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Karnataka High Court · body

2006 DIGILAW 710 (KAR)

M. Chandrashekar v. M. Channabasavaradhya

2006-08-30

body2006
Judgment 1. The appellants in RFA 159/2004 are the plaintiffs in O.S. No. 105/87 filed against his brothers, sisters and purchasers seeking partition and possession of their share in the suit ancestral properties. The appellants in RFA No. 158/2004 is one of the plaintiffs in O.S. No. 13/91(D-3 in O.S. No. 105/87) filed the suit seeking relief of partition and possession. The subject-matter and the parties in both the suits are common. For convenient discussion in the judgment, the appellants in RFA No. 159/2004 would be referred to as the plaintiffs and the respondents would be referred to as the defendants. 2. The plaintiffs-defendants 1 to 4 are the sons of late Madaiah. The defendant No. 5 is the wife of Madaiah. The other defendants are the purchasers of the property from the first defendant. After the death of Madaiah, the first defendant as a eldest brother was managing the joint family properties as kartha. It is alleged that the first defendant without legal necessity and without benefit to the estate has sold some of the suit properties which is illegal and does not bind the coparceners who are not parties to the sale. Hence seek partition and possession. The defendants 3 and 4 in O.S. 105/87 who are plaintiffs in O.S. No. 13/91 make similar allegations and seek partition and possession of their share. 3. The 1st defendant has filed the written statement denying mala fides on his part and contends that he has sold the properties for the sake of maintenance of the family, for meeting the marriage expenses of the sisters and some of the sales are made for the benefit of the estate. It is stated that from the sale proceeds of items 5 and 6, the property at item 4 in the suit is purchased in the name of the mother. It is said that the suit is a collusive suit and pray for dismissal. 4. The defendant No. 6 contends that they are bona fide purchasers for value and sale is said to be for the benefit of the family and pray for equitable allotment of items 5 and 6 in their favour in the event of partition. The Defendants 7, 8 and 10 also contend that the properties are purchased by them bona fidely for value. The Defendants 7, 8 and 10 also contend that the properties are purchased by them bona fidely for value. The properties are sold for the sake of family maintenance and to meet the marriage expenses of the sisters of the first defendant. Hence pray for dismissal of the suit. 5. The defendants 11 and 12 are the purchasers of item Nos. 5 and 6 of the suit schedule, submit that the property is sold for the benefit of family and for legal necessity. It is said that the defendants have invested huge amount for converting the property into a layout forming house sites, and have already sold 14 sites. The defendants contend that in the event of partition item Nos. 5 and 6 be equitably allotted to them. 6. Item No. 1 is a urban property measuring 70 feet x 250 feet with a Mutt and residential houses. Except the Mutt and 3 residential houses the rest of the property in item No. 1 is sold to D.6 to D.10. The 2nd item is an agricultural land measuring 24 guntas, an area measuring 33 x 100 ft. is sold rest of the property is not alienated. The 3rd item of the suit schedule is an agricultural land measuring 30 guntas and it is not alienated. 7. The 4th item in the suit schedule is purchased in the name of the mother, but during the pendency of the appeal it is said that all the appellants along with sisters together have sold item No. 4. The item Nos. 5 and 6 are sold to defendants 11 and 12. The Item No. 7 is an agricultural land acquired by the Government compensation is paid in the year 1996 to the mother with the consent of all the sharers. The property No. 7 does not exist for partition. The plaint does not disclose precisely the existence of movable properties. 8. The 1st defendant that he has sold the properties for maintenance of the family, to meet education expenses of his brothers, to meet the marriage expenses of his sisters and for purchase of property at item No. 4. 9. The theory of legal necessity set up by the 1st defendant does not appear to be sound and proper. The brothers are of modestly educated. 9. The theory of legal necessity set up by the 1st defendant does not appear to be sound and proper. The brothers are of modestly educated. The 1st defendant and 2nd defendant both got employed within a short course of time after the demise of their father. Mother was getting pension. One of the sisters is married in the year 1974. The another sister is married in the year 1987. The sale of item No. 1 is effected in the year 1980. The sale at item Nos. 5 and 6 is effected in the year 1982. The portions of the land in item No. 2 is sold in the year 1987. The date of sale of the properties and the marriage of the sisters does not bear any nexus. The property at item No. 7 was acquired and in the year 1986 compensation of Rs. 1,52,000/- was received by the mother. When the said amount is available, there was no need to sell the property to meet the marriage expenses of the sister in the year 1987. The said facts do not suggest that properties had to be sold for the purpose of marriage of the sisters. That apart the 1st defendant has not placed any cogent evidence to show what was marriage expenses incurred in respect of marriage of his sisters in the year 1980 and 1987, except a vague statement that the properties are sold to meet the marriage expenses. 10. It is the specific contention of the first defendant that items 5 and 6 were sold and the funds are invested for purchase of item No. 4. The items 5 and 6 are the lands measuring 4 acres 15 guntas are sold for Rs. 50,000. The property at item No. 4 is purchased under sale deed for consideration of Rs. 20,000/- as per the deed. The D.W. 13 is a son of the vendor of item No. 4. His evidence discloses that the properties sold for Rs. 51,000/- but in the sale deed the sale consideration is shown as Rs. 20,000/-. D.W. 13 says that he has no personal knowledge of the transaction and he was not involved in the transaction but his father entered into an agreement and sold the property. On the say of his father he has come to know that the property is sold for Rs. 20,000/-. D.W. 13 says that he has no personal knowledge of the transaction and he was not involved in the transaction but his father entered into an agreement and sold the property. On the say of his father he has come to know that the property is sold for Rs. 51,000/- and the consideration amount is paid in six instalments. The agreement was made in the year 1981 and the sale registered in the year 1984. The evidence of P.W. 13 is incredible. On the basis of the evidence of D.W. 13, it cannot be accepted that item 4 is purchased for Rs. 51,000/-. 11. D.W.5 (1st defendant) similarly deposes that the funds from the sale of items at 5 and 6 is invested for purchase of item No. 4. The D.W. 5 in the cross-examination admits that when he was staying at Mysore in the year 1984, he requested plaintiffs to pay money, when they refused he became angry and sold the properties. Sri K. M. Nataraj, learned counsel for appellants argued that the admission made by D.W. 5 shows that the sales are effected vindictively and not for legal necessity. 12. Sri. S. N. Ashwathnarayan, learned counsel for defendants 11 and 12 argued that item Nos. 5 and 6 are sold in the year 1982. The evidence of first defendant that when his brothers refused to pay money in the year 1984, out of anger he sold the properties. The mala fides of first defendant in selling the properties out of anger is only after 1984 and sales made thereafter may not be valid but the sales effected prior to 1984 cannot be assailed as mala fides. 13. The counsel for the plaintiff strenuously argued that the property at item Nos. 5 and 6 situate on the border of the city limits with the building potential and had more lucrative value. Where as the property at item No. 4 is an agricultural land situated at 10 Kms away from Kolar and is only an agricultural land. Therefore argued that sale of item Nos. 5 and 6 for purchase of item No. 4 cannot be considered as an act done for the benefit of the estate. 14. It is in the evidence that the lands adjoining the lands in item Nos. 5 and 6 were acquired in the year 1981 by the Housing board. The compensation of Rs. 5 and 6 for purchase of item No. 4 cannot be considered as an act done for the benefit of the estate. 14. It is in the evidence that the lands adjoining the lands in item Nos. 5 and 6 were acquired in the year 1981 by the Housing board. The compensation of Rs. 16,000/- per acre was granted. It is the contention of the defendants 11 and 12 that the 1st defendant and their family members apprehended likelihood of acquisition and to avoid the acquisition sold the property and the funds were invested in purchasing item No. 4. On the date of sale the item Nos. 5 and 6 were only agricultural lands and only dry crops were grown. The defendants 11 and 12 after purchase invested heavy amounts, got the property converted for non-agricultural purpose and also made efforts to get the lands in item Nos. 5 and 6 deleted from the acquisition proceedings in the year 1988. At the time of sale of item Nos. 5 and 6, the plaintiffs in O.S. No. 13/91 were major. The suit is filed belatedly almost after six years after conversion and development of the land for non-agricultural purpose and after deletion of the land from the notification for acquisition. In this regard it is strenuously argued that the plaintiffs in O.S. 13/91 have kept silent for six years allowed the development to go on, about 14 sites have already been sold. The conduct of plaintiffs would show that they have acquiesced the sale. 15. The Supreme Court in M/s. Power Control Appliances v. Sumeet Machines Pvt. Ltd., reported in (1994) 2 SCC 448 : (1994 AIR SCW 2760) has dealt with the proposition of acquiescence in paras 26, 27 and 31 of the following observations are made : 26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches. In Harcourt v. White, Sr. John Romilly said : It is important to distinguish mere negligence and acquiescence. Therefore, acquiescence is one facet of delay. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches. In Harcourt v. White, Sr. John Romilly said : It is important to distinguish mere negligence and acquiescence. Therefore, acquiescence is one facet of delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. v. Boehm. The acquiescence must be such as to lead to the inference of a license sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill. 27. The law of acquiescence is stated by Cotton, L.J. in Protor v. Bannis as under : It is necessary that the person who alleges this lying by should have been acting in ignorance of the title of the other man, and that the other man should have known that ignorance and not mentioned his own title. In the same case Bowen L.J. said : In order to make out such acquiescence it is necessary to establish that the plaintiff stood by and knowingly allowed the defendants to proceed and to expend money in ignorance of the fact that he had rights and means to assert such rights. 31. In Electrolux Learned Counsel v. Electrix at pp. 32 and 33 it was held thus : I now pass to the second question, that of acquiescence, and I confess at once that upon this matter I have felt no little sympathy for the defendants, and have been not a little envious of the good fortune which has attended the plaintiffs, though no doubt they may justly attribute it to the astuteness of their advisers; but, as has already been said, the defendants have traded openly and (as the Judge found) honestly, beyond any question, in the ordinary course and substantially under this name Electrix for a very long period of time, since early 1930s. During that time, they have built up (I doubt not) a valuable goodwill associated with that name. During that time, they have built up (I doubt not) a valuable goodwill associated with that name. If the possibility that the mark Electrolux was infringed is out of the way, and if I disregard for the moment (as I do) the point taken by Mr. Kenneth Johnstone that in any event for use of Electrolux (seeing that the two marks were associated). I have no doubt that if the plaintiff had challenged in the Courts the right of the defendants to use Electrix before they have effect to their decision to apply the word Electrux to their cheaper model in lieu of Elecotrolux they would in all probability have failed, because the defendants motion to strike the word Electrux off the Register would have succeeded, but the fact is that when the battle was joined, Electrux was no longer vulnerable on that account, unless the defendants can establish that the use was not bond fide, a matter to which I shall come presently. It is however, said that by the defendants that the plaintiffs have deprived themselves of their legal right or, at lease, of any right to the equitable remedy of injunction. Upon this matter, a great deal of learning has been referred to, and we have also had our attention drawn to a number of cases. The latter include the well-known statement in Willmott v. Barber by Fry. J. (as he then was) at p. 105. He said this : It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. Let me pause here to say that I do not understand that, by the word fraudulent, the learned Judge was thereby indicating conduct which would amount to a common law tort of deceit. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some at (not necessarily upon the defendants land) on the faith of his mistaken belief. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some at (not necessarily upon the defendants land) on the faith of his mistaken belief. Thirdly, the defendant the possessor of the legal right must know of the existence of his own right which is inconsistent with the right claimed by he plaintiff. If does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiffs mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly, or by abstaining from asserting his legal right. In reading that passage, it is perhaps necessary to note (because it makes it at first sight a little more difficult to follow) that the positions of plaintiff and defendant as they are usually met with are there transposed, and that one of the parties who is there spoken of as the plaintiff correspondents with the present case with the defendants, and vice versa. 16. The decision of the Madras High Court in R. S. Muthuswami Gounder v. A. Annamalai, reported in AIR 1981 Madras 220 at para 20, the following observations are made : 20. In the case which came up for consideration before me, the respondent-plaintiff had not done anything when the appellant-defendant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property and it was found that the appellant-defendant could not have done those things in a hurry and they must have taken several months for the appellant to complete the things which he had done on the property. The plaintiff-respondent had not disclosed those things in the plaint and had not prayed for a mandatory injunction for the removal of the structures put up by the defendant on the trespassed portion of the property. In those circumstances, I held that the Court would be justified in inferring acquiescence on the part of the respondent and considered that it was not a case for directing delivery of possession of the trespassed portion but it was a case where the respondent plaintiff has to be compensated in money for the value of the trespassed portion and I called for a finding from the lower appellate Court as regards the market value of the trespassed portion. I am bound but the decision of the Division Bench of this Court rendered in the aforesaid Associated Cement Co. Ltd. v. L. S. Ramakrishna Gounder, ILR (1965) 1 Mad 237 : ( AIR 1965 Mad 318 ) and following that decision and my own view expressed in Palanivelu v. Varadammal, 1978-1 Mad LJ 212 : ( AIR 1977 Mad 342 ), I hold that the plaintiff, who resides about a mile away from the suit property, would have come to know about the defendant putting up construction on a major portion of the suit property if he had cared to find out and since he has not done so and kept quiet until the first defendant had completed his construction which have been valued by the Commissioner at Rs. 15000/- and had sent the notice only about 7 or 8 months later after January 1972, asserting his right to the suit property, I am of the opinion that the principles of acquiescence has to be made applicable