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2023 DIGILAW 295 (KAR)

Geetha v. Doddaiah

2023-02-17

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission. Heard the learned counsel appearing for the appellants. 2. This appeal is filed challenging the judgment and decree dtd. 14/7/2020 passed in R.A.No.55/2019 on the file of the I Additional District and Sessions Judge, Ramanagara. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that the suit schedule property is the ancestral and joint family property of themselves and defendant Nos.1 to 3 and also contend that the sale deed executed by defendant No.1 and Beeraiah in favour of defendant No.4 in respect of the suit schedule property is null and void and not binding on them. In pursuance of the suit summons, the defendant No.4 appeared and filed written statement contending that the sale made by defendant No.1 and Beeraiah in favour of him are to redeem the mortgage made earlier for the family legal necessities and also he contend that he is a bonafide purchaser of the suit property and the defendants have also taken the contention that the suit is bad for non- joinder of necessary parties. In order to prove the case of the plaintiffs, first plaintiff has been examined as PW1 and witnesses as PW2 and PW3 and got marked the documents at Ex.P1 to P3. On the other hand, the GPA holder of the defendant No.4 has been examined as DW1 and during the penddency of the proceedings defendant No.4 passed away hence, the evidence of defendant No.1 who is her GPA holder is expunged vide order dtd. 9/1/2018 and later, the legal representatives of defendant No.4 were brought on record including DW1 and one of his legal representativegot examined as DW2 and got marked the documents at Ex.D1 to D7. 4. The Trial Court after considering both oral and documentary evidence placed on record comes to the conclusion that the suit schedule properties are the ancestral and joint family properties and answered Issue No.1 as affirmative and answered Issue No.2 as negative in coming to the conclusion that the sale deed executed by defendant No.1 and Beeraiah in favaour of defendant No.4 is not null and void and accepted the contention of defendant No.4 that the said sale was made to redeem the mortgage which was made earlier and also comes to the conclusion that defendant No.4 is a bonafide purchaser. Apart from that made an observation that not made all the parties as respondents in the suit hence, the suit is bad for non-joinder of necessary parties and also observed that as per Ex.D2 and D3, sale deeds are executed by defendant No.1 along with his brother Beeraiah and both of them have alienated the suit schedule property and remaining 1 acre of land in Sy.No.126/4also sold in favour of defendant No.4 and when the other executant of the sale deed is not made as a party to the proceedings, the suit is bad for non-joinder of necessary parties and dismissed the suit filed by the plaintiff. Being aggrieved by the judgment of the Trial Court, an appeal was filed wherein the First Appellate Court considering the grounds urged in the appeal memo formulated the points with regard to whether the plaintiff proves that the suit schedule property is the ancestral and joint family property and whether the sale deed executed by defendant No.1 along with his brother is null and void and whether the defendant No.4 is the bonafide purchaser and the First Appellate Court also formulated the point with regard to the suit is bad for non- joinder of necessary parties and whether judgment of the Trial Court requires interference. 5. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record confirmed the judgment of the Trial Court in coming to the conclusion that the sale deed executed by defendant No.1 and his brother is not null and void and defendant No.4 is a bonafide purchaserand the same was purchased to redeem the earlier mortgage and apart from that Court has taken note of non-joinder of necessary parities and very legal heirs of said Beeraiah were not brought on record and confirmed the judgment of the Trial Court. Being aggrieved by the judgment of the First Appellate Court, the present appeal is filed. 6. Being aggrieved by the judgment of the First Appellate Court, the present appeal is filed. 6. The learned counsel for the appellant would vehemently contend that the First Appellate Court committed an error in coming to the conclusion that the sale deed executed in the year 2002 is also for the legal necessity and the very approach of the Trial Court as well as the First Appellate Court is erroneous and substantial question of law raises for consideration of this Court are both the Courts were not justified in dismissing the suit filed by the appellant and erroneously comes to the conclusion that defendant No.4 is the bonafide purchaser hence, it requires interference. 7. Having heard the learned counsel for the appellant and also on perusal of the material available on record, it discloses that the plaintiffs have sought for the relief of partition and separate possession and while filing the suit, it is contended that sale deed executed by defendant No.1 and his brother Beeraiah are null and void. Admittedly, the said Beeraiah and his legal heirs are not made as parties to the proceedings and the Trial Court comes to the conclusion that the suit is bad for non- joinder of necessary parties and First Appellate Court also confirmed the same. The First Appellate Court also not disputes the fact that the said Beeraiah was also a party to the sale deed executed in favour of defendant No.4 and ought to have been arrayed the said Beeraiah as party to the proceedings and after his death, his legal heirs have to be brought on record but the same was not done hence, both the Courts are given the finding that sale made in favour of defendant No.4 is for legal necessity that is to clear the earlier mortgage and also comes to the conclusion that defendant No.4 is the bonafide purchaser and the matter is also contested only by defendant No.4 who is the subsequent purchaser of the suit schedule property from defendant No.1 and his brother Beeraiah. When such being the material available on record I do not find any error committed by the Trial Court in dismissing the suit and First Appellate Court also on re-appreciation of both oral and documentary evidence available on record in paragraph 30 considered that defendant No.4 is the bonafide purchaser and taken note of documents at Ex.D2 and D3 which were sold in the year 1975 and 2002 respectively. It is also observed that even though Ex.D2 and D3 were executed by defendant No.1 and his brother Beeraiah who are the managers of the joint family, the plaintiffs seeking their respective shares in the suit schedule property but failed to claim any relief either the invalidity of those documents or non-binding of their interest in view of submitting to allot their share and also taken note of Sec. 6 of the Hindu Succession Act and discussed in detailed in paragraph 31 and also taken note of Sec. 33 with regard to the evidence of DW2 established a liability of the joint family towards which Ex.D2 and D3 were executed by defendant No.1 and his brother Beeraiah and also taken note of the contents of Ex.D2 and D3 and in order to discharge the hand loans, family maintenance, house expenses only those sale deedswere executed hence, comes to the conclusion that sale was made for the benefit of family and when such finding was given by both the Trial Court as well as First Appellate Court, I do not find any merit in the appeal to admit the same and to frame substantial question of law invoking Sec. 100 of CPC. 8. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.