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2025 DIGILAW 427 (KAR)

Shivakka W/o Laxman Baganar - Appellant v. Laxman A/F Sidramappa Baganar

2025-06-16

HANCHATE SANJEEVKUMAR

body2025
JUDGMENT : HANCHATE SANJEEVKUMAR, J. The plaintiffs have filed this appeal challenging the judgment and decree dated 18.10.2014, passed by the Senior Civil Judge and JMFC, Mudhol, in O.S.No.18/2010, thereby, the suit filed for declaration, partition and separate possession is dismissed. 2. It is the case of the plaintiffs that the plaintiffs and defendants No.1 to 8 constitute a Hindu undivided joint family. The suit properties are ancestral properties. It is stated in the plaint with reference to genealogy annexed to the plaint that one Rannappa is the original propositus and he has two sons namely Yallappa and Sidramappa. Yallappa has eight children who are defendants No.1 to 8. Sidramappa has no issues. Therefore, it is contended that Sidramappa has taken defendant No.1 in adoption, thus, defendant No.1 is claiming to be adopted son of Sidramappa. The plaintiffs are wife and children of defendant No.1. 3. When this being the fact, all the defendants No.1 to 8 have sold the suit property, which is coparcenary property, in favour of defendant No.9 through a registered sale deed. It is contended that defendant No.9 is not a bona fide purchaser. Therefore, the said sale deed is not binding on the plaintiffs’ share. Therefore, prays for partition of 5/6 th share in the suit schedule property and besides claiming declaration that the said sale deed executed by defendants No.1 to 8 dated 25.02.2009 is not binding on the plaintiffs share. Thus filed a suit for declaration, partition and separate possession by pleading the above facts. 4. Upon issuance of summons to defendants No.1 to 9, defendants No.1 and 3 to 9 received summons and have engaged an advocate but did not file written statement and have not contested the suit. Defendant No.2 though received summons remained exparte. Therefore, defendants No.1 to 8 have not contested the suit. The defendant No.9 alone has filed the written statement denying the plaint averments. 5. It is pleadings of defendant No.9 to the effect that he has confirmed and satisfied himself that defendants No.1 to 8 are successors of Yallappa and having joint property and verified all the records and upon enquiry in the presence of elders and then defendant No.9 had purchased the suit property from defendants No.1 to 8 through a registered sale deed dated 25.02.2009 after payment of entire sale consideration amount to defendants No.1 to 8. Thus, defendants No.1 to 8 upon their own will and wish collectively have executed registered sale deed in favour of defendant No.9. Thus sold the property to defendant No.9. Accordingly in the revenue records the name of defendant No.9 was mutated. When this being the fact, the plaintiffs never objected this sale transaction at any point of time. The plaintiffs have also consented for the same. The plaintiffs have never raised any objection before revenue authorities after sale of the land to defendant No.9 objecting the sale transaction. Therefore, taken pleading that the suit filed by the plaintiffs along with defendants No.1 to 8 is a suit collusive in nature just to deprive the legitimate rights of defendant No.9, who has become lawful owner of the suit property by virtue of the registered sale deed. Thus, prays to dismiss the suit. 6. Upon pleadings, the trial Court has framed the following: ISSUES 1. Whether the Plaintiffs prove that the sale deed executed by the Defendant No.1 to 8 in favour of Defendant No.9 in respect of suit lands on 25.02.2009 is illegal and not binding on the Plaintiffs? 2. Whether the Plaintiffs further prove that suit land is joint family ancestral property of Plaintiffs and Defendant No.1 as contended in the plaint? 3. Whether the Plaintiffs further prove that, they are still in possession of the suit land as on the date of the suit? 4. Whether the Plaintiffs further prove that, interference of the Defendants as alleged in the plaint? 5. Whether the Defendant No.9 proves that, he is the bonafide purchaser of the property from Defendant No.1 to 8? 6. Whether the Plaintiffs are entitled for the relief of declaration and Partition and Separate Possession as sought for? 7. What decree or order? 7. On behalf of the plaintiffs one power of attorney holder is examined as PW.1 and two witnesses are examined as PW.2 and PW.3. On behalf of plaintiffs, documentary evidence at Exs.P.1 to P.6 are got marked. On behalf of defendant No.9, he himself is examined as DW.1 and three witnesses have been examined as DW.2 to DW.4. The defendant No.9 has got marked documentary evidence at Exs.D.1 to D.9. 8. On behalf of plaintiffs, documentary evidence at Exs.P.1 to P.6 are got marked. On behalf of defendant No.9, he himself is examined as DW.1 and three witnesses have been examined as DW.2 to DW.4. The defendant No.9 has got marked documentary evidence at Exs.D.1 to D.9. 