M. Mahadevappa vs Rajappa and Others

B.V. Nagarathna, J.—The plaintiff in O.S. No. 83/1994 has filed this second appeal, assailing judgment and decree passed in R.A. No. 114/2001 dated 24/10/2013, by the Senior Civil Judge and JMFC, T. Narasipura, affirming the judgment and decree passed in O.S. No. 83/1994 dated 4/11/1996 by the Munsiff and JMFC., T. Narasipura.

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

The plaintiff-appellant herein filed the aforesaid suit seeking a declaration that the sale deed dated 7/6/1967 executed by defendant No. 3 in favour of defendant No. 1 was null and void and to declare that the plaintiff was the owner of the suit schedule property as well as restrain defendant No. 1 from alienating the suit schedule property by means of permanent injunction and such other incidental and ancillary reliefs.

The suit schedule property is a vacant site measuring 22 molas, east to west and 20 molas, south to north, with a thatched hut, situated at Billigerehundi Village, Kiragathur Dhakle, Kasaba Hobli, T. Narasimpura Taluk, Mysore District. According to the plaintiff, defendant No. 3, the father of the plaintiff was looking after the property till the year 1960. In view of his waywardness and he not being interested in the welfare of the property, the mother of the plaintiff was looking after the joint family properties. That about a year prior to the filing of the suit, plaintiff became aware that the suit property was sold by his father-defendant No. 3 in favour of defendant No. 1 on 7/6/1967. That the plaintiff was in Bengaluru and when he went to the village, he came to know about the illegal transaction and hence, he filed the suit seeking declaration that the sale deed dated 7/6/1967 was not legal and nor it was binding on him. It is also stated that the plaintiff came to know that defendant No. 1 was trying to alienate the suit schedule property to defendant No. 2 and therefore, he has sought for the aforesaid reliefs.

On receipt of suit summons and court notices, defendant Nos. 1 and 2 appeared and filed their written statement, whereas defendant No. 3, although appeared before the trial court, did not file any written statement.

In the written statement filed by defendant Nos. 1 and 2, the plaint averments were denied and it was contended that defendant No. 3 was the absolute owner of the suit property and being Kartha of the joint family, he was managing and looking after the joint family property. That defendant No. 3 had sold the suit property to defendant No. 1 under a registered sale deed dated 7/6/1967 for a valuable consideration of Rs. 8,000/- as there was legal necessity to do so. That the said sale deed is binding on the plaintiff, who is none other than the son of defendant No. 3. Subsequent to the sale made by defendant No. 3, defendant No. 1 was put in possession of the suit schedule site and he continued to remain in possession until the site was sold to defendant No. 2 under registered sale deed dated 15/2/1994 and the site has been in possession of defendant No. 2 since then. Further, it was contended that the plaintiff has no locus standi to question the alienation effected by defendant No. 3 as the Kartha of the joint family in favour of defendant No. 1. That although the plaintiff was having knowledge of the said transaction, he did not oppose the same. That the suit is barred by limitation. That the suit is also bad for non-joinder of necessary parties. There was no cause of action for the plaintiff to file the suit. The suit was filed with an ulterior motive to harass the defendants and in collusion with defendant No. 3. Therefore, defendant Nos. 1 and 2 sought dismissal of the suit.

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

i) Whether the plaintiff proves that the sale deed in respect of the suit property executed by the 3rd defendant in favour of the 1st defendant on 7/6/1967 is not binding on the plaintiff and is null and void?

ii) Whether the plaintiff proves that he is the owner of the suit property?

iii) Is the plaintiff entitled for permanent injunction against first defendant from alienating the suit property in favour of the second defendant?

iv) Whether the first defendant proves that he purchased suit property for valuable consideration of Rs. 8,000/- under Regd. Sale deed and the suit property was sold by the third defendant for his legal necessity?

v) Whether the first defendant proves that the plaintiff has no locus-standi to file this suit?

vi) Is the suit barred by law of limitation?

vii) Whether the first defendant proves that the plaintiff has filed this suit in collusion with the third defendant?

viii) Whether the defendant No. 1 proves that he had already sold suit property to second defendant under Regd. Sale deed dated 15/2/1994?

ix) To what reliefs the parties are entitled?

