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2023 DIGILAW 1161 (KAR)

Rukmini @ Rukmawwa v. Maruti

2023-10-04

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - The dismissal of the suit for partition in O.S.No.176/2017 on the file of the Principal Senior Civil Judge, Gokak, has given a cause of action to plaintiff No.1 to file this appeal. 2. The admitted genealogy of the parties is as under:- 3. Maruti is the propositus and he is the first defendant. His wife Lagamawwa predeceased Maruti. The couple had two sons, Pundalik and Kallappa (second and third defendants) and two daughters, Rukmini and Renuka. Rukmani is the plaintiff and Renuka is defendant No.4. The children and wife of Pundalik have also joined Rukmini in filing the suit for partition. There are seven properties described in the plaint as the suit properties. 4. The suit is contested by 5th and 6th defendant. The said defendants are the purchasers of the property at Sl.No.5 under registered sale deed dated 22.11.2002 which is marked at Ex.P9. The said sale deed is executed by defendant No.1-Maruti. The wife of Maruti-Lagmawwa and the sons, Pundalik and Kallappa have also signed the sale deed as consenting parties. 5. On 28.01.2011, item Nos.1 to 4 properties are sold by defendant No.1 in favour of defendant No.7. Defendants No.2 to 4 have consented for the sale. The consenting parties to the sale did not contest the suit. 6. The trial Court has taken a view that sale is for the legal necessity and consequently, dismissed the suit. Aggrieved by the aforementioned judgment and decree, plaintiff No.1 is in appeal. 7. The learned counsel for appellant-plaintiff No.1 submits that the trial Court committed an error in holding that defendant No.1 has sold the property for legal necessity, in the absence of plea and evidence in this regard. It is also his contention that the properties are admittedly ancestral properties and this being the position, the sale transaction dated 28.01.2011 in respect of item Nos.1 to 4 properties could not have been held to be valid sale as the plaintiffs had acquired right in the property by reason of the birth in the family. 8. It is also his contention that the properties are admittedly ancestral properties and this being the position, the sale transaction dated 28.01.2011 in respect of item Nos.1 to 4 properties could not have been held to be valid sale as the plaintiffs had acquired right in the property by reason of the birth in the family. 8. The learned counsel for defendants No.5 and 6- the purchasers would urge that the sale transaction in respect of item No.5 property took place on 22.11.2002 and assuming that the properties are the ancestral properties, the sale transaction effected before 20.12.2006 are saved in terms of the Amendment to section 6 of the Hindu Succession Act, 1956, and if the properties are held to be the separate properties of Maruti, then also the sale transactions are valid transactions as the plaintiffs cannot question the sale effected by Maruti during his life time. Thus, he would defend the judgment and decree dismissing the suit in respect of item No.5 property. 9. This Court has considered the contentions raised at the Bar. The following point arises for consideration:- "Whether the trial Court is justified in holding that the alienation of item Nos.1 to 4 properties are for legal necessity" 10. It is to be noticed in paragraph No.3 that plaintiffs have raised the contention that the suit properties are the ancestral joint family properties and item No.5 property was purchased from the income from item Nos.1 to 4 properties. To this plea, there is no contest by the sons of Maruti. Ex.P3 would clearly reveal that the properties at Serial No.1 to 4 are inherited after the death of Dundappa-the father of Maruti. Thus, the plea that the properties are the ancestral properties is very much established. When that being the position, all the children of Maruti acquired right in the properties at Serial No.1 to 4 by reason of birth in the family. Though the trial Court has taken a view that the sale of the year 2001 is for the legal necessity, the evidence is not forthcoming as to what was the legal necessity, which compelled the first defendant to sell the properties at item Nos.1 to 4 of the suit properties. Whenever a defence of sale for legal necessity is raised, the burden is on the purchaser to establish such a defence. Whenever a defence of sale for legal necessity is raised, the burden is on the purchaser to establish such a defence. It has to be noticed that defence of legal necessity was raised by defendants No.5 and 6 in respect of item No.5 property. However, there is no defence relating to sale for legal necessity in respect of item Nos.1 to 4 properties. This being the position, the trial Court erred in holding that the sale of properties in 2011 in respect of item Nos.1 to 4 properties is for legal necessity. 11. It is to be noticed that the sale deed of the year 2011 which is marked at Ex.P10 is signed by defendant No.1-Maruti, defendant No.2-Pundalik and Defendant No.4-Renuka. Ex.P11 reveals that children of defendant No.2-Pundalik, defendant No.3- Kallappa and Defendant No.4-Renuka have signed this sale deed as consenting parties. Hence, these persons who are either the sellers or the consenting parties to the said sale transaction cannot claim any share in the properties sold. 12. Plaintiff No.1-Rukmini is not the seller or the consenting parties to the said sale. Thus, she is having 1/5th share in the suit schedule properties. The said sale deed does not bind the interest of Rukmini in respect of the suit schedule properties. This fact is not noticed by the trial Court. The trial Court is clearly erred in holding that the entire sale transaction is for the legal necessity. No such plea was raised in respect of item Nos.1 to 4 properties. Accordingly, impugned judgment and decree passed by the trial Court are modified to the extent of dismissing the suit of plaintiff No.1. Consequently, the suit in O.S.No.176/2017 on the file of the Principal Senior Civil Judge, Gokak, is decreed in part holding that plaintiff No.1 is entitled to 1/5th share in all the suit schedule properties except item No.5. 13. As far as item Nos.6 and 7 properties are concerned, it is to be noticed that there is no sale transaction in respect of the said properties. The suit could not have been dismissed in respect of item Nos. 6 and 7 property. The suit ought to have been decreed on respect of item No.6 and 7 properties. Hence, the following:- ORDER i) Accordingly, appeal is allowed in part. The suit could not have been dismissed in respect of item Nos. 6 and 7 property. The suit ought to have been decreed on respect of item No.6 and 7 properties. Hence, the following:- ORDER i) Accordingly, appeal is allowed in part. ii) Plaintiff No.1-Rukmini is entitled to 1/5th share in all the suit schedule properties except item No.5, iii) Plaintiffs No.2 to 5 along with Pundalik - defendant No.1 will have 1/5th share in item No.6 and 7 properties. iv) Defendant No.1 will have 1/5th share in item Nos.6 and 7 properties. v) Likewise, plaintiffs No.6 to 9 along with defendant No.3 will have 1/5th share in item No.6 and 7 properties.