Shivanna (Since Dead) by L.Rs - Appellant @HASH Shankarappa and Others

Mrs. B.V. Nagarathna, J. - The legal representatives of the original plaintiff have preferred this second appeal, assailing judgment and decree passed in R.A. No. 6 of 2008, dated 27-3-2012 by the 2nd Additional Senior Civil Judge, Chitradurga, by which, the judgment and decree passed in O.S. No. 94 of 1999, dated 15-11-2007 by the 1st Additional Civil judge (Junior Division) and Judicial Magistrate First Class, Chitradurga has been confirmed.

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

The original plaintiff filed the suit seeking partition and separate posses non of his 1/11th share in the suit schedule property by metes and bounds and declaration that the sale deed dated 20-12-1995 did not bind upon his share in the suit schedule property. According to the original plaintiff, who is now represented by his legal representatives, the 1st defendant is plaintiff''s mother and defendants 2 to 5 and 7 to 10 are his brothers and sisters, defendant 6 is his brother''s wife. The family of the plaintiff owns extensive landed properties at Medehally. Out of the income of the print family property, the suit property was purchased in the name of the 1st defendant on 29-1-1979. Since the date of purchase, the said property was in joint possession and enjoyment of the family of the plaintiff. On 11-10-1989, there was a partition in between the plaintiff, plaintiff''s parents and brothers and in that partition, the suit property was allotted to the share of the plaintiff''s parents in lieu of their maintenance to enjoy the same during their lifetime. It was agreed that the parents of the plaintiff should enjoy the suit property during their lifetime and on their demise, the same would be divided among the children of the 1st defendant. According to the plaintiff, only life interest was given to the 1st defendant to enjoy the property during her life time and she has no right to deal with the suit property. Defendant 5 being an influential person managed to create a sale deed dated 20-12-1995 to the effect that the suit property was sold to the 11th defendant. 11th defend ant who is a close friend of 5th defendant in collusion with each other got created the sale deed. 11th defendant never ascertained her right over the suit schedule property. It is pleaded that the 1st defendant at the instance of the 5th defendant made an attempt to alienate the suit property to a third person The sale deed dated 20-12-1995 has no effect and the 1st defendant has no right to convey the same in view of her limited interest created therein. It is pleaded that the 1st defendant has no source of income of her own to acquire the suit, property and the sale deed was executed in her name. Plaintiff came to know that defendants 5 and 11 are trying to sell the suit property. Then a panchayath was convened in the village to divide the suit property but the defendants denied any share in the suit property to the plaintiff. Hence suit was filed seeking partition and separate possession of plaintiff in the suit schedule property.

During the course of trial, plaintiff and defendant 10 died and their legal representatives were brought on record. Defendant 10(b) being a minor was represented by the Court guardian. Defendants 12 to 19 were brought on record as additional defendants as they purchased the suit property during the pendency of the suit.

In response to the Court notices and suit summons, defendant 1 appear ed and filed her written statement admitting the relationship between the parties but denying the other averments in the plaint. It was denied that She family of the plaintiff owns extensive landed properties in Madehally and that the suit property was purchased out of the joint family funds in the name of the 1st defendant. It is contended that the 1st defendant''s father had two daughters viz., the 1st defendant, Thippamma and her sister Rudramma. The 1st defendant''s father died long back leaving behind the 1st defendant and her sister as his only legal heirs with some landed properties. After the death of their father, the 1st defendant and her sister divided their father''s properties. It is contended that 1st defendant sold the lands allotted to her share to her relations. Out of the sale consideration received, she purchased the suit schedule property on 29-11-1979. It is contended that since the date of purchase 1st defendant was in possession and enjoyment of the suit property as a owner thereof. According to the 1st defendant, the suit property is her streedhana and her self-acquired property. Neither the plaintiff nor his sister or brothers had any right in the suit property and the suit property was never considered as a family property of the plaintiff and the defendants. The plaintiff and 1st defendant''s other sons have neglected her welfare and hence she had not agreed for division of the suit property in the partition dated 11-10-1989 entered into between the plaintiff and other brothers. She refused to give her consent for inclusion of the suit property in the partition dated 11-10-1989. Thus defendant 1 is not a party to the partition entered into between the plaintiff and his brothers.