In support of his case, the plaintiff examined himself as PW 1 and produced one document i.e., the sale deed as Ex. P-1. Defendant examined two witnesses and produced two documents namely, Exs. D-1 and D-2. On the basis of the said evidence, the trial court answered issue Nos. 1 to 3, 5 and 7 in the negative and issue Nos. 4, 6 and 8 in the affirmative and dismissed the suit by judgment and decree dated 4/11/1996. Being aggrieved by the said judgment and decree of the trial court, the plaintiff filed R.A. No. 114/2001 before the first appellate court. The first appellate court, after hearing the parties framed the following points for its consideration:

i) Whether plaintiff/appellant can be permitted to adduce additional evidence?

ii) Whether the plaintiff/appellant proves that the sale deed dated 6/6/1967 is not binding on him?

iii) Whether plaintiff/appellant prove that the judgment and decree passed in O.S. No. 83/1994 on the file of Munsiff & JMFC, T. Narasipura, dated 4/11/1996 warrants interference of this Court?

iv) What order or decree?

It answered point Nos. 1 to 3 in the negative and dismissed the appeal. Being aggrieved by the judgment and decree of the first appellate court, which has confirmed the decree of the trial court, the plaintiff has filed this second appeal.

I have heard the learned counsel for the appellant.

He contended that the appellant was a minor at the time when the alienation of the suit property was made by his father-defendant No. 3 in favour of defendant No. 1, on 7/6/1967. That it was only when the appellant-plaintiff became aware of the said transaction, he took steps to file the suit on 15/3/1994, assailing the transaction, which took place in the year 1967. Thus, the suit filed by the appellant-plaintiff is not barred by limitation. That both the courts below were not right in holding that the suit was not filed in time and hence, it is barred by limitation.

It was also contended that the alienation was made by the father of appellant when the appellant was only a minor child and he was not aware of the alienation at all and that defendant No. 3, the father of the appellant alienated the suit property despite there being any legal necessity nor was it for the benefit of the estate. Therefore, the appellant had the right to question the alienation made by defendant No. 3 as and when he became aware of the said transaction. He contended that both the courts have not appreciated the case of the appellant-plaintiff in proper perspective and have erroneously dismissed the suit and therefore, contended that substantial question of law arises in this appeal and the matter may be admitted for a detailed hearing on merits.

Having heard the learned counsel for the appellant and on perusal of the material on record, it is noted that the relationship between the plaintiff and defendant No. 3 is not in dispute. Defendant No. 3 is none other than the father of the plaintiff, who was also a Kartha of the family. It is a settled position in law that the Kartha of the family has every right to manage the joint family property for the benefit of estate or legal necessity. It has come in evidence that the suit schedule property was not the only property, which was alienated by defendant No. 3 in favour of defendant No. 1. There were many other properties of the family, which had been alienated possibly to pay the debts and to discharge other legal obligations as well as familial obligations. The said alienation was made on 6/6/1967 by a registered sale deed and for a valuable sale consideration of Rs. 8,000/-. Ex. P-1 was the document produced by defendant to prove the alienation made by defendant No. 3 in favour of defendant No. 1. The plaintiff has only challenged that alienation. Thereafter, defendant No. 1 alienated the suit property in favour of defendant No. 2 under a registered sale deed dated 15/2/1994. The second alienation has not been questioned by the plaintiff. On consideration of the evidence on record, both the courts below have come to the conclusion that the alienation made by defendant No. 3 in favour of defendant No. 1 in the year 1967 i.e., on 6/6/1967 was legal and valid and binding on the plaintiff. Therefore, both the courts have held that there is no illegality in the said alienation and hence, the plaintiff could not have assailed that alienation in the year 1994. The concurrent finding and facts of both the courts below are just and proper, which would not call for any interference in this second appeal.

In view of the answer given to issue Nos. 1 to 3, the subsequent issues are really of no consequence. The suit has been dismissed by the trial court as well as by the first appellate court on merits and not merely on limitation. Therefore, no substantial question of law arises for consideration in this appeal. Consequently, the appeal is also dismissed.