1 and 2. The 3rd plaintiff is one Veerabhadrappa claiming himself to be the adopted son of deceased Neelavva.

The sum and substance of the plaint is that the 1st defendant in the said suit namely Channabasappa who is son of Mahadevappa has sold the suit schedule property in favour of defendants 5 and 6 in the original suit for valuable consideration under registered sale deed dated 15.6.1981. Hence the suit for partition was filed on 13.4.1987 for the relief of partition and separate possession. In the said suit though Channabasappa was served, he remained un-represented and he did not file any written statement. Defendants 2 and 3 are sons-in-law, they were made parties though there is no relief sought against them. 4th defendant is the wife of 1st defendant Channabasappa. Defendants 5 and 6 are the subsequent purchasers and 7th defendant is son of 5th defendant.

In the said suit the defendants 2 and 3 claiming that they are unnecessarily arraigned as parties to the suit. Therefore the suit against them should be dismissed. The defendant No. 4 filed the written statement supporting that the suit property being sold in favour of defendants 5 and 6. Defendants 5 and 6 filed the written statement contending that they are bona fide purchasers for value from the owners of the suit property. Therefore the suit filed by the plaintiffs for the relief of partition is frivolous.

On the basis of the above pleadings, the following issues were framed by the trial Court for its consideration.

ISSUES

(i) Does the plaintiffs prove that the sale deed executed by defendant No. 1 in favour of defendant Nos. 5 and 6 dated 15.6.1981 is ''null and void'' and not binding on them?

Or

Alternatively does the plaintiffs prove that the sale deed dated 15.6.1981 executed by defendant No. 1 in favour of defendant Nos. 5 and 6 is not binding on their 2/3rd share in the suit property?

(ii) Does the plaintiffs are entitled for the relief of declaration as sought against the defendants?

(iii) Whether they are entitled for possession of the suit property?

(iv) Whether the plaintiffs are entitled for mesne profits?

(v) Whether the suit of the plaintiffs is barred by limitation?

(vi) Whether the suit of the plaintiffs is bad for mis-joinder of causes of action and mis-joinder of necessary parties?

(vii) Whether the Court fee paid is correct and proper?

(viii) For what order or decree?

In support of the plaint averments the 1st plaintiff adduced evidence as PW. 1 and an independent witness was also examined as PW. 2. The evidence of PWs. 1 and 2 is nothing but reiteration of plaint averments. On behalf of defendants the 4th defendant was examined as DW. 1 and 7th defendant adduced evidence as DW. 2 and other two witnesses i.e., DWs. 3 and 4 are independent witnesses.

Based on the oral and documentary evidence available on record, issues framed were answered in favour of the plaintiffs and suit of the plaintiffs was decreed granting 2/3rd share in the suit property to the plaintiffs. Being aggrieved by the same, the legal representatives of defendants 5 and 6 and 7th defendant preferred an appeal in R.A. No. 86/2004 contending that the trial Court has committed an error in decreeing the suit of the plaintiff which is barred by limitation and the defence with regard to limitation which is taken in the original suit is not properly appreciated and that the suit schedule property being the dwelling house, under Section 23 of the Hindu Succession Act the female heirs could not have filed a suit for partition and they could have sought for a share only in the event of suit being filed by one of the coparcener or male surviving member of the joint family. Therefore initiation of the suit itself is erroneous.

With these grounds the regular appeal was taken up for consideration by framing the following points for consideration.

POINTS

(i) Whether the appellants prove that the judgment and decree passed by the trial Court is perseveres, contrary to law, evidence and facts for which interference of this Court is necessary?

(ii) What order or decree?

The lower appellate Court after hearing the appellant and as well as the respondent dismissed the appeal filed by the legal heirs of defendants 5 and 6 and 7th defendant. Being aggrieved by the concurrent finding of both the courts below this second appeal is filed by the defendants 5(a), 6(a) to (g) and defendant No. 7 in the original suit, on the ground that both the Courts below have failed to appreciate that the suit of the plaintiff is not maintainable in view of Section 23 of Hindu Succession Act and that the Limitation Act is not properly looked into and time barred suit is allowed granting relief to the plaintiff by awarding a share in the suit schedule property which was sold in favour of the appellants on 15.6.1981. In this second appeal-lower Court records were secured and after hearing the counsel for both the parties the following substantial questions of law were framed.

SUBSTANTIAL QUESTIONS OF LAW

(i) Whether both the Courts below were justified in entertaining the suit for declaration or in the alternative for partition of suit dwelling house which was held by male successor to the joint family by married daughters contrary to Sec. 23 of the Hindu Succession Act, as it stood then?

(ii) Whether the suit which was filed for the relief of declaration was within the period of limitation and both the Courts below were justified in granting the relief to plaintiffs beyond the period of limitation?

Additional substantial question of law

Whether both the Courts below were justified in accepting the claim of Veerabhadrappa as adopted son of Neelavva in the absence of cogent evidence to establish adoption of Veerabhadrappa in the family of Neelavva?

Heard the learned counsel for appellants and respondents and on re-appreciation of the pleadings, oral and documentary evidence available on record, this Court answer the 1st question of law in the affirmative and so far as 2nd and 3rd questions of law in the negative for the following reasons.

REASONS

Admittedly as on the date of filing of the suit the plaintiffs who are daughters of the coparcener could not have filed the suit for the relief of partition. However in the light of the judgment rendered by the Full Bench of Bombay High Court in the matter of Badrinarayan Shankar Bhandari and Others Vs. Omprakash Shankar Bhandari , the said question of law is no longer res-integra and as already been decided in favour of the plaintiffs, the same is held in favour of the plaintiffs in the original suit.

However when it comes to the 2nd and 3rd substantial questions of law it is seen that plaintiffs 1 and 2 are daughters of Mahadevappa and plaintiff No. 4 is the sister of Mahacievappa and plaintiff No. 3 is claiming himself as adopted son of 4th plaintiff''s sister Neelavva. In the Courts below though there is no issue with reference to his right to maintain the suit, he ought to have established before the trial Court that he is legal heir of deceased Neelavva, who is one of the daughters Ganalingappa and that his adoption to the family of Neelavva is valid and as such he is entitled to seek a share. Though he has joined other plaintiffs i.e., plaintiffs 1, 2 and 4 in the suit for partition, he has not established clearly that he is member of the joint family of Neelavva, as such he is not entitled to seek share that is due to Neelavva in the joint family of her parental house in which she is claiming share under Section 6 of the Hindu Succession Act.

It is seen that both the Courts below have failed to notice the same and have wrongly considered the case of the plaintiff No. 3 for the reason that the relief of partition and separate possession sought is in the property of Ganalingappa''s family and that the 3rd plaintiff has failed to demonstrate that he is one of the member of the said joint family.

Coming to the substantial question of law regarding limitation it is seen that the sole coparcener of the joint family of Fakkirappa Madalli has sold the only dwelling house of the joint family in favour of defendants 5 and 6 under a registered sale deed dated 15.6.1981. In the said suit for partition Channabasappa has sold the only dwelling house of the family in favour of defendants 5 and 6 in the original suit. The recitals in the sale deed would indicate that the suit property is sold to meet the family necessities and he being the karta and sole coparcener of the family had every right to sell the property for family necessities. If at all plaintiffs 1 to 4 are aggrieved by the said sale, they should have initiated proceedings seeking declaration regarding nullity of the said sale deed within three years from the date of such sale i.e., within three years from 15.6.1981 as contemplated under Article 58 and 59 of the Limitation Act. Since they are seeking declaration regarding sale deed not binding on them,'' under Article 58 of the Limitation Act, plaintiffs ought to have filed the suit within three years of said sale. However the suit is filed for the relief of partition in the year 1993 without challenging the validity of sale executed by karta of joint family beyond the period of limitation and as such the suit is not maintainable.

Learned counsel for the respondent/plaintiff in the trial Court tried to substantiate that the plaintiffs being members of the joint family, they were deemed to be in joint possession of the suit property. Therefore the question of limitation under Articles 58 and 59 does not arise. At this juncture it is necessary to rely upon the definition of coparcenary which is provided in Mulla''s Hindu Law under Section 210 wherein joint family is defined as under:

Joint Hindu family.--(1) A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father''s family on marriage, and becomes a member of her husband''s family''.

In the instant case admittedly the plaintiffs are all daughters who are separated from the family of Fakkirappa Madalli at the time of their marriage and therefore as on the date when suit for partition was filed, though they were members of the joint family of Fakkirappa Madalli, they cannot claim to be in joint possession and enjoyment of the suit property as heirs of the coparcener namely deceased Ganalingappa and deceased Mahadevappa and as such their claim regarding possession of the suit property cannot be accepted.

In that view of the matter the relevant provision of the Limitation Act that is applicable to the case on hand being Article 59, since their claim is for declaration, the suit should have been filed by them for the relief of declaration that the sale deed dated 15.6.1981 is not binding on them and the same should have filed within three years from that day. Since the suit is filed beyond the period specified therein, the suit itself is not maintainable.

Therefore by answering the question of law against the plaintiffs, the appeal filed by defendants 5 and 6 in the original suit is allowed and consequently the judgment and decree passed by both the Courts below in decreeing the suit of the plaintiffs for the relief of partition and separate possession in suit property is hereby dismissed.