SRI. N NARAYANASWAMY, vs SRI. KRISHNAPPA,
- Court
- Karnataka High Court
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 12 DAY OF JUNE, 2026
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1394 OF 2023 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.1404 OF 2023 (INJ)
REGULAR SECOND APPEAL NO.1405 OF 2023 (INJ)
REGULAR SECOND APPEAL NO.1406 OF 2023 (INJ)
REGULAR SECOND APPEAL NO.1410 OF 2023 (INJ)
REGULAR SECOND APPEAL NO.1394/2023:
BETWEEN:
1 . SRI. N. NARAYANASWAMY,
S/O NARAYANAPPA,
AGED ABOUT 61 YEARS,
R/A DODDAMARALI,
NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103.
2 . SRI. N. VENKATESH
S/O NARAYANAPPA,
AGED ABOUT 54 YEARS,
R/A DODDAMARALI, NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103. … APPELLANTS
(BY SRI. T. SESHAGIRI RAO, &
SRI. SUNIL S. RAO, ADVOCATES)
AND:
1 . SRI. KRISHNAPPA,
S/O SULALAPPA
AGED ABOUT 76 YEARS,
R/A KOLAAVANAHALLI VILLAGE
NANDI HOBLI, CHIKKABALLAPURA TALUK
CHIKKABALLAPURA DISTRICT-562103.
Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA
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RSA No. 1405 of 2023
AND 2 OTHERS
SRI. RAMAIAH
SINCE DEAD BY HIS LRS
2 . SMT. RAMAKKA,
W/O LATE RAMAIAH,
AGED ABOUT 76 YEARS,
3 . SMT. CHANDRAMMA @ CHANDRAKALA
D/O LATE RAMAIAH,
AGED ABOUT 51 YEARS,
4 . SMT. SHYLAJA
D/O LATE RAMAIAH
AGED ABOUT 44 YERAS
5 . SRI. BYRE GOWDA
S/O LATE RAMAIAH
AGED ABOUT 42 YEARS
RESPONDENT NOS.2 TO 5 ARE
RESIDING AT DODDAMARALI VILLAGE
NANDI VILLAGE, CHIKKABALLAPURA TALUK.
CHIKKABALLAPURA DISTRICT-562103.
SMT. NARAYANAMA
DEAD BY HER LRS
6 . SRI. VENKATE GOWDA
S/O LATE CHIKKE GOWDA,
AND NARAYANAMMA,
AGED ABOUT 63 YEARS,
7. SRI. SHANKARAPPA
S/O LATE CHIKKE GOWDA
AND NARAYANAMMA,
AGED ABOUT 59 YEARS
RESPONDENTS 6 AND 7 ARE
R/AT BENDAGANAHALLI VILLAGE
HOSAKOTE TALUKU
BANGALORE RURAL DISTRICT-562129.
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AND 2 OTHERS
8 . SMT. PARVATAMMA
S/O LAGE CHIKKE GOWDA
AND NARAYANAMMA,
AGED ABOUT 54 YEARS
R/AT SAHUKARASHETTIHALLI VILLAGE
VEMAGAL HOBLI
KOLAR TALUKU-563101.
9 . SMT. SAROJAMMA
W/O MUNIYAPPA
D/O NARAYANAMMA
AGED ABOUT 51 YEARS
R/AT DODDABHYURU VILLAGE
VOKKALERI HOBLI, MALURU TALUK
KOLARA DISTRICT-563130.
10 . SRI. VIJAY KUMAR
GRANDSON OF NARAYANAPPA
S/O LATE KRISHNE GOWDA
AGED ABOUT 33 YEARS
R/AT BENDAGANAHALLI VILLAGE
HOSAKOTE TALUKU
BANGALORE RURAL DISTRICT-562135.
SMT. DODDA PILLAMMA
SINCE DEAD BY HER LRS
11 . SRI. MARE GOWDA,
S/O LATE DODDA PILLAMMA,
AGED ABOUT 61 YEARS,
12 . SMT. SUSHEELAMMA
D/O LATE DODDA PILLAMMA,
AGED ABOUT 60 YEARS,
SRI. NARASIMAHA GOWDA
DEAD BY LRS
13. SMT. SHANTHAMMA,
W/O LATE NARASIMHA GOWDA,
AGED ABOUT 56 YEARS,
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AND 2 OTHERS
14. SRI. SHYAM
S/O LATE NARASIMHA GOWDA,
AGED ABOUT 34 YERAS,
15 . SMT. NANDINI
D/O LATE NARASIMHA GOWDA,
AGED ABOUT 32 YEARS,
16 . SRI. SRINATH GOWDA
S/O LATE NARASIMHA GOWDA,
AGED ABOUT 30 YEARS,
RESPONDENT NOS.11 TO 16 ARE
RESIDING AT THAILAGERE VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562110.
17 . SMT. LAKSHMAMMA
D/O LATE DODDA PILLAMMA,
AGED ABOUT 55 YEARS,
18 . SRI. RAVI
S/O LATE DODDA PILLAMMA,
AGED ABOUT 53 YEARS,
19 . SMT. RATHNAMMA
D/O LATE DODDA PILLAMMA,
AGED ABOUT 51 YEARS,
20 . SRI. KRISHNAIAH
S/O LATE DODDA PILLAMMA,
AGED ABOUT 50 YEARS,
21 . SMT. KAVERAMMA
D/O LATE DODDA PILLAMMA,
AGED ABOUT 47 YEARS,
22 . SRI. RAJANNA
S/O LATE DODDA PILLAMMA,
AGED ABOUT 45 YEARS,
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AND 2 OTHERS
RESPONDENTS NO.17 TO 22 ARE
RESIDING AT THAILAGERE VILLAGE,
KUNDANA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562110.
SMT. CHIKKA PILLAMMA @ PILLAMMA
SINCE DEAD BY HER LRS
23 . SMT. SUVARNA
D/O LATE CHIKKA PILLAMMA @ PILLAMMA
W/O MANJUNATH
AGED ABOUT 51 YEARS,
R/AT CHOKKANAHALLI VILLAGE,
BENGALURU HOBLI,YELAHANKA TALUK,
BENGALURU RURAL DISTRICT-560064.
24 . SMT. CHANNAMMA
D/O LATE MALLIGE BYRAPPA,
AGED ABOUT 72 YEARS,
R/AT RAJAGATTA VILLAGE,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT-561205. …
RESPONDENTS
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V.NARASIMHAN, ADVOCATE FOR R1;
VIDE ORDER DATED 24.02.2025,
NOTICE TO R2 TO R8, R10 TO R17 &
R19 TO R23 IS HELD SUFFICIENT;
VIDE ORDER DATED 24.02.2025 LRS OF DECEASED
R9, R18, R24 CANNOT BE PERMITTED TO COME ON RECORD)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2023
PASSED IN R.A.NO.9/2017 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 17.12.2016
PASSED IN O.S.NO.416/2007 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHICKBALLAPURA.
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
REGULAR SECOND APPEAL NO.1404/2023:
BETWEEN:
1 . SRI. N. VENKATATESH
S/O NARAYANAPPA,
AGED ABOUT 54 YEARS,
R/A DODDAMARALI VILLAGE,
NANDI HOBLI, CHIKKABALLAPUR TALUK,
CHIKKABALLAPUR DISTRICT-562103. … APPELLANT
(BY SRI. T. SESHAGIRI RAO, &
SRI. SUNIL S. RAO, ADVOCATES)
AND:
1 . SMT. CHANNAMMA
D/O LATE MALLIGE BYRAPPA,
AGED ABOUT 64 YEARS,
R/A DODDAMARALI VILLAGE, NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103.
NOW RESIDING AT RAJANUKUNTE VILLAGE,
DODDABALLAPURA TALUK-560064.
2 . SRI MUNIYAPPA S/O SULAPPA,
AGED ABOUT 71 YEARS,
R/A KOLAVANAHALLI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103. … RESPONDENTS
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V.NARASIMHAN, ADVOCATE FOR R2
VIDE ORDER DATED 24.02.2025,
BRINGING LRS OF DECEASED R1 IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2023
PASSED IN R.A.NO.06/2017 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 17.12.2016
PASSED IN O.S.NO.12/2015 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA.
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
REGULAR SECOND APPEAL NO.1405/2023:
BETWEEN:
1 . SRI. N. NARAYANASWAMY
S/O NARAYANAPPA
AGED ABOUT 61 YEARS
R/A DODDAMARALI VILLAGE
NANDI HOBLI
CHIKKABALLAPUR TALUK-562103
2 . SRI. N. VENKATESH
S/O NARAYANAPPA
AGED ABOUT 54 YEARS
R/A DODDAMARALI VILLAGE
NANDI HOBLI
CHIKKABALLAPUR TALUK-562103. … APPELLANTS
(BY SRI. T. SESHAGIRI RAO,
& SRI. SUNIL S. RAO, ADVOCATES)
AND:
1 . SRI. KRISHNAPPA
S/O SULALAPPA
AGED ABOUT 76 YEARS,
R/A KOLAVANAHALLI VILLAGE,
NANDI HOBLIM
CHIKKAVALLAPUR TALUK-562103. … RESPONDENT
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V.NARASIMHAN, ADVOCATE FOR R2;
VIDE ORDER DATED 24.02.2025,
BRINGING LRS OF DECEASED R1 IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2023
PASSED IN R.A.NO.13/2017 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 28.12.2016
PASSED IN O.S.NO.10/2015 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPUR.
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
REGULAR SECOND APPEAL NO.1406/2023:
BETWEEN:
1 . SRI. N. NARAYANASWAMY
S/O NARAYANAPPA,
AGED ABOUT 61 YEARS,
R/A DODDAMARALI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPURA TALUK-562103. … APPELLANT
(BY SRI. T. SESHAGIRI RAO &
SRI. SUNIL S. RAO, ADVOCATES)
AND:
1 . SRI MUNIYAPPA S/O SULALAPPA,
AGED ABOUT 71 YEARS,
R/A KOLAVANAHALLI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103. … RESPONDENT
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V.NARASIMHAN, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2023
PASSED IN R.A.NO.8/2017 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 28.12.2016
PASSED IN O.S.NO.11/2015 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPURA.
REGULAR SECOND APPEAL NO.1410/2023:
BETWEEN:
1 . SRI. N. NARAYANASWAMY
S/O NARAYANAPPA
AGED ABOUT 61 YEARS,
R/A DODDAMARALI VILLAGE
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AND 2 OTHERS
NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103. … APPELLANT
(BY SRI. T. SESHAGIRI RAO &
SRI. SUNIL S. RAO, ADVOCATES)
AND:
1 . SMT. CHANNAMMA
D/O LATE MALLIGE BYRAPPA
AGED ABOUT 64 YEARS
R/A DODDAMARALI VILLAGE
NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103.
NOW RESIDING AT
RAJANUKUNTE VILLAGE,
DODDABALLAPURA TALUK–560064.
2 . SRI MUNIYAPPA
S/O SULALAPPA
AGED ABOUT 71 YEARS
R/A KOLAVANAHALLI VILLAGE
NANDI HOBLI,
CHIKKABALLAPUR TALUK-562103. …
RESPONDENTS
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V.NARASIMHAN, ADVOCATE FOR R2;
VIDE ORDER DATED 24.02.2025,
BRINGING LRS OF DECEASED R1 IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2023
PASSED IN R.A.NO.07/2017 ON THE FILE OF III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA
DISMISSING THE SUIT AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 17.12.2016 PASSED IN O.S.NO.13/2015
ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC
AT CHIKKABALLAPURA.
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AND 2 OTHERS
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.04.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
These appeals are filed challenging the common
judgment and decree passed in O.S.Nos.416/2007, 11/2015,
12/2015 and 13/2015 in dismissing the suit of the appellants
and also granting the decree in favour of the respondent and
challenging the judgment and decree passed in
O.S.No.10/2015 in decreeing the suit with cost and so also the
dismissal of appeals in R.A.Nos.6/2017, 7/2017, 8/2017,
9/2017 and 13/2017 confirming the judgment and decree of
Trial Court in all the suits and so also challenging the order
passed in I.A.No.10 filed by the appellants under Order VI Rule
17 of CPC in the Regular Appeal.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the
appellants/plaintiffs in their respective suits is that all the piece
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AND 2 OTHERS
and parcel of agricultural land bearing Sy.No.90, measuring 7
acres 15 guntas and land bearing Sy.No.91 measuring 3 acres
14 guntas situated at Kolavanahalli Village, Nandi Hobli,
Chikkaballapur Taluk, have been described in the schedule in all
the suits as suit schedule properties. It is contented that Sri
Mallige Byrappa had purchased the suit schedule property in a
public auction held by the revenue authority on 16.11.1944.
The authority has issued a saguvali chit in his favour, thus the
said property is his absolute property. It is contented that Sri
Ramaiah, being the son of Sri Mallige Byrappa, during lifetime
of his father - Mallige Byrappa has allegedly sold the suit
schedule property in favour of Sri D Krishnappa i.e., the
respondent herein by manipulating the RTC at column No.12/2
as he is the absolute owner of the suit schedule property on
04.10.1979 and the said document of sale deed is marked as
Ex.D3. It is contented that Sri Mallige Byrappa has filed a suit
in O.S.No.81/1980 on 19.04.1980 before the Munsiff,
Chikkaballapura for declaration to declare that fraudulently sold
the property and permanent injunction against Sri D
Krishnappa and Sri Ramaiah. It is also the case of the
appellants/plaintiffs that Sri Mallige Byrappa has executed a
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AND 2 OTHERS
registered Will in favour of his daughters on 20.06.1980 i.e.,
immediately after filing of the suit in O.S.No.81/1980. It is
contented that during the pendency of the suit, Mallige Byrappa
passed away on 30.04.1982 and in this regard, document is
placed on record at Ex.P18 and the daughters of Mallige
Byrappa came on record as legatees under the Will dated
20.06.1980 in O.S.No.81/1980 and they have been represented
by an advocate Sri S R Suryanarayanarao in terms of Ex.P62.
