L MURTHY vs LAKSHMAIAH
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 23 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO.364 OF 2014 (PAR)
BETWEEN:
1. L MURTHY
S/O LAKSHMAIAH,
AGED ABOUT 31 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI, SAKHARAYAPATNA,
KADUR TALUK,
CHIKMGALUR DISTRICT – 577 101.
2. PARAMESHWARA
S/O LAKSHMAIAH,
AGED ABOUT 29 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI, SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
3. NAGESH
S/O LAKSHMAIAH,
AGED ABOUT 25 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI, SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
4. LOKESH
S/O LAKSHMAIAH,
AGED ABOUT 24 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI, SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka
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5. DHANANJAYA
S/O LAKSHMAIAH,
AGED ABOUT 20 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI,
SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
6. KUM. CHANDRAKALA
D/O LAKSHMAIAH,
AGED ABOUT 19 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI,
SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
…APPELLANTS
(BY SRI. GURURAJ R., ADVOCATE)
AND:
1. LAKSHMAIAH
S/O LATE GANIGAR LAKSHMAIAH,
AGED ABOUT 65 YEARS,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI,
SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
2. MOODALAGIRIYAPPA
S/O LAKSHMAIAH,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKANAHALLI VILLAGE,
JODIHOCHIHALLI,
SAKHARAYAPATNA,
KADUR TALUK,
CHIKMAGALUR DISTRICT – 577 101.
…RESPONDENTS
(BY SRI. G S BALAGANGADHAR, ADVOCATE FOR C/R-2;
VIDE ORDER DATED 10.10.2024
NOTICE TO R-1 IS D/W)
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THIS RSA IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT &
DECREE DATED 05.02.2014 PASSED IN R.A.NO.17/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC, KADUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.01.2010
PASSED IN OS.NO.149/2008 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN) & JMFC., KADUR.
THIS APPEAL, COMING ON FOR HEARING , THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellants were the plaintiffs in O.S.No.149/2008
instituted by them against the respondents – defendants for
partition and separate possession of their alleged share in six items
of the suit schedule immovable properties and for other reliefs.
The said suit having been contested by the respondents –
defendants, the Trial Court proceeded to pass the impugned
judgment and decree dismissing the suit in respect of item No.1 of
the suit schedule properties and decreeing the suit in respect of
item Nos.2 to 6 of the suit schedule properties. Aggrieved by the
judgment and decree of the Trial Court, the appellants – plaintiffs
filed an appeal in R.A.No.17/2010 before the First Appellate Court,
which dismissed the appeal thereby confirming the judgment and
decree of the Trial Court which had dismissed the suit of the
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plaintiffs in respect of item No.1 of the suit schedule properties.
Aggrieved by the impugned judgments and decrees passed by the
Trial Court and the First Appellate Court insofar as they relate to
dismissal of their suit in respect of item No.1 of the suit schedule
properties, the appellants – plaintiffs are before this Court by way
of the present appeal.
2. Heard learned counsel for the appellants and learned
counsel for respondent No.2 and perused the material on record.
At the instance and risk of the appellants, notice to respondent
No.1 was dispensed with by this Court on 10.10.2014 by framing
the following substantial questions of law:
“Whether the finding of the Courts below is
perverse in holding that suit item No.1 was sold for
legal necessity of the family?”
3. Learned counsel for the appellants would reiterate the
various contentions urged in the memorandum of appeal and
submits that both the Trial Court and the First Appellate Court had
committed an error in coming to the conclusion that the Sale Deed
dated 01.07.1999 executed by defendant No.1 in favour of
defendant No.2 was for legal necessity and benefit of estate
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without appreciating that the burden of proving the same having
rested heavily upon defendant No.2, who had failed to discharge
the said burden by adducing legal and acceptable evidence, the
said Sale Deed was not binding upon the plaintiffs’ share in item
No.1 of the suit schedule properties and as such, the plaintiffs were
entitled to their legitimate share in the said item No.1 and
impugned judgments and decrees of both the Courts deserve to be
set aside.
4. Per contra, learned counsel for respondent No.2 would
support the impugned judgments and decrees of the Trial Court
and First Appellate Court and submits that there is no merit in the
appeal and that the same is liable to be dismissed.
Reg. Substantial question of law:
5. A perusal of the material on record will indicate that as
noticed earlier there is no dispute between the parties in relation to
item Nos.2 to 6 of the suit schedule properties and the only dispute
between them is in relation to item No.1 of the suit schedule
properties, which had been sold by defendant No.1, father of the
plaintiffs in favour of defendant No.2, purchaser / alienee vide
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registered Sale Deed dated 01.07.1999; in this context, it is
relevant to state that it is the specific contention of the plaintiffs that
the said Sale Deed was a sham and nominal document which had
been obtained by defendant No.2 from defendant No.1 by
practicing fraud upon defendant No.1 and obtaining an ostensible
Sale Deed from him; however, the said contention was negatived
by the Trial Court, which took into account the pleadings and
evidence of the parties and came to the conclusion that the said
contention had not been established by the plaintiffs. The Trial
Court also held that the plaintiffs had failed to establish that the
defendant No.1 was not managing the affairs of the joint family
despite being their father and kartha of the joint family or that he
was addicted to bad habits and that his wife, i.e., the mother of the
plaintiffs was managing the affairs of the joint family; in this regard,
the Trial Court drew adverse inference against the mother of the
plaintiffs for not examining herself coupled with the fact that the
plaintiffs and defendant No.1 were residing together and defendant
No.1 had not contested the suit. The Trial Court also came to the
conclusion that while the plea of the plaintiffs that the said Sale
Deed was a sham, fraudulent and nominal document had not been
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established by them, the defendant No.1 had filed a joint written
statement along with defendant No.2 admitting that he had sold
item No.1 of the suit schedule properties in favour of defendant
No.2, who got the khatha mutated into his name, was paying taxes
and was in exclusive possession and enjoyment of the suit
schedule properties. The Trial Court also came to the conclusion
that the material on records in order to come to the conclusion that
the defendant No.1 had sold item No.1 of the suit schedule
properties in favour of defendant No.1 for a total sale consideration
of Rs.80,000/- which was required by the joint family for the
purpose of discharging the loan and redeeming the mortgage in
respect of the remaining suit schedule properties, which comprised
of garden lands. The Trial Court further noticed that the plaintiffs
had not adduced any evidence to establish that their mother had
any independent source of income and that the entire joint family
comprising of six plaintiffs, their mother and their father, defendant
No.1 was being looked after by defendant No.1 alone, who was the
kartha and manager of the joint family. The Trial Court also came
to the conclusion that the oral evidence of PW1 to PW4 as well as
the oral evidence of DW1 to DW3 coupled with the documentary
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evidence on record, in particular, the recitals in the Sale Deed at
Ex.D7 dated 01.07.1999 executed by the defendant No.1 in favour
of defendant No.2 clearly established that the said sale was for
legal necessity and for the benefit of the estate and for the welfare
of the joint family and accordingly, the Trial Court rejected the claim
of the plaintiffs for partition in respect of item No.1 of the suit
schedule properties by framing the following issues and holding as
under:
1) Whether the defendant No.2 proves that the present suit is
collusive one?
2) Whether the plaintiffs prove that the suit schedule.
properties are partible properties and they are entitled to
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1/7 share in them?
nd
3) Whether the 2 defendant proves that sale deed held in
his favour in respect of item No.1 property was for legal
necessity?
4) What reliefs are the parties entitled to?
5) What order or decree?
“9. Issue No.2 and 3: These two issues are dealing
with the aspect of whether all the schedule properties are
joint family properties of plaintiffs and defendant No.1. These
issues have to go together and it is not possible to bifurcate
and discuss without repetition of the discussion on facts and
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law. Hence these issues are taken up together for
discussion.
10. There is no dispute over the fact that the plaintiffs
and defendant No.1 constitute Hindu Undivided Joint family.
It is also admitted that except item No.1, other properties
shown in the schedule of the plaint are the joint family
properties of the plaintiffs and defendant No.1. Admittedly
item No.1 was earlier belonged to the joint family. The
plaintiffs are the children of defendant No.1. The plaintiffs'
case is that the defendant No.1 is a man of guilible in nature
and he had no avocation and later got addicted to bad
habits. Defendant No.2 by taking disadvantage of this, got
created the sale deed dated 1-7-1999. The plaintiffs
contended that possession of the item No.1 of the schedule
property never parted with and possession is still continuing
with the joint family. Defendant No.2 contended that
defendant No.1 is managing the affairs of joint family and to
st
meet the joint family necessity, 1 defendant sold the
schedule property to the defendant No.2 and delivered the
possession.
11. The plaintiff No.1 examined as PW-1 deposed in
line with the plaint averments and produced the revenue
documents, tax paid receipts and copies of legal notice
issued to the defendants and acknowledgement. In the
cross-examination PW-1 admitted that his date of birth is
shown as 23-8-1985 in the school records. PW-1 also
st
admitted that 1 defendant was managing the affairs of joint
family. This falsifies the contention of the plaintiffs that
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defendant No.1 was not taking care of their joint family.
Plaintiffs not produced any material to substantiate their
st
contention that 1 defendant got addicted to bad habits and
their mother was managing the affairs of the joint family. The
mother of the plaintiffs' not stepped into the witness box and
stated that her husband was addicted to bad habits and she
was taking care of the joint family. PW-1 and other witnesses
clearly admitted that the plaintiffs and defendant No.1
residing together. The defendant No.1 who appeared in this
case chosen to keep silent. This substantiates the contention
of the defendant No.2 that plaintiffs and defendant No.1 by
colluding with each other filed suit. The plaintiffs stated that
the defendant No.2 prudently got executed the sale deed in
his favour but to substantiate this, plaintiff not produced any
reliable evidence. Thus, the contention of the plaintiff that no
title or interest was passed on to the defendant No.2 in
pursuant to the sale deed executed by the defendant No.1 in
favour of defendant No.2 cannot be accepted.
12. The plaintiffs' counsel by relying upon the ruling
rendered by Bombay High Court in the case of Shankarlal
Gunalai V/s. Balmukund S. Bharuka reported in AIR 1999
Bombay 260 argued that oral evidence can be allowed to
prove that the document was sham and not to be acted upon
by the parties. However, to prove this aspect, sufficient
reliable evidence must be placed. In the case on hand, the
defendant No.1 who executed the sale deed in favour of
defendant No.2 not contended that the sale deed executed is
a nominal sale deed or that the defendant No.2 by playing
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fraud upon him got created the sale deed. Merely on the say
of the plaintiffs it cannot be held that the defendant No.2 by
fraudulent means got created the sale deed in his favour.
Ex.D-8 to 10 are the order sheet, plaint and written statement
and issues filed and framed in O.S.No.428/1998. Rangappa
and Saganappa filed that suit against the defendants in this
case to declare them as owners of item No.1 of the schedule
property. In the said suit the defendants have appeared and
filed joint written statement. In the written statement the
defendant No.1 clearly admitted that he sold item No.1 of the
schedule property to the defendant No.2 and since the date
nd
of sale, 2 defendant is in possession of that land.
13. The plaintiffs contended that the possession of the
schedule property is in their possession. In the sale deed
dated 1-7-1999 it is clearly recited that the possession of the
schedule property was delivered to the defendant No.1.
Immediately after execution of the sale deed, khata was
mutated in the name of defendant No.2. Ex. D-2 is the RTC
and Ex. D-8 is the receipt patta. In these documents it is
shown that defendant No.2 is in possession of item No.1 of
schedule property. The plaintiffs not produced any
documentary evidence to the effect that item No.1 of the
schedule property is in their possession and enjoyment. On
the basis of oral evidence of plaintiff No.1 and his witnesses
it cannot be held that the item No.1 is in possession and
enjoyment of plaintiffs and defendant No.1. From the above
evidence, it is crystal clear that the defendant No.1 did sold
the item No.1 in favour of defendant No.2 and since then,
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defendant No.2 has been in possession of the schedule
property.
14. Admittedly the land in dispute was the joint family
property of plaintiffs and defendant No.1. The defendant
No.1 being the Kartha of the joint family he had every right to
alienate the joint family properties. The alienation of joint
family property by Kartha of the joint family binds upon the
co-parceners provided the alienation is for the family
necessity. The burden of proving that the alienation was for
the legal necessity of the family is upon the purchaser.
15. Before proceeding to discuss on the aspect of
legal necessity, it is necessary to look into about the actual
consideration passed through the sale deed. In the sale deed
it is recited that Rs.80000/- was the consideration amount.
The registering authority raised objection for valuation of the
property for the purpose of stamp duty. Then property was
valued at Rs.1,05,000/- and defendant No.2 paid the balance
stamp duty on the difference amount. The defendant No.2
contended that he paid Rs.25,000/- to the defendant No.1.
But there is no evidence to substantiate this contention.
From this it is clear that only Rs.80000/- was given as a
consideration. The plaintiffs not produced any evidence to
show that the value of the property in dispute was more than
the consideration shown in the sale deed. Added to this in
the ruling reported in AIR 1992 Kerala 115 it is held that
evidence cannot be allowed to prove that actual
consideration was passed more than mentioned in the
written document. But merely for the reason that registering
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authority not accepted the consideration shown in the sale
deed as correct valuation for the stamp duty, it cannot be
held that defendant No.2 purchased the disputed land for
less consideration.
16. Ex.P.1 is the sale deed dated 1-7-1999 executed
by defendant No.1 in favour of defendant No.2. In that it is
recited that item No.1 of the schedule property was sold to
defendant No.2 for consideration of Rs.80000/-. It is further
recited that in order to release the garden land from the
charge of mortgage, the property was sold to defendant
No.2. The sale of one of the joint family properties in order to
get release the other property from the mortgage is certainly
amounts to family necessity.
17. In the evidence it has come that the plaintiffs and
defendant No.1 residing together. The defendant No.1 being
the eldest member of the joint family it has to be presumed
that he is managing the affairs of the joint family. The plaintiff
not produced any reliable evidence to substantiate their
contention that the defendant No.1 has got addicted to bad
habits and he has disowned the responsibility of maintaining
joint family. Though plaintiff No.1 contended that he was
born on 23-5-1980, the school records show that the date of
birth of plaintiff No.1 is 15-6-1988. The plaintiffs not produced
any evidence to substantiate his contention that at the time
of admitting the plaintiff No.1 to the school, his date of birth
was wrongly given. From this, it can be very well inferred that
at the time of selling the disputed property to defendant No.2
all the plaintiffs are minors. The defendant No.2's counsel
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argued that in order to lend the support to the false
contention that plaintiffs and their mother were eking their
livelihood by doing coolie work, the plaintiff No.1 has taken
up the contention that he was born on 23-5-1980. The
plaintiffs and their witnesses in their evidence stated that
mother of the plaintiffs was taking care of the joint family and
education expenses of the plaintiffs but PW-1 in his cross-
examination clearly stated that his mother had no source of
income. This completely falsifies the contention that the
mother of the plaintiffs was taking care of educational
expenses of the plaintiffs.
18. PW-1 in his cross-examination admitted that the
schedule properties are dry lands and they are entirely
depending on seasonal rains. PW-1 also admitted that in the
year 1989 there was a draught. PW-1 denied the suggestion
to the effect that in order to meet the family expenses,
defendant No.1 mortgaged the one of the schedule
properties to one Doddamane Venkatappa and
Mudalagiriyappa. But in the sale deed the mortgage of the
joint family property is stated. PW-2 in his cross-examination
admitted that in the year 1989 the children of defendant No.1
were studying and at that time there was financial difficulty in
their family. PW-3 is the father-in-law of plaintiff No.3 and in
the cross-examination he stated that about 1 ½ years back
his daughter was given in marriage to plaintiff No.3 and he
doesn't know the affairs of their family prior to that. In the
cross-examination PW-3 admitted that in the year 1991
plaintiffs were minors. PW-4 in his cross-examination stated
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that the plaintiffs and defendant No.1 residing together and
suit was filed against defendant No.2 for partition. This
probabalises the contention of the defendant No.2 that the
plaintiffs and defendant No.1 by colluding together filed the
suit.
19. The defendant No.2 not stepped into the witness
box and his brother as a GPA holder deposed on behalf of
the defendant No.2. In the evidence DW-1 deposed in line
with the contention taken in the written statement. In the
cross-examination of DW-1 much of the questions were
asked with regard to under-valuation of the schedule
property and also about the execution of sale deed. It was
not even suggested that the defendant No.1 was not
managing the affairs of joint family and disputed land was not
sold for the joint family necessities. On the other hand, it was
suggested that sale deed was created. It was also not
suggested that DW-1 has no knowledge about the
transaction. The plaintiffs counsel argued that attesting
witnesses to the sale deed are not residents of the village
where the property situates and they are not known to the
plaintiffs and defendant No.1. The attesting witnesses have
clearly stated that defendant No.1 executed sale deed in
favour of defendant No.1 after receiving the consideration.
The sale deed is a registered document. The vendor not
denied the execution of the sale deed. This being the case,
the contention of the plaintiffs that the execution of the sale
deed is not proved and sale deed is a created document
cannot be accepted. Thus, on appreciation of evidence on
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nd
record, I hold that the 2 defendant has proved that item
No.1 of the schedule properties was sold to meet the legal
necessity of the joint family. As the sale was for legal
necessity, the alienation is certainly binds on the plaintiffs.
20. The defendant No.1 is the father of plaintiff No.1 to
6 and plaintiffs No.1 to 5 are the sons and plaintiff No.6 is the
unmarried daughter. As they are the co-parceners, plaintiff
th
No.1 to 6 each entitled for 1/7 share in the schedule
property except item No.1 sold to defendant No.2 to meet the
legal necessity of the family. Accordingly, issue No.2 is
answered partly in the affirmative and issue No.3 is
answered in the affirmative.
21. Issue NO.1: The defendant No.2 contended that
the plaintiffs have filed suit in collusion with defendant No.1
and one Rangappa and Saganappa. One Rangappa and
Saganappa have filed O.S.No.428/99 against the defendants
to declare that they are the owners in possession of item No.
1 of the schedule property. Said suit was dismissed.
Thereafter, children of defendant No.1 got filed suit through
the advocate who filed O.S.No.428/99. The defendant No.1
who sold the item No.1 of schedule property remained
exparte. In the evidence it has come that defendant No.1 and
plaintiffs are residing together in the joint family. Defendant
No.2 even stated that the suit was filed against the defendant
No.2 alone. This probabalises the contention of the
defendant No.2 that the suit was filed by the plaintiffs in
collusion with defendant No.1. Accordingly, this issue is
answered in the affirmative.
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22. Issue No.4: The plaintiffs have filed suit for
partition and separate possession of their share in the
schedule property by declaring that the sale deed executed
in favour of defendant No.2 is not binding on them. In the
discussion made supra it is held that the defendant No.2 has
proved that item No.1 of the schedule property was sold to
meet the legal necessity of the family. While dealing with
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issue No.2, it is held that the plaintiffs are entitled for 1/7
share each in the schedule properties except item No.1 of
the schedule. Though the plaintiffs contended that the
defendant No.1 was not taking care of their joint family,
evidence on record shows that the defendant No.1 and
plaintiffs are residing together in the joint family. As the
plaintiffs demanded their share in the joint family, I hold that
the shares have to be declared and given to them.
Accordingly, this issue is answered partly in the affirmative.
23. ISSUE NO.5: For the reasons stated above, I
pass the following:
ORDER
The suit of the plaintiffs is decreed in part and the
suit in respect of item No.1 of the schedule is
dismissed with costs.
th
The plaintiffs are entitled for 1/7 share each in
item No.2 to 6 of schedule by metes and bounds.
Rest of the reliefs claimed by the plaintiffs is
dismissed.
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The plaintiffs shall pay the costs of the suit to the
defendant No.2.
Draw preliminary decree accordingly.”
6. As stated supra, the judgment and decree of the Trial
Court in respect of item Nos.2 to 6 of the suit schedule properties
was not challenged by the defendants and it was only the plaintiffs,
who approached the First Appellate Court in R.A.No.17/2010 to the
limited / restricted extent of challenging the judgment and decree of
the Trial Court only in respect of dismissal of the suit in relation to
item No.1 of the suit schedule properties. The First Appellate Court
framed the following points for consideration and proceeded to
reject the claim of the appellants – plaintiffs and dismissed the
appeal thereby confirming the judgment and decree of the Trial
Court by holding as under:
1. Whether the appellants/plaintiffs prove that they are
entitled for a share inrespect of Item No.1 of the suit
schedule property as prayed for in O.S.No.149/2008?
2. Whether the appellants/plaintiffs further prove that
there are sufficient grounds to set-aside the judgment and
decree passed by the trial court in O.S.No.149/2008
inrespect of Item No.1 of the suit schedule property?
3. What Order?
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“POINTS No.1 and 2 :-
10. These points are connected to each other, therefore to
avoid repetitions and elaborate discussions, I have taken up
both points simultaneously for determination.
11. The appellants herein were the plaintiffs and the
respondents herein were the defendants in O.S.No.149/2008
on the file of Prl. Civil Judge & JMFC, Kadur. The said suit
was for the partition and separate possession of plaintiffs
th
1/7 each share in the suit schedule properties. Further, they
have prayed to declare that the sale deed executed by the
defendant No.1 infavour of the defendant No.2 on
01.07.1999 inrespect of Item No.1 of the suit schedule
properties is not binding on them. For the sake of
convenience the parties are referred in this judgment as per
their ranks before the trial court.
12. It is the case of the plaintiffs that, the plaintiffs and
defendant No.1 are the members of joint Hindu family under
Mithakshara Law. The defendant No.1 is the father of
plaintiffs No.1 to 6. One Venkamma is the wife of defendant
No.1 and mother of plaintiffs No.1 to 6. The plaintiffs No.5
and 6 are the minors. Hence, being the mother guardian, the
above said Venkamma is representing plaintiffs No.5 and 6
respectively. The suit schedule properties are the joint family
properties of plaintiffs and defendant No.1. There was no
partition in the family. The defendant No.1 has not developed
or purchased any properties out of income of the suit
schedule properties. The Item No.1 of the suit schedule
properties originally belonged to one Ganjigere Lakshmaiah,
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who is the father of defendant No.1. Adopting dubious
tactics, the defendant No.2 got changed the khata in the
name of the defendant No. 1 inrespect of Item No.1 of the
suit schedule property. The Item No.1 of the suit schedule
property is not the self acquired property of the defendant
No.1. The previous documents inrespect of the said property
were standing in the name of father of the defendant No.1.
The defendant No.1 is a man of gullible nature. He was
squandering the money given by his wife and children for
bad habits. Hence, the plaintiffs had to serve as labourers to
eke out their livelihood. Taking undue advantage of this
situation, the defendant No.2 got executed an ostensible sale
deed in his favour on 01.07.1999. The property covered
under the said sale deed i.e., Item No.1 of the suit schedule
property is still in the possession of plaintiffs and defendant
No.1. The plaintiffs got issued a notice to the defendants on
06.03.2007 and all the banks, co-operative societies,
financial corporations and money lending societies, not to
advance money or create charge on the said property. The
above said sale deed was without consideration. The
defendant No.2 was a nominal purchaser. The said sale
deed is not binding on the plaintiffs. With these averments,
the plaintiffs have prayed to decree the suit in
O.S.No.149/2008 in their favour.
