Karnataka High Court
Metal Closures Pvt Ltd vs Smt. Muniyamma on 9 April, 2026
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 1292 of 2016
C/W RFA No. 1291 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 1292 OF 2016 (DEC/INJ)
C/W
REGULAR FIRST APPEAL NO. 1291 OF 2016 (DEC/INJ)
IN RFA NO.1292/2016
BETWEEN:
M/S. LUVAC ENGINEERING CORPORATION,
KNOWN AS METAL CLOSURES PVT. LTD.,
A PRIVATE LIMITED COMPANY,
INCORPORATED UNDER THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
NO.39/4B, 12 K.M. KANAKAPURA ROAD,
DODAKALLASANDRA VILLAGE,
BANGALORE SOUTH TALUK-560062,
REPRESENTED BY ITS MANAGING DIRECTOR
MR. B.PRASHANTH HEGDE,
Digitally signed
by MALLIKARJUN
RUDRAYYA SON OF V. RATHANAKAR HEGDE,
KALMATH
Location: High
Court of
AGED ABOUT 70 YEARS.
Karnataka,
Dharwad Bench
...APPELLANT
(BY SRI P. S. RAJAGOPAL, SENIOR ADVOCATE, A/W.
SRI. AJITH ACHAPPA, ADVOCATE)
AND
1. SMT. MUNIYAMMA
WIFE OF ANJANAPPA (LATE),
AGED ABOUT 64 YEARS,
2. SMT. NAGAMMA
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DAUGHTER OF ANJANAPPA (LATE),
AGED ABOUT 60 YEARS,
3. SMT. RATNAMMA
DAUGHTER OF ANJANNAPPA (LATE),
AGED ABOUT 56 YEARS,
4. SMT. SUSHEELAMMA
DAUGHTER OF ANJANNAPPA (LATE),
AGED ABOUT 53 YEARS,
5. SRI. SRINIVASA
SON OF ANJANAPPA (LATE),
AGED ABOUT 50 YEARS,
6. SRI. VENKATESHA
SON OF ANJANAPPA (LATE),
AGED ABOUT 48 YEARS,
7. SMT. LAKSHMI
DAUGHTER OF ANJANAPPA (LATE),
AGED ABOUT 45 YEARS,
8. SMT. NETHRAVATHI
DAUGHTER OF ANJANAPPA (LATE),
AGED ABOUT 35 YEARS,
RESPONDENTS 1 TO 8 ARE RESIDING
AT DODDAKALASANDRA VILLAGE,
BANGALORE SOUTH TALUK-560062.
9. SRI D.M.ANJANAPPA
S/O CHIKKAMUNISWAMAPPA,
AGED ABOUT 59 YEARS,
MUNIREDDY COLONY,
BINNIGANAHALLI,
OLD MADRAS RAOD,
BANGALORE-560 091.
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10. SRI M. SRINIVASA
S/O. CHIKKAMUNISWAMAPPA,
AGED ABOUT 57 YEARS,
6-A/7, HEGGANAHