M.R. Shivakumar and Others vs Madduramma and Others

N. Kumar, J.—This regular first appeal is filed by the defendant Nos. 16 and 17 challenging the judgment and decree of the Trial Court

which has decreed the suit of the plaintiffs for partition and separate possession granting them 2/5th share in the plaint schedule property.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit is land bearing Sy. No. 55 measuring 2 acres 1/2 gunta situated at Huskur Village, Bidarahalli Hobli, Bangalore

East Taluk, which is more particularly described in the schedule to the plaint and herein after referred to as the ""schedule property"".

The plaintiffs are the daughters and defendant Nos. 1 to 3 are the sons of Late Sri Nallappa. Defendant Nos. 4 to 15 are the sons and

daughters of defendant Nos. 1 to 3. Defendant Nos. 16 and 17 are the purchasers of the plaint schedule property. The schedule property

originally was a Service Inam land. The said land was re-granted in favour of Nallappa in case No. VOA (B) CR.2/1982-83 dated 22.04.1985.

From the date of re-grant, Sri Nallappa was in peaceful possession and enjoyment of the schedule property. He died in the year 2007. After the

death of Nallappa, on an application made by defendant Nos. 1 to 3, Katha of the schedule property was transferred in their favour jointly. After

getting the katha transferred, defendant Nos. 1 to 3 have sold the schedule property in favour of the defendant No. 17 under a registered sale

deed dated 21.07.2007. Defendant No. 16 is the husband of defendant No. 17. Defendant No. 16 had obtained a General Power of Attorney

from defendant Nos. 1 to 15 and subsequently he had executed a registered sale deed in favour of defendant No. 17. The said sale was not within

the knowledge of the plaintiffs, as they are not parties to the said sale deed. The said sale is not binding on the plaintiffs. On 25.04.2008, defendant

No. 17 obtained a confirmation deed from all the defendants. The plaintiffs are not parties even to the said confirmation deed. After such purchase,

when defendant No. 17 was trying to get the katha transferred in her favour and negotiating with the third party for alienation, the plaintiffs came to

know about her intention and filed a suit for partition and separate possession of the 2/5th share in the plaint schedule property. They also sought

for a declaration that the sale deed dated 21.07.2007, and the confirmation deed dated 25.04.2008 are null and void and not binding on the

plaintiffs'' legitimate share, and they also sought for a decree of permanent injunction restraining the defendant Nos. 16 and 17 from interfering with

the plaintiffs peaceful possession and enjoyment of the schedule property.

After service of summons, only defendant Nos. 16 and 17 entered appearance and filed a detailed written statement contesting the claim.

Defendant Nos. 1 to 15 have remained ex parte. They denied that the plaintiffs were the legal heirs of Nallappa. However, they admitted that

defendant Nos. 1 to 3 are the sons of Nallappa. They denied the status of the plaintiffs as co parceners. They denied the title of the plaintiffs to the

schedule property. They admitted that the schedule property was an Inam land and it was re-granted in favour of Nallappa, the father of the

defendant Nos. 1 to 3. On the date of the re-grant, plaintiffs had been married and had departed from the family of Nallappa long back prior to

1950 itself. On the day Nallappa acquired the schedule land there was no joint family in existence. Defendant Nos. 1 to 3 are the only legal heirs

who have succeeded to the schedule property as absolute owners after the death of their father and rightly mutation entry was made in their favour.

Defendant Nos. 1 to 3 have executed the registered sale deed dated 21.07.2007 in favour of the defendant No. 17. It is true that defendant Nos.

1 to 3 had executed a General Power of Attorney in favour of defendant No. 16, on the basis of which he has executed sale deed in favour of the

defendant No. 17. They also contend that prior to the sale deed there was an agreement of sale on 21.09.2003 in favour of defendant No. 17 and

the sale consideration was paid. As defendant Nos. 1 to 15 were unable to execute sale deed, they executed power of attorney. On the date of

agreement of sale, the original grantee Nallappa was alive and he has consented for the same. Since there was a family necessity to discharge the

family debt, the defendant Nos. 1 to 3 have agreed to sell the schedule property in favour of defendant No. 17 and thereafter the sale deed is

executed on 21.07.2007. The plaintiffs have filed the suit colluding with defendant Nos. 1 to 15 with the sole intention to extract money from

defendant Nos. 16 and 17. They admit the execution of confirmation deed. The plaintiffs have got married in the year 1950 itself and departed

from the family of Nallappa prior to the enactment of the Hindu Succession Act, 1956. Therefore, they have lost the status of a member of the joint

family. They are residing with their husbands. Therefore, they have no right to the schedule property. The question of claiming share over the

schedule property by the plaintiffs without claiming share in the properties owned by Nallappa and defendant Nos. 1 to 3 herein is bad. Suit is not

maintainable. Court fee paid is not sufficient. The suit ought to have valued under Section 35(1) of the Act and therefore they sought for dismissal

of the suit.