It is contended that defendant 1 and her husband were in need of money for their medical expenses and maintenance. The plaintiff and other defendants neglected them and under such circumstances, 1st defendant sold the suit property for a valuable consideration of Rs. 1,90,000/- to the 11th defendant through a sale deed dated 20-12-1995 and she delivered possession of the suit property on the same day. That since then, the 11th defendant has been in possession and enjoyment of suit schedule properly as absolute owner and all the entries in the revenue records were mutated in his name. 1st defendant came to know that the 11th defendant sold the suit land to one M.G. Virupakshappa and Eshwarappa on 3-5-1999 under a registered sale deed and now they are enjoying the suit schedule property under their respective sale deeds. It is contended that the plaintiff is not entitled for any share in the suit schedule property and that there was no cause of action for filing the suit. She sought for dismissal of the suit.

5th defendant took up a similar defence as taken by the 1st defendant. In addition; he contended that after the partition dated 11-10-1989, he is living separately in Chitradurga and is enjoying the property allotted to Iris share in the partition deed. It is denied that 5th defendant managed to create a sale deed dated 20-12-1995 in favour of the 11th defendant as 11th defendant is his close friend. It is contended that the suit schedule property is the self-acquired property of the 1st defendant and she had every right to sell the suit schedule property to the 11th defendant. It is contended that the plaintiff and the other brothers colluded with each other in order to take revenge against 5th defendant and his wife and have filed the suit.

11th defendant filed a memo adopting the written statement filed by the aforesaid defendants. It is submitted that she sold the property before issuing suit summons and notice upon her.

The Court guardian of defendant 10(b) filed the written statement stating that the averments made in paragraphs 2, 3 and 4 of the plaint is not known to him and that he is also having a share in the suit property.

Defendants 13 and 14 were brought on record as additional defendants. In their written statement, while denying the averments made in paragraphs 3, 4 and 5 of the plaint they contended that the Trial Court has no pecuniary jurisdiction to try the suit. It is contended that the 1st defendant and her husband were in need of money for their maintenance and medical expenses, so the 1st defendant sold the suit schedule property to the 11th defendant and the 1st defendant being the owner of the suit schedule property, had every right to sell the suit schedule property to 11th defendant. It is contended that they had purchased the suit schedule property from 11th defendant for a valuable consideration under two sale deeds dated 3-5-1999. They were in possession and enjoyment of the said property and their names had been mutated in the revenue records. They contended that these defendant are bona fide purchasers for valuable consideration. The plaintiff is not entitled for any relief claimed in the suit and sought for dismissal of the suit.

Defendants 15 to 19 in their written statement contended that they are not aware of the averments made paragraphs 2 to 5 of the plaint and the plaintiff has to prove these aspects. It is contended that the plaintiff''s legal representatives are not entitled for any share in the suit schedule property and their claim is illegal and baseless. It is contended that defendants 13 and 14 were the owners in possession and enjoyment of the suit schedule property and they sold the suit schedule property to these defendants for a valuable consideration. Therefore, they are the present owners and in possession of the same and their names have been mutated in the revenue records. They contended that they are the bona fide purchasers. Hence, their rights were to be protected. They also sought for dismissal of the suit.

On the basis of the pleadings of the parties, the Trial Court framed the following issues and additional issues for its consideration:

"1. Whether the plaintiff proves that out of the income of the joint family properties the suit schedule property was purchased in the name of the 1st defendant in her fiduciary capacity?

Whether the plaintiff further proves that by virtue of registered partition deed dated 11-10-1989 the suit property was allotted to his parents in lieu of their maintenance and was given a life interest to enjoy the property?

Whether the plaintiff further proves that the 5th defendant scrupulously managed to create a document i.e., sale deed dated 20-12-1995 in favour of 11th defendant?

Whether the plaintiff proves that he has got right of 1/11th share over the suit schedule property?

Whether this Court has no pecuniary jurisdiction to entertain the suit?

Whether defendant 1 proves that the suit schedule proper, "Streedhan" property and she has got every right to set.- the same?

Whether the plaintiff is entitled for the reliefs claimed in the suit?

What order or decree?

Additional issues:

Whether defendants 15 to 19 prove that they are the bona fide purchasers, hence the rights acquired by them over the suit schedule property are to be protected?

Whether the defendants 15 to 19 prove that the plaintiffs ought to have paid the Court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 hence the Court paid is insufficient?"

In order to substantiate their case, the plaintiff examined two witnesses and produced nine documents which were marked as Exs. P.1 to P.9. The defendants also examined two witnesses and they produced fourteen documents which were marked as Exs. D.1 to D.14. On taking into consideration the evidence on record, the Trial Court answered issues 1 to 5 and 7 and additional issues 1 and 2 in the negative. It answered issue 6 in the affirmative. Consequently, the Trial Court dismissed the suit of the plaintiff by judgment and decree dated 15-11-2007. Being aggrieved by the dismissal of the suit, the legal representatives of the original plaintiff filed R.A. No. 6 of 2008 before the First Appellate Court, which on hearing the learned Counsel for the parties, raised the following points for its consideration:

"1. Whether the appellant proves that the lower Court has committed an error in holding that the suit schedule property is the self-acquired and Streedhana property of the first defendant and she has got right to alienate the same?