8. The trial Court after appreciating the evidence on record has dismissed the suit by answering issue No.1 to 4 in the negative holding that the plaintiffs have failed to prove that the sale deed executed by defendants No.1 to 8 in favour of defendant No.9 is illegal and not binding on the plaintiffs. Further held that the plaintiffs have failed to prove the suit land is joint family and ancestral property of plaintiff and defendants No.1 to 8 as contended in the plaint. The trial Court held that the plaintiffs failed to prove that they are in possession over the suit schedule land. The trial Court held that defendant No.9 is the bona fide purchaser of the suit schedule land from defendants No.1 to 8. Thus, dismissed the suit. 9. The trial Court assigned reason that the suit filed by the plaintiffs and defendant No.1 to 8 is collusive in nature, just to cause deprivation of legitimate right of defendant No.9 for holding that defendant No.9 is not a bona fide purchaser. The trial Court further observed that from the evidence of DWs.1 to 4 it is proved that the family of defendants No.1 to 8 have debt in various banks and financial institutions. Therefore to discharge the said debt have sold the suit schedule land in favour of defendant No.9. Upon answering issue No.2, the trial Court observed that PW.1 plaintiff has admitted the defendants No.1 to 8 have received the entire sale consideration amount and selling of land by defendants No.1 to 8 in favour of defendant No.9 is for family and legal necessities and defendant No.9 after verifying all the records and enquiry with the elders has purchased the suit schedule land. Thus, after appreciating the evidence on record the trial Court came to the conclusion that defendant No.9 is a bona fide purchaser of the suit schedule land from defendants No.1 to 8, thus dismissed the suit. 10. Heard the arguments of learned counsels appearing for both the sides and perused the records. Accordingly, the following points would arise for consideration in this appeal. 10. Heard the arguments of learned counsels appearing for both the sides and perused the records. Accordingly, the following points would arise for consideration in this appeal. i) Whether, under the facts and circumstances involved in the case, the plaintiffs prove that the registered sale deed executed by defendants No.1 to 8 in favour of defendant No.9 is illegal and not binding on the plaintiffs? ii) Whether, under the facts and circumstances involved in the case, defendant No.9 proves that he is the bona fide purchaser of the property from defendants No.1 to 8? 11. Learned counsel for the appellants/plaintiffs submitted that the plaintiffs have inherent right of claiming share in the suit schedule land being coparcenaries as the suit schedule land is the ancestral property. Defendant No.1 being wife and father of plaintiffs has gone in adoption to Sidramappa’s family, the share of Sidramappa ought not to have been sold by defendant No.1. At the most the defendants No.2 to 8 being legal hers of Yallappa could have sold the suit schedule land and the sale deed is binding on defendants No.2 to 8. But considering the branch of Sidramappa, at the most defendant No.1 being adopted son could have sold his share only but not the share of plaintiffs. Therefore, the plaintiffs have 5/6 th share in the suit schedule land. Thus, prays to decree the suit by allowing this appeal. It is also argued by contending without prejudice to the above arguments that even if it is not proved the defendant No.1 has not gone in adoption to Sidramappa’s family, but the sale deed is not binding on the plaintiffs to the extent of share of defendant No.1. Therefore, on both the aspects the plaintiffs have share in the suit schedule land. Hence the trial Court has committed error in dismissing the suit. Therefore, prays to allow the appeal and decree the suit as prayed for. 12. On the other hand, learned counsel for defendant No.9/respondent No.12 submitted that the suit filed is collusive one between the plaintiffs and defendants No.1 to 8. The defendants No.1 to 8 in order to deprive the right of defendant No.9 had instigated plaintiffs, who are none other than wife and children of defendant No.1 to file the suit. Further, defendant No.9 is a bona fide purchaser of suit schedule land for valuable consideration. The defendants No.1 to 8 in order to deprive the right of defendant No.9 had instigated plaintiffs, who are none other than wife and children of defendant No.1 to file the suit. Further, defendant No.9 is a bona fide purchaser of suit schedule land for valuable consideration. Therefore, the trial Court has correctly observed all the things and rightly appreciated the evidence on record. Therefore, dismissal of suit by the trial Court is proper, just and legal one, which needs no interference. Therefore, prays to dismiss the appeal. 13. Upon considering the facts and circumstances and evidence on record, the relationship between the plaintiffs and defendants No.1 to 8 each other are not disputed. The genealogy as stated by the plaintiffs is also not disputed. The suit schedule land is coparcener property and it is also not in dispute. The plaintiffs and defendants No.1 to 8 have contended that defendant No.1 has gone in adoption to the family of Sidramappa. Thus, he became adopted son of Sidramappa, which is also not disputed by themselves. But in this regard, there is no evidence to prove that defendant No.1 had gone in adoption to the family of Sidramappa. The trial Court has observed that upon the evidence of DW-1 and DW-2, the suit schedule property is ancestral property and therefore, defendant No.1 has also share in the suit schedule land. As on the date of sale deed in favour of defendant No.9, the suit schedule land was standing in the name of defendants No.1 to 8 and they have every right to sell the land as per Article 255 of the Hindu Law, authored by Mulla. Therefore, defendants No.1 to 8 have collectively sold property in favour of defendant No.9. Article 255 of the Hindu Law stipulates as follows: 255. Alienation by sole surviving coparcener.—(1) A person who for the time being is the sole surviving coparcener, is entitled to dispose of the coparcenary property, as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. (2) As to dispositions by will, see Article367. (3) As to the rights of a widow sharing her deceased husband's property under the Hindu Women's Rights to Property Act, 1937, to challenge alienation by sole surviving coparcener of her husband, see Ramalingam v. Ramalakshmi and Article 35. 14. (2) As to dispositions by will, see Article367. (3) As to the rights of a widow sharing her deceased husband's property under the Hindu Women's Rights to Property Act, 1937, to challenge alienation by sole surviving coparcener of her husband, see Ramalingam v. Ramalakshmi and Article 35. 14. The next question to consider is, whether the sale made by defendants No.1 to 8 in favour of defendant No.9 is with ulterior motive to cause deprivation of right of plaintiffs is to be considered. In this regard, the plaintiffs have not examined themselves, but their power of attorney holder is examined as PW-1. PW-1 has stated that he knows the affairs of family of plaintiffs and defendants No.1 to 8. He has admitted in the evidence that the sale deed executed by defendants No.1 to 8 in favour of defendant No.9 is not challenged as it is false and bogus sale deed before any other authority and also before the revenue authorities and mutation of name of defendant No.9 in the revenue records by virtue of registered sale deed is also not objected by the plaintiffs before revenue authorities. Further, plaintiff No.1 is wife of defendant No.1. Therefore, she knows the facts about the case but she has not entered into the witness box to give evidence. Among the plaintiffs, none of them have personally given evidence before the Court. But the plaintiffs have given evidence through their relative, power of attorney holder- PW-1. The evidence of PWs.2 and 3 is nothing but reiteration of the plaint averments. The evidence of PWs.1 to 3 is found to be regarding relationship between plaintiffs and defendants No.1 to 8 and suit property, being the jointly family property and relationship are admitted. 15. The prominent question to be considered in this case is, whether defendant No.9 is a bona fide purchaser or not. The trial Court while appreciating the evidence of DW-1 to 4, while answering issue No.5, has observed that the suit schedule land is sold out by defendants No.1 to 8 in favour of defendant No.9 for a total consideration amount of Rs.5,30,000/-. Defendants No.1 to 8 have sold out the property for family and legal necessities, as the defendants No.1 to 8 have availed loan in various Banks and different financial institutions. Defendants No.1 to 8 have sold out the property for family and legal necessities, as the defendants No.1 to 8 have availed loan in various Banks and different financial institutions. DW-2 to 4 have deposed that defendants No.1 to 8 have sold property collectively to defendant No.9 for valuable consideration. 16. When this being the fact, defendants No.1 to 8 being the joint family members collectively have executed registered sale deed in favour of defendant No.9. Defendant No.9 after verification of documents and enquiry with the elders, had purchased the property. Therefore, as per Article 255 of the Hindu Law, for family and legal necessity, the adult-coparcener has right to sell the property in the interest of family i.e., what is done by defendants No.1 to 8. Further, defendants No.1 to 8, in spite of receiving summons by the Court, though appeared through advocate, did not contest the suit by filing written statement. This itself shows the fact that, the plaintiffs and defendants No.1 to 8 are collusive in nature to institute the suit. Further, plaintiff No.1 is wife of defendant No.1. Though he is having full knowledge about the case, has not come forward to give evidence before the Court. But the plaintiffs have got examined their power of attorney holder. Therefore, when these facts and circumstances are considered with appreciation of evidence on record, the suit instituted is found to be collusive in nature and defendant No.9 is proved to be bona fide purchaser of the suit schedule land. 17. Thus, in this regard, the trial Court has correctly appreciated the evidence on record, hence, dismissed the suit. The registered sale deed executed by defendants No.1 to 8 is also binding on the plaintiffs for the reasons discussed above. Therefore, there is no good ground to interfere with the judgment and decree passed by the trial Court. Therefore, point No.(i) raised for consideration in this appeal is answered in ‘negative’ and point No.(ii) in the ‘affirmative’. Resultantly, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed.