K. Gouramma vs Ayyamma and Others

B.V. Nagarathna, J.—1. Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final disposal.

Defendant No. 4 in O.S. No. 32/2009 has preferred this appeal, assailing judgment and decree passed in R.A. No. 24/2014 dated 29/9/2015 by the Senior Civil Judge, Gangavathi. By that judgment the suit filed in O.S. No. 32/2009 is decreed and it has been declared that the plaintiff is entitled to half share in item No. 2 of the suit schedule properties and that Ex. D-2 agreement of sale entered into between defendant Nos. 2 and 4 is not binding on the half share of the plaintiff in item No. 2 of suit schedule properties.

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

Plaintiff-Respondent No. 1 herein filed the suit, seeking partition and separate possession of her half share in the suit schedule properties and declaration that agreement to sell dated 28/6/2005 is not binding on her half share in the suit schedule properties. They are three items of agricultural lands in Sy. No. 278/A, measuring 31 guntas; Sy. No. 103/E, measuring 1 acre 32 guntas and Sy. No. 104/P, measuring 8 guntas as well as house property bearing No. 153, measuring east to west 35 ft. and north to south 25 ft., situated at Danapur, Gangavathi Taluk, Koppal District.

It is the case of the plaintiff that she is the sister of defendant No. 1. Defendant Nos. 2 and 3 are the son and wife of defendant No. 1. Plaintiff and defendant No. 1 are daughter and son of late Jambanna. Suit schedule properties are the joint family properties of plaintiff and defendant No. 1 and they are in joint possession and enjoyment of the suit properties. Their father Jambanna died two decades ago leaving behind plaintiff and defendant No. 1 as the only legal to succeed to the suit schedule properties. The suit properties are jointly standing in the names of plaintiff and defendant No. 1, but due to difference of opinion, they are residing separately, but cultivating the lands together. Defendant Nos. 2 and 3 are also cultivating the suit properties. Since the defendants refused to give legitimate share to the plaintiff when demanded, she was constrained to file the suit.

Plaintiff has further contended that defendant No. 4 has agreed to purchase the suit schedule property bearing No. 103/E, measuring 1 acre 32 guntas from defendant No. 1 for a consideration of Rs. 1,60,000/- under a registered agreement of sale. The said agreement is not binding on the plaintiff''s half share in the suit properties. Therefore, she sought a declaration to that effect.

The suit filed by the plaintiff was resisted by defendant No. 3 who filed written statement admitting the relationship between the parties, but it was disputed that the suit schedule properties are the joint family properties and are in joint cultivation and enjoyment. It is contended that the plaintiff is not a member of the joint family nor is she in possession along with defendants. That plaintiff''s marriage was performed two decades ago. That the suit properties are exclusive properties of defendant, except Sy. No. 278/A, measuring 31 guntas. That plaintiff is entitled to enjoy that item during her lifetime as she has only a limited interest. Contending that there is no cause of action to file the suit defendant No. 3 sought dismissal of the suit.

Defendant No. 4 filed her written statement and contended that plaintiff is not a member of the joint family and except Sy. No. 278/A, rest of the properties are the exclusive properties of the defendants. Defendant No. 1 has intended to sell suit item No. 2 in favour of defendant No. 4 due to family necessities as kartha of the family. Defendant No. 4 is a bona fide purchaser for a valuable consideration. The agreement of sale is binding on the plaintiff. That defendant No. 4 had filed O.S. No. 258/2008 for the relief of specific performance of the agreement. The said suit was decreed and the balance sale consideration of Rs. 90,000/- was deposited on 24/11/2009 before the trial court. Execution Petition No. 64/2009 was filed seeking execution of the decree. The plaintiff is aware of these facts, but she has filed a false and vexatious suit in order to harass defendant No. 4. Hence, she sought for dismissal of the suit.

On the basis of the said pleadings, the trial court framed the following issues for its consideration:

i) Whether the plaintiff proves that the suit schedule properties are ancestral joint family properties of plaintiff and defendant Nos. 1 to 3 and they are in joint possession of the same?

ii) Whether the plaintiff proves that she is entitled for 1/2 share and separate possession of it?

iii) Whether the plaintiff proves that agreement of Sale Deed dated 28/6/2005 is not binding on the plaintiff to the extent of her 1/2 share?

iv) Whether the defendants prove that plaintiff is entitled limited interest to enjoy fruits of the land as contended in para No. 5 of written statement filed by defendant No. 3?

v) Whether the suit is bad for non-joinder of necessary parties?

vi) Whether the suit is not properly valued and court fee is insufficient?

vii) Is the plaintiff is entitled for the reliefs sought for in the suit?

viii) What decree or order?

In support of her case, plaintiff examined herself as P.W. 1 and one Kallappa as P.W. 2. She produced 36 documents. While Defendant examined five witnesses as D.Ws. 1 to 5 and produced 19 documents, which were marked as Exs. D-1 to D-19. On the basis of the said evidence, the trial court answered issue Nos. 1, 2 and 7 partly in the affirmative, issue Nos. 3 to 6 in the negative and partly decreed the suit of the plaintiff holding that plaintiff is entitled to half share in Sy. Nos. 278/A, 104/P and house property bearing No. 153. It was declared that the agreement to sell dated 28/6/2005 entered into between defendant Nos. 1 and 4 in respect of Sy. No. 103/E, measuring 1 acre 32 guntas was binding on her half share and thereby refused to grant her the decree of declaration to the contrary.