The very advocate Sri Suryanarayanarao has identified the
special power of attorney executed by Sri D Krishnappa in
favour of Sri Muniyappa to give evidence in O.S.No.81/1980 as
per Ex.P72. That upon contest, the suit in O.S.No.81/1980 filed
by Mallige Byrappa came to be dismissed on 18.12.1992 even
though there was a fraud in all stages. Being aggrieved by the
judgment and decree dated 18.12.1992 passed in
O.S.No.81/1980, the legal heirs of Mallige Byrappa have filed
an appeal before the First Appellate Court in R.A.No.6/1993 on
06.02.1993. The First Appellate Court having heard the
matter, dismissed the appeal on 09.08.1994. Being aggrieved
by the said dismissal of the appeal, the legal heirs of Mallige
Byrappa have preferred a second appeal before this Court in
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AND 2 OTHERS
R.S.A.No.379/1996 and same also came to be dismissed on
26.02.2001. Then the legatees under the Will have sold the suit
schedule property under two different sale deeds in favour of
the appellants herein on 06.03.2006 as per Ex.P5 and P6.
Respondent No.1 herein i.e., D Krishnappa has filed a suit in
O.S.No.170/2006 before the Civil Judge, Chikkaballapura
against the appellants herein for the relief of perpetual
injunction and the appellants herein have also filed a suit in
O.S.No.416/2007 for the relief of declaration and injunction and
an order of temporary injunction was granted on 18.08.2007 in
O.S.No.170/2006 and the same has been challenged in
W.P.No.16029/2007 by the appellants herein. The learned
Single Judge has dismissed the writ petition filed by the
appellants on 16.11.2007 and the same has been challenged in
the writ appeal No.2136/2007 and Division Bench of this Court
disposed of the writ appeal on 28.12.2007 with the observation
that disputes are pending between the parties pertaining to the
same property since from 1980 and they are in second round of
litigation and in view of the several contentions raised, the Trial
Court was directed to dispose of the present suit within the
specified time without being influenced by any of the
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observations made by any of the Courts and shall dispose of
the matters strictly in accordance with law.
4. The Trial Judge having considered other suits which
have been pending in respect of the very same property,
clubbed all the suits filed by the appellants and respondents
and conducted a common trial. Heard the parties in respect of
their respective cases. Even though plaintiffs/appellants have
made an attempt to try to establish the fraud played by
respondent No.1 in getting the sale deed from Sri Ramaiah
during the lifetime of Mallige Byrappa, since there was an
observations that no pleadings in the plaint presented by them
with regard to the fraud is concerned in the suit, an application
was filed before the First Appellate Court in order to insert the
material facts on record regarding fraud. The First Appellate
Court after hearing both the parties, without properly
appreciating the case made out by the appellants and also in
contravention with the directions issued by this Court in writ
appeal, has mechanically dismissed the appeals filed by the
appellants. Hence, separate second appeals are filed before this
Court.
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5. The main contention urged while framing the
substantial questions of law that defendant No.1 – Krishnappa
had acquired the title of the suit schedule property by virtue of
a sale deed dated 04.10.1979 at Ex.D3 executed by defendant
No.2 – Ramaiah who is neither the owner nor the authorized
person who is competent to transfer property on his own, as
required under Section 7 of the Transfer of Property Act, 1882
during the lifetime of Mallige Byrappa who is the owner of the
suit schedule properties which is recorded in the revenue
records at column No.9 of the RTC. When the vendor-Ramaiah
had no title in respect of the suit schedule property, question of
transferring the property does not arise. Both the courts have
not justified in dismissing the suit filed by the appellants on the
ground of res-judicata without considering the directions issued
by the Division Bench of this Court in W.A.No.2317/2007 which
is marked as Ex.P23. The counsel also contend that both the
Courts are not justified in conferring the title on defendant No.1
– Krishnappa i.e., on the basis of void sale deed dated
04.10.1979 (Ex.D3) which was executed by a person who has
no title to the property.
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6. The counsel further contend that the First Appellate
Court also not justified in rejecting the application filed by the
appellants for amendment of the plaint to insert the necessary
pleadings with regard to fraud when there was already a
material evidence placed on record to prove such fraud of
creation of document by manipulation. The courts below were
not justified in recording the finding on the contentious issues
that the judgment and decree passed in O.S.No.81/1980 is
confirmed in R.A.No.6/1993 and R.A.No.379/1996 in coming to
the conclusion that the same is legal and valid when
particularly Ex.D3 sale deed is an void document on the basis
of which the judgment is also void ab initio which could not
have been held as it operates as res-judicata.
7. The counsel also would vehemently contend that
judgment and decree can be set aside in view of the law laid
down by the Constitution Bench in AIR 1964 SC in Page 72 ,
which is a nullity in the eye of law as it is passed on the basis
of a void sale deed at Ex.D3. The question before this Court is
that whether both the Courts were justified in recording the
finding on the relevant contentious issues based on the
judgment and decree obtained by defendant No.1 by
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misrepresenting material facts and playing fraud on the Courts
in the earlier proceedings that Ramaiah is competent to
execute the sale deed at Ex.D3. The very judgment obtained by
the defendant – Krishnappa is nothing but nullity in the eye of
law in view of the judgment in KARAN SINGH VS. CHAMAN
PASWAN reported in AIR 1954 SC 340 . The counsel referring
this judgment would vehemently contend that the very
approach of the Trial Court is erroneous.
8. The counsel appearing for the appellant in
R.S.A.No.1404/2023 reiterates the very same ground and
prays this Court to set aside the judgment and decree passed
in R.A.No.6/2017 and so also the judgment and decree passed
in O.S.No.12/2015 (old No.255/2012) and pass an appropriate
order to decree the suit filed by the appellant herein. The
counsel would vehemently contend that both the Trial Court
and First Appellate Court have committed an error in dismissing
the suit of the appellant/plaintiff in O.S.No.12/2015 and in
confirming the same in R.A.No.6/2017 and erroneously come to
the conclusion that the respondent is in possession of the
property and fails to take note of the fact that the sale deed in
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which the defendant-Krishnappa relies upon is a void document
and question of possession does not arise.
9. The counsel in R.S.A.No.1405/2023 prays this Court
to set aside the judgment and decree passed by the Trial Court
in O.S.No.10/2015 in granting relief in favour of the respondent
– Krishnappa and confirming the same by the First Appellate
Court in R.A.No.13/2017 and pass an appropriate order to
dismiss the suit filed by the respondent in respect of the suit
schedule property and reiterated the grounds that no title will
be conferred in favour of the respondent in terms of sale deed
executed by Ramaiah who himself does not have any right over
the property to execute the sale deed. The very approach of
both the Trial Court and the First Appellate Court is erroneous
and it requires interference of this Court.
10. The counsel for the appellant in
R.S.A.No.1406/2023 prays this Court to set aside the judgment
and decree passed in O.S.No.11/2015 (old No.230/2010) and
also set aside the judgment and decree of the appellate court
passed in R.A.No.8/2017 and pass an appropriate order to
decree the suit filed by the appellant herein in respect of the
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suit schedule property. The counsel also would vehemently
contend that both the Courts have committed an error in
coming to the conclusion that the suit suffers from res-judicata
without framing an issue and said finding is erroneous.
11. The counsel appearing for the appellant in
R.S.A.No.1410/2023 prays this Court to set aside the judgment
and decree passed by the Trial Court in O.S.No.13/2015 (old
No.258/2012) and set aside the judgment and decree passed in
R.A. No.7/2017 and prays this Court to decree the suit filed by
the appellant in respect of the suit schedule property and if any
transfer is made by Ramaiah who is not having any title over
the suit schedule property, the same will not confer any title.
The very approach of the Trial Court and the First Appellate
Court is erroneous and it requires interference of this Court.
12. The counsel for the appellants in his oral submission
would vehemently contend that no dispute that property was
purchased by Mallige Byrappa on 16.11.1944 and his son only
sold the suit schedule property and not by the original owner -
Mallige Byrappa, thus, the very sale deed in favour of the said
Krishnappa in terms of Ex.D3 does not conveys any title. The
- 20 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
counsel also would vehemently contend that before selling the
property, the son manipulated the RTC in column No.12/2
inserting his name and played fraud on the original owner and
same was questioned by the original owner during his lifetime
filing a suit. The counsel also would vehemently contend that
when the original owner come to know about the same filed the
suit on 19.04.1980 and in the meanwhile, immediately,
executed the Will in favour of his daughters on 20.06.1980 and
died on 30.04.1982. No doubt, the suit was dismissed by the
Trial Court and the same was confirmed by the First Appellate
Court and also in the second appeal by this Court. The present
appellants are the purchasers under the sale deeds in terms of
Ex.P5 and P6 and sale was made on 06.03.2006. The counsel
also would vehemently contend that the purchaser i.e.,
respondent –Krishnappa had purchased the property in the
year 1979 and he had filed a suit in O.S.No.170/2006 and the
same is only for injunction based on the sale deed at Ex.D3.
The counsel would submit that the suit in O.S.No.416/2007 was
filed for declaration and injunction. The Trial Court also while
considering the suit comes to the conclusion that the son of the
original owner created the document of RTC tampering the
- 21 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
same and even there is finding that there is no any hesitation
to come to such conclusion that to insert the name of the
Ramaiah in the RTC extract but granted the relief in favour of
the respondent which ought to have granted the relief in favour
of the appellants/plaintiffs and not in favour of the respondent.
The counsel also would vehemently contend that there is no
any explanation on the part of the respondent with regard to
the manipulation of RTC and also not disclosed that how he had
acquired the property. The counsel also would submit that this
Court in writ appeal at Ex.P23 made it clear that the Trial Judge
should not influence with any of the findings of earlier Courts.
Inspite of it, committed an error, thus, the very approach of the
Trial Court and Appellate Court in dismissing the suits of the
appellants and allowing the suit of the first respondent-
Krishnappa is erroneous and the same is against the facts as
well as law. Hence, there are substantive questions.
13. The counsel appearing for the appellants in support
of his arguments relied upon the judgment reported in (2023)
10 SCC 755 in the case of YADAIAH AND ANOTHER vs
STATE OF TELANGANA AND OTHERS and brought to notice
of this court paragraphs 55 and 56. The counsel referring these
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
two paragraphs brought to notice of this Court that the Apex
Court made an observation that the other aspect which needs
our attention is whether the second SCN would be barred by
the extended doctrine of constructive res judicata. The said
doctrine has been formulated over the time by courts as a part
of public policy to prevent abuse of process of courts and to
bring penalty to the judicial pronouncements. The counsel also
brought to notice of this Court the discussion made by the Apex
Court in the judgment OF STATE OF UP VS. NAWAB
HUSSAIN reported in (1977) 2 SCC 807 , wherein paragraphs
3 and 4 of the said judgment also discussed in detail. The
counsel also brought the notice of this Court paragraph 56 of
the YADAIAH’s judgment wherein discussion was made that
the doctrine of constructive res judicata will not be applicable in
the present case for the simple reason that the issues raised in
the second SCN were never adjudicated upon in the first place
as explained above. The plea that the same should have been
raised in the earlier proceedings, is irrelevant in the light of the
liberty granted by the High Court in its order dated 21.04.2006,
whereby the revenue authorities were expressly permitted to
initiate fresh proceedings for violation of assignment conditions.
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
The Division Bench of the High Court is therefore right in
holding that this liberty was not for future contraventions only
and the second SCN would neither constitute an abuse of
process of court nor will attract the doctrine of constructive res-
judicata.
14. The counsel also relies upon the judgment of the
Apex Court reported in (2008) 16 SCC 228 in the case of
CANARA BANK VS N G SUBBARAYA SETTY AND ANOTHER
and brought to notice of this court paragraphs 5, 28, 29, 30,
31, 34.2.2 and 34.2.3. The counsel referring to this judgment
brought to notice of this Court the discussion made in
paragraph 5 with regard to the res-judicata, a doctrine of
fundamental importance in our legal system, wherein it is said
that, however, it is not a mere technical doctrine, but it is
fundamental in our legal system that there be an end to all
litigation, this being the public policy of Indian law. The
observation of this doctrine is that, when applicable, if it is not
given full effect to, an abuse of process of the court takes
place. However there are certain notable exceptions to the
applications of the doctrine. One well-known exception is
that the doctrine cannot impart finality to an erroneous
- 24 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
decision on the jurisdiction of a court. Likewise, an
erroneous judgment on a question of law which
sanctions something that is illegal, also cannot be
allowed to operate as res judicata. The counsel also
brought to notice on this Court paragraph 28 wherein
also a discussion was made that the same is applicable
holding that where there is an inherent lack of
jurisdiction, which depends upon a wrong decision, the
earlier wrong decision cannot be res judicata .
15. The counsel also brought a notice of this court
paragraph 29 wherein also a discussion was made relaying
upon the judgment of MOHANLAL GOENKA VS BENOY
KRISHNA MUKHERJEE reported in 1953 SCR 377, wherein it
is held that even an erroneous decision on a question of law
operates as res-judicata between parties and further in
paragraphs 30 and 31 held that the Apex Court went into the
doctrine of constructive res judicata and decided that the
constitutionality of a provision of law stands on a different
footing from other questions of law. As there is a presumption
of constitutionality of all statues, the “might and ought” rule of
constructive res judicata cannot be applied. Instead what was
- 25 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
applied by this Court was that part of the decision in the case of
MATHURA PRASAD BAJOO JAISWAL vs DOSSIBAI N B
JEEJEEBHOY reported in (1970) 1 SCC 613 which stated that
when the law has, since the earlier decision in the appellant’s
writ petition, been altered by a competent authority, res
judicata cannot apply. The Full Bench of the Punjab High Court
was expressly overruled on the point that a “competent
authority” can also be a court. Hence, a changed declaration of
law would also fall within an earlier decision being altered by a
competent authority. This Court, therefore, held that since this
Court itself had altered the law when it declared the pari
materia rule as unconstitutional, the doctrine of res judicata
could not apply.
16. The counsel also brought the notice of this Court,
paragraph 34, wherein held that the general rule is that all
issues that arise directly and substantially in a former suit or
proceeding between the same parties are resjudicata in a
subsequent suit or proceeding between the same parties. This
would include issues of fact, mixed questions of fact and
issues of law. In paragraph 34.2 held that general
proposition of law, there are certain exceptions when it
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
comes to issues of law. In paragraph 34.2.1 also
discussed that when an issue of law decided between the
same parties in a former suit or proceeding relates to the
jurisdiction of the court, an erroneous decision in the
former suit or proceeding is not resjudicata in a
subsequent suit or proceeding between the same
parties, even where the issue raised in the second suit or
proceeding is directly and substantially the same as that
raised in the former suit or proceeding . This follows from a
reading of Section 11 of the Code of Civil Procedure itself, for
the court which decides the suit has to be a court competent to
try such suit. Apart from that, an erroneous decision as to the
jurisdiction of a court cannot clothe that court with jurisdiction
where it has none. Obviously, a Civil Court cannot send a
person to jail for an offence committed under the Penal Code. If
it does so, such a judgment would not bind a Magistrate and/or
Sessions Court in a subsequent proceeding between the same
parties. Equally, a Civil Court cannot decide a suit between a
landlord and a tenant arising out of the rights claimed under
the Rent Act. So also an erroneous decision clothing the Civil
Court with jurisdiction to embark upon a suit filed by a landlord
- 27 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
against a tenant in respect of rights claimed under the Bombay
Rent Act, would, therefore, not operate as resjudicata in a
subsequent suit filed before the Small Causes Court between
the same parties in respect of the same matter directly and
substantially in issue in the former suit. The counsel also
brought to notice of this Court paragraph 34.2.2 an issue
of law which arises between the same parties in a
subsequent suit or proceeding is not resjudicata if, by an
erroneous decision given on a statutory prohibition in
the former suit or proceeding, the statutory prohibition
is not given effect to. This is despite the fact that matter
in issue between the parties may be the same as that
directly and substantially in issue in the previous suit of
proceedings . This is for the reason that in such cases, the
rights of the parties are not the only matter for consideration
(as is the case of an erroneous interpretation of a statute inter
parties), as the public policy contained in the statutory
prohibition cannot be set at naught. The counsel also brought
to notice of this Court paragraph 34.3, wherein also another
exception to this general rule follows from the matter in issue
being an issue of law different from that in the previous suit or
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
proceeding. This can happen when the issue of law in the
second suit or proceeding is based on different facts from the
matter directly and substantially in issue in the first suit or
proceeding. It is equally, where the law is altered by a
competent authority since the earlier decision, the matter in
issue in the subsequent suit or proceeding is not the same as in
the previous suit or proceeding, because the law to be
interpreted is different.
17. The counsel referring these two judgments would
vehemently contend that though the earlier suit was decided
and the same will not be a res judicata both in respect of the
factual aspect as well as law, the same is not properly
discussed. The counsel would vehemently contend that in the
earlier suits and appeals, all the courts have committed an
error in applying the law as the seller who is the son of Mallige
Byrappa has no title to convey any title in favour of the
purchaser. When the very said deed is void ab initio, question
of conferring any right either by the court or by any such
proceeding will not create any right. The statute is very clear
that person who is having a title only can convey better title
not by any other person. Hence, the very approach of Trial
- 29 -
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
Court and First Appellate Court is erroneous and it requires
interference of this court.
18. Per contra, learned counsel for the respondent-
purchaser in his arguments would vehemently contend that
these appeals arises out of five suits and out of five suits, four
suits are filed by the plaintiffs/appellants in O.S.No.416/2007
jointly and O.S.No.11/2015 is filed by first plaintiff against
Muniyappa, who is the brother of the respondent and
represented as Power of Attorney holder of Krishnappa, who is
the purchaser. The second plaintiff also filed a suit in
O.S.No.12/2015 against the purchaser Krishnappa,
O.S.No.13/2015 is filed by the first plaintiff against Muniyappa
from whom they have purchased the property i.e., the
daughters of the original purchaser. The suit in O.S.No.10/2015
is filed by respondent No.1 (defendant No.1) against both the
plaintiffs in O.S.No.416/2007 for the relief of bare injunction.
The counsel would submit that except the suit in
O.S.No.416/2007, the parties have filed the suit for the relief of
bare injunction.
- 30 -
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
19. Learned counsel for the respondent-purchaser
would also contend that the Trial Court, First Appellate Court
and this Court have already given the correct finding and the
conclusion is very clear that the son can convey the title, if it is
a property of the joint family. The counsel would vehemently
contend that the sale was made for the benefit of the family
and property was conveyed by the son even though the same
belongs to his father as he had purchased the same and
definite finding is given by the Trial Court and First Appellate
Court earlier while considering the similar issues involved
between the parties. It is contended that even though the
present suit is filed by the subsequent purchasers, the kept
open the earlier proceedings which have been initiated by the
father and the respective daughters from whom they have
purchased the property.
20. The counsel would submit that in respect of first
substantial question of law framed by this Court in
R.S.A.No.1394/2023 invoking Section 7 of the Transfer of
Property Act, 1882 with regard to the competence to transfer
the property. The counsel would submit that in the earlier suit,
it is adjudicated that it is a joint family property and the seller
- 31 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
Mr.Ramaiah, who is the son of original purchaser has been
considered as kartha. The counsel would submit that the
witness P.W.3 admits that Mr. Ramaiah was looking after the
property and so also, the evidence of P.W.4 is very clear that
tax is paid by son Mr. Ramaiah. The counsel would submit that
in the earlier judgment as per Ex.D42, the Court has
categorically held in detail that property belongs to the joint
family and as a kartha, vendor of this respondent had sold the
property. The counsel also would submit that Section 7 of
Transfer of Property Act, 1882 is very clear with regard to
persons having authority to dispose of the property. In this
case, having authority as a kartha, the vendor of this
respondent disposed of the property. Though, it is contended
that the original purchaser had signed the document of sale
deed in favour of the respondent and though it is not proved,
but the Court in the earlier suit and also in the present suit
made an observation that the original owner did not seriously
contest the suit.
21. The counsel also would submit that in Column
No.12 of the RTC from 1971 and 1972 onwards, name of the
vendor of the respondent was shown and only in Column No.9,
- 32 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
name of the father was shown. Hence, it is clear that the
vendor of the respondent was cultivating the property and he
acted as a kartha of the family while selling the property in
favour of the respondent. The counsel also would submit that
RTC is changed based on the sale deed in the year 1980 in
favour of the present respondent, who had purchased the
property from the son of Mallige Byrappa. The counsel would
submit that on 09.01.2006, the daughters of said Mallige
Byrappa had got changed the revenue records through the
Assistant Commissioner based on the Will allegedly executed by
the Mallige Byrappa. The counsel would submit that within two
months of getting transferred the revenue records in the name
of the daughters, sold the property to these appellants on
06.03.2006 and this mischief was also taken note of by the
Trial Court and the First Appellate Court in the earlier suit. The
counsel would submit that an appeal was filed against the order
of the Assistant Commissioner and the same was dismissed by
the Deputy Commissioner. Hence, W.P.No.14549/2010 was
filed and the same was allowed with cost of Rs.50,000/- and
the earlier revenue records in the name of the respondent was
restored. Against the said order passed in the writ petition,
- 33 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
State has also filed an appeal and the same was dismissed and
the daughters have also filed a writ appeal and the same also
came to be dismissed with an observation subject to the result
of the suit in O.S.No.416/2007. The said observation cannot be
taken into consideration, since, in the writ appeal, the Court
has made an observation that the earlier finding of any of the
Court shall not influence the Trial Court.
22. The counsel would submit that the respondent is a
bonafide purchaser and in terms of Ex.D1, the second plaintiff
had purchased the flat in Sy.No.88 and in the said sale deed,
on the southern portion, it is shown as suit schedule property.
On the north, it is mentioned as property belongs to
Muniyappa, who is none other than the brother of the
respondent-Krishnappa. The very Ex.D1 is clear that second
plaintiff was having knowledge that the property of this
respondent is adjacent property of second plaintiff which he
had purchased. P.W.2 also in his evidence admitted that on the
north, there exists property of Muniyappa. But, denies that his
father's name is not known to him. The counsel would submit
that the present appellants had purchased the property after
disposal of earlier R.S.A. in the year 2001 and after lapse of
- 34 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
five years only he had purchased the property. The counsel
would submit that daughters claim the property based on the
Will and the same is not proved and only enquiry is held under
Order 22 Rule 5 CPC to come on record in the earlier suit. The
counsel also brought to notice of this Court observation made
by the Trial Court in the earlier suit in paragraph No.18 in
respect of Issue No.6 is concerned and the same goes against
the purchasers i.e., the appellants. When such being the case,
question of invoking Section 7 of the Transfer of Property Act,
1882 does not arise.
23. The counsel would submit that with regard to
second substantial question of law framed by this Court in
R.S.A.No.1394/2023 framing an issue with regard to res
judicata, it is pleaded in the present suit that earlier suit is only
for injunction not for declaration and the same is erroneous and
specifically pleaded in the plaint that res judicata will not apply.
But, a specific defence was taken in paragraph No.7 of the
written statement that principles of res judicata is applicable.
The counsel would submit that since in R.A. also not pleaded
about res judicata, the burden is on the plaintiffs to seek for
recasting the issue when the issue was not framed and now,
- 35 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
cannot contend that the issue was not framed with regard to
res judicata. The counsel also brought to notice of this Court
Section 11 of CPC that no Court shall determine the issues
between the parties which are directly and substantially already
decided. The counsel brought to notice of this Court Ex.P60-
plaint in the earlier suit and nothing is pleaded with regard to
fraud is concerned and cannot raise the same in second appeal
and Trial Court not committed any error in rejecting the
application filed under Order 6 Rule 17 of CPC for amendment.
The counsel also would submit that when the matter was
already decided and given the finding, res judicata applies. The
counsel would submit that the very argument of learned
counsel for the appellants that there are Exceptions to Section
11 of CPC and in support of his contention, he relies upon the
judgment in CANARA BANK’s case and the said judgment is
not applicable to the case on hand and there was no statutory
prohibition for sale of the property. The counsel would submit
that when the earlier decision has reached its finality and the
same is not challenged, it is very clear that res judicata applies.
24. The counsel in respect of third substantial question
of law framed by this Court in R.S.A.No.1394/2023 would
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
vehemently contend that father had not pleaded fraud when
the suit was filed challenging the sale deed and only in regular
appeal, subsequent purchaser pleaded regarding fraud, that
too, in the second round of litigation. The counsel would submit
that even with regard to fraud also, limitation is three years.
The counsel, in support of his argument, relied upon the
judgment in JAGANNADH vs. PERUMAL NAIDU reported in
1969 (2) MLJ 558 and contend that fraud cannot be pleaded
belatedly.
25. The counsel in his argument with regard to granting
injunction and framing substantial question of law by this Court
regarding injunction would submit that finding is given earlier
that possession is with the respondent. The counsel would
submit that an application is filed in terms of Ex.D46 for
amendment seeking the relief of possession by the daughters
praying the Court to add the prayer 9(a) and the same was
dismissed by the First Appellate Court. The counsel also
brought to notice of this Court paragraph No.22 of the earlier
judgment passed in R.A. Ex.D44 and reasons are assigned for
rejection and also held that sale deed executed in favour of the
respondent is not set aside and hence, the question of
- 37 -
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
amendment does not arise. The counsel also would submit that
now the appellants have not sought for any relief of possession
before this Court. But, this Court has framed the substantial
question of law with regard to dismissal of the suit filed by the
appellants herein and even in the present R.S.A. also not raised
the issue of possession and without possession, the contention
that they purchased the property will not convey any right in
favour of the appellants. The counsel brought to notice of this
Court observation made by this Court in writ appeal and the
same will not influence the findings of the Court. The counsel
would submit that when the injunction was granted and
confirmed, the same has been challenged by filing writ petition
and the writ petition was dismissed and only in the appeal, an
observation is made in respect of granting injunction and not in
respect of finding given in the earlier suit and subsequent suit.
26. The counsel for the respondent-purchaser in
support of his argument relies upon the judgment of the Apex
Court in NARENDRAKUMAR J. MODI vs. COMMISSIONER
OF INCOME TAX, GUJARAT II, AHMEDABAD reported in
(1976) 4 SCC 456 and brought to notice of this Court
paragraph No.10, wherein an observation is made that it
- 38 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
appears that in these circumstances, he acted as the kartha
with consent of all the other members. A junior member of the
family could do so. The counsel also submits that the sale made
in favour of the respondent is by the junior member of the
family.
27. The counsel also relies upon the judgment of the
Apex Court in NOPANY INVESTMENTS (P) LTD. vs.
SANTOKH SINGH (HUF) reported in (2008) 2 SCC 728 and
brought to notice of this Court paragraph No.13, wherein it is
held that considering the principles laid down in Tribhovandas
case and Sunil Kumar case neither we find any infirmity nor do
we find any reason to differ with the findings arrived at by the
High Court in the impugned judgment. It is only in exceptional
circumstances, as noted herein earlier, that a junior member
can act as the kartha of the family. But we venture to mention
here that the senior member of HUF, admittedly, has been
staying permanently in the United Kingdom for a long time. It
was held that if the kartha of HUF was away in a remote place
and his return within a reasonable time was unlikely, a junior
member could act as the kartha of the family.
- 39 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
28. The counsel also relies upon the judgment delivered
by this Court in SRI NAGENDRA RAO AND OTHERS vs.
RAMJI RAO AND OTHERS in R.F.A.NO.1195/2004 dated
31.01.2020 and brought to notice of this Court paragraph
Nos.12 to 14, wherein this Court made an observation that in a
Hindu joint family, ordinarily the eldest male member acts as
kartha. This is the general rule. But, there is no any restriction
if the entire management of the family is placed in the hands of
a junior member. A senior member may decline the karthaship;
it may be due to many reasons and in such an event the junior
member may take over the management of the property. It all
depends upon circumstances. The counsel also brought to
notice of this Court paragraph No.13, wherein it is held that
defendant No.4 was not the eldest member. Plaintiff No.1 was
the eldest son of Chikkamannoji Rao. It is not disputed by any
of the parties that Chikkamannoji Rao was employed and was
staying away from his home town. In paragraph No.14, it is
held that it can be very well said that his first answer that
Ramachandra Rao was managing the family after death of
Chikkamannoji Rao is correct.
- 40 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
29. The counsel also relies upon the judgment of the
Apex Court in SWAMY ATMANANDA AND OTHERS vs. SRI
RAMAKRISHNA TAPOVANAM AND OTHERS reported in
(2005) 10 SCC 51 and brought to notice of this Court
paragraph Nos.12, 13, 26 to 28, 39 and 40, wherein discussion
was made with regard to application of res judicata, the
contentions of respective counsels and submissions.
30. The counsel referring paragraph No.26 of the
judgment would contend that once the matter which was the
subject-matter of lis stood determined by a competent Court,
no party thereafter can be permitted to reopen it in a
subsequent litigation. Such a rule was brought into the statute-
book with a view to bring the litigation to an end so that the
other side may not be put to harassment. So also in paragraph
No.27, it is held that the principle of res judicata envisages that
a judgment of a Court of concurrent jurisdiction directly upon a
point would create a bar as regards a plea, between the same
parties in some other matter in another Court, wherein the said
plea seeks to raise afresh the very point that was determined in
the earlier judgment. In paragraph No.28, it is held that the
doctrine of res judicata is conceived not only in larger public
- 41 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
interest which requires that all litigation must, sooner than
later, come to an end but is also founded on equity. The
counsel also brought to notice of this Court discussion made in
paragraph Nos.39 and 40, if the parties went to the trial
knowing fully well the real issues involved and the adduced
evidence in such a case, without establishing prejudice, it would
not be open to a party to raise the question of non-faming of
particular issue and brought to notice of this Court paragraph
Nos.41 and 42.
31. The counsel also relies upon the judgment of the
Apex Court in S. RAMACHANDRA RAO vs. S.
NAGABHUSHANA RAO AND OTHERS reported in (2024) 17
SCC 361 and brought to notice of this Court paragraph Nos.26,
27, 29 to 33. The counsel brought to notice of this Court
discussion made paragraph No.26, wherein it is observed that it
is relevant to reiterate that Section 11 CPC is not the
foundation of the doctrine of res judicata but is merely the
statutory recognition thereof. In paragraph No.30, it is held
that it is well settled, as laid down in several decisions, that
even an erroneous decision remains binding on the parties to
the same litigation and concerning the same issue, if rendered
- 42 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
between the same parties by a Court of competent jurisdiction.
The counsel also brought the notice of this Court paragraph
Nos.32 and 33 that doctrine of res judicata is attracted not only
in separate subsequent proceedings but also at the subsequent
stage of the same proceedings.
32. The counsel for the respondent also relies upon the
judgment of the Apex Court in ASGAR AND OTHERS vs.
MOHAN VARMA AND OTHERS reported in (2020) 16 SCC
230 and brought to notice of this Court paragraph No.37,
wherein the Apex Court discussed with regard to constructive
res judicata and so also the Explanation embodied as statutory
principles of the law governing civil procedure. The
fundamental policy of the law is that there must be finality to
litigation. Multiplicity of litigation enures to the benefit,
unfortunately for the decree-holder, or those who seek to delay
the fruits of a decree reaching those to whom the decree is
meant. Constructive res judicata, in the same manner as the
principles underlying res judicata, is intended to ensure that
grounds of attack or defence in litigation must be taken in one
of the same proceeding. In deciding as to whether a matter
might have been urged in the earlier proceedings, the Court will
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
have due regard to the ambit of the earlier proceedings and the
nexus which the matter bears to the nature of the controversy.
33. The counsel also relies upon the judgment in
JAGANNADH vs. PERUMAL NAIDU AND ORS. reported in
(1969) 2 MLJ 558 decided on 18.04.1967 and brought to
notice of this Court paragraph Nos.11, 15 and 20, wherein it is
held that power of the Court to set aside a prior judgment on
the ground of fraud is a discretionary one which would be
exercised in favour of the applicant only if he is free from fraud
or any turpitude or lack of diligence in protecting his own
interest.
34. The counsel also relies upon the judgment delivered
in SRI T.R. NAVEEN KUMAR vs. SMT. LAKSHMAMMA AND
OTHERS in R.S.A.NO.1/2021 decided on 19.12.2025,
wherein this Court made an observation that without seeking
possession, there cannot be any suit for declaration relying
upon the judgment of the Apex Court in the case of
VASANTHA (DEAD) THROUGH LEGAL REPRESENTATIVE
vs. RAJALAKSHMI ALIAS RAJAM (DEAD) THROUGH
LEGAL REPRESENTATIVES reported in (2024) 5 SCC 282
- 44 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
and the very same principle is held in the judgment of the Apex
Court. The counsel would submit that in paragraph No.11 of the
judgment of the Apex Court, an issue was raised that whether
the suit for declaration simpliciter was maintainable in view of
Section 34 of the SRA, 1963. Hence, in the absence of any
relief for possession, question of declaration simpliciter does
not arise.
35. In reply to the argument of learned counsel for the
respondent, learned counsel for the appellants would submit
that under Section 7 of Transfer of Property Act, 1882, it is
very clear that owner or authorized person can only sell the
property. But, in the case on hand, no such sale was made by
owner or the person authorized by the owner. Even, if the
property is cultivated by the son as contented by learned
counsel appearing for the respondent, he cannot sell the
property. The counsel would submit that tax paid by the son is
immaterial and payment of tax would not create any right in
favour of the son. The counsel would submit that no recital in
the sale deed Ex.D3 that he sold the property as kartha and
only an averment is made that he sold the property for the
benefit of his children. The counsel would submit that both the
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
Courts have taken note of fraud regarding tampering of RTC in
paragraph No.37 of the judgment of the Trial Court. Hence, the
First Appellate Court also not reversed the findings of the Trial
Court and affirmed the same while confirming the judgment of
the Trial Court.
36. The counsel would submit that fraud is evident on
record that document of RTC was tampered and Sections 32 to
35 of Registration Act is very clear that Sub-registrar will not
register the document, if the RTC not stands in the name of
seller. In order to avoid Sections 32 to 35 of Registration Act,
the son of Mallige Byrappa and respondent have tampered the
RTC and created the document. If the same is not tampered
inserting the name of son Ramaiah, the Sub-Registrar would
not have registered the document. Hence, it is very clear that it
is a clear case of fraud while selling the property by the son in
favour of the respondent. The counsel would submit that the
citations which have been relied upon by the counsel for the
respondent are not applicable to the facts of the case, since the
very execution of sale deed by the son, who is not having any
authority or title itself is void. Hence, res judicata is not
applicable and the same is discussed in the judgment of
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
CANARA BANK ’s case which he has relied upon. The counsel
would submit that in paragraph No.3 of the plaint in
O.S.No.81/1980 which is marked as Ex.P60, a categorical
pleading was made that a fraudulent act was done by creating
a document and in the original suit itself pleaded with regard to
fraud and the very contention of learned counsel for the
respondent that there was no such pleading in the original suit
cannot be accepted.
37. The counsel would submit that the respondent has
executed a Power of Attorney in favour of his brother
Muniyappa as per Ex.P72. The counsel would submit that the
advocate, who is appearing on behalf of the daughters of
original owner himself attested the Special Power of Attorney
on 18.01.1990. The counsel also would submit that even
subsequently, the very same advocate Suryanarayana Rao,
who attested Ex.P72, inspite of he appearing on behalf of the
daughters in a subsequent suit had filed vakalath for
respondent No.1 which is nothing but a fraud and conflict of
interest and the same was brought to the notice of the Court
and thereafter, he retired from the case, that itself is also one
of the circumstances in committing fraud by the respondent
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
and won over the advocate, who appears on behalf of the
daughters in the original suit and not properly conducted the
case in the original suit in the first round of proceedings. The
counsel also would submit that an application was filed in
collusion without the knowledge of the appellants seeking the
relief of possession and the same is at the behest of the
respondent through an advocate, who was on record on behalf
of the appellants. The counsel would submit that the very
contention of the learned counsel for the respondent is that the
appellants are in possession of the property cannot be accepted
for the reason that the respondent has to point out delivery of
possession by Mallige Byrappa in favour of his son and he never
delivered possession in favour of his son Ramaiah and since the
said Ramaiah was not in possession, the question of delivering
possession by said Ramaiah in favour of the respondent does
not arise.
38. The counsel would submit that the genesis of the
katha in favour of the respondent is based on the void
document of sale deed. The counsel also would submit that
while filing the present suit also, in paragraph No.18, pleaded
with regard to fraud. But, the Trial Court committed an error in
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
coming to the conclusion that the same is not sufficient. The
counsel would submit that documents of Exs.P66, P67 and P68
are the evidence of P.Ws.1, 2 and 4, who have been examined
in O.S.No.81/1980 with regard to proving of the Will which was
executed by original owner Mallige Byrappa in favour of the
daughters and property was bequeathed in favour of the
daughters. The Trial Judge having conducted an enquiry comes
to the conclusion that they are the legatees and permitted to
come on record in the earlier suit and answered that Will was
proved and the same is accepted by the Trial Court. The
counsel would submit that in view of original owner having
executed the Will, the respondent No.1 will not get any right
based on the sale deed executed by a person, who is not
having any title.
39. Hence, it is a fit case to reverse the findings of the
Trial Court as well as the First Appellate Court and the sale
deed was made by a person, who is not having any title and
that too by a person, who committed fraud on the Court and
the very approach of the Trial Court in the earlier proceedings
is erroneous and the same will not disentitle the claim of the
appellants, who are the owners of the property. The counsel
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
would submit that there is an error in the earlier proceedings
and in the present proceedings with regard to the factual
aspects and also question of law and this Court has rightly
framed the substantial question of law invoking Section 7 of the
Transfer of Property Act, 1882. The counsel also would submit
that even if the application filed under Order 6 Rule 17 of CPC
is allowed regarding fraud and when the materials are already
available before the Court, that itself is sufficient and the Trial
Court made an observation with regard to creation of document
of RTC in paragraph No.37. When such finding is given, there is
no need to once again remand the matter and the pleadings
can be accepted with regard to the fraud is concerned.
40. In reply to this argument, learned counsel for the
respondent would submit that though it is pleaded in paragraph
No.18 with regard to fraud in the present suit and the same is
not in consonance with Order 6 Rule 4 of CPC and even the
grounds which have been urged regarding fraud are also not
proved and the same is observed by the Trial Court. The
counsel also would submit that even though learned counsel for
the appellants brought to notice of this Court paragraph No.3 of
the plaint that there was a pleading in the earlier suit regarding
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
fraud, the same is not in detail. The counsel would submit that
even the Trial Court given the finding that the respondent is in
possession of the property. When such finding is given
regarding possession, there cannot be any reversal in the
second appeal and fact finding has attained its finality.
41. Having heard learned counsel for the appellants and
also learned counsel for the respondent in detail and also
keeping in view of the grounds which have been urged and also
the oral submission, this Court has to consider the substantial
questions of law framed by this Court while admitting the
second appeal which reads as hereunder:
“IN R.S.A.NO.1394/2023
The following substantial questions of law arise for
consideration before this Court:-
(1) Whether the Courts below have
committed an error in dismissing the
suit in O.S.No.416/2007 without
examining Section 7 of the Transfer of
Property Act and whether son-Ramaiah
had exclusive right to sell the property
which belongs to his father which he
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
derived the title in terms of the
document dated 16.11.1944?
(2) Whether both the Courts have
committed an error in not considering
the material on record in not framing an
issue with regard to the subsequent suit
suffers from res-judicata, since earlier
there were proceedings in
O.S.No.81/1980 and giving the reason
that subsequent suits suffers from res-
judicata, in the absence of specific
issue?
(3) Whether the First Appellate Court
committed an error in dismissing the
application filed under Order 6, Rule 17
CPC filed by the appellants before the
First Appellate Court to plead in detail
the fraud played by the son in selling
the property tampering the document
of RTC before selling the property in
favour of respondent No.1 as stated in
the amendment?
- 52 -
RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
IN R.S.A.NO.1404/2023
The following substantial question of law arises for
consideration before this Court:-
(1) Whether the Courts below committed
an error in decreeing the suit of the
respondent and confirming the same by
the First Appellate Court based on the
sale deed dated 04.10.1979 that the
respondent No.1 is in possession of the
property in granting the relief of
permanent injunction?
IN R.S.A.NOS.1405/2023, 1406/2023 &
1410/2023:
The following substantial questions of law arise for
consideration before this Court:-
(1) Whether the Trial Court and the First
Appellate Court committed an error in
dismissing the suit filed by the
appellants seeking the relief of
permanent injunction and confirming
the same in R.A. relying upon the
document of Ex.D3 sale deed dated
04.10.1979?
(2) What order?”.
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
SUBSTANTIAL QUESTIONS OF LAW 1 TO 3 IN
R.S.A.No.1394/2023
42. Having considered the above substantial questions
of law framed by this Court while admitting the second appeals
and the submissions of respective parties which have been
narrated supra and also the contentions of the respective
counsel, first and foremost, the first limb of argument of
learned counsel for the appellants with regard to first
substantial question of law in R.S.A.No.1394/2023, this Court
would like to extract Section 7 of Transfer of Property Act, 1882
(for short ‘TP Act’).
“7. Persons competent to transfer. - Every
person competent to contract and entitled to
transferable property, or authorized to dispose of
transferable property not his own, is competent to
transfer such property either wholly or in part, and
either absolutely or conditionally, in the
circumstances, to the extent and in the manner,
allowed and prescribed by any law for the being in
force”.
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
43. Having considered the provisions of Section 7 of TP
Act and also the grounds which have been urged in respect of
first substantial question of law framed by this Court, this Court
has to analyze both oral and documentary evidence available
on record in order to comes to proper conclusion. The proviso
of Section 7 of TP Act is very clear that every person competent
to contract and entitled to transferable property or authorized
to dispose of transferable property not his own, is competent to
transfer such property either wholly or in part, and either
absolutely or conditionally. In view of this provision, it is very
clear that person must be competent to enter into a contract to
transfer the property and also he was authorized to dispose of
transferable property not his own or to competent with
authorization to such property either wholly or in part. Keeping
in view of provision of Section 7 of TP Act as well as substantive
questions of law, this Court has to consider the material
available on record.
44. It is not in dispute that the property was purchased
by the Mallige Byrappa in the year 1944. The respective parties
claim that Mallige Byrappa had purchased the property and
derived the title in terms of Ex.P12 and P13. Both counsels also
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
referred the documents of Ex.P12 and P13 with regard to the
title of Mallige Byrappa and there is no dispute in this regard.
Hence, it is clear that the Mallige Byrappa had purchased the
property in the public auction conducted. Respondent No.1
claims title based on the sale deed executed by Ramaiah who is
the son of Mallige Byrappa and the appellants/plaintiffs claim
their title based on the sale deeds executed by the daughters of
the Mallige Byrappa in terms of Ex.P5 and P6 dated 06.03.2006
based on the Will as legatees. The sale deed executed in favour
of the first respondent by Ramaiah is of the year 1979 as per
Ex.D3. It is not in dispute that Mallige Byrappa had a son and
five daughters. It is the claim of the daughters of Mallege
Byrappa that during the pendency of suit in O.S.No.81/1980
filed by the original owner i.e., Mallige Byrappa, a registered
Will was executed in their favour in terms of Ex.P11 and also
the present appellants/plaintiffs’ claim the title based on the
said Will as well as Ex.P5 and P6.
45. Having considered the material and record, it
discloses that there is no dispute that the property originally
belongs to the Mallige Byrappa. Now, the issue before the Court
is whether Ramaiah had a competency to execute the sale deed
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
in terms of Ex.D3 and whether he was authorized to sell the
property by the original purchaser - Mallige Byrappa.
Admittedly, Mallige Byrappa who had purchased the property
had not executed any authorization letter in favour of his son
Ramaiah who is the vendor of respondent No.1 to execute the
sale deed and also not given any consent. It is also to be noted
that the court has to take note of the documentary evidence
available on record i.e., Ex.D3. The documentary evidence
excludes the oral evidence. Having perused Ex.D3, as rightly
contented by the counsel appearing for the appellants that in
the recitals of the document at Ex.D3, nowhere it is stated that
he was authorized to sell the property and also not stated that
he being the kartha of the family, has executed the sale deed.
The recital of Ex.D3 discloses that he had sold the property on
his behalf and also on behalf of his children and not on behalf
of the joint family as contented by the counsel appearing for
respondent No.1. The documentary evidence excludes the oral
evidence and finding given by the Court in the earlier
proceedings as well as in the present proceedings is not based
on the documentary evidence available on record i.e., the
document at Ex.D3 and the same is only based on oral
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
evidence. But this court has pointed out that documentary
evidence prevails over the oral evidence.
46. It is important to note that this Court has taken
note of Section 7 of TP Act with regard to the competency is
concerned. It has to be noted that the vendor of the first
respondent is not competent to sell the property and the same
not belongs to him and the property exclusively belongs to the
original purchaser i.e., Mallige Byrappa. It is not in dispute that
father i.e., Mallige Byrappa was alive at the time of selling the
property by his son Ramaiah in favour of respondent No.1.
Even assuming that there was an existence of joint family,
what made the vendor of respondent No.1 to exclude his father
while selling the property and there is no explanation in this
regard since there was no any written consent or authorization
to sell the property. Even Trial Court comes to the conclusion
that as on the date of execution of the sale deed in the year
1979 in favour of respondent No.1, both the son and father
were living together, but what made the vendor/son to exclude
his father while executing the sale deed, there is no
explanation. Both the courts lost sight of this fact in the earlier
proceedings as well as in the present proceedings. The finding
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
given by both the courts in the earlier proceedings and also in
the subsequent proceedings is that Ramaiah was acting as a
kartha who is a junior member of the family. The Trial Court
while considering this aspect comes to the conclusion that there
is a presumption that elder member of the family would be a
kartha of the family. However, comes to the conclusion that
this presumption cannot take away the case of junior member
of the family become a kartha. In paragraph 34 of the
judgment, the Trial Court comes to the conclusion that in the
evidence of PW3 and PW4, they have admitted the said fact
when they were examined. But the document at Ex.D3 was not
taken note of by the Trial Court since there was no any recital
to that effect in the said document and documentary evidence
of Ex.D3 excludes the oral evidence of PW3 and PW4.
47. Though Trial Court comes to the conclusion that
under the Hindu law, the presumption is that eldest male
member shall be the kartha of the joint family, but the eldest
male member may relinquish his right of managership in favour
of a junior member. Though such observation is made, there is
no documentary proof that eldest male member had
relinquished his right of managership in favour of the junior
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
member. Even though an observation is made by the Trial
Court that there is no direct evidence regarding relinquishment
of managership by Mallige Byrappa in favour of Ramaiah, but
considered the evidence of PW3 and PW4. But documentary
evidence is very clear that there is no such recital in the
document of sale deed at Ex.D3. But erroneously comes to the
conclusion that Ramaiah was the manager of the joint family at
the time of execution of sale deed, even though no such recital
in the document at Ex.D3. Thus, the very approach of the Trial
Court in both the proceedings is erroneous and there is error
apparent on record while considering Ex.D3.
48. Even though in paragraph 35, the Trial Court taken
note of the fact that there is no such recital in the document of
Ex.D3 - sale deed and the same was executed in his individual
capacity and not as a manager of the joint family, but
erroneously comes to the conclusion that the recitals of the sale
deed are not themselves the conclusive proof of the intention of
the parties and this observation is erroneous and excluded the
documentary evidence available on record and erroneously
comes to the conclusion that the same was sold for legal and
family necessity and the same is not on behalf of the joint
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
family and the recitals of the document Ex.D3 is very clear that
on his behalf and also on behalf of his children, the property
was sold and not on behalf of the joint family. The observation
of the Trial Court that defendant No.2 in O.S.No.81/1980 being
the kartha of the joint family had sold the property in favour of
defendant No.1 i.e., respondent and the said observation is
erroneous.
49. The other conclusion of the Trial Court that plaintiff
has taken the contention that there was a partition between
himself and his son in the year 1976. Whether there was a
partition and property was allotted in favour of the father is
immaterial when the property was purchased by the father
himself in the year 1944. The fact is that, as on the date of sale
deed, both father and son were living together. When such
being the case, the Trial Court ought not to have comes to the
conclusion with regard to the partition since there is no
document produced with regard to the partition and the very
approach of the Trial Court is erroneous in this regard as there
was no partition.
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RSA No. 1394 of 2023
C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
50. This Court would like to rely upon judgment of the
Apex Court reported in (2022) 7 SCC 90 in the case of
UMADEVI NAMBIAR vs THAMARASSERI ROMAN
CATHOLIC DOICESE with regard to conveying of title in
favour of anybody by the person who is not having any
competency to transfer the property. In this judgment, the
Apex Court discussed Sections 7, 8, 3, 54 and 41 of the TP Act
with regard to the determination of purported sale by agent
i.e., power of attorney holder. Whether binding on principal in
the absence of an authority to sell. In the case on hand, first of
all, there is no any documentary proof with regard to the
consent as well as there is no any authorization. When such
being the case, the court has to take note of principle of
‘‘nemo dat quod non habet’’ that is no one can confer a
better title than what he himself has. The principle is very clear
that if the vendors of the respondent themselves did not have
any title, they have nothing to convey to the respondent. In the
case on hand also there are similar circumstances that the
vendor of the first respondent had no title at all and property
was purchased by the father of the vendor in the year 1944
and no document of authorization or any consent by his father
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
and nothing is placed on record to prove the same. The Apex
Court in detail discussed the same in paragraph 19 wherein it is
held that it is a fundamental principle of the law of transfer of
property that “no one can confer a better title than what
he himself has” (nemo dat quod non habet) . Therefore,
the vendors of the respondent could not have derived any valid
title to the property. If the vendors of the respondent
themselves did not have any title, they had nothing to convey
to the respondent, except perhaps the litigation. This principle
applies in the case on hand since the vendor of the respondent
was not having any competency or authorization to sell the
property except the litigation.
51. This Court also would like to rely upon the
judgment of the Apex Court reported in 2024 SCC ONLINE SC
517 in the case of KIZHAKKE VATTAKANDIYIL MADHAVAN
(DEAD) THR. LRS. vs THIYYURKUNNATH MEETHAL
JANAKI AND OTHERS wherein the Apex Court made an
observation that the creator of lease had no authority to create
a lease and such a transaction by which she sought to lease out
the subject property was not permissible in law and held that
no right or title. It is also held that she would not derive title to
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
her deceased husband's property when she got married again
to Neelakandan. The Apex Court also discussed in paragraphs 9
and 10 with regard to the rights of widow in deceased
husband's property to cease on remarriage. The Apex Court
in paragraph 18 held that if a document seeking to
convey immovable property ex-facie reveals that the
conveyor does not have the title over the same, specific
declaration that the document is invalid would not be
necessary. It is further held that in absence of proper title
over the subject property, that lease deed even if she was its
sole lessor would not have been legally valid or enforceable. If
right, title or interest in certain property is sought
conveyed by a person by an instrument who herself does
not possess any such form of entitlement and the subject
being conveyed even with a subsisting deed of
conveyance on such property, the grantee on her
successors-in-interest will not have legal right to enforce
the right the latter may have derived from such an
instrument. The ownership of the suit property could not be
said to have devolved in any manner whatsoever to the original
plaintiff, who was born within the wedlock of Chiruthey and
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
Neelakandan and hence set aside the decision of the High Court
and decision of the First Appellate Court shall stand confirmed
in this judgment. The principle laid down in this judgment is
very clear that if the person not having any title to convey
immovable property, if he conveys the same, that will not
create any right.
52. It is also important to note that it is not the case of
respondent No.1 that the original owner who had purchased the
property had given the consent. But contend that the original
purchaser has given the consent, but he was not a party to the
sale deed, but son has executed the sale deed during the
lifetime of his father and no documentary proof regarding
consent and even also no documentary proof to show that he
was acted as a member of the joint family that too during the
lifetime of his father and if consent is given, he would have
been consenting witness to the document of sale deed in favour
of respondent No.1.
53. It is also important to note that father himself had
filed a suit in O.S.No.81/1980 challenging the very sale made
by his son without any authorization and grounds urged in the
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
suit itself that the sale deed is a collusive sale deed between his
son and respondent No.1. Particularly in paragraph 3 of the
plaint, it is pleaded that the said sale deed was fraudulently
obtained and not binding on him and collusive. Hence, he
sought for the relief of declaration and permanent injunction.
Though it is contended by the appellants that it is a suit only
for permanent injunction, having taken note of the contents of
the plaint which is marked as Exhibit, it is clear that it is a suit
for declaration and permanent injunction. The court has to take
note of paragraph 3 of the plaint wherein specifically pleaded
that it is a collusive and fraudulently obtained and also created
the document by manipulating the RTC which was exhibited
before the Trial Court as Ex.P24.
54. This Court also would like to point out paragraph
No.37 of the judgment of the Trial Court. As the appellants’
counsel contended before the Trial Court that there is a
discrepancy in the RTC for the relevant period that is prior to
selling the property by Ramaiah in favour of the respondent.
The counsel also brought to the attention of the court
particularly the document which is marked as Ex.P24 - RTC.
The Trial court also made an observation that as rightly argued
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C/W RSA No. 1404 of 2023
RSA No. 1405 of 2023
AND 2 OTHERS
by the learned counsel for the plaintiff that in column number
12, there is a manipulation of document that Mallige Byrappa’s
son has been inserted and it has been entered as Mallige
Byrappanavara maga Ramaiah and also made an observation
that it is seen that there are over-writings but, erroneously
come to the conclusion that mere entries in revenue records
would not convey any title to any of the parties, but fails to
take note that before selling the property, the document -
Ex.P24 was manipulated by the vendor of respondent. But
comes to the conclusion that the dispute is as to whether the
defendant No.2 has sold the properties as a kartha of the joint
family and whether they were the joint family members as
there was no such issue before the Court. The Trial Court
comes to the conclusion that property was granted in an
auction in the name of Mallige Byrappa, but held that said
discrepancies in column number 12 of RTC would not be of any
help to the plaintiffs and fails to take note of the fact that
before selling the property by Ramaiah, got manipulated the
document of Ex.P24 inserting his name along with his father
name and erroneously comes to the conclusion that valid title
has not been passed under Ex.D3 was not proved by the
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plaintiff. The very approach of the Trial Court is erroneous since
the Trial Court rightly comes to the conclusion that there was a
discrepancies and manipulation of document of Ex.P24 and over
writing. Hence, it is clear that before conveying the property in
favour of the respondent, the very vendor of the respondent
had indulged in manipulation of documents. It is nothing but a
fraud on the father by the son himself when he was living along
with the father at the time of executing the sale deed in the
year 1979 i.e., document at Ex.D3 and excluded the father and
no basis to change the name. The Trial Court comes to the
conclusion that the Will was executed on 20.06.1980 in favour
of the vendors of the plaintiff, but there had already been a
transfer of title in favour of the defendant No.1/respondent in
the year 1979. The said approach of the Trial Court is also
erroneous for the reason that the person who sold the property
was not having any competency or any authorization to sell the
property and the same not conveys any title. The recitals of the
document of Ex.D3 is also silent to say that he was authorized
and also executing the sale deed as a kartha of the family.
When there was no competency and authorization, question of
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conveying the title in favour of respondent No.1/defendant
No.1 does not arise.
55. It is also important to note that the Trial Court
made an observation that on the date of the execution of the
Will, Mallige Byrappa had no right, title or interest over the
plaint schedule property. This observation is also erroneous
since , the said Mallige Byrappa was not a party to the sale
deed of the year 1979 i.e., Ex.D3. Merely because his son had
sold the property without any authorization and competency,
the Trial Court ought not to have come to the conclusion that
Mallige Byrappa had no title or interest. But the fact is that he
did not convey any title during his lifetime, only he had
executed the registered Will on 20.06.1980 in favour of his
daughters and the same was exhibited before the court and
also proved in the earlier proceeding in O.S.No.81/1980 by
examining the attesting witnesses and the same was observed
by the Trial Court.
56. It is also not in dispute that when the original
owner Mallige Byrappa passed away during pendency of the
earlier suit, his daughters have filed an application before the
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Trial Court to come on record as legatees under the registered
Will dated 20.06.1980. It is also important to note that the Trial
Court conducted an enquiry before bringing them on record
under Order 22 Rule 5 of CPC. The Trial Court made an
observation in paragraph 43 that it is not in dispute that
O.S.No.81/1980 was filed by Mallige Byrappa with respect to
the plaint schedule property against the defendant Nos.1 and 2
i.e., against the purchaser as well as his son and it is not in
dispute that during the pendency of the suit, Mallige Byrappa
died and vendors of the plaintiffs i.e., the daughters of Mallige
Byrappa were impleaded as legal representatives on the basis
of the Will executed by Mallige Byrappa on 20.06.1980 i.e.,
during the pendency of the said suit after holding an enquiry
and Will was proved by examining attested witnesses. The Trial
Court also taken note of the fact that the daughters have sold
property in favour of the plaintiffs under the sale deed dated
06.03.2006 and comes to the conclusion with regard to the Will
is concerned that the very execution of the Will was proved by
the vendors of the appellants by examining attested witnesses
of the Will in paragraph 52 regarding genuineness of the
execution of the Will. It was also observed that the Will was
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came into existence during the pendency of the said suit and
also an observation was made that scope of such an enquiry
would have been with respect to the proof of execution of Will
as per Section 63 of the Indian Succession Act and Section 68
of the Evidence Act and also comes to the conclusion that
vendors of the plaintiffs have come on record on the basis of
Will as the legal representatives of Mallige Byrappa and proved
the Will and even though the respondent disputed the Will, not
led any evidence in this regard and genuineness of the
document is proved and profounder of the Will have also
proved the same by examining the attesting witnesses and held
that Will was proved. Once the Trial Court comes to the
conclusion that Will was proved, but erroneously held that fraud
was not proved. The finding of the Trial Court with regard to
proving of the Will has attained its finality since Will was not
questioned in any forum. The Trial Court comes to the
conclusion that Will was proved and permitted the daughters
who are the legatees based on the Will to come on record since
the same was proved in terms of Section 63 and 68 of the
respective Acts. Hence, it is clear that Will was proved.
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57. Now, the question before this Court is whether the
title was conveyed in favour of the respondent under Ex.D3 and
whether there was a title in favour of the present appellants
based on the sale deeds at Ex.P5 and P6. When the Will was
proved by examining the attesting witnesses and the said Will
has attained its finality and also daughters have executed the
sale deeds as legatees in favour of the present appellants, the
finding of the Trial Court that title was already conveyed by the
son is a question. This court already pointed out that person
who was not having any title or competency or authorization,
conveying the title in favour of others is defective. It is also
important to note that before selling the property, the son had
manipulated the RTC which is marked as Ex.P24. Thus, no
document was existing in favour of son-Ramaiah to convey the
title. Based on the manipulated document only, he had sold the
property.
58. It is also important to note that in the original suit
filed by the very owner of the property pleaded in the plaint in
paragraph 3 that the sale deed was a collusive, fraudulent and
created document and manipulated document of RTC clearly
shows that there was a fraudulent transfer. The counsel
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appearing for the respondent brought to notice of this court
that there was no specific pleading with regard to the fraud is
concerned. When the averment was made in the earlier suit as
well as in the present suit regarding fraud, even though there
was no detailed pleading, Appellate Court rejected the said
application in coming to the conclusion that there was no
pleading. When such observation is made on the application
filed before the Appellate Court under Order VI Rule 4 of CPC,
the same was rejected. But the fact is that even though there
was no oral pleading in detail, but the documentary evidence
available before the court is very clear that there was a
manipulation of document of Ex.P24 - RTC prior to selling the
property by the son Ramaiah in favour of respondent No.1. The
Trial Court as well as the First Appellate Court have taken note
the documentary evidence available on record since the oral
evidence excludes when the documentary evidence is produced
before the court. The document is very clear that there was a
fraud in selling the property by the son excluding the father
and behind the back of the father had sold the property
indulging in creation of the document of Ex.P24. Though it is
contended that prior to selling the property, document stands
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in the name of the son but the same was based on manipulated
document by the vendor of respondent No.1 and both the
Courts fail to take note of the said fact. Though the Trial Court
also made an observation in paragraph 37 to that effect, but
carried away in coming to the conclusion that fraud has not
been proved. When documentary evidence proves that fraud
has been committed, the Trial Court ought not to have been
ignored the same.
59. The other contention of the counsel appearing for
the appellants that when father passed away, the legal heirs
i.e., vendors of the appellants/plaintiffs have filed an
application and engaged the counsel - Sri S. R. Suryanarayana
Rao. The said counsel also committed fraud on the legal
representatives of plaintiff in O.S.No.81/1980. The counsel
brought to notice of this court that the power of attorney which
was executed by defendant No.1 as per Ex.P72 was attested by
S.R. Suryanarayana Rao but this S. R. Suryanarayana Rao was
appearing for the legal representatives of the plaintiff in
O.S.No.81/1980 and Ex.P72 is the S.P.A. executed by the
present defendant No.1 in favour of DW1-Muniyappa with
respect to the proceedings in O.S.No.81/1980 i.e., in favour of
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his brother. The said power of attorney is dated 18.01.1990
and same was executed subsequent to appearing on behalf of
the legal representatives of the plaintiff. The counsel also
brought to notice of this court that the defendant in the said
suit has been identified by one Advocate Sri N Srinivasa and
the same was confirmed by the counsel S. R. Suryanarayana
Rao who has signed the document at Ex.P72 as a notary and
not as an advocate for defendant No.1. But, he identifies the
defendant in the earlier proceedings. The Trial Court comes to
the conclusion that even Ex.P72 cannot be considered as a
ground to come to the conclusion that counsel S. R.
Suryanarayana Rao has committed fraud on the legal
representatives of the plaintiff in O.S.No.81/1980.
60. It has to be noted that when the counsel
representing the legal representatives of the plaintiff in
O.S.No.81/1980 and they are the parties to the suit, question
of identifying the defendant by the very same counsel does not
arise and the same is nothing but conflict of interest between
the plaintiff and defendant. The counsel on record on behalf of
the legal representatives would not have identified the
defendant. To that effect also the appellants’ counsel have
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placed on record the memo for having identified the defendant
by the very same counsel before the Trial Court. The counsel
representing the legal representatives of the plaintiff, cannot
identify and attest the document of Ex.P72 as a notary. This
fact also not taken note of by the Trial Court, but comes to the
other conclusion in paragraphs 54 and 55 that plaintiffs have
failed to prove that there was non-disclosure of relevant
material documents. When these documents were apparent on
record showing that the counsel on record who has attested the
document of the defendants and appeared on behalf of the
legal representatives of the plaintiff, there is substance in the
argument of counsel appearing for the appellants/plaintiffs that
when there was a conflicting of interest between the parties,
the counsel on record would not have identified and attested
the documents of the defendants when he was appearing on
behalf of the legal representatives of the plaintiff. These
additional factors also support the case of the
appellants/plaintiffs disclosing that there was a fraud by
defendant Nos.1 and 2, who had executed the sale deed in
favour of defendant No.1 in O.S.No.81/1980. These are the
factors were not taken note of by the Trial Court and Appellate
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Court in the earlier proceedings as well as in the present
proceedings since the material discloses that there was a fraud
and the same was substantiated by the documentary evidence.
Even in the absence of clear pleadings in the suit and an
application was filed under Order VII Rule 17 of CPC, before the
Appellate Court, the very contention of the counsel appearing
for the respondent that non-compliance of Order 6 Rule 4 of
CPC, cannot be accepted since the material available on record
substantiate the case of the plaintiffs/appellants with regard to
the fraud is concerned. Thus, the First Appellate Court ought
not to have dismissed the application filed under Order 6 Rule
17 of CPC when elaborate and detail fraudulent act was pleaded
in the application itself and ought to have even set aside the
said order as the material available on record i.e., documentary
proof of Ex.P24 as well as other document Ex.P.72 clearly
substantiate the fraud. Even remanding the matter also does
not require since already pleadings are available and
documentary evidence is also available on record and the same
was considered by the Trial Court and Trial Court also comes to
the conclusion in paragraph No.37 that there was a
manipulation of document of Ex.P24. When that finding was
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given and fraud has been established, no need for further
consideration of the same, since the Trial Court comes to such
a conclusion that there was discrepancies in Ex.P24 and
insertion of vendor name on the document was proved and the
fact regarding fraud was also proved not only by the defendant
as well as by the counsel on record, who appeared on behalf of
the plaintiff’s legal representatives, who played dual role in
identifying the defendant and attested Ex.P72 power of
attorney as well as appeared in the proceedings before the Trial
Court.
61. Now this Court would like to rely upon the
judgments with regard to the fraud is concerned. This Court in
detail discussed regarding the fraud played by the vendor of
the respondent and also the counsel who represented the
representatives of the original owner, taking note of the
material on record in the original proceedings, which was
initiated by the original owner in O.S.No.81/1980 and so also
the manipulation of the RTC, which is marked as Ex.P.24. The
vendor of the respondent indulged in inserting his name in the
RTC along with his father name and there was no mutation to
that effect and if it is supported by any mutation for insertion of
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his name, then there would have been force in the contention
of the counsel appearing for the respondent. It is apparent on
record that Ex.P.24 is manipulated before executing the said
deed in favour of the respondent by the son of the original
owner and no such document of mutation entry is placed on
record in both the proceedings to substantiate the same, but
excluded the father while executing the sale deed, who was
alive and residing along with him. This Court also found that
there is no recital in the document of Ex.D.3 that he was the
kartha and even nothing is stated that the property was
allotted in his favour to execute the sale deed and hence, this
Court comes to the conclusion that conveyor was not having
any title to execute the sale deed. When such material is
available before the Court, this Court has to take note of the
fact that fraud and justice should not dwell together. When
there is a fraud in executing the document, the same is not
having legal sanctity.
62. Now this Court would like to rely upon the judgment
of the Hon'ble Apex Court in the case of VISHNU VARDHAN
ALIAS VISHNU PRADHAN v. STATE OF UTTAR PRADESH
AND OTHERS reported in 2025 SCC Online SC 1501 with
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regard to the principle that fraud and justice should not dwell
together. If any document is obtained by fraud, the same
cannot be sustained, as fraud unravels everything.
Fraud avoids all judicial acts, ecclesiastical or temporal.
It is the settled proposition of law that a judgment or
decree obtained by playing fraud on the Court is a nullity
and non est in the eyes of law. Such a judgment/decree
by the first Court or by the highest Court has to be
treated as a nullity by every Court, whether superior or
inferior .
63. In the case on hand, no doubt, both the Courts
have not taken note of the factual aspects of the fraud
committed by the vendor of the first respondent in the earlier
proceedings as well as in the subsequent proceedings and the
same is non-est.
64. The Apex Court also held that the principle of
“finality of litigation” cannot be pressed to the extent of such an
absurdity that it becomes an engine of fraud in the hands of
dishonest litigants. The Courts of law are meant for imparting
justice between the parties. One who comes to the Court, must
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come with clean hands. It is observed in the judgment that we
are constrained to say that more often than not, process of the
Court is being abused. From the multiple decisions of this
Court on ‘fraud’, what follows is that fraud and justice never
dwell together, the legislature never intends to guard fraud, the
question of limitation to exercise power does not arise, if fraud
is proved, and even finality of litigation cannot be pressed into
service to absurd limits when a fraud is unraveled. Hence, the
judgment relied upon by the learned counsel for the
respondents will not come to the aid of the respondents.
65. A fraud was taken place in the case on hand prior to
executing of document in the year 1979 by the son of the
original owner and he had indulged in manipulating the
document Ex.P.24 inserting his name prior to executing of the
sale deed and the same is not supported by any document of
mutation entry. The Trial Court comes to the conclusion in
paragraph No.37 that there were discrepancies and alterations
made in the document of Ex.P.24 to insert the name of the
vendor of the first respondent. When such fraud is apparent on
record in creation of document and manipulation of document,
both the Courts failed to take note of the said fact in the earlier
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proceedings and in the subsequent proceedings. It is very clear
that limitation also does not arise when a fraud is unravelled.
66. The Hon'ble Apex Court in its judgment in the case
of UNITED INDIA INSURANCE CO. LTD. v. RAJENDRA
SINGH reported in (2000) 3 SCC 581, held that fraud
unravels everything. In paragraph No.3 of the said judgment, it
is held that “fraud and justice never dwell together” (fraus et
jus nunquam cohabitant) is a pristine maxim which has never
lost its temper over all these centuries. Lord Denning observed
in a language without equivocation that “no judgment of a
Court, no order of a Minister can be allowed to stand if it has
been obtained by fraud, for, fraud unravels everything”.
67. The Hon'ble Apex Court in its judgment in the case
of A.V. PAPAYYA SASTRY v. GOVT. OF A.P. reported in
(2007) 4 SCC 221 in paragraph No.21 held that, it is well-
settled principle of law that if any judgment or order is obtained
by fraud, it cannot be said to be a judgment or order in law.
Fraud avoids all judicial acts, ecclesiastical or temporal. It is
thus settled proposition of law that a judgment, decree or order
obtained by playing fraud on the court, tribunal or authority is a
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nullity and non est in the eye of the law. It can be challenged in
any court, at any time, in appeal, revision, writ or even in
collateral proceedings. In Duchess of Kingstone, Smith’s
TH
Leading Cases, 13 Edn, P.644, explaining the nature of fraud,
de Grey, C.J. stated that though a judgment would be res
judicata and not impeachable from within, it might be
impeachable from without. In other words, though it is not
permissible to show that the Court was “mistaken”, it might be
shown that it was “misled”. Having considered the factual
aspects in the case on hand, both in the earlier proceedings
and subsequent proceedings, mistook the question of fact and
question of law and when substantive question of law is
involved, there is an essential distinction between mistake and
trickery. Fraud and justice never dwell together; or fraud and
deceit ought to benefit none.
68. In paragraph No.64 of the Apex Court’s judgment in
the case of VISHNU VARDHAN (supra), it is held that in light
of the above discussion, we feel no hesitation to hold that given
the deception involved, the impugned order and the decision of
th
this Court dated 5 May, 2022 in REDDY VEERANA (supra)
procured by Reddy are tainted by fraud and, thus, lack legal
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sanctity and validity. In this judgment, the Apex Court in detail
dealt with the issue of fraud referring the judgment in the case
of A.V.PAPAYYA SASTRY (supra), particularly in paragraph
No.107, wherein extracted paragraph No.39, that the above
principle, however, is subject to exception of fraud. Once it is
established that the order was obtained by a successful party
by practicing or playing fraud, it is vitiated. Such order cannot
be held, valid or in consonance with law. It is non-existent and
non est and cannot be allowed to stand. The Apex Court in the
concluding portion of the judgment, in paragraph No.144, held
th
that the impugned order of the High Court dated 28 October,
2021 passed in WP (Civil) 2272/2019 (REDDY VEERANNA V.
STATE OF UTTAR PRADESH) stands set aside, since fraud
has vitiated the entire proceedings and declared to be a nullity
and stands recalled in exercise of our inherent powers. It is
also discussed in detail that having regard to the magnitude of
fraud which we have detected in course of consideration of
these proceedings, we find it just and proper to request the
Chief Justice of the High Court to preside over the Division
Bench for finally deciding the writ petition as early as possible,
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and subject to the convenience of the Bench, preferably by the
year end.