Whether the Trial Court has not properly appreciated the oral and documentary evidence, produced by this appellant and admissions made by D.Ws. 1 and 2 and committed any error in answering issues 1 to 5 and 7 in negative and issue 6 in affirmative?

Whether the judgment and decree is otherwise opposed to law of facts and probabilities of the case and the same is required to be interfered by this Court?

Whether the respondent 18 has made out sufficient grounds to allow this application filed under Order 41, Rule 27 of Civil Procedure Code, 1908?

What order?"

It answered Point Nos. 1 to 4 in the negative and dismissed the appeal by confirming the judgment and decree of the Trial Court. An application filed by respondent 18 under Order 41, Rule 27 of Code of Civil Procedure (CPC) was also dismissed. Being aggrieved by the judgment and decree of the First Appellate Court, the legal representatives of the deceased original plaintiff have preferred this second appeal.

I have heard learned Counsel for the appellants and learned Counsel for the respondents 19 to 22.

It is contended on behalf of the appellants that the Courts below were not justified in dismissing the suit filed by the plaintiff. She contended that the suit, schedule property was purchased in the name of the 1st defendant under a registered sale deed dated 29-1-1979 out of joint family income, in that the nucleus was utilised to purchase the said property. Therefore, the suit property ought to be treated as a joint family asset and plaintiffs are entitled to a share of the said property. She contended that the Courts below were not right in holding that the suit schedule property was the exclusive property of the 1st defendant and therefore, the plaintiff was not entitled to any share in the said property.

She also brought to my notice the fact that the father of the 1st defendant had bequeathed certain properties to 1st defendant, her sons as well as the sister of the 1st defendant and her sons. That the original plaintiff was a legatee under the said Will. But the 1st defendant had sold the properties bequeathed in its entirety and out of the funds from the said sale had purchased the suit schedule property in her name on 29-1-1979. As a result, the plaintiff was deprived of his share in the bequest made by his grandfather in his name along with brothers and also in the name of the 1st defendant. She contended that the 1st defendant could not have appropriated the suit schedule property in her name on selling the properties which were bequeathed by plaintiff''s grandfather. As a result plaintiff has been deprived of his right, title and interest even in the suit schedule property which was purchased only in the name of the 1st defendant. She contended that the Courts below have failed to appreciate the case of the plaintiff in its proper perspective and therefore, substantial questions of law would arise in this appeal and the appeal may be admitted for a detailed hearing.

Per contra, learned Counsel for respondents 19 to 22 herein who were defendants 16 to 19 in the suit supported the judgment and decree of the First Appellate Court who had confirmed the judgment and decree of the Trial Court. He contended that defendant 1 was the absolute owner of suit schedule property. The same was purchased by her on 29-1-1979 and the said property is her self-acquired property. It is his contention that the suit schedule property is the absolute property of the 1st defendant and the same was never part of the joint family assets. Therefore, she was entitled to alienate the suit schedule property to defendant 11 under a register sale deed dated 20-11-1995 and thereafter, defendant 11 alienated b suit property to defendants 13 and 14, who subsequently alienated to defendants 15 to 19 and they are the absolute owners and in possession of the same. Therefore, he contended that the judgment and decree of the Trial Court would not call for any interference. He brought to my notice the fact that plaintiffs have proceeded on the assumption that the suit schedule property was joint family property and that the said property was given to the 1st defendant and her husband for their maintenance. Even if it is an assumption for the sake of argument that suit schedule property was the joint family asset, the said property was given to the 1st defendant and her husband towards their maintenance. Hence, it became her absolute property by virtue of Section 14(1) of Hindu Succession Act, 1956 (hereinafter referred to ''the Act''). He contended that on that score also the plaintiff is not entitled to any right, title or interest in the suit schedule property. Further neither in the unregistered partition entered into amongst members of the plaintiff''s family in the year 1989 nor in the registered partition deed-Ex. D. 2, dated 9-1-1993, the said property finds a mention. Therefore, it has always been treated as tire exclusive and absolute property of defendant 1 and the plaintiff has no right in the said property. He contended that while the plaintiff proceeded on the basis that the suit schedule property was the joint family property as noted from the plaint averments, in the evidence, plaintiffs attempted to prove Ex. P. 1, certified copy of the Will which is stated to be allegedly executed by the grandfather of the plaintiff and father of the defendant 1 bequeathing certain properties to defendant 1 and her male children. On selling the same, defendant 1 purchased the suit schedule property and hence, it was contended that the plaintiff was entitled to a share. His submission is that the plaintiff could not have attempted to prove Ex. P. 1 when there was no averment in the plaint with regard to any Will having been executive by the father of the defendant 1 bequeathing properties in the name of defendant 1 and her sons apart from others. He therefore submitted that no substantial question of law would arise in this appeal and hence the appeal may be dismissed.

