P. Gurumurthy and Others vs Jayamma and Others

N. Kumar, J.—This is a plaintiffs'' Regular First Appeal challenging the Judgment and Decree passed by the trial Court which has dismissed the suit for partition and separate possession of half share in suit schedule property and also for declaration that the sale deed dated 2.10.1974 executed by the defendant No. 8 and his mother in favour of Narasimhaiah is not binding on the rights of the plaintiffs and also for declaration that the subsequent sale deeds are not binding on the rights of the plaintiffs over the suit schedule properties.

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

The subject matter of the suit is lands bearing Sy. No. 82/4 measuring 1 acre 22 guntas and No. 82/B measuring 11 1/2 guntas situated at Ajjanahalli Village, Tavarekere Hobli, Bangalore South Taluk which is more fully described in the schedule and hereinafter referred to as schedule properties.

The case of the plaintiffs is, the first plaintiffs father and grand father of plaintiff Nos. 2 and 3 one Patlaiah was the absolute owner of the schedule properties. Patlaiah died long back leaving behind his wife Smt. Kenchamma, plaintiff No. 1 P. Gurumurthy and also Yellappa who is defendant No. 8 in the suit. The schedule properties are all ancestral properties. In the month of April 2007, they surprisingly came to know that the 8th defendant along with the mother-Kenchamma sold the suit properties to one Narasimhaiah who is the husband of first defendant and father of defendants 2 to 5. On enquiry they came to know that the said Narasimhaiah played fraud and took the first plaintiffs mother and the 8th defendant the brother to the sub-registrar''s office in the guise of getting the mortgage deed and to get the sale deed executed. He submits, on the date of sale deed i.e. 02.10.1974 he was major. Though he was major he is shown as minor in the sale deed. Behind his back the sale deed is executed and therefore, same is not binding on him. Subsequently, said Narasimhaiah executed a Will in favour of defendant Nos. 1 to 5 and defendants 1 to 5 in turn have sold the schedule properties to one Smt. Ambujamma the 6th defendant. Plaintiffs submit the alleged sale and also subsequent sale to Ambujamma is not binding on them.

Plaintiffs have got a share in the schedule properties. They are in joint possession of the schedule properties since the first plaintiff was major as on the date of the sale deed and the defendants have shown him as minor by playing fraud and got the registered sale deed, the same is not binding on him. The plaintiffs submit that they have got half share in the suit schedule properties. Hence, the suit for partition came to be filed. They also sought for a declaration that sale deed is not binding on them and the same is null and void.

After service of summons, defendants 6 and 7 filed a detailed written statement. They pleaded, Sri Patliah was the owner of the schedule properties, after his death, Smt. Kenchamma and her son Yellappa-defendant No. 8 sold these properties to one Narasimhaiah under a registered sale deed dated 2.10.1974 describing one Murthy as minor and represented by guardian-Yellappa. The property was sold for family necessity. After verifying the documents, the defendants purchased the schedule properties which are free from all encumbrances. Since the sale of the property took place more than 33 years back, in order to knock off the valuable property, the plaintiffs have come before this Court by bringing forth concocted story. The allegation that the first plaintiff was shown as minor in the sale transaction and he has come to know only in the year 2007 was denied. Similarly, the alleged fraud played is also denied. In fact, they have denied all other allegations. The name of defendant Nos. 1 to 5 came to be mutated after the death of Narasimhah and entered after following the procedure laid down in the Karnataka Land Revenue Act. It is on looking into the relevant entries, they have purchased the property. The first plaintiff till today has not challenged the aforesaid entries. Said Narasimhaiah became the absolute owner of the said properties therefore, the sale deed was executed and a Will in favour of defendant Nos. 1 to 5 and got it registered and on his demise, the name of defendant Nos. 1 to 5 came to be mutated in the records. The defendant Nos. 6 & 7 have purchased the properties from his legal heirs. They are bona fide purchasers of the properties. The suit is not properly valued. The suit for partition is filed after they attained majority i.e. too after 34 years back is not maintainable in law. In the sale deed dated 2.10.1974, the first plaintiff was shown as minor represented by his mother and natural guardian. After purchase, they have developed the properties by mortgaging the suit properties to the Bank, they dug bore-well and they constructed cow-shed, farm house and labour quarters. They have converted the suit properties into farm land. They have planted Coconut, Arakanut, Mango, Jackfruit, Sapota, Teakwood and other fruit trees in the suit properties. They have spent to irrigate the entire properties and fenced around and have spent lakhs of rupees for the development properties.