13. Before the trial court the defendant No.1 and 2 have
appeared through their counsel. But the defendant No.1 did
not file his written statement. The defendant No.2 has filed
his written statement by contending that on previous
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occasion a suit in O.S.No.428/1999 was filed on the file of
Civil Judge (Jr.Dn), Kadur on behalf of one Rangappa and
Sagunappa, the residents of Jodihochihally village, Kadur
Taluk against the defendant No.1 and 2 inrespect of Item
No.1 of the suit schedule property for the relief of declaration
that the said Rangappa and Sagunappa are the owners of
the said property. One S.V.T. Guptha, Advocate was
appearing for said Rangappa and Sagunappa. Now the very
same S.V.T. Guptha has filed the above suit that the
plaintiffs and defendant No.1 are the owners of the above
said property. The defendant No.2 has purchased the Item
No.1 of the suit schedule property on 01.07.1999 for
Rs.80,000/- vide registered sale deed bearing
No.SR.957/1999-2000. The plaintiffs were minors when the
defendant No.2 purchased the said property. The defendant
No.2 was put in possession of the said property and
accordingly, he is in lawful possession of the said property as
absolute owner there of. The defendant No.1 had filed
written statement in O.S.No.428/1999 alongwith defendant
No.2 by admitting the sale of the said property infavour of
defendant No.2. The khata inrespect of Item No.1 property
has been changed in the name of defendant No.2 vide
M.R.No.2/1999-2000. Prior to the registration of the sale
deed, the Sub-Registrar, Kadur through the District
Registrar, Chikkamagalur issued a notice to the defendant
No.2 u/s. 45(A) of Registration Act directing him to pay the
deficit stamp duty of Rs.3,875/- as value of the said property
was worth Rs.1,05,000/-. Accordingly, the defendant No.2
has paid the said amount to the Government on 26.12.2009.
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When the defendant No.2 purchased the said property, the
financial condition of the defendant No.1, who is the father of
the plaintiffs' was very bad. His garden land was also leased
out and he took back the same by paying the money
received under the sale deed. The recitals of the sale deed
reveal the said fact. The defendant No.1 is the brother-in-law
of defendant No.2. The defendant No.1 has not developed or
purchased any properties out of the income of the schedule
properties. The Item No.1 property belonged to the father of
the defendant No.1 by name Ganjigere Lakshmaiah S/o
Rangaiah. It is false to say that the defendant No.2 got
changed the khata in the name of defendant No.1 by
adopting dubious tactics. It is false that the defendant No.1 is
a man of gullible nature and that he had no avocation except
spending whatever money is given to him by his wife and
children. In the year 1999 all the children were studying in
the school and their mother was sick and was not in a
position even to go out. It is not correct that the sale deed
executed infavour of defendant No.2 is a nominal sale deed.
The said sale deed was an absolute sale deed. The
defendant No.1 was the manager of the joint Hindu family of
the plaintiff. Hence the question of partition of the property
already sold by the defendant No.1 to the defendant No.2
does not arise at all. The said property was sold for the legal
necessity, hence it is binding on the plaintiffs. The plaintiffs
and defendant No.1 are residing together. The plaintiffs and
defendant No.1 could have partitioned the joint family
properties except Item No.1 of the suit schedule properties.
There is no cause of action for this suit. The present suit has
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been filed to knock of the property of the defendant No.2.
With these averments, the defendant No.2 has prayed to
dismiss the above suit with costs.
14. In this appeal, since the plaintiffs/appellants have
challenged the judgment of the trial court inrespect of Item
No.1, of the suit schedule property, I have appreciated only
that relevant evidence, which is necessary for the disposal of
the present appeal inrespect of the said property.
15. The plaintiffs are contending that the alienation made by
the defendant No.1 infavour of defendant No.2 inrespect of
Item No.1 of the suit schedule property was not for legal
necessity and that the defendant No.2 by taking advantage
of gullible nature of the defendant No.1 got executed the sale
deed without consideration and by fraudulent means. It is
further stated that the sale deed dated 01.07.1999 is an
ostensible sale deed. They have further claimed that still the
Item No.1 property is in their possession and of defendant
No. 1. It is further stated that the defendant No.2 is a nominal
purchaser and does not derive any right, title, interest or
possession over the said property and that the said sale
deed is not binding on the plaintiffs. Per contra, the
defendant No.2 has resisted the above suit by contending
that the Item No.1 property was purchased for Rs.80,000/-
on 01.07.1999 from the defendant No.1 and the said
defendant No.1 had sold the said property for the legal
necessities of the family and that the defendant No.2 has
also paid deficit stamp duty to the District Registrar,
Chikmagalur on 26.12.2006 inrespect of the sale deed of the
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said property and that he is in possession and enjoyment of
the said property as absolute owner there of. Hence, he
submits that the said sale deed is binding on the plaintiffs.
16. From the above contentions of the parties, it appears that
there is serious dispute regarding the validity of alienation
dated 01.07.1999. Hence, let us have a glance over the oral
and documentary evidence produced by the parties on the
above point.
17. The plaintiff No.1 has been examined as PW.1. He has
filed chief examination affidavit by reiterating the plaint
averments. He has stated that the sale deed dated
01.07.1999 executed by the defendant No.1 infavour of
defendant No.2 is nominal sale deed and that due to the bad
vices and squandering nature of his father (defendant No.1),
they suffered a lot during their childhood and the said
alienation was not for the legal necessities of the family.
However, during course of cross examination, he has stated
that in the year 1990, his father was managing the affairs of
their family, that there was drought in the year 1999 and that
he has not read the recitals of sale deed executed by his
father infavour of defendant No.2. He has admitted that his
father use to come their house occasionally. However, later
on he has admitted that their father (defendant No.1) is
residing with them in a joint family. The above statement
indicates that his allegations against the defendant No.1 are
all concocted story. He has admitted that in the year 1999 he
was 18 years old and he has not produced any receipts to
show that since 1999 he has paid tax inrespect of the said
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Item No.1 property. Further, he has admitted that he has
been paying tax inrespect of Item No.2 to 6 properties. From
the said statement of PW.1. it is crystal clear that the
plaintiffs and defendant No.1 are not in possession and
enjoyment of the above property since 1999. He has stated
that he does not know the fate of O.S.No.428/1999 filed
against his father (defendant No.1). He has admitted that he
has not filed any suit against the defendant No.2 inrespect of
the sale deed executed by his father. From the above oral
evidence of PW.1 it is very clear that the sale deed executed
by the defendant No.1 infavour of defendant No.2 on
01.07.1999 was within the knowledge of the plaintiffs and the
said sale was an absolute sale and was for legal necessities
of the family. The plaintiffs have not produced the certified
copy of the sale deed executed by the defendant No.1
infavour of defendant No.2 inrespect of Item No.1 of the suit
schedule property, even though they have claimed share and
the relief of declaration that the said sale deed is not binding
on them.
18. Per contra, the defendant No.2 has produced the original
sale deed dated 01.07.1999 as per Ex.D.7 to show that for
redeeming the mortgage of coconut garden, the Item No.1
property was sold for Rs.80,000/- and entire sale
consideration was paid by the defendant No.2 infavour of
defendant No.1. It appears that the Ex.D.7 was impounded
by the Sub-Registrar, Kadur for under valuing the property.
But it appears that subsequently, the deficit stamp duty was
paid on 26.12.2006. Hence, I am of the view that the
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plaintiffs cannot take under valuation of the said property as
a guard to hold that there was no consideration for the said
sale deed and there was no legal necessity for selling the
said property. It is relevant to note that one Rangappa and
Sagunappa had filed O.S.No.428/1999 on the file of Civil
Judge (Jr.Dn), Kadur for declaration of title and permanent
injunction inrespect of very same Item No.1 property against
the defendant No.1 and 2 herein as per Ex.D.8 to 10. But the
said suit was dismissed for non-prosecution on 13.02.2003.
In Ex.D.10 (written statement) the defendants No.1 and 2
herein have disclosed that on 01.07.1999 the defendant No.2
has purchased the said property from the defendant No.1 for
Rs.80,000/-. It is relevant to note that the plaintiffs herein
have not chosen to contest the said suit by claiming that the
Item No.1 property herein is their joint family property.
19. The plaintiffs have examined three witnesses by name
Kenchappa, Ramappa and Moodalagiriyappa as PW.2 to 4
respectively. They have filed chief-examination affidavits and
stated that plaintiffs and defendant No.1 are in actual
possession and enjoyment of suit schedule properties and
that there was no alienation in the family of the plaintiffs and
that the contention of the defendant No.2 regarding the sale
deed dated 01.07.1999 is false. I am of the view that the
above evidence of PW.2 to 4 is contrary to the pleadings of
the plaintiffs. Because, the plaintiffs have admitted the sale.
transaction of the year 1999 between defendant No.1 and 2
and contended that the said sale was a nominal sale and
was for without consideration. But, the PW.2 to 4 by
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expressing their ignorance about the above said sale deed
are contending that there was no sale transaction between
defendant No.1 and 2 inrespect of above property. Further
during the course of cross-examination, the PW.2-
Kenchappa has stated that in the year 1999 there was
drought and financial difficulties for the children (plaintiffs) of
the defendant No.1 to meet the education expenses and that
he has not read the contents of sale deed executed by the
defendant No. 1 infavour of defendant No.2. The said
statement strengthens that PW.2 has no knowledge about
the background of the sale transaction of the year 1999.
PW.2 has admitted that plaintiffs and defendant No.1 are
residing together in a joint family. From the above statement
of PW.2, it appears that the allegations made by the plaintiffs
against the defendant No.1 are all false. Similarly, PW.3-
Ramappa has stated that he cannot say the boundaries of
the Item No.1 property and have no personal knowledge
about the contents of his chief-examination affidavit. He has
admitted that in the year 1999 all the plaintiffs were minors
and he has no personal knowledge about the affairs in the
family of the defendant No.1 prior to the marriage of plaintiff
No.3 with his daughter. It appears that the daughter of the
PW.3 married the plaintiff No.3 subsequent to the year 1999.
Hence, I am of the view that the evidence PW.3 is not helpful
to the plaintiffs. The PW.4-Moodalagiriyappa has stated that
the plaintiffs and defendant No.1 are residing in a joint family
and he has no personal knowledge about the affairs of the
family of the defendant No.1 taken place prior to 1999 and
that he does not know the contents of the chief-examination
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affidavit. From the above statements of PW.2 to 4 it is very
clear that the plaintiffs have not succeeded in proving their
allegations made against the defendant No.1 inrespect of
Item No. 1 of the suit schedule property.
20. On the other hand, the defendant No.2 has examined his
GPA holder Nanjundappa has DW.1 and also examined two
other witnesses by name Eshwarappa and Swamaiah as
DW.2 and 3 respectively and demonstrated that the sale
transaction dated 01.07.1999 inrespect of Item No.1 of the
suit schedule property was out and out right sale (absolute
sale) and that for the legal necessities and family benefits of
the defendant No.1, the defendant No.1 has sold the said
property to the defendant No.2 for valid consideration of
Rs.80,000/- Hence, the said sale deed is biding on the
plaintiff. Being the kartha and manager of the family, the
defendant No.1 has sold the Item No.1 property for the
benefits and legal necessities of the family. The plaintiffs
have failed to prove the alleged fraud played by the
defendant No.2 in got executing the sale deed in his favour.
The evidence on record is not sufficient to hold that the sale
transaction dated 01.07.1999 is an ostensible sale/nominal
sale. There is no sufficient evidence to believe/upheld the
contentions of the plaintiffs on the above assertions..
21. The documents produced on behalf of the defendant
No.2 as per Ex.D.1 to 11, 13 and 14 establish that the
defendant No.2 is in actual and physical possession and
enjoyment of Item No.1 of the suit schedule property since
the date of purchase. It appears that being greedy about the
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properties, the defendant No.1 has filed the present suit
through his children (plaintiffs) for recovery of Item No.1
property from the defendant No.2. It appears that he has set
up the plaintiffs for the above purpose by taking advantage of
their minor age at the time of alienation. There is no clear cut
legal evidence to hold that subsequent to 01.07.1999, the
plaintiffs and defendant No.1 continued their possession over
the Item No.1 over the suit schedule property. Under these
circumstances, findings of the trial court inrespect of Item
No.1 of the suit schedule property are correct and there are
no grounds to interfere with the said findings of the trial court.
Accordingly, I record my answers to the above Points No.1
and 2 in the " Negative ".
POINT No. 3 :-
22. For the forgoing reasons, I proceed to pass the following:
ORDER
The Appeal filed by the appellants/plaintiffs U/o.
XLI rule 1 of CPC is hereby dismissed.
Accordingly, the judgment and decree passed in
O.S.No.149/2008 dated 08.01.2010 by the Prl. Civil
Judge & JMFC., Kadur is hereby confirmed.
Draw up decree accordingly.
Send back the LCR with a copy of this judgment
forthwith.”
7. A perusal of the judgments and decrees of the Trial
Court and the First Appellate Court will clearly indicate that both
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Courts have correctly and properly considered and appreciated the
pleadings and evidence of the parties and have recorded
categorical findings of fact that the plaintiffs had failed to establish
that the Sale Deed dated 01.07.1999 executed by defendant No.1
in favour of defendant No.2 in respect of item No.1 of the suit
schedule properties was a sham, fraudulent, nominal and
ostensible document especially when the defendant No.1 had
supported the claim of defendant No.2 and the mother of plaintiffs
had not stepped into the witness box thereby entailing adverse
inference to be drawn against her particularly when plaintiff No.1
was aged about 18 years as on the date of the Sale Deed while the
remaining plaintiffs were minors and there was absolutely no legal
or acceptable evidence adduced by the plaintiffs in this regard.
Further, both the Courts also correctly and properly considered and
appreciated the material on record in order to come to the correct
conclusion and recorded a categorical finding of fact that the
defendant No.2 had established that the sale of item No.1 of the
suit schedule properties by defendant No.1 as the kartha and
manager of the joint family in favour of defendant No.2 was for
legal necessity, benefit of the estate and welfare / maintenance of
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the joint family, in particular, get discharged the mortgage existing
in respect of the other joint family properties and consequently, the
said Sale Deed was a legal and valid document, which was binding
upon the plaintiffs. Under these circumstances, I am of the
considered opinion that the said findings of fact recorded by both
the Courts lead to the sole / inescapable conclusion that the
substantial question of law framed above deserves to be answered
in favour of the respondents and against the appellants.
Accordingly, substantial question of law is answered against the
appellants, as a consequence of which, I do not find any merit in
the appeal and the same is accordingly dismissed .
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
Bvv / SV
List No.: 1 Sl No.: 65