Hanumanthrayappa and Others vs Siddappa and Others

B.S. Patil, J.—This appeal arises out of the judgment and decree dated 5.9.2008 passed by the learned Civil Judge(Sr.Dn.)Madhugin, thereby setting aside the judgment and decree passed by the learned Civil Judge (Jr.Dn.) Pavagada in O.S. No. 81/1985 who had dismissed the suit filed by appellants/plaintiffs. This RSA is filed by plaintiffs No. 3 and 6. The other plaintiffs have been arrayed as respondents.

Suit was filed by the plaintiffs seeking partition and separate possession of their 1/4th share in the suit schedule property consisting of two agricultural lands bearing sy. No. 84/1, measuring 2 acres 26 guntas and sy. No. 85/1 measuring 2 acres 20 guntas. Plaintiffs contended that suit properties were joint family properties which originally belonged to one Narsimhappa son of Sanneerappa. He died leaving behind four sons by name Badeerappa, Nagappa, Marappa and Siddappa. After the death of Nagappa, due to misunderstanding in the family Badeerappa and Nagappa left the family and started living separately by doing coolie work and settled down in different villages. Plaintiffs being the legal heirs (widow and children) of Badeerappa lost their father when they were small. Defendants No. 1 to 4 being sons and wife of Nagappa also settled down in different villages. Therefore, Defendant No. 5-Siddappa (son of Narasimhappa) and defendant No. 6 Hanumantharaya (son of Marappa) jointly enjoyed the suit properties. Neither the plaintiffs nor Defendants No. 1 to 4 were aware of their rights over the ancestral joint family properties. Plaintiffs came to know about their share in the joint family properties and claimed the same, but defendant No. 5 denied their rights. Hence, they sought for partition and separate possession.

Defendant No. 1 to 4 supported the case put forward by the plaintiffs and contended that suit properties were joint family properties, wherein they had their share. Hence, they sought for allotment of their 1/4th share.

Defendant No. 5 filed written statement and contended that during the lifetime of Narasimhappa who died about 10 years back, as kartha of the family, he had sold the property to one Agasara Lingappa. He further claimed that it was defendant No. 5, who out of hard labour purchased half share from Agasara Lingappa out of the very same lands and the remaining half share was purchased by his brother Marappa, hence, both of them became absolute owners. Subsequently, Marappa sold his rights in the schedule properties to one Akkamma of Lingadahally. Thereafter, the said Akkamma sold her rights in the schedule properties in favour of defendant No. 5. Hence, he urged that schedule properties were not the joint family properties, as there was no nucleus of the joint family properties, out of which it could have been purchased. He also contended that plaintiffs and defendants, who supported the plaintiffs, had never questioned the transaction at any point of time and claimed any rights with respect to the suit property for decades, thus they had lost their rights.

Based on the pleadings and the issues framed, parties led in their evidence. The trial court found that admittedly, suit properties were joint family properties owned by Narasimhappa. No evidence was forth coming to show that Narasimhappa had sold the property and that the sale made by Narasimhappa was an out and out sale and that properties were sold for family necessity. As there was no partition between the children of Narasimhappa and there was nothing to show that defendant No. 5 had purchased the suit properties out of his self earning, the court presumed that the suit properties were joint family properties, particularly because one house property left behind by Narasimhappa had continued to be the joint family property and that even if Marappa and Siddappa had purchased the properties on their own, it should be deemed that they had put the properties in common hotchpotch constituting the suit properties as joint family properties over which children of other two brothers would get right to seek partition. The trial court has also placed reliance on the evidence of the son of Agasara Lingappa, who had deposed in another suit filed by Marappa stating that his father had not been put in possession of the property, therefore, sale made in the year 1942 by Narasimhappa was a nominal sale deed. Thus, the trial court decreed the suit.

On appeal, the lower Appellate court has reversed the finding. It has held that the trial court has misdirected itself in appreciating the evidence on record. Upon reconsideration of the entire evidence on record both oral and documentary, the lower Appellate Court has come to the conclusion that admittedly, were no other properties belonging to the joint family headed by Narasimhappa and consisting of his four sons. During his life time, only Narasimhappa had sold the property to Agasara Lingappa. Therefore, when two of his sons Marappa and Siddappa purchased the schedule properties from Agasara Lingappa, there was no joint family nucleus, which could have been utilized for purchase of the same and burden was on the plaintiff to establish that there was joint family nucleus, out of which Marappa and Siddappa could have purchased the property; admittedly, plaintiffs father and father of Defendants No. 1 to 4 left the village and Marappa and Siddappa remained in the same village, under such circumstances, how could plaintiffs lay claim to the schedule properties urging that they were undivided joint family properties.

More importantly, the lower Appellate court found that recitals of the sale deed executed by Narasimhappa clearly established that sale was an absolute sale and he sold it for family necessity because he was kartha of the family. Hence, the said sale transaction was required to be recorded as one for family necessity.

The lower Appellate Court has also referred to the evidence of DW.3/son of Agasaralingappa, who has deposed that he was the owner in possession of the property for more than 20 years and same was not questioned by the plaintiffs or defendants No. 1 to 4. He subsequently sold half of the schedule properties each in favour of Siddappa and his brother Marappa. Later Marappa sold his share of the properties in favour of Akkamma. Thereafter Siddappa purchased the same and became absolute owner of the entire suit schedule property.

The Lower Appellate court placed reliance on the sale deed which clearly establishes that the schedule properties were not joint family properties belonging to Narasimhappa and his sons. The Lower Appellate Court has thus reversed the findings recorded by the trial court and has dismissed the suit.

I have heard learned counsel for the appellant and learned counsel appearing for the respondents. It is the first contention of the learned counsel for the appellant that no evidence was let in by the plaintiff to establish that sale made by Narasimhappa was an out and out sale and was for family necessity. It is his next contention that the evidence of Agasara Lingappa who was examined as DW3 in the earlier suit filed by Marappa had been produced and marked wherein he had admitted that sale in favour of his father by Narasimhappa was not an out and out sale, but a nominal sale and that he was not put in possession of the same. Therefore, the said fact having been rightly taken note of by the trial court, the lower Appellate Court erred in discarding this evidence. He also points out that Akkamma''s husband Narayana Shetty has been examined as DW7 who also stated that sale made in favour of Akkamma by Marappa was also a nominal sale deed and absolute rights were not transferred in favour of Akkamma.

It has to be pointed out at this stage that sale made by Narasimhappa in favour of Agasara Lingappa as per Ex. D.1 is dated 27.6.1942. The recitals in this sale deed make it clear that it was an out and out sale effecting transfer of right, title and interest over the suit schedule lands in favour of Agasara Lingappa. Plaintiffs cannot be heard to say by filing a suit in the year 1985 that the document of the year 1942 was a nominal sale deed not intended to transfer right, title and interest of Narasimhappa and the joint family in favour of Agasara Lingappa. Even if son of Agasara Lingappa had deposed so, in another suit, such oral evidence cannot be accepted to contradict a contents of the written document duly registered way back in the year 1942. Therefore, the Lower Appellate court was right and justified in holding that recitals of the sale deeds clearly established that absolute rights had been transferred by Narasimhappa in favour of Agasara Lingappa. Similarly, the sale deed executed by Marappa in favour of Akkamma has been produced as Ex. D.5. It is dated 16.5.1957. The recitals clearly show that half share of Marappa in two survey numbers was absolutely sold in favour of Akkamma for a consideration of Rs. 200/- and remaining half was retained by Siddappa. Contents of this document which is a registered sale deed executed way back on 16.5.1957 cannot be contradicted by leading oral evidence of DW7-Narayanashetty, to show that it was a nominal sale deed.

Yet another important aspect which the lower Appellate Court has taken note of is the conduct of plaintiffs and defendants Nos. 1 to 4, their ancestors- Badeerappa and Nagappa who had left the village after the death of Narasimhappa. They did not claim any right over the schedule properties during their life time. At the time when they left the village, Narasimhappa had sold both suit schedule lands and there was no other agricultural land owned by the family. It is only their children and widows of these two brothers who have laid the claim by filing suit in the year 1985, taking advantage of the fact that during the interregnum, the properties had changed hands and had come back to the two brothers namely Marappa and Siddappa and eventually, Siddappa had become absolute owner of the two properties. The transactions have been evidenced by registered sale deed. Contents of the document disclose that they were out and out sale. Plea of the plaintiffs that those sale deeds were nominal and did not transfer absolute rights, which Narasimhappa and his four sons had in the property in favour of the purchasers has been put forward only to suit the convenience of the plaintiffs. The approach adopted by the Lower Appellate Court, in the facts and circumstances of the case, as is evidenced from the re-appreciation of evidence both oral and documentary is legal and justified. No perversity can be attributed to the appreciation of evidence by the Lower Appellate court. No substantial question of law arises for consideration. Hence, this appeal is liable to be dismissed.

In addition, it has to be pointed out that the appeal is filed after a lapse of 347 days. The only explanation offered by the plaintiffs is that their advocate had filed an application for certified copy of the judgment and decree, but the appellants did not hear from him, mother of the 2nd appellant was not well, hence first appellant could not concentrate on filing of the appeal. It is also contended that appellants hail from village back ground and were not well versed about the legal aspects.

Such an explanation cannot be accepted to condone the delay of 347 days. Particularly, in the context of the facts and circumstances of this case, wherein they have been challenging and asserting the contents of the documents which have originated in the year 1942 to 1952. In such circumstances, court expected them to agitate the matter in a diligent manner not showing negligence in filing the second appeal. Hence, I do not find any justification on the part of the appellant to come to this court after 347 days. Therefore, both the appeal and the application are dismissed.