Having heard the learned Counsel for the parties and on perusal of the material on record, it is noted that the relationship between the parties is not in dispute. However, there seems to be controversy with regard to suit property as such. The plaintiff in the plaint has averred that the suit property was the joint family property which were purchased out of joint family nucleus in the name of the 1st defendant on 29-1-1979 and therefore, the plaintiff had right, title and interest in the said property and she is entitled to a partition in the same. In response to this, the evidence on record is that even if it is assumed for the sake of the argument that tire suit schedule property was the joint family asset then in the year 1989 it was given to defendant 1 and her husband towards their maintenance, defendant 1 had a pre-existent right of maintenance. If that was so, any property which was given to her for maintenance became her absolute property on account of Section 14(1) of the Act. in this regard, reliance could be placed on the decision of the Hon''ble Supreme Court in the case of Vaddeboyina Tulasamma and Others v. Vaddeboyina Sesha Reddi (dead) by L.Rs AIR 1977 SC 1944 wherein the Hon''ble Supreme Court has clearly distinguished the scope of Section 14(1) and exception in Section 14(2) and as to how Section 14(1) operates when a pre-existing right inheres in a Hindu woman. In light of the Hon''ble Supreme Court judgment, which has been followed subsequently and recently in the case of Jupudy Pardha Sarathy v. Pentapati Rama Krishna and Others Laws 2015 (11) SC 7 decided on 6-11-2015, it can be clearly held that if the suit property is considered to be the joint family property, then in that case, the property having been given towards the maintenance of the 1st defendant it became her absolute and she had every right to alienate the property like any other owner to the 11th defendant and therefore, subsequent alienation made by defendant 11 to others are also legal and valid.

On the other hand, the plaintiffs have tried to propound the Will of the grandfather of the plaintiff vide Ex. P.1 which is stated to be the certified copy of the Will, to contend that the certain properties were bequeathed to defendant 1 and her male children by the grandfather and defendant 1 appropriated the entire bequest and alienated the same and out of the sale proceeds, she had purchased the suit property in her name on 29-1-1979 and therefore, the right, title and interest of the plaintiff in Ex. P. 1-Will had been denied in the instant case, there was no pleading to that effect in the plaint. If for a moment it is assumed that Ex. P.1 could have been considered by the Trial Court, it is noted that the said Will has not been proved in accordance with law. No attestor of the Will has been examined. The validity of the Will has not been proved in accordance with law. Further the sale of the properties bequeathed to defendant 1 and her male sons and the subsequent purchase of the suit property on 29-1-1979 by the 1st defendant out of the said sale proceeds has not been established by any legal evidence. In the absence of there being any nexus between the properties that were allegedly bequeathed by plaintiff''s grandfather and defendants'' father in their names apart from others and the suit property having been purchased out of the sale of the bequeathed properties, the Trial Court and the First Appellate Court rightly did not give any credence to the Will.

In fact Ex. P.1 could not have been let in as a piece of evidence to prove plaintiff''s right in the suit property as there was no averment regarding his grandfather bequeathing any property in his name in the plaint. In the absence of there being any such pleading, no evidence could have been let in, in that regard. In this regard, reliance could be placed on the decision of the Hon''ble Supreme Court in the case of Bachhaj Nahar v. Nilima Mandal and Others (2008) 17 SCC 491 wherein at paragraph 10 (1 to 3) the following has been enunciated:

"10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the Court.

(ii) A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal."

In the circumstances, the Courts below have concurrently held that the suit property was the absolute property of the defendant 1 and that she has every right to alienate the property to defendant 11 and in turn, he alienated to defendants 13 and 14 and from whom defendants 15 to 19 had purchased the same. Therefore, the suit was rightly dismissed by the Trial Court. The First Appellate Court, in my view, rightly confirmed the dismissal of the suit.

Hence in my view no substantial question of law would arise in this appeal. Appeal is hence dismissed.

Parties to bear their respective cost.

In view of dismissal of the appeal, I.A. No. 1 of 2015 stands dismissed.