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2022 DIGILAW 461 (KAR)

Jayashree v. Ganapathsa Tukaramsa Hanamsagar

2022-04-04

H.T.NARENDRA PRASAD, RAJENDRA BADAMIKAR

body2022
JUDGMENT RAJENDRA BADAMIKAR,J. - This appeal is filed by the plaintiffs against the judgment and decree dtd. 17/8/2015 passed in O.S.No.275/2012 by the III Additional Senior Civil Judge, Hubballi ("the Trial Court" for short), whereby the Trial Court has decreed the suit of the plaintiff in part by granting half share to plaintiff No.3 alone in CTS Nos.610/10 and 610/1A and rejected the claim of the plaintiffs in agricultural land. 2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court. 3. The plaintiffs have filed a suit for partition and separate possession in respect of the suit schedule properties which are described in the schedule. Defendant No.1-Ganapathsa is the father of the plaintiffs and according to the plaintiffs, suit schedule properties are fallen to the share of Ganapathsa in the family partition. It is also asserted that defendant No.1 without there being any legal necessity, sold the agricultural land in favour of defendant Nos.2 and 3 and the sale is not for any legal necessity. Hence, the plaintiffs assert that they being the daughters and son of defendant No.1 are entitled for equal share in the suit schedule properties. Hence, the suit is filed. 4. After registering the suit, notices have bee issued to the defendants and defendant No.1 appeared through his counsel and filed written statement denying the plaint allegations and further specifically asserted that, the sale deed was got executed by playing fraud and misrepresentation and O.S.No.771/2002 is filed for declaration in this regard. He admits the relationship between the parties and denied the share of the plaintiffs. Hence he would seek for dismissal of the suit. 5. Defendant Nos.2 and 3 appeared through their counsel and filed their written statement denying the plaint allegations and further contended that it is a collusive suit filed by defendant No.1 along with plaintiffs and the suit in O.S.No.771/2002 filed by defendant No.1 was already dismissed. He would also contend that the sale is for legal and family necessity and hence defendant Nos.2 and 3 would seek for dismissal of the suit. 6. On the basis of the above pleadings, the Trial court has framed the following. : ISSUES : "1. He would also contend that the sale is for legal and family necessity and hence defendant Nos.2 and 3 would seek for dismissal of the suit. 6. On the basis of the above pleadings, the Trial court has framed the following. : ISSUES : "1. Whether the plaintiffs prove that they and the defendant No.1 are the members of an undivided joint Hindu family and the suit schedule properties are their ancestral/ joint family properties? 2. Whether the plaintiffs are entitled for 1/6th share in the suit schedule properties by metes and bounds? 3. Whether the plaintiffs are entitled for the declaration declaring that the alleged registered sale deeds dtd. 4/5/2006 in favour of the defendant No.2 bearing Reg.No.897/06-07 by the defendant No.1 and the sale deed executed by defendant No.2 in favour of defendant No.3 bearing registration No.8406 dtd. 16/9/2011 are to be declared as illegal, null and void abinito and the suit properties are their ancestral properties. 4. Whether the plaintiffs are entitled for the consequential relief of permanent injunction against the defendant No.1 restraining him from alienating the suit property No.2 bearing CTS No.610/10 and 610/1A situated at Gavi Oni, Hubballi to any third party in any manner? 5. Whether the plaintiffs are entitled for the permanent injunction against the defendant No.2 and 3 restraining them from alienating the suit properties bearing R.S.No.657, hissa 1A/2, plot No.1 and plot No.2 situated at unkal, measuring 21 guntas. 6. Whether the plaintiffs are entitled for the declaration that the mutation entry got mutated by the defendant No.2 and 3 is to be declared as illegal, null and void abinitio? 7. Whether order or decree? : ADDITIONAL ISSUES : 1. Whether defendant No.2 and 3 proves that plaintiff No.1 to 5 and defendant No.1 have colluded with each other and filed a collusive suit to defeat the legitimate right of defendant No.2 and 3 over suit Sl.No.1 property? 2. Whether defendant No.2 and 3 prove that the defendant No.1 having sold suit SolNo.1 property in favour of defendant No.2 to discharge legal necessities of his family and he is estopped and debarred from filing the suit through plaintiffs? 3. Whether defendant Nos.2 and 3 are entitled for compensatory costs of Rs,3000/- each from plaintiffs? 4. 2. Whether defendant No.2 and 3 prove that the defendant No.1 having sold suit SolNo.1 property in favour of defendant No.2 to discharge legal necessities of his family and he is estopped and debarred from filing the suit through plaintiffs? 3. Whether defendant Nos.2 and 3 are entitled for compensatory costs of Rs,3000/- each from plaintiffs? 4. Whether the defendant nos.1 and 2 proves that the schedule properties are not properly valued for the purpose of court fee and the court fee ought to have been paid u/sec.35 (1) of KCF and SV Act? 5. Whether defendant No.1 and 2 are in alternative entitled for share of defendant No.1 in the schedule property?" partly in the affirmative while issue Nos.3 to 6 and additional issue Nos.1 to 3 and 5 were answered in the negative and partly decreed the suit. Being aggrieved by the judgment and decree, the present appeal came to be filed by the plaintiffs. 8. We have heard learned counsel appearing for the appellants and learned counsel appearing for the defendants and we have also perused the records of the Trial Court. 9. Now the following point would arise for our consideration: "Whether the judgment and decree passed by the Trial Court is perverse and erroneous, so as to call for any interference by this Court?" 10. It is an undisputed fact that Sri Ganapathsa i.e., defendant No.1 is the father of the plaintiffs. It is also undisputed fact that the suit schedule properties are ancestral properties. Hence, the plaintiffs are having birth right in the suit schedule properties and they are having equal share. 11. Defendant Nos.2 and 3 contended that, defendant No.1 has sold item No.1 of the suit schedule property in favour of defendant No.2 for legal and family necessity to meet out the family expenses. However, there is no material evidence placed to substantiate the claim that the sale was for family necessity. At the same time it is also evident that defendant No.1 has taken up a contention that the sale deed was obtained by playing fraud and misrepresentation and he has filed suit in O.S.No.771/2002. It is also admitted by both the parties that, the said suit came to be dismissed. 12. Admittedly defendant No.1 has executed the sale deed and it is signed by plaintiff No.3, who is the son of defendant No.1. It is also admitted by both the parties that, the said suit came to be dismissed. 12. Admittedly defendant No.1 has executed the sale deed and it is signed by plaintiff No.3, who is the son of defendant No.1. Plaintiff Nos.1, 2, 4 and 5 are not signatories to the sale deed. As such, the sale deed will bind only on plaintiff No.3 and defendant No.1. Since there is no material evidence placed by the defendant Nos.2 and 3 before the Court to show that they are the bonafide purchasers for value without notice and the sale is for legal and family necessity, the question of denying the right of the plaintiffs in the suit item No.1, does not arise at all. \ 13. Further The Trial Court has also erred in denying the share to the other daughters in item No.2 also and only plaintiff No.3 was given share to the extent of half share and remaining half to defendant No.1. The entire approach of the Trial Court in this regard is perverse as the other plaintiffs i.e., the daughters are equally entitled for share in item No.2 of the schedule properties. They are also entitled for equal share in item No.1 also since the sale deed was executed by defendant No.1 and plaintiff No.3 alone in respect of item No.1 and not for legal necessity. Hence, the sale deed will bind only on plaintiff No.3 and defendant No.1 and not other plaintiffs. The approach of the Trial Court in this regard is erroneous in denying the share to plaintiff Nos.1, 2, 4 and 5 in all the suit schedule properties. 14. The arguments of learned counsel for respondent Nos.2 and 3 regarding equity is required to be worked out at the time of drawing up of final decree in respect of 1/6th share of defendant No.1 and 1/6th share of plaintiff No.3 i.e., 2/6th share. Hence, it is evident that the Trial Court has not properly appreciated the oral and documentary evidence on record and also has not considered the legal possession on this aspect, in view of the decision of the Hon'ble Supreme Court, in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (3) KCCR 1993 (SC). As such, the judgment and decree needs to be interfered with as it is perverse and suffers from infirmities. Rakesh Sharma and others reported in 2020 (3) KCCR 1993 (SC). As such, the judgment and decree needs to be interfered with as it is perverse and suffers from infirmities. Accordingly, the above point is answered in the affirmative and as such the appeal needs to be allowed and accordingly we proceed to pass the following: : ORDER : The appeal is allowed. The impugned judgment and decree dtd. 17/8/2015 passed in O.S.No.275/ 2012 by the Trial Court is set side. are held entitled for 1/6th share each, in item No.1 i.e., R.S.No.567, hissa No.1A/2 of Unkal measuring 21 guntas. Further all the plaintiffs and defendant No.1 are entitled for 1/6th share each in item No.2 property i.e., CTS Nos.610/10 and 610/1A. The share of plaintiff No.3 and defendant No.1 in item No.1 is required to be allotted to defendant Nos.2 and 3 by way of equity in the final decree proceedings. In view of disposal of the appeal, I.A.No.1 and 2 of 2016, do not survive for consideration and the same stand disposed off.