Being aggrieved by the said judgment and decree of the trial court dated 17/7/2012, plaintiff filed R.A. No. 24/2014 before the first appellate court, which, after hearing the counsel for respective parties, framed the following points for its consideration:

Whether the plaintiff proved that item No. 2 of suit schedule property is ancestral property of herself and defendant No. 1 as such, she has half share in item No. 2 of suit schedule property?

Whether plaintiff proved that the agreement of sale entered into between defendant Nos. 1 and 4 is not binding on share of plaintiff in item No. 2 of suit schedule property?

Whether finding of the trial court on issue No. 3 is perverse, capricious and arbitrary, as such calls for interference of this court?

What order?

It answered the said point Nos. 1 to 3 in the affirmative and allowed the regular appeal and decreed the suit filed by the plaintiff by granting the relief of declaration as sought by her. Being aggrieved by the judgment and decree of the first appellate court dated 29/9/2015, defendant No. 4 has preferred this second appeal.

I have heard the learned counsel for appellant and learned counsel for caveator/respondent No. 1 as well as perused the material on record.

It is contended on behalf of the appellant that the first appellate court was not right in granting a decree of declaration in favour of respondent/plaintiff as the suit filed by the respondent/plaintiff was false, frivolous and vexatious in order to defeat the rights of the appellant. He contended that defendant No. 1 had entered into an agreement to sell with the appellant herein who is defendant No. 4 in the suit on 28/6/2005 and had agreed to sell suit item No. 2 for a valuable consideration. The agreement to sell is dated 28/6/2005. Defendant No. 1 did not come forward to register the sale deed in favour of appellant/defendant No. 4. Consequently, she filed O.S. No. 258/2008 seeking specific performance or agreement to sell dated 28/6/2005. That suit was decreed by the trial court on 29/6/2011, which decree has attained finality. Thereafter, she has filed execution petition seeking registration of sale deed in his favour. It is during the pendency of the suit filed by the appellant, seeking specific performance of the agreement to sell dated 28/6/2005 defendant No. 1 filed the suit seeking partition and separate possession. The filing of the suit was only to deny the relief of specific performance to the appellant. That defendant No. 1 had intended to sell suit properties on account of family necessities as the family has remained joint, the plaintiff is bound by that agreement, but the first appellate court has held that the agreement is not binding on the half share of the plaintiff, which is incorrect. Also the plaintiff did not include all joint family properties for partition and therefore, the suit was not maintainable in view of all properties not being included in the suit. He, therefore, contended that substantial questions of law would arise in this appeal and the appeal may be admitted for a detailed consideration.

Per contra, learned counsel for the caveator/respondent No. 1 supporting the judgment and decree of the first appellate court contended that the relationship between the parties is not in dispute. The fact that respondent/plaintiff is entitled to half share in the suit properties is not also in dispute. Therefore, the equities between the parties have to be worked out in the final decree proceedings to be filed by the plaintiff and suit item No. 2 is also one of the items of the joint family properties and the plaintiff has right, title and share in that suit item also. That item comprises of 1 acre 38 guntas and the other agricultural lands are of a lesser dimension and therefore, when the plaintiff has right, title and interest in respect of half share of the suit schedule properties, she inevitably has a right in respect of the suit schedule item No. 2 also. He contended that the appellant herein is none other than the sister of defendant No. 3 and sister-in-law of defendant No. 1 and that the agreement to sell has been executed only to defeat the rights of the plaintiff. He contended that no substantial question of law would arise in this appeal and that the first appellate court was right in holding that the sale deed was not binding on the plaintiff.

Having heard the learned counsel for the parties and on perusing the material on record, it is noted that both the courts below have held that suit schedule properties are the joint family properties of the plaintiff and defendant No. 1. Consequently, they are entitled to half share each in the suit properties. But it is noted from the material on record that suit item No. 2 is an agricultural land bearing Sy. No. 103/E, totally measuring 1 acre 32 guntas. That item is to be sold by defendant No. 1 in favour of defendant No. 4/appellant herein. It is also to be borne in mind that the first appellate court has held that the agreement to sell is not binding on the half share to be allowed to the plaintiff i.e., it also includes item No. 2 of the suit schedule properties. That is a matter to be determined in the final decree proceedings. Having regard to three items of the agricultural land and one item of house property, but the fact remains that appellant would have a share in respect of suit item No. 2, which is intended to be purchased by her only when a sale deed is registered in her favour. Therefore, the rights of the parties would have to be considered on an equitable basis in the final decree proceedings.

The first appellate court, on considering the extent of right, title and interest of the respondent/plaintiff in the suit schedule items and the fact that she had half share in the suit items has rightly come to the conclusion that the agreement to sell said to have been executed by defendant No. 1 in favour of defendant No. 4/appellant herein was not binding on her half share. But at the same time, it must be borne in mind that respondent/plaintiff has ultimately, only half share in the suit schedule properties, whereas defendant No. 1 has the other half share.

In the circumstances, while affirming the judgment and decree of the first appellate court and while holding that the agreement to sell dated 28/6/2005 is not binding on the respondent/plaintiff, in the interest of justice, liberty must be given to the appellant herein to seek allotment in suit item No. 2 to whatever extent that is permissible having regard to the fact that Ningeshappa/defendant No. 1 has half share in the suit items and the plaintiff has also half share in the suit items in the Final Decree Proceeding No. 21/2013, that is pending before the trial court. Therefore, while holding that no substantial question of law would arise in the appeal, subject to the aforesaid observations and the liberty reserved in favour of the appellant herein, the appeal is liable to be dismissed.

Appeal is dismissed. Parties to bear their respective costs.

In view of the dismissal of the appeal, I.A. No. 1/15 is also dismissed.