The trial Court framed the following issues on the basis of the aforesaid pleadings.

ISSUES

Whether plaintiffs prove that suit schedule properties are joint family property in between them and defendant No. 1 to 15?

Whether plaintiffs further prove that themselves and defendant No. 1 to 15 are in joint possession over the suit schedule property?

Whether the plaintiffs further prove that without their knowledge defendant No. 1 to 3 had executed the sale deed on 21.07.2007 in favour of

defendant No. 17 and defendant No. 1 to 15 executed the confirmation deed in favour of defendant No. 17 on 25/04/2008 and the same is null

and void and not binding on their share?

Whether plaintiffs further prove the alleged interference caused by the defendants?

Whether defendant No. 16 and 17 prove that defendant No. 1 to 15 sold the suit schedule property for family and legal necessity by executing

agreement of sale on 20.09.2003 and also irrevocable power of attorney in favour of defendant No. 16 on 21.09.2003?

Court fee paid by the plaintiff is sufficient?

Whether plaintiffs are entitled for the relief as prayed in the plaint?

What Order or Decree?

Plaintiffs in order to substantiate their claim examined the husband of plaintiff No. 1 as P.W.1 and produced ten documents which were marked

as Exs.P.1 to P.10. Defendant Nos. 16 and 17 did not step into the witness box.

The trial Court, on appreciation of the oral and documentary evidence on record, held that the plaintiffs have established that the schedule

property belongs to their father Nallappa and after his death, they and their brothers-defendant Nos. 1 to 3 are in joint possession of the suit

schedule property. Admittedly, the plaintiffs are not the parties to the sale deed, alleged agreement of sale and confirmation of deed and therefore,

the said alienation is not binding on the plaintiffs as admittedly defendant Nos. 16 and 17 put into the possession of suit schedule property and the

plaintiffs are not in possession and the question of Defendant Nos. 16 and 17 interfering with the plaintiffs'' possession would not arise. Defendant

Nos. 16 and 17 have failed to prove that the suit schedule property was sold for the purpose of meeting the legal necessity and held that the Court

fee paid is sufficient and accordingly, decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, defendant Nos. 16 and 17 are

before this Court in this appeal.

Learned counsel appearing for the appellants contended that the plaintiffs were married prior to 1950. They were living with their husband. The

schedule land was regranted in favour of their father in the year 1985 and therefore, the plaintiffs have no right over the suit schedule property.

Nallappa was the consenting witness to the agreement of sale. The plaintiffs have not challenged the mutation entry in the name of defendant Nos.

1 to 3 till today. The suit schedule property has lost the character of agricultural land. Admittedly, the plaintiffs are not in possession of the suit

schedule property and therefore, ignoring these undisputed facts, the trial Court has committed serious error in decreeing the suit of the plaintiffs.

The property has been converted on the date of the filing of the suit. Since the schedule property was not at all available, the question of partition

does not arise. Defendant Nos. 16 and 17 are bona fide purchasers for valuable consideration. They did not have sufficient opportunity to

substantiate their claim and therefore, he submits that the judgment and decree of the trial Court requires to be interfered with.

Per contra, learned counsel appearing for the respondents supports the impugned judgment and decree.

In the light of the facts and circumstances and having regard to the rival contentions of the parties, the points that arise for consideration in this

appeal are as under:

Whether a daughter, who is married in the year 1950 prior to the coming into force of the 1956 Act, has no right in the property, which was

acquired subsequent to her marriage ?

Whether the suit schedule property is converted from agricultural land into non agricultural land and sites are formed in the suit land ?

Can it be said that the property is not available for partition?

Whether the valuation of the suit under Section 35(2) of the Karnataka Court Fee and Suits Valuation Act is proper when the suit filed for

partition is not maintainable as parties of the sites are not before us?

