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2022 DIGILAW 928 (KAR)

Laxmibai v. Siddawwa

2022-07-19

K.S.MUDAGAL, M.G.S.KAMAL

body2022
JUDGMENT M.G.S.KAMAL J. - RFA No.100080/2017 is filed by appellants-defendant Nos.2, 3, 4, 5, 7, 1 and 13 while RFA No.100088/2017 is filed by appellants-defendant Nos.9, 10, 11(a) to 11(c) aggrieved by the judgment and decree dtd. 6/12/2016 passed in O.S. No.37/2013 by the Senior Civil Judge at Hukkeri (hereinafter referred to as 'trial Court' for short) by which the trial Court decreed the suit of the plaintiffs holding them entitled for partition and separate possession of their 1/5th share each in schedule lands and 1/10th share each in the house property by metes and bounds. 2. Parties are referred to as per their original ranks before the trial Court. 3. The subject matter of the suit is the land earlier bearing Sy.No.265 measuring 7 acres 21 guntas which is divided into four survey numbers i.e., Sy.Nos.265/1, 265/2, 265/3 and 265/4 and a house property bearing CTS No.4071, TMC No.201 situated in Hukkeri town. 4. The case of the plaintiffs is that; one Balappa Halayee, the original propositus died intestate about 30 years back. His widow Smt.Lagamavva also died intestate about six years back. Said Balappa Halayee and Lagamavva had two sons and four daughters namely (1)Jambu (dead), (2)Sidram- defendant No.1, (3)Siddawwa-plaintiff No.1, (4)Laxmawwa- plaintiff No.2, (5)Ningawwa-plaintiff No.3, (6)Mallavva-(dead). The eldest son-Jambu passed away intestate on 21/1/2011. His wife Tangevva predeceased him about 15 years back. Said Jambu and Tangevva had three daughters and a son namely Shobha-defendant No.5, Sunitha-defendant No.6, Rajashri- defendant No.7 and Balappa Halayee. The said Balappa died intestate on 25/12/2007 leaving behind his wife-Lakshmibai- defendant No.2 and two children Pooja-defendant No.3 and Adarsh-defendant No.4 as his heirs. Mallavva-the daughter of Balappa Halayee was a spinster and died intestate about 13 to 14 years back. 5. Schedule land is an inam land which was granted to Balappa Halayee in the year 1969. Subsequent to his demise, his sons, Jambu and Sidram-defendant No.1 mutated their names in the revenue records and thereafter divided the SAID land between themselves without knowledge of the plaintiffs. That defendant No.8 claiming to be the power of attorney holder of Jambu, sold 14 guntas of land in favour of defendant No.9, 13 guntas of land in favour of defendant No.10 and another extent of 13 guntas of land in favour of defendant No.11 in terms of registered deeds of sale dtd. 21/1/2011, i.e., one day subsequent to the death of said Jambu. 21/1/2011, i.e., one day subsequent to the death of said Jambu. As such, the said sale deeds are void ab initio and are not binding on the plaintiffs. On learning about the illegality committed by the defendants, plaintiffs demanded for effecting partition of the suit schedule properties and allotting their shares by metes and bounds. Refusal of defendants to comply with the request of the plaintiffs constrained them to file the present suit for partition and separate possession. 6. On service of summons, defendant No.1 appeared and filed written statement. Defendant Nos.2 to 5 and 7 appeared through their counsel. Defendant No.7 filed written statement and additional written statement and the same was adopted by defendant Nos.2 to 5. Defendant No.6 filed her separate written statement. Defendant No.8 did not file written statement. Defendant No.9 remained absent and placed ex parte. Defendant Nos.10, 11(a) to 11(c) did not file written statement. Defendant No.12 remained absent and was placed ex parte. Defendant No.13 filed written statement. 7. Defendant No.1 in his written statement while denying the plaint averments contended that his name and name of Jambu was entered in the revenue record after the demise of original propositus-Balappa Halayee about 30 years back. That the plaintiffs have received cash and gold in lieu of their share and have given up their rights in schedule properties in his favour and in favour of Jambu. They had also given consent for mutation of his name and name of Jambu in the revenue records. As such, deceased Jambu and defendant No.1 have been in exclusive possession and enjoyment of the suit schedule properties over 30 years as owners thereof. The plaintiffs being aware of these developments have remained silent all along. As such the suit of the plaintiffs is not maintainable and they are not entitled for any relief. 8. Defendant Nos.2 to 5 and 7 in their written statement have admitted that Jambu passed away a day before execution and registration of deeds of sale dtd. 31/1/2011 by his power of attorney holder defendant No.8 in favour of defendant Nos.9 to 11. As such the deeds of sale are void ab initio. 8. Defendant Nos.2 to 5 and 7 in their written statement have admitted that Jambu passed away a day before execution and registration of deeds of sale dtd. 31/1/2011 by his power of attorney holder defendant No.8 in favour of defendant Nos.9 to 11. As such the deeds of sale are void ab initio. It is further contended that original propositus-Balappa Halayee died intestate on 30/7/1971 leaving behind his heirs as above who gave varadhi for mutation of the names of Jambu, Sidram in the revenue records pertaining to the suit land vide M.E. No.8207 on 10/9/1971. Jambu died on 20/1/2011. Upon his demise, their names being his wife and children came to be mutated in revenue records in respect of the suit lands. That the plaintiffs were aware of these facts yet they filed the present suit to cause wrongful loss and harassment to defendant Nos.2 to 5 and 7. In their additional written statement, the said defendants have also contended that plaintiffs have no share in the house property bearing CTS No.4071 of Hukkeri Town. As such, sought for dismissal of the suit with costs. 9. Defendant No.6, supporting the case of the plaintiffs in her written statement has contended that house property bearing CTS No.4071 of Hukkeri town consists of an open space to an extent of 2 acres 2 guntas with one old house of black tiled roof and that the said open space and the house are also joint family properties of the plaintiffs and defendant Nos.1 to 7 which is liable to be included in the suit. That defendant No.8 is a stranger to the family. He is rich person and doing real estate business. Jambu was in touch with defendant No.8 concerning the property matters. Defendant No.8 under the circumstances had taken signatures of deceased Jambu on a paper and the same was converted into General Power of Attorney. Thus defendant No.8 by practicing fraud upon the deceased Jambu obtained execution of General Power of Attorney which is per se illegal, bogus and fabricated. Defendant No.8 had dishonestly induced deceased Jambu to deliver the property to another and in furtherance of such mala fide intentions, he also induced defendant Nos.9, 10 and 11 to purchase the property of the plaintiffs and defendant No.1. Defendant No.8 had dishonestly induced deceased Jambu to deliver the property to another and in furtherance of such mala fide intentions, he also induced defendant Nos.9, 10 and 11 to purchase the property of the plaintiffs and defendant No.1. Having created illegal power of attorney, defendant No.8 has remained quite for some months/year and on the very next day to the demise of Jambu, he used the said power of attorney and sold suit properties to defendant Nos.9 to 11 respectively. That on the death of Jambu, the power of attorney stands terminated automatically. Therefore, the suit land sold to defendant Nos.9 to 11 is not binding upon the share of defendant No.6. It is further contended that defendant No.7 has also sold some portion of the suit property by creating illegal General Power of Attorney alleged to have been executed by defendant Nos.2, 5 and 6 at Chikkodi which has been seriously disputed by defendant No.6. Defendant No.6 has contended that she affixes her signature in English and she never affixes her signature in Kannada language. That the photograph shown in the said power of attorney is very old one. Defendant No.6 has never gone to Chikkodi and executed power of attorney in favour of defendant No.7. On the basis of such illegal General Power of Attorney, defendant No.7 has sold property to one Siddappa S/o. Ramappa Jogiramgol in terms of deeds of sale dtd. 28/5/2013 and another portion of property to one Ganapati Yamunappa Gudas in terms of register of sale deed dtd. 28/5/2013. Thus the alleged power of attorney and the sale of lands by defendant No.7 is not binding on the share of defendant No.6. It is further contended that defendant Nos.1 to 7 are the members of the joint family, enjoying the suit schedule properties in common as joint owners. Hence, defendant No.6 sought for allowing of the suit of the plaintiffs. 10. Defendant No.13 in his written statement has completely denied the case of the plaintiffs. It is contended that defendant Nos.2 to 7 were owners and possessor of land to an extent of 2 acres 3 guntas out of 6 acres 21 guntas in Sy.No.265/1 of Hukkeri Village. Hence, defendant No.6 sought for allowing of the suit of the plaintiffs. 10. Defendant No.13 in his written statement has completely denied the case of the plaintiffs. It is contended that defendant Nos.2 to 7 were owners and possessor of land to an extent of 2 acres 3 guntas out of 6 acres 21 guntas in Sy.No.265/1 of Hukkeri Village. That defendant Nos.2 to 6 have executed power of attorney in favour of defendant No.7, who in the capacity of a power of attorney holder of defendant Nos.2 to 6 sold 1 acre of land therein. With specific boundaries such as, on the East by block No.1 of the land, West by Sy.Nos.265/2, 265/3 and 265/4, South by block No.1 and Sy.No.266 and North by block No.1 and Sy.No.266 for their family necessity and to discharge the debts due to the bank for valuable consideration of Rs.4,95,000.00 by executing a registered deeds of sale dtd. 27/5/2013 and defendant No.13 has been in actual possession and enjoyment of the same since then as absolute and bona fide owner thereof. Hence sought for dismissal of the suit. 11. Based on the aforesaid pleading of the parties, the trial Court framed the following issues and additional issues: 1. Whether the plaintiffs are entitled for 1/5th share in the suit schedule properties? 2. Whether suit is bad for non-inclusion of other joint family properties? 3. What order? Additional Issue 4. Whether defendant No.13 proves that he is a bona fide purchase of 1 acre in R.S. No.265/1?" 12. In order to prove the case, plaintiff No.1 examined himself PW1 and produced 10 documents as Exs.P1 to P10. Defendant No.1 examined himself as DW1. Defendant No.7 examined himself as DW2 and exhibited three documents as Exs.D1 to D3. Defendant No.6 examined as DW3 and two additional witness as DWs.4 and 5 and exhibited five documents marked as Exs.D1 to D4. 13. The trial Court on consideration of pleading, evidence and submissions, decreed the suit of the plaintiffs allotting the shares as referred to above by the impugned judgment and decree dtd. 6/12/2016. Aggrieved by the same, defendant Nos.1 to 7 and 13 filed RFA No.100080/2017 and defendant Nos.9, 10, 11(a) to 11(c) have filed RFA No.100088/2017. 14. 13. The trial Court on consideration of pleading, evidence and submissions, decreed the suit of the plaintiffs allotting the shares as referred to above by the impugned judgment and decree dtd. 6/12/2016. Aggrieved by the same, defendant Nos.1 to 7 and 13 filed RFA No.100080/2017 and defendant Nos.9, 10, 11(a) to 11(c) have filed RFA No.100088/2017. 14. Sri.Shivaraj S. Balloli, learned counsel for the appellants in RFA No.100080/2017 reiterating the grounds urged in the memorandum of appeal submitted that there was already a severance in the joint family status even as admitted by the plaintiffs in the plaint. That the plaintiffs have also admitted the earlier partition in the family in terms of which 3 acres 27 guntas was allotted to the share of Jambu and 3 acres 24 guntas was allotted to the share of defendant No.1. That Exs.D1 to D3 established the earlier partition which was reported to the Revenue Authorities and mutation was affected under M.E.No.8207, which is well within the knowledge of the plaintiffs. That the trial Court failed to appreciate the aforesaid aspect of the matter in erroneously decreeing the suit. Hence sought for allowing of the appeal. 15. Sri.Rajashekar Burji, learned counsel appearing for appellants/defendant Nos.9, 10, 11(a) to 11(c) in RFA No.100088/2017 reiterating the grounds urged in the memorandum of appeal submitted that the trial Court has not framed the issue with regard to the validity or otherwise of the General Power of Attorney executed by deceased-Jambu in favour of defendant No.8 who in turn executed deeds of sale in favour of defendant Nos.9 and 11 and in the absence thereof no effective decree could have been passed. That the deceased-Jambu had accepted the sale consideration even prior to execution of deeds of sale as evident from Exs.P8, 9 and 10 evidencing partial exercise of authority by defendant No.8 resulting in valid execution of the deeds of sale deed dtd. 21/1/2011. As such, the said deeds of sale were valid and subsisting. That apart, Jambu had applied for preparation of Form No.11(e) for the purpose of registration of deeds of sale, further showing the bona fides of defendant Nos.9 to 11 and no fault could be found or attributed on them. 21/1/2011. As such, the said deeds of sale were valid and subsisting. That apart, Jambu had applied for preparation of Form No.11(e) for the purpose of registration of deeds of sale, further showing the bona fides of defendant Nos.9 to 11 and no fault could be found or attributed on them. That defendant Nos.9 to 11 were not aware of the death of Jambu and defendant No.8 as the power of attorney holder executed and registered the deeds of sale on 21/1/2011 within the limits of its authority. As such, the judgment and decree is liable to be set aside. 16. On the other hand, Smt.Sunanda M. Patil and Sri.S.M.Tonne, learned counsel appearing for the respondents/plaintiff Nos.1 to 4 submitted that the defendants failed to establish the prior partition as contended by them. Even if any such partition had taken place, without giving any share to the plaintiffs and without plaintiffs relinquishing their rights in the manner known to law, it is not available for defendants to deprive the legitimate entitlement of the plaintiffs. The execution of deeds of sale by defendant No.8 in favour of defendant Nos.9, 10, 11(a) to 11(c) is without authority and the same are not binding on the plaintiffs' share. Similarly, execution of deeds of sale by defendant No.7 as General Power of Attorney holder of defendant Nos.2 to 4 in favour of Defendant Nos.12 and 13 are also not binding on the shares of the plaintiffs. That no infirmity or illegality can be found in the orders passed by the trial Court warranting an interference. Hence sought for dismissal of the appeals. 17. Heard the learned counsel for the parties. Perused the records. The point that arises for our consideration is: "Whether on the facts and in circumstances of the case, the trial Court was justified in decreeing the suit of the plaintiffs?" 18. The relationship between the parties being the children and heirs of original propositus-Balappa Halayee is not denied. It is also not denied that the schedule properties are the absolute properties belonging to said Balappa Halayee. That being the admitted position upon the demise of said Balappa Halayee, the properties stood devolved upon his legal heirs being his sons and daughters. The relationship between the parties being the children and heirs of original propositus-Balappa Halayee is not denied. It is also not denied that the schedule properties are the absolute properties belonging to said Balappa Halayee. That being the admitted position upon the demise of said Balappa Halayee, the properties stood devolved upon his legal heirs being his sons and daughters. Severance of joint family properties can be evidenced by a written document in the manner known to law or other acceptable cogent evidence and in the absence thereof, it cannot be inferred that the joint family properties have been partitioned and the joint family has been severed. Though appellants in RFA No.100080/2017 have contended that there was a partition in terms of which 3 acres 27 guntas was allotted to the share of Jambu and 3 acres 24 guntas was allotted to the share of defendant No.1 but have not produced any acceptable evidence in that regard. Though Exs.D1 to D3 are produced, the same are not in accordance with law. As rightly taken note of and appreciated by the trial Court, Ex.D1 cannot be termed and accepted as a deed of partition or as a memorandum of partition. In any event, the said documents admittedly does not bear signatures of the plaintiffs and also anything about they having given any consent. Exs.D2 and D3 are the revenue records hardly of any assistance to the defendants in proving their case of earlier partition. The said Exs.D1 to D3 being the only evidence sought to be produced by the defendants and the same being inadmissible in law, will not have any effect of taking away or depriving the rights of the plaintiffs being the daughters of Balappa Halayee. The trial Court has also dealt with the deposition of DW1 in extenso in which defendant No.1 has neither been able to prove relinquishment of rights by plaintiffs over the suit schedule properties in their favour nor has he been able to prove the factum of prior partition. 19. The submission of the counsel that the plaintiffs being aware of the said partition and entries in the revenue records and their inaction to dispute or challenge the same has resulted in they not having any right to seek for partition cannot be countenanced. 19. The submission of the counsel that the plaintiffs being aware of the said partition and entries in the revenue records and their inaction to dispute or challenge the same has resulted in they not having any right to seek for partition cannot be countenanced. Relinquishment of any right in the immovable property can only take effect by a document duly registered under the provisions of Indian Registration Act, 1908. Though it is contended that the plaintiffs have not questioned the revenue entries in the names of defendant No.1 and late Jambu, who have been in possession of their respective shares over 30 years, it is not established that the plaintiffs were aware of the said entries made in the revenue records to their knowledge. In any event, such entries only causing rebuttable presumption under the law. The defendants have not proved the earlier partition. In that view of the matter, the claim of the defendants that there was a partition of the property 30 years prior to the filing of the suit cannot be accepted. 20. Admittedly, Jambu passed away on 20/1/2011. Defendant No.8 claiming to be his power of attorney holder has executed the deeds of sale dtd. 21/1/2011 in favour of defendant Nos.9, 10, 11(a) to 11(c) which is clearly subsequent to his death. Though the purported power of attorney has not been filed by the concerned parties before the Court, by operation of law, the power or authority if any, delegated by deceased Jambu in favour of defendant No.8 ceases to operate immediately on his demise. Any acts or deeds done or carried on his behalf, subsequent to his demise under the said power of attorney has no existence in the eyes of law rendering the same void ab initio. Defendant Nos.8, 9, 10, 11(a) and 11(c) have not contested the suit in any manner. The reasoning and conclusion arrived at by the trial Court in this regard is just and proper. 21. As regards the sale of deeds executed by defendant No.7 as power of attorney holder of defendant Nos.5 and 6 and defendant No.2 in her own capacity and as a minor guardian of defendant Nos.3 and 4 in favour of defendant Nos.12 and 13 under deeds of sale dtd. 28/5/2013, the defendant No.13 though in his written statement contended that he is a bona fide purchaser has not adduced any evidence. 28/5/2013, the defendant No.13 though in his written statement contended that he is a bona fide purchaser has not adduced any evidence. Defendant No.12 has remained ex parte. Defendant No.6 has seriously disputed she having executed power of attorney in favour of defendant No.7 which has not been controverted. The trial Court taking note of these aspects of the matter has held that the right and entitlements of the defendant Nos.12 and 13 can only be restricted to the extent of shares of defendant Nos.2 to 5 and 7 in the suit schedule properties since they are not disputing the execution of the aforesaid deeds of sale in favour of defendant Nos.12 and 13. Defendant Nos.12 and 13 may seek equities against the shares of defendant Nos.2 to 5 and 7 in accordance with law. The said reasoning and conclusion arrived at by the trial Court is just and proper. 22. For the foregoing reasons and analysis, we are of the considered view that the judgment and decree passed by the trial Court is just and proper. No grounds are made out by the appellants warranting any interference thereof. Consequently, the following: ORDER Appeals are dismissed. The impugned judgment and decree 6/12/2016 passed in O.S.No.37/2013 on the file of Senior Civil Judge, Hukkeri is confirmed. Parties to bear the costs.