69. Now this Court also would like to rely upon the
judgment of the Hon'ble Apex Court in the case of STATE OF
UTTAR PRADESH AND OTHERS v. R.K. PANDEY AND
OTHERS passed in Civil Appeal No.10212/2014, decided on
09.01.2025, wherein referred to the judgment of the Apex
Court in the case of BILKIS YAKUB RASOOL v. UNION OF
INDIA AND OTHERS, wherein it is observed that fraud and
justice never dwell together, and a litigant should not be able
to benefit from a fraud practiced with an intention to secure
him an illegal benefit. In the case on hand also, the vendor of
the first respondent i.e., the son of the original owner, had
indulged in manipulating the document of RTC with an intent to
convey the property in favour of the respondent prior to
execution of the said deed and executed the said deed in the
year 1979, though he is not the owner of the property. Having
considered the principles laid down in the judgment of the Apex
Court and so also considering the material available on record,
with regard to the issue of fraud is concerned, the same was
pleaded in the earlier suit as well as in the subsequent suit.
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Though it was not in detail in compliance with Order 6 Rule 4 of
CPC as contended by the counsel for the respondent, but
material available on record, particularly taking into note of
document Ex.P.24 and other documents, it clearly discloses
that the counsel who represented on behalf of the legal heirs of
original owner also indulged in identifying the very defendant in
the earlier proceedings in O.S.No.81/1980 and also attesting
the document of notary when the conflict of interest was
involved and those material itself is sufficient, if no detail fraud
has been attributed and the documentary evidence substantiate
the contention of the appellant/plaintiff with regard to the fraud
has been played in manipulating the document and created the
document excluding the original owner. There was no any
competency to execute the sale deed and no document of
consent was given by the original owner of the property and
also no any authorization to execute the sale deed and both the
Courts in the earlier proceedings and in the subsequent
proceedings lost sight of the same and a factual error as well as
an error on question of law could not come in the way of the
case of the appellant.
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70. This Court would like to rely upon the judgment of
the Apex Court in the case of RAM CHANDRA SINGH v.
SAVITRI DEVI AND OTHERS reported in
MANU/SC/0802/2003, wherein in paragraph No.15 it is held
that, commission of fraud on Court and suppression of material
facts are the core issues involved in these matters. Fraud as is
well-known vitiates every solemn act. Fraud and justice never
dwells together. In paragraph No.16 it is held that fraud is a
conduct either by letter or words, which includes the other
person, or authority to take a definite determinative stand as a
response to the conduct of former either by word or letter. In
paragraph No.17 it is held that it is also well settled that
misrepresentation itself amounts to fraud. Indeed, innocent
misrepresentation may also give reason to claim relief against
fraud. In paragraph No.18 it is held that a fraudulent
misrepresentation is called deceit and consists in leading a man
into damage by willfully or recklessly causing him to believe
and act on falsehood. It is a fraud in law if a party makes
representations which he know to be false, and injury ensues
therefrom although the motive from which the representations
proceeded may not have been bad.
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71. In paragraph No.23 relied upon the judgment in the
case of LAZARUS ESTATE v. BERLY reported in (1956) 1 All
ER 341, wherein it is held that no Court in this land will allow a
person to keep an advantage which he has obtained by fraud.
No judgment of a Court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud. Fraud unravels
everything. In the case of S.P. CHENGALYARAYA NAIDU v.
JAGANNATH reported in AIR 1994 SC 853, it is held that
fraud avoids all judicial acts. In paragraph No.24, it is held that
an act of fraud on Court is always viewed seriously. A collusion
or conspiracy with a view to deprive the rights of the others in
relation to a property would, render the transaction void ab
initio. Fraud and deception are synonymous. In the case on
hand also specific pleading was made in the earlier suit by the
original owner that there was a collusion and also a conspiracy
with his son and purchaser to deprive his rights in relation to a
property and hence, if any transaction has taken place, same
renders the transaction void ab initio.
72. In paragraph No.26 of the judgment in the case of
Ram Chandra Singh (supra), it is held that although in a
given case a deception may not amount to fraud, fraud is
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anathema to all equitable principles and any affair tainted with
fraud cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata. In paragraph No.27,
referred to the judgment in the case of SMT. SHRISHT
DHAWAN v. SHAW BROTHERS reported in AIR 1992 SC
1555 , wherein it is held that fraud and collusion vitiate even
the most solemn proceedings in any civilized system of
jurisprudence. In paragraph No.28 referred to the judgment in
the case of S.P.Chengalvaraya Naidu (supra), wherein it is
held that the principle of “finality of litigation” cannot be passed
to the extent of such an absurdity that it becomes an engine of
fraud in the hands of dishonest litigants.
73. The other contention of the counsel appearing for
the respondent that there was a finality of litigation in the
earlier round of litigation cannot be accepted. One who comes
to the Court, must come with clean hands. A person whose
case is based on falsehood, has no right to approach the Court.
He can be summarily thrown out at any stage of the litigation.
If he withholds a vital document in order to gain advantage on
the other side, then he would be guilty of playing fraud on the
Court as well as on the opposite party. In the case on hand,
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manipulated the document of RTC Ex.P.24 and based on that
document executed the sale deed in favour of respondent No.1
and it is a clear case of practicing fraud against his own father
by the son.
74. This Court also would like to rely upon judgment in
the case of BHAURAO DAGDU PARALKAR v. STATE OF
MAHARASHTRA AND OTHERS reported in AIR 2005 SC
3330, wherein in paragraph No.10 it is held that by “fraud” is
meant an intention to deceive. A “fraud” is an act of deliberate
deception with the design of securing something by taking
unfair advantage of another. It is a deception in order to gain
by another's loss. It is a cheating intended to get an
advantage. Fraud as is well known vitiates every solemn Act.
Misrepresentation itself amounts to fraud. Fraud is anathema to
all equitable principles and any affair tainted with fraud cannot
be perpetuated as saved by the application of any equitable
doctrine including res judicata. In paragraph No.11 it is held
that fraud and collusion vitiate even the most solemn
proceedings in any civilized system of jurisprudence. “Fraud” is
defined as an intentional perversion of truth for the purpose of
inducing another. Section 17 of the Indian Contract Act, 1872,
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defines “fraud” as act committed by a party to a contract with
intent to deceive another. Fraud is proved when it is shown that
a false representation has been made (i) knowingly, or (ii)
without belief in its truth, or (iii) recklessly. Hence, taken note
of third substantial question of law and answered accordingly.
75. Now this Court has to take note of the second
substantial question of law with regard to res judicata is
concerned. The counsel appearing for the appellants relies upon
the judgment of the Apex Court in the case of CANARA BANK
(supra) and brought to the notice of this Court paragraph
Nos.5, 28, 29, 30, 31, 34.2.2 and 34.2.3. In paragraph No.5 it
is held that, res judicata is, thus, a doctrine of fundamental
importance in our legal system. However, it is not a mere
technical doctrine, but it is fundamental in our legal system
that there be an end to all litigation, this being the public policy
of Indian law. The obverse side of this doctrine is that, when
applicable, if it is not given full effect to, an abuse of process of
the Court takes place. However, there are certain notable
exceptions to the application of the doctrine. One well-known
exception is that the doctrine cannot impart finality to an
erroneous decision on the jurisdiction of a Court. Likewise, an
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erroneous judgment on a question of law, which sanctions
something that is illegal, also cannot be allowed to operate as
res judicata. The counsel also brought to the notice of this
Court paragraph No.28, wherein it is held that, where there is
an inherent lack of jurisdiction, which depends upon a wrong
decision, the earlier wrong decision cannot be res judicata.
Having taken note of the principles laid down in the said
judgment, it is very clear that there is an exception to
applicability of res judicata. An erroneous judgment on a
question of law was not considered in the earlier proceedings as
well as in the subsequent proceedings that person was not
having any competency and authorization to sell the property
or something that is illegal and the same cannot be allowed to
operate as res judicata.
76. The Hon'ble Apex Court in its judgment in the case
of MOHANLAL GOENKA (supra), has held that even an
erroneous decision on a question of law operates as res
judicata between parties, and various other Supreme Court
judgments also reiterates the same. The judgment in the case
of MATHURA PRASAD BAJOO (supra) also is very clear that
the Court itself had altered the law when it declared the pari
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materia rule as unconstitutional, the doctrine of res judicata
could not apply and also to take note of the mixed question of
fact and issues of law. To this general proposition of law, there
are certain exceptions when it comes to issues of law. In
paragraph No.34.2.1 in the case of CANARA BANK (supra), it
is held that where an issue of law decided between the same
parties in a former suit or proceeding relates to the jurisdiction
of the Court, an erroneous decision in the former suit or
proceeding is not res judicata in a subsequent suit or
proceeding between the same parties, even where the issue
raised in the second suit or proceeding is directly and
substantially the same as that raised in the former suit or
proceedings.
77. The very contention of the counsel appearing for
the respondent is that res judicata applies in view of the earlier
proceedings. There is no force in the said argument in view of
the discussions made by the Apex Court in the judgments
referred supra and there is a factual error in the earlier
proceedings without considering the Ex.D3 and also error on
question of law. The same is discussed in detail in paragraph
No.34.2.2 that, an issue of law which arises between the same
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parties in a subsequent suit or proceeding is not res judicata if,
by an erroneous decision given on a statutory prohibition in the
former suit or proceeding, the statutory prohibition is not given
effect to. This is despite the fact that the matter in issue
between the parties may be the same as that directly and
substantially in issue in the previous suit or proceeding. In the
case on hand also, the earlier decision was as against Section 7
of the TP Act and this Court in detail discussed extracting
Section 7 of the TP Act that person was not having any
competency or any authorization to sell the property and under
the Hindu law it is presumed that the eldest male member of
the Hindu joint family is the kartha. Though the Trial Court
comes to the conclusion that the vendor of the respondent is
the younger member, the younger member can sell the
property is not supported by any material that he was acting as
a kartha. The factual finding of the earlier proceedings and also
the present proceedings are not based on any material
evidence and documentary evidence and the same is against
the documentary evidence i.e., Ex.D3-sale deed.
78. No doubt, the counsel appearing for respondent
No.1 in his arguments would vehemently contend that the issue
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between the parties has already attained its finality. The same
cannot be reopened and the same cannot be accepted in view
of the discussions made in the judgments referred supra. The
learned counsel also relies upon the judgment of the Apex
Court in the case of NARENDRAKUMAR J. MODI (supra) with
regard to a sale was made by the junior member of the family
and junior member was acting as a kartha, but he acted as
kartha with consent of all the members. But, no material is
placed on record and the same is not found in the document
Ex.D.3. The learned counsel also relies upon the judgment in
the case of NOPANY INVESTMENTS PVT. LTD. (supra),
wherein it is held that it is only in exceptional circumstances,
that a junior member can act as the kartha of the family and no
such exception is found in the material. In this judgment, the
Apex Court made an observation that the senior member of
HUF, admittedly, has been staying permanently in the United
Kingdom for a long time and he was away from the country and
he was staying in a remote place and his return within a
reasonable time was unlikely. The factual aspects of the
present case on hand is not that of the said factual
circumstances. In the case on hand, when the vendor of the
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respondent was living along with his father, who is the senior
member of the family, he indulged in creation of document
without his consent or permission and any authority, and hence
the said judgment is not applicable to the factual aspects of the
case. The Trial Court found that both of them are living
together and what made to exclude the father while executing
the sale deed when he was residing along with him, no
explanation.
79. The learned counsel for respondent No.1 also relies
upon the judgment in the case of SRI NAGENDRA RAO
(supra) and brought to the notice of this Court paragraph
Nos.12 to 14, wherein an observation is made that in a Hindu
joint family, ordinarily the eldest male member acts as kartha
and presumption is also that eldest member of the family is the
kartha and the same is a general rule. But an observation is
made that a senior member may decline the karthaship; it may
be due to many reasons and in such an event, the junior
member may take over the management of the property. But
no material is placed before the Court that the senior member
i.e., the father, who is the owner of the property declined his
karthaship. It all depends upon the circumstances. The fact is
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that the original owner was living along with the vendor of the
first respondent and there was no any division and also not
given any permission or consent. When such being the case, it
is trite law that the eldest male member of the family is the
kartha and the very original owner himself having noticed the
fraud played by his son, immediately initiated the proceedings
by filing a suit.
80. The counsel also relies upon the judgment of the
Apex Court in the case of SWAMY ATMANANDA (supra) and
brought to the notice of this Court paragraph Nos.12, 13, 26 to
28, 39 and 40, wherein discussion was made with regard to
application of res judicata. The Apex Court in the case of
RAMACHANDRA RAO (supra), in detail dealt with Section 11
of CPC, wherein it is observed that it is relevant to reiterate
that Section 11 of CPC is not the foundation of the doctrine of
res judicata, but is merely the statutory recognition thereof. In
paragraph No.30, it is held that it is well settled, as laid down
in several decisions, that even an erroneous decision remains
binding on the parties to the same litigation and concerning the
same issue, if rendered between the same parties by a Court of
competent jurisdiction. No doubt, the judgment of the Apex
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Court held that doctrine of res judicata is attracted. But in the
case on hand, this Court in detail discussed the factual aspects
and the finding of the earlier proceedings and when the fraud
was committed and finality of litigation, the Court has to take
note of fundamental policy of the law that there must be a
finality to litigation. Multiplicity of litigation enures to the
benefit, unfortunately for the decree-holder, or those who seek
to delay the fruits of a decree reaching those to whom the
decree is meant as observed in the judgment in the case of
ASGAR (supra). The very conveyance is based on fraud,
creating of document of Ex.P.24 and based on the said
document, executed the sale deed, that too without the
consent of eldest member of the family and also the original
owner of the family, who had purchased the property.
Excluding him executed the sale deed not being a kartha and
no recitals in the sale deed Ex.D.3 that he was acting as a
kartha. But in the earlier proceedings, both the Courts have
committed an error in coming to the conclusion that already
title was transferred, that too on account of fraud played by his
son in creation of document and no limitation as discussed
above with regard to the fraud is concerned and the same was
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lost sight of by the Courts earlier that there was a fraud and
fraud and justice should not dwell together.