to the facts of the present case and that the plaintiff has to be given only a decree for compensation in respect of the property, namely, the market value of the suit property in lieu of the relief of recovery of vacant possession of the property. For want of evidence a finding has to be called for from the lower appellate Court regarding the market value of the suit property as on the date of the suit. The lower appellate Court will submit its finding within two months from the date of receipt of the records. The parties are at liberty to adduce fresh evidence regarding the market value of the suit property. The lower appellate Court will submit its finding within two months from the date of receipt of the records. The parties are at liberty to adduce fresh evidence regarding the market value of the suit property. They will have two weeks time to file their objections after the finding is received in this Court. 17. The decision of the Oudh High Court in the case of Suchit v. Mohammad Habib Ullah, reported in AIR 1927 Oudh 89 at para 4 at page 86 of the following observations are made. As to the plea of estoppel, I think the defendants have failed to establish that plea also. The learned Subordinate Judge was perfectly right in giving his finding against the defendants on that point also. Acquiescence implies that the person who is said to have acquiesced did so with knowledge of his rights and the other person acted in the bona fide belief that he was acting within his rights. The absence of either of these elements makes the doctrine inapplicable. The acquiescence, which will deprive a man of his legal rights, must amount to fraud. This the defendants have failed to establish in this case. 18. The commentaries at Sec. 115 Act 1972 the evidence by Sarkar at page 267 has called the ratio laid down by Lahore High Court in Dharmpal v. Guanaditha, the following observations of Lahore High Court, 64 Indian cases 520 : (AIR 1921 Lahore 110). Where one of three brothers sold ancestral property and the others with the knowledge of the sale kept quiet while the vendee was spending money in building on the land, plaintiffs long silence coupled with their conduct estopped them. 19. The precedent law on the proposition of acquiescence makes clear that in the case of acquiescence amounting to fraud the party is not entitled to relief. In the instant case, the defendants 1, 2 and 5 executed the agreement to sell item Nos. 5 and 6 to defendants 11 and 12. The first defendant has alone executed the sale deed. On the date of agreement and sale deed defendants 3 and 4 had attained majority. The defendant No. 4 is examined as D.W. 1. Defendant No. 3 is not examined. The evidence of D.W. 1 discloses that they came to know about the sale of item Nos. The first defendant has alone executed the sale deed. On the date of agreement and sale deed defendants 3 and 4 had attained majority. The defendant No. 4 is examined as D.W. 1. Defendant No. 3 is not examined. The evidence of D.W. 1 discloses that they came to know about the sale of item Nos. 5 and 6 only before filing of the suit and denies that with the funds from the sale of item Nos. 5 and 6, the item No. 4 is purchased. D.W. 1 says that they were growing ragi crop in items 5 and 6. 20. The defendants 11 and 12 by cogent evidence have established that after purchase, they have formed layout and about 14 sites have sold. It is also established that few months prior to the filing of the suit they got item Nos. 5 and 6 deleted from the acquisition proceedings. It is fairly established by defendants 11 and 12 that they have spent heavy amounts in developing the property after purchase. The defendants 3 and 4 who are above the age of majority cannot contend that they had come to know of the sale just before filing of the suit. The property was just outside the city limits. The contention of D.W. 1 that he had not seen the property, after sale and any time before filing of the suit is artificial. The conduct of D-3 and D-4 clearly suggest acquiescence amounting to fraud. Therefore, D-3 and D-4 cannot assail the sale to the extent of the share in items 5 and 6 sold to D-11 and D-12. 21. The plaintiff in O.S. 105/87 is a minor. The sales made by D-1 are not shown to be for legal necessity and for benefit of estate. Therefore, the sales effected cannot bind him to the extent of his share. Hence, plaintiff in O.S. No. 105/87 is entitled to 9/50th share in the suit items 1 to 3, 5 and 6. 22. The plaintiffs 2 and 3 in O.S. No. 13/1981 are entitled to 9/50th share in items 1 to 3 of the suit schedule. ORDERS ON FURTHER HEARING After dictation of the judgment, the plaintiff and defendants 10 and 11 in O.S. No. 105/87 have settled their disputes in respect of item Nos. 22. The plaintiffs 2 and 3 in O.S. No. 13/1981 are entitled to 9/50th share in items 1 to 3 of the suit schedule. ORDERS ON FURTHER HEARING After dictation of the judgment, the plaintiff and defendants 10 and 11 in O.S. No. 105/87 have settled their disputes in respect of item Nos. 5 and 6 vide joint memo dated 18-7-2008 and decree be drawn to that effect as per the terms of the joint memo. The judgment of this Court as far as 9/50th share of plaintiff in O.S. No. 105/87 and 9/50th share of plaintiff 2 and 3 in O.S. No. 13/91 in respect of item Nos. 1 to 3 holds good. The share of Defendants 1 and 2 in O.S. No. 105/87 shall be allotted to their purchasers. The purchasers are entitled to seek allotment of properties to the extent of the purchase and in accordance with the precedence of purchase. 23. Order accordingly.