Point No. 1: Though the Defendant Nos. 16 and 17 deny the relationship between the plaintiffs and Nallappa in para No. 3, subsequently in

categorical terms, they have pleaded that as plaintiffs have married prior to 1950 and Nallappa acquired the property in the year 1985, they have

no right in the property. In the entire evidence, they did not dispute the fact that the plaintiffs are the children of Nallappa. The evidence on record

shows that the land was a service inam land which was regranted on the application filed by Nallappa in case No. VOA (B) CR 2/1982-83 dated

22.4.1985. Though it was contended that the regrant was not only in favour of Nallappa but also in favour of Defendant Nos. 1 to 3, no material

was placed on record to substantiate the said claim. Therefore, the grant was only in favour of Nallappa and it is the self acquired property.

Nallappa died in the year 2007. He died intestate. On his death, under Section 8 of Hindu Succession Act, the property devolves on his class-I

heirs. Therefore, the date of marriage of the daughters is totally immaterial. Though they are married prior to 1950, their right to property accrue

only on the death of Nallappa in the year 2007 and therefore, the trial Court has rightly held that the daughters succeed to estate of Nallappa on his

death in the year 2007. Therefore, we do not find any reason to interfere with the well considered finding recorded by the trial Court.

Point No. 2: It is not in dispute that initially, the suit schedule property was an agricultural land and subsequently, it was converted into non

agricultural land. Thus, it lost the character of an agricultural land. In a suit for partition, whether the property is an agricultural land or non

agricultural, is totally immaterial. The suit is valued under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act which applies to both

agricultural and non agricultural land. On the death of Nallappa, the plaintiffs (daughters of Nallappa) and defendant Nos. 1 to 3 succeeded to

estate and they are deemed to be in joint possession of the suit schedule property. That is what the plaintiffs have pleaded in the plaint. Hence, it is

pleaded in the plaint that as the plaintiffs are in joint possession with the defendants, Section 35(2) is attracted. Therefore, the trial Court is justified

in holding that the property is properly valued, and conversion and sale of the property did not have the effect of the property being converted on

the date of the suit. Therefore, we do not find any ground to interfere with the finding of the trial Court.

Point No. 3: It is contended that the suit is filed for partition and separate possession without including the other properties held by Nallappa.

Except the plea, no particulars are forthcoming in the suit. No issues are framed. No evidence is adduced before the Court to show that as to what

are the other properties which stood in the name of Nallappa, which ought to have been included in the suit. Therefore, the trial Court is right in

decreeing the suit of the plaintiffs.

Point No. 4: It was contended that defendant Nos. 16 and 17 are the bona fide purchasers. They entered into an agreement to purchase the

suit schedule property on 20.9.2003 and that agreement was in favour of Defendant No. 17. As the property could not be sold, GPA was taken in

favour of Defendant No. 16. By virtue of the said GPA executed in favour of Defendant No. 16, sale deed was executed on 21.7.2007.

Subsequently, Defendant Nos. 1 to 3 also executed deed of confirmation on 25.4.2008 confirming the sale. It is the case of defendant Nos. 16

and 17 that on the date of agreement of sale that came into existence, Nallappa was very much alive and he was the consenting witness to the said

property. In the year 2007, Nallappa was the absolute owner of the property and defendant Nos. 1 to 3 had no right in the said property and their

right arose only on his death. Therefore, any agreement which is entered into will not make the purchaser a bona fide purchaser for value. Even

otherwise, if consideration is paid for sale and the property is purchased from only two sharers, the said sale did not bind the other sharers. The

plea that they are bonafide purchasers is not available against the person who is the owner of the property.

In so far as want of opportunity is considered in the light of the aforesaid admitted facts when Nallappa is owner of the property died leaving

behind two daughters and three sons when the daughters are alive, sons cannot alienate joint family property in favour of Defendant Nos. 16 and

17, their share cannot be denied to them. The sale deed binds only the executants defendants Nos. 1 to 3 and their children to the extent of their

value. Defendant No. 16 would not become absolute owner in respect of share of daughter. It becomes two shares plaintiffs Nos. 1 to 2. Viewed

from any angle, we do not find any merit in this appeal. The trial Court on appreciation of the legal evidence on record has rightly dismissed the

suit. It does not call for interference. No merits. Dismissed.