Since the value of the property in and around Bangalore City has multiplied, the defendant No. 8 and the plaintiffs have colluded with and filed the suit eventhough they have no right whatsoever in the schedule properties. The suit has been filed after considerable delay. The suit is liable to be dismissed on the ground of limitation as it is not filed within three years from the date of first plaintiff attaining the age of majority. Eventhough he was major in age as on the date of execution of the agreement i.e. 02.10.1974, the first plaintiff has shown to be aged 53 years, the brother is shown as 55 years. The plaintiff and defendant are living together till the first plaintiff married. If that is so, when the sale deed was executed, nothing prevented him to take action against purchasers challenging the sale deed. Therefore, they contended that there is no merit in the suit and sought for dismissal of the suit.

8th defendant also filed written statement supporting the claim of the plaintiffs.

On the aforesaid pleadings, the trial Court framed the following issues:

Plaintiffs, in order to substantiate their claim, examined first plaintiff Sri P. Gurumurthy as PW.1 and produced 29 documents which were marked as Ex. P1 to P29. On behalf of defendants, one Smt. Rekha, Sri Anjanappa, Sri H. Narayana, Sri Jagannath H.D and Sri. B.T. Chandrashekar were examined as DWs 1 to 5 respectively. They have also produced 76 documents which were marked as D1 to D76.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record held, as on the date of the suit, the suit schedule properties were not joint family properties as contended by the plaintiffs. Similarly, the plaintiffs were not in joint possession of the suit properties. The plea that the sale was effected by Narasimhaiah from 8th defendant along with his mother Kenchamma by playing fraud, is not proved. Insofar as, the contention that he was major as on the date of sale is concerned, the trial Court held that he attained majority as on 2.10.1974. He has not moved little finger to challenge the sale deed till 2007. Therefore, the Court held, the contention that he was major as on the date of sale deed is not acceptable. When the Revenue Authorities, on the basis of sale deed entered the name of Narasimhaiah and on his death entered the names of defendants 2 to 5 on the basis of registered Will and subsequently, defendants 1 to 5 sold the properties to defendant Nos. 6 and 7, their name came to be entered. When these entries are not challenged, the case of the plaintiffs cannot be accepted.

The plaintiffs should have filed a suit for declaration or cancellation of the sale deed within three years from the date of sale deed or within 12 years from the sale deed. But, they did not do so. Therefore, the suit is barred by law of limitation.

The evidence on record shows, the defendants are in possession of the property. They have developed the property by virtue of the sale deed. Therefore, it dismissed the suit of the plaintiffs.

Aggrieved by the said Judgment and Decree of the trial Court, the plaintiffs have preferred this regular first appeal.

Learned counsel for the plaintiff-appellants assailing the Judgment and Decree of the trial Court contends, firstly, on the date of the sale deed, the first plaintiff was major and therefore, the sale deed dated 2.10.1974 is not binding on him and his share in the property is in tact and therefore, he is entitled to the decree sought for. Secondly, he contended, the schedule property was the joint family property, he has share and is in possession in the schedule property and therefore, the finding of the trial Court that plaintiffs is not in possession of the property and his possession is illegal, as he came to know of the sale of property in the year 2007, immediately thereafter, the suit is filed. It is well within the time and therefore, he submits, the trial Court was not justified in dismissing the suit of the plaintiffs.

In the light of the submissions made, the following points arise for our consideration.

"(a) Whether the first plaintiff has any right in the schedule property and was he entitled to a decree of partition and separate possession?

(b) Whether the sale deed dated 2.10.1974 executed by the mother of the first plaintiff and 8th defendant-his brother is binding on the first plaintiff?

(c) Whether the suit of the plaintiffs is barred by law of limitation?"

Point No. 1:

The material on record discloses, the schedule properties originally stood in the name of Patlaiah. The said Patlaiah died leaving behind his wife Kenchamma, 8th defendant Yellappa and the first plaintiff P. Gurumurthy. On the death of Patlaiah, the property devolved on his widow and on his two sons. Ex. P1 the copy of the registered mortgage deed discloses that on 19.6.1969, the schedule property was mortgaged by Kenchamma, 8th defendant and the first plaintiff who was minor represented by her mother in favour of one Kempaiah S/o. Giriyappa for Rs. 2,000/- with regard to Sy. No. 81/2, 82/4 and 82/B and vacant site in Khaneshmari No. 81. It is a usufructuary mortgage. The possession of the property was delivered to them. The mortgage deed recites, the property was mortgaged for the purpose of discharging the loans and also for the benefit of minors and their education and also for carrying on business. Therefore, as per Ex. P1 in 1969, first plaintiff was aged 11 years. The schedule property belonged to the family. Therefore, in view of mortgage, the possession of the properties was with the mortgages. In other words, plaintiff No. 1 and other family members lost possession of the schedule property in the year 1969. Subsequently, in order to discharge the mortgage loan, they entered into agreement to sell the schedule property in favour of Narasimhaiah S/o. Varadappa and got the mortgage discharged and took possession of the property and thereafter, in turn delivered possession of the property to the purchasers. Then they executed the sale deed in favour of Narasimhaiah on 2.10.1974. The recitals of the sale deed show that they needed money for the marriage of 8th defendant. A sum of Rs. 2,600/- was set apart as minor''s share and those purchasers continued in possession of the property thereafter. The evidence on record discloses, the said Narasimhaiah executed a registered Will bequeathing the said property in favour of defendant Nos. 1 to 5 herein who are none other than his wife and children. On the death of said Narasimhaiah, the Will became effective and after that the property devolved on them under the Will. Defendant Nos. 1 to 5 filed an application for mutating their names in the mutation register and after enquiry their names were entered. Subsequently, defendant Nos. 1 to 5 have executed the registered sale deed in respect of the schedule property in favour of defendant Nos. 6 and 7. After the said purchase, they filed an application for mutating their names in the register which has been granted. The evidence on record shows, they mortgaged the property in favour of Agriculture Development Bank by raising loans and improved the property and they are in possession and enjoyment of the schedule properties. Therefore, as rightly held by the trial Court, as on the date of suit, the schedule properties were not the joint family properties of defendants and the family members of plaintiffs and was in possession of defendants Nos. 6 and 7.

Point No. 2:

The main contention of the plaintiffs is, though the first plaintiff was major as on the date of sale deed he was shown as minor. But as on the date of the said sale deed, the plaintiff No. 1 was major. Thus, sale deed does not bind him. Ex. P26 document shows his age. As per that document, the plaintiff was born on 01.06.1956. If that is taken into consideration, his age as on 2.10.1974 was 18 years. Plaintiff Nos. 2 and 3 are his sons who were not even born as on the date of sale deed. Therefore, they have no right in the property or to make any sale deed. The first plaintiff is described as minor represented by his mother natural guardian Smt. Kenchamma. The recital shows the property was mortgaged and then the property was sold for the benefit of minors and for legal necessities of the family. He has not taken any action in respect of the sale deed dated 2.10.1974 from that date till the filing of the suit. Even if accept the contention of the first plaintiff that he was minor at the time of sale deed, even after attaining majority, the plaintiff has not chosen to challenge the aforesaid sale deed within the time limit prescribed in law. He has slept over for 34 long years without taking any action for claiming his right in the property. The only document on which reliance is placed is, School leaving certificate which we believe would show, he was major on the date of sale deed while another certificate shows his brother''s age. As rightly pointed out, both these certificates were not proved in accordance with law. Therefore, in the facts of the case, taking into consideration the age of the first defendant as shown in the cause-title of the plaint, it is difficult to believe that the first plaintiff was a major as on the date of agreement of sale.

We are in full agreement with the Judgment of the trial Court which, on the basis of documents relied upon by the plaintiffs held that the first plaintiff has failed to prove that he was a major as on the date of sale deed dated 2.10.1974. The recitals in these undisputed registered documents clearly establish that he was a minor and the property was sold for a legal necessity of the family. After attaining majority, he has not chosen to challenge the sale deed within the time permitted in law. Therefore, the trial Court was justified in holding that the sale deed duly binds him and first plaintiff has no right in the said property.

Point No. 3:

In so far as ground of limitation is concerned, it is not in dispute that family lost the possession of the property in the year 1969 when they mortgaged the suit properties to one Kempaiah and afterwards, they have sold the properties to one Narasimiah. Sale deed is in the year 1974. Plaintiff No. 1 has not moved his little finger to put-forth his claim much less, recovery of possession of the property from defendant Nos. 6 and 7. On the contrary, defendants 6 and 7 having purchased the properties from defendants 1 to 5 have developed the property by investing considerable amount and they have dealt with the property as absolute owners and only in the year 2007, for the first time, the claim is put-forth by these plaintiffs. If the first plaintiff was a minor as on the date of sale deed, he ought to have challenged the same within three years from the date of attaining majority and seek for cancellation of the sale deed which he has not done. Therefore, on that score, suit is barred by limitation as prescribed in law. He was major as on the date of sale deed, he has kept quiet for nearly 33 years. Therefore, the defendants are in possession of the properties on the basis of the registered sale deed. When the plaintiffs are seeking possession of the property on the basis of title, they should have filed the suit within 12 years from the date of dis-possession which has not been done. Therefore, seen from any angle, suit is barred by time. Therefore, we do not see any infirmity in the Judgment and Decree passed by the trial Court. Thus, we pass the following order:

Appeal is dismissed. No costs.