81. The findings of the Trial Court, which was confirmed
by the Appellate Court is against the material available on
record. This Court already pointed out that the Trial Court
comes to the conclusion that there was a fraud in paragraph
No.37 that, there was a manipulation in inserting the name of
the vendor of the plaintiff and based on that, sale deed was
executed. But comes to an erroneous conclusion that
discrepancies in column No.12 of RTC would not be of any help
to the plaintiff to prove their contention that valid title has not
been passed under Ex.D.3. The Trial Court comes to the
conclusion that it has been entered as Mallige Byrappanavara
maga Ramaiah and also comes to the conclusion that in column
No.12, the same has been inserted and there are over writings.
But wrongly observed that mere entries in revenue records
would not convey any title and not the question of conveying
any title making over writings and the same is a fraud in
creation of document Ex.P.24 that makes the vendor to execute
the sale deed. Though RTC not convey any title and based on
the manipulated document, executed the sale deed Ex.D3. The
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Trial Court also comes to an erroneous conclusion that already
there was a sale in the year 1979 and the very sale is
fraudulently made by creating the document. That does not
convey any title. When such being the case, the observation
made by the Trial Court that Will dated 30.06.1980 in favour of
the vendor of the plaintiff will not help the plaintiffs, cannot be
accepted and an erroneous observation is made that already
transfer was made by the vendor of the respondent in the year
1979 and the same is defective title.
82. The other observation that on the date of execution
of the Will, Malligee Byrappa had no right, title or interest over
the plaint schedule property is also an erroneous observation
for the fact that the vendor had indulged in committing the
fraud in creation of document Ex.P.24 and based on the
strength of the created document, title was conveyed by him
though he was not having any authority to convey the same
and the approach is very erroneous. The other observation is
that the plaintiffs have not produced the original Will in this
case and they have not chosen to examine any attesting
witnesses as per Section 68 of the Evidence Act and not
examined the attesting witnesses to the document Ex.P.11. But
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the fact is that their deposition recorded in O.S.No.81/1980
have been produced and the same are marked. But made an
observation that the plaintiffs having failed to prove that their
vendor's father had any right, title or interest at the time when
Will was executed or as on the date of his death, the vendors of
the plaintiff cannot be said to have acquired any right or title.
This observation is also erroneous, since the legatees under the
Will have the right to execute the sale deed Exs.P.5 and 6. The
very execution of the Will Ex.P.11 was proved and produced in
the earlier proceedings and examined the attesting witnesses
Narasimhachar and G.V. Subba Rao and the same is not
disputed in the earlier proceedings and even the defendant not
led any evidence in the earlier proceedings to dispute the same
and the Trial Court comes to the conclusion that Will was
proved in the earlier proceedings itself and also comes to the
conclusion that based on the Will only, the vendors of the
plaintiffs came on record and the said finding of Will was
proved and has attained its finality.
83. An observation is made that the plaintiff did not
challenge the sale deed dated 04.10.1979 and so also the legal
representatives of Mallige Byrappa. That is not necessary when
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the document was executed fraudulently by creating the
document of Ex.P.24 and based on the strength of the created
document when the sale deed was executed and person was
not having any right to execute the sale deed, it does not
require questing any validity of the said document. It is also an
observation by the Trial Court that they did not plead that there
was a fraud and the same is against the material on record. In
the plaint itself in the earlier suit in O.S.No.81/1980 and in the
present suit, the same is pleaded and the finding that the
judgment in R.S.A.379/1996 has not been challenged and it
has attained its finality, cannot be accepted for the reason that
this Court in elaborately comes to the conclusion that
erroneous finding in the earlier proceedings and subsequent
proceedings will not come in the way when the fraud has been
committed and decree is obtained that too based on the
fraudulent document. The plaintiffs have also contended before
the Court that the question of limitation would not arise and
fraudulently obtained the document as well as the decree and
this Court in detail discussed under what circumstances the
earlier decree was obtained and also found there was a
collusion and document was created and based on the created
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document, sale deed was executed. The counsel who
represented the legal heirs of the original owner had indulged
in identifying the defendant in the earlier proceedings and also
attesting the document of Ex.P.72 as a notary having the
knowledge about the same. The memo filed before the Trial
Court is very clear that the very counsel identified the
defendant in the said proceedings and acted as against the
conflicting interests of the parties and the same is discussed in
detail by this Court. Hence, I answer all the substantive
questions of law in the affirmative that the vendor of the
respondent was not having any title as envisaged under Section
7 of the TP Act and so also res judicata will not come to the aid
of the respondent in view of the detailed discussions made
supra and so also fraud, though it is not pleaded as per Order 6
Rule 4 of CPC, subsequently in the appeal made an effort to
fulfill the same. But the Appellate Court committed an error in
declining to allow the application. However, the order of the
Appellate Court is also liable to be set aside with regard to
rejection of application under Order 6 Rule 17 of CPC and this is
the litigation of more than 45 years and the same is pleaded by
both the counsels at the time of argument and no need to even
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consider the same as the material available on record both oral
and documentary evidence is clear that there was a fraud and
created the document of Ex.P.24 and already finding was given
by Trial Court in paragraph No.37 of the judgment. Based on
the same, sale deed was executed in favour of the respondent
by his vendor and the same is based on the fraudulent act and
not only fraud was played by the vendor of the respondent,
even during the course of the proceedings before the Trial
Court in O.S.No.81/1980, the counsel who represented the
legal representatives of Mallige Byrappa, instead of protecting
the interests of the legal representatives of Mallige Byrappa,
had indulged in attesting the document of Ex.P.72 as well as
identified the defendant in the said proceedings and the same
amounts to conflicting of interest in dual capacity.
84. Having considered the material on record, the
Constitution Bench judgment of the Apex Court relied upon by
learned counsel for the appellants reported in AIR 1964 SC in
Page 72 referred supra is aptly applicable to the case on hand,
as very conveying of title under Ex.D3 is nullity in the eye of
law, since this Court has come to the conclusion that vendor of
the respondent No.1 misrepresented/manipulated the
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document while selling the property and has also played fraud
on the Court, since he was not competent to execute the said
sale deed and manipulated the document Ex.P24 and so also,
the judgment relied upon by counsel appearing for the
appellants in KARAN SINGH VS. CHAMAN PASWAN reported
in AIR 1954 SC 340 referred supra is also applicable to the
facts of the case on hand.
85. The counsel for the appellants also relied upon the
judgment of the Apex Court in the case of STATE OF UP VS.
NAWAB HUSSAIN reported in (1977) 2 SCC 807 referred
supra and considering the principles laid down in paragraph
Nos.3 and 4 of the said judgment and so also paragraph No.56
of YADAIAH’S judgment referred supra, it is clear that
Doctrine of constructive res-judicata will not be applicable. The
issue raised in the earlier proceedings was not properly
adjudicated in respect of fraud as well as manipulation of
document Ex.P24 i.e., creation of document before executing
the sale deed inserting the name of vendor of the respondent,
so also the principles laid down in the judgment of CANARA
BANK’s case referred supra as well as detailed discussion of
fraud at the instance of the vendor of respondent and the
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counsel. Hence, I answer substantial question of law Nos.1 to 3
as ‘affirmative’
86. Having answered substantial question of law Nos.1
to 3 framed in R.S.A.No.1394/2023 as ‘affirmative’ , now the
points that would arise for consideration of this Court are:
(i) Whether this Court can invoke Section 8
of Hindu Succession Act?
(ii) Whether the property also devolves upon
son of the original owner, who is the
vendor of respondent No.1?
87. When this Court has given definite finding that
there was no title or right to the vendor of respondent No.1 and
also the principles of res judicata not applies, there was fraud.
This Court has also taken note of the order passed by the Trial
Court in O.S.No.81/1980 that at the time of holding an enquiry,
the Trial Court comes to the conclusion that original owner
Mallige Byrappa had executed Will in favour of daughters in
terms of Ex.P11 which is marked in the present proceedings
and also in the original proceedings. The Trial Court, while
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considering the Will comes to the conclusion that Will was
proved by examining the attesting witnesses and respondent
No.1 has not led any evidence disputing the same and the
same has attained its finality that there was a Will executed by
Mallige Byrappa in favour of the daughters and the same has
been proved and the same is evident and got it clarified by
getting the order on I.A. passed in O.S.No.81/1980. Hence, the
question of invoking Section 8 of Hindu Succession Act also
does not arise, since the original owner has executed a
testamentary document in favour of the daughters, who are the
vendors of the present appellants/plaintiffs and this Court also
examined the same whether respondent No.1 gets any right
and in view of the same, he does not get any right. Hence, this
Court has to grant the relief of declaration in favour of the
plaintiffs that there was conveyance in favour of the plaintiffs
by the daughters of original owner based on the Will and
judgment and decree of the Trial Court and the First Appellate
Court requires to be set aside declaring the present plaintiffs as
the owners.
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SUBSTANTIAL QUESTION OF LAW NO.1 IN
R.S.A.No.1404/2023 AND SUBSTANTIAL QUESTIONS OF
LAW 1 AND 2 IN R.S.A.Nos.1405/2023, 1406/2023 &
1410/2023
88. Now this Court has to consider the substantial
questions of law framed by this Court in R.S.A.Nos.1404/2023,
1405/2023, 1406/2023 and 1410/2023. These substantial
questions of law are with regard to whether the Courts below
committed an error in decreeing the suit of the respondent and
confirming the same by the First Appellate Court based on the
sale deed dated 04.10.1979 that the respondent No.1 is in
possession of the property in granting the relief of permanent
injunction in favour of the respondent No.1 and so also
committed an error in dismissing the suit filed by the appellants
seeking the relief of permanent injunction and confirming the
same by the First Appellate Court relying upon the document of
Ex.D3-sale deed dated 04.10.1979.
89. This Court in detail discussed with regard to passing
of title under Ex.D3 and also passing of title in favour of the
appellants herein as per Exs.P5 and P6 and comes to the
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conclusion that conveyance of title in favour of respondent No.1
is a defective title as per Ex.D3 and comes to the conclusion
that Will was proved by examining the attesting witnesses in
compliance of Sections 63 of the Indian Succession Act and 68
of the Evidence Act and the same has attained its finality. The
Trial Court also in O.S.No.81/1980 comes to the conclusion that
Will was proved and the same is not disputed during the course
of leading evidence as well as subsequent to the order passed
by the Trial Court in O.S.No.81/1980 in coming to the
conclusion that Will was proved.
90. It is also important to note that possession follows
title and though there was sale deed in favour of respondent
under Ex.D3-sale deed dated 04.10.1979, the same is a
defective title and the same is not valid and non est in the eye
of law. No doubt, the Courts have taken note of material
available on record, the present appellants and respondent
No.1 claim title based on their own document of sale deed and
possession is claimed based on the documents and respondent
No.1 claims possession based on the sale deed of the year
1979 and vendors of the plaintiffs claim title that they are in
possession of the property consequent upon the Will and based
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on those documents, respective parties have got changed the
name and revenue documents exists in favour of the respective
parties, as a result of the documents which have come into
existence.
91. No doubt, respondent No.1 also sought an order of
injunction and temporary injunction was granted, it was
challenged in the writ petition and the same was dismissed.
The matter was taken up before the Writ Appellate Court by
filing Writ Appeal No.2317/2007, which is also marked as
Ex.P23. The Writ Appellate Court also made an observation
while disposing of the writ appeal that the sale would be
subject to result of the suit in O.S.No.416/2007. Hence, it is
clear that the sale is subject to the result of suit in
O.S.No.416/2007. This Court having considered the material on
record comes to the conclusion that suit in O.S.No.416/2007 is
liable to be decreed by setting aside the order of the Trial Court
and First Appellate Court.
92. It has to be noted that, it is trite law that
possession follows title. In the case on hand, this Court comes
to the conclusion that title has not flowed in favour of
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respondent No.1 and the same is a defective title and title flows
in favour of plaintiffs/appellants in these appeals. When such
being the case, granting the relief of injunction in favour of the
respondent No.1 in O.S.No.10/2015 and dismissing the suit of
the plaintiffs for the relief of declaration and permanent
injunction in O.S.Nos.416/2007, 11/2015, 12/2015 and
13/2015 requires to be set aside. So also, the judgment passed
in R.A.Nos.6/2017, 7/2017, 8/2017, 9/2017 and 13/2017
requires to be set aside. The respondent No.1 claims
possession based on the sale deed of the year 1979 and when
the said sale deed is not recognized under law and the person,
who conveyed the title was not having any competency or
authorization to convey the title, question of possession by
respondent No.1-purchaser under the sale deed Ex.D3 does not
arise. Hence, the very approach of Trial Court as well as the
First Appellate Court is erroneous. Accordingly, the substantial
question of law No.(1) framed in R.S.A.No.1404/2023 is
answered as ‘affirmative’ that Courts below committed an error
in decreeing the suit of the respondent and confirming the
same by the First Appellate Court based on the sale deed dated
04.10.1979 that the respondent No.1 is in possession of the
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property. So also, this Court answers substantial question of
law No.(1) framed in R.S.A.Nos.1405/2023, 1406/2023 and
1410/2023 as ‘affirmative’ that the Trial Court and the First
Appellate Court committed an error in dismissing the suit filed
by the appellants seeking the relief of permanent injunction and
confirming the same in respective R.As. relying upon the
document of Ex.D3-sale deed dated 04.10.1979 and the
document of Ex.D3 does not convey either any title or
possession.
93. In view of the detailed discussions made above, I
pass the following:
ORDER
(i) All the regular second appeals are allowed
and judgment and decree passed in
O.S.No.416/2007, 11/2015, 12/2015 and
13/2015 and so also, granting of decree in
favour of respondent No.1 in O.S.No.10/2015
and consequent confirmation order passed in
R.A.Nos.6/2017, 7/2017, 8/2017, 9/2017 and
13/2017 are set aside. Consequently, suit
filed by respondent in O.S.No.10/2015 is
dismissed and suits in O.S.Nos.416/2007,
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11/2015, 12/2015 and 13/2015 filed by
plaintiffs/appellants are allowed.
(ii) The appellants/plaintiffs in O.S.No.416/2007
are declared as the owners of the suit
schedule property based on the documents
Exs.P5 and P6. So also, the appellants herein
are entitled for the relief of permanent
injunction as sought in all the suits in
O.S.Nos.11/2015, 12/2015 and 13/2015.
(iii) The parties to bear their own cost.
Sd/-
(H.P.SANDESH)
JUDGE
SN/ST/MD