Muniyappa vs Ramappa and Others

A.S. Bopanna, J.—The appellant herein is the defendant No. 13 in the suit bearing O.S. No. 141/2006 (Old O.S. No. 1023/1996). The appellant had purchased the suit schedule property under the sale deed dated 09.06.1993 from the defendants No. 1, 5 and 10. The plaintiffs claiming to have right title and interest in the suit schedule property had filed the suit seeking that the sale of the suit schedule properties under the document dated 09.06.1993 is held as not binding on the plaintiffs and grant share in the property.

The trial Court by its judgment and decree dated 23.02.2010 has decreed the suit allotting the share in the suit schedule property on declaring that the sale deed dated 09.06.1993 is not binding on the plaintiffs. The defendant No. 13 claiming to be aggrieved by the same was before the Lower Appellate Court in RA No. 54/2010. The Lower Appellate Court on re-appreciating the matter has dismissed the appeal by its judgment dated 30.11.2010. Against such concurrent judgments rendered by the Courts below, the defendant No. 13 is before this Court in this second appeal under Section 100 of CPC.

This Court while admitting the appeal by the order dated 27.11.2013 has framed the following substantial question of law for consideration:

Whether the Courts below were justified in granting a decree for partition in respect of the suit schedule property which has been purchased by the appellant herein under Ex. P3 sale deed in the absence of any issue having been framed by the trial Court?

In the above background, I have heard Sri N.V. Manjunath, learned counsel appearing for the appellant, Sri S.P. Shankar, learned senior counsel appearing for Sri K.H. Thimmaiah, learned counsel for the respondents No. 1 to 7 and Sri Dhananjaya, learned counsel for respondents No. 9, 10, 12, 13, 17 and 18.

The brief facts based on which the suit was instituted is that the plaintiffs and defendants No. 1 to 12 constitute the Hindu undivided joint family. Late Melappa was the ancestor of the family. He had left behind his two sons Munibalappa and Buddappa. Munibalappa died intestate leaving behind his two sons who are defendants No. 1 and 5. Buddappa died leaving behind his wife and two sons who are defendants No. 8 to 10. The plaintiffs No. 1, 3 and defendant Nos. 2 to 4 are the sons of the defendant No. 1. The plaintiff No. 2 is the daughter of the defendant No. 1 and the plaintiffs No. 4 to 7 are the sons of defendant No. 8. The defendant No. 11 and 12 are the minor sons of defendant No. 9. The property bearing Sy. No. 33/5 and 33/6 measuring 19 and 18 guntas respectively situate at Avalahalli village, Sarjapura Hobli, Anekal Taluk i.e., the suit schedule property was acquired by late Melappa and on his death Munibalappa and Buddappa his sons succeeded to the property. On the death of late Munibalappa and late Buddappa, the plaintiffs and the defendants No. 1 to 12 are stated to have succeeded to the property and therefore it remained with the Hindu undivided family as no partition was effected. In that view, claiming that all the joint family members had right to the said property, the plaintiffs contend that the sale deed dated 09.06.1993 executed by defendants No. 1, 5 and 10 would not bind them and the defendant No. 13 would not acquire any right in respect of the said property so as to interfere with the peaceful possession and enjoyment of the same by the plaintiffs.

The defendant No. 13 filed his written statement and at the outset contended that the suit for partition and separate possession is not maintainable. It is contended that the sale dated 09.06.1993 in favour of the defendant No. 13 is for legal necessities of the plaintiffs and defendants family. Reference is made to the names of the signatories as vendors and as attesting witnesses to the sale deed. The agreement dated 16.11.1992 is referred to indicate that the sale in fact was for Rs. 61,000/- and what was indicated in the sale deed at Rs. 42,000/- was as per the guidance value. Hence, the value paid is sought to be justified to contend that the sale is for family necessity. The fact that the plaintiffs and defendants constitute a joint family is not disputed. It is contended that the defendant No. 1 is the Kartha. Accordingly he and the other members of the family who affixed their signatures have sold the property. The contention of the plaintiffs that the plaintiffs No. 4 to 7 and defendants 9 to 12 jointly succeeded to each half of the property is admitted. It is contended that since the family was large and the property was only 37 guntas, it was not sufficient to eke out their livelihood and as such, it was sold for the legal necessities. It is however denied that the plaintiffs came to know only when the sale deed was executed as contended. It is contended that possession was given when the agreement dated 16.11.1992 was executed.

In the light of the rival contentions the trial Court framed six issues which read as hereunder;

ISSUES

Whether the plaintiffs prove that they and the defendants 1 to 12 constitute members of Hindu undivided family?

Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule property?

Whether the plaintiffs prove that the sale deed executed by defendants 1, 5 and 10 in favour of the 13 defendant dated 09.06.1993 is created detrimental to the interest of the plaintiffs and it is not binding upon them?

Whether the valuation made by the plaintiffs is correct and court fee paid thereon is sufficient?

Whether the plaintiffs are entitled for the relief of declaration, partition and separation of their alleged share in the schedule property?

What decree or order?

In order to discharge the burden cast by the issues framed by the trial Court, the General Power of Attorney holder of the plaintiff examined himself as PW- 1 and relied upon the documents marked as Exhs. P-1 to P-12. The defendant No. 13 examined himself as DW-1 and relied upon the documents which were marked as Ex. D1 to D3.

Both the Courts below have no doubt referred to and analysed the evidence in detail to return the affirmative findings on all the issues in favour of the plaintiff. Be that as it may, the very contentions urged in the written statement of defendant No. 13 does not leave any room for arriving at any other conclusion or to even consider in a different perspective. The fact that the plaintiffs and the defendants No. 1 to 12 constitute a joint hindu family and that the suit schedule property belonged to that family having acquired right to the same is not at all disputed. All that the defendant No. 13 sought to contend was only that the small bit of land did not satisfy the need of the family and therefore, the same was sold to the defendant No. 13 for the family necessity. On that aspect issue No. 3 as framed would be relevant.

PW-1 in the course of his evidence by way of affidavit has stated that defendant Nos. 1, 5 and 10 who had no absolute right over the property in collusion with defendant No. 13 has sold the property to their detriment whereby it is disputed that it was sold for their benefit. The narration of the sequence as mentioned in paragraph-11 of the judgment of the trial Court clearly indicates that the defendant No. 13 was not diligent and no cross examination was done so as to negative the evidence to the effect of discharging the initial burden. Even from the evidence tendered by the defendant No. 13, there is absolutely no effort made to indicate with regard to the sale being made by the Kartha for the legal necessity nor was there any other evidence to that effect.

The learned senior counsel for the respondent has relied on the decision in the case of Smt. Gangabai Gilda Vs. Smt. Chhabubai Gandhi, AIR 1982 SC 20 : (1981) 3 SCALE 1753 : (1982) 1 SCC 4 : (1982) 1 SCR 1176 : (1982) 14 UJ 1 wherein it is held that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. In that light, the sale deed dated 09.06.1993 (Ex. P3) is referred in detail to contend that there is no recital to the effect that the sale is being made on behalf of and for the benefit of the other members of the family or that it is for their legal necessity. Since the defendant No. 13 has relied on the revenue entries which are produced as Exhs. D1 to D3 and it is contended by him that pursuant to the agreement he had secured the revenue entries to his name, the learned senior counsel for the respondent has relied on the decision of the Hon''ble Supreme Court in the case of Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others, AIR 1997 SC 2719 : (1997) 5 JT 703 : (1997) 4 SCALE 388 : (1997) 7 SCC 137 : (1997) 2 UJ 96 : (1997) AIRSCW 2690 : (1997) 6 Supreme 385 and in the case of Corporation of the City of Bangalore Vs. M. Papaiah and Another, AIR 1989 SC 1809 : (1989) 3 JT 294 : (1989) 2 SCALE 182 : (1989) 3 SCC 612 : (1989) 2 UJ 472 to contend that the revenue documents do not convey or extinguish any title as it is not a document of title. Having perused the judgments on these aspects, there can be no doubt that it is the well established legal position.

In that light, in the instant case, apart from the fact that the sale deed does not refer to the sale being made for and on behalf of the family for their necessity, even in the course of trial, the defendant No. 13 has not made any effort whatsoever to bring on record any evidence to this effect. Therefore, in a circumstance where, admittedly the properties belong to the joint family and all the joint family members have not joined the sale deed nor there being recital that the Karta has executed the sale deed for and on behalf of the other members including the minors and the fact that the persons prejudiced by such sale have assailed the same, the finding rendered by the trial Court on issues No. 1 to 3 and the same being upheld by the Lower Appellate Court will not call for interference. If the said aspects are kept in view, the declaration granted by the Courts below to the effect that the sale deed dated 09.06.1993 executed by defendants No. 1, 5 and 10 in favour of defendant No. 13 as not binding on the plaintiffs is justified.

The further issue for consideration is as to whether the Courts below were justified in granting the decree for partition as has been done, keeping in view the substantial question that has been framed herein. In that regard, from the issues framed by the trial Court which have been extracted above, it is seen that issue No. 5 in fact is with regard to the partition and separation of their alleged share in the schedule property. While answering the said issue, the trial Court has referred to the issue relating to the property being ancestral and joint family property of the plaintiffs and defendants No. 1 to 12 already being proved and in that light has taken note of the fact that a coparcener can file a suit for partition of his legitimate share in the joint family properties and if there is any alienation, he need not seek for cancellation of the sale deed as it would not bind on the legitimate share. That being the correct position of law, the Courts below have granted the decree for partition.

In view of the above position, even if the substantial question as framed is kept in view, when no questions are raised with regard to the conclusions reached on issues No. 1 and 3 before the Courts below and the sale deed not binding the plaintiffs would be the legal position in the factual background and further when the suit schedule property is held to be the joint family property to which the plaintiffs have claimed a share, an issue in that regard had been framed and that too when none of the other members of the family have assailed the partition granted, the defendant No. 13 who is a stranger to the family cannot oppose the partition. On the other hand, such partition being granted would be to the advantage of defendant No. 13 to work out his right for equitable allotment of the share assigned to such of the family members on whom the sale deed would continue to bind.

In the above backdrop, in my opinion, framing any other issue in the facts and circumstance of this case did not arise as the issues already framed had adverted to all the aspects involved in this case. Further, in the instant case, as noticed, the appellant had at the first instance not utilised the opportunity to tender evidence and at that stage approached this Court and had been permitted. He had thereafter taken part in the process of recording evidence. Either at that point or at any earlier point or later did the appellant complain about the inappropriateness of the issues framed nor had the appellant sought for recasting or framing additional issues. The parties have gone to trial fully being aware of the rival case. That apart, in the instant facts, the out and out case of the plaintiffs was that the suit schedule property was the joint family property in which they are entitled to a share which cannot be deprived to them because of the sale made to defendant No. 13. Therefore, even if any other issue was required to be framed, the non-framing of the same would not be fatal to the case. In this regard, the decision in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao, AIR 1963 SC 884 : (1963) 2 SCR 208 relied on by the respondents is apposite.

Hence, I am of the considered opinion that the substantial question of law framed herein is to be held against the appellant. The concurrent judgments of the Courts below therefore do not call for interference.

Accordingly, for the aforestated reasons, the appeal is dismissed. The parties shall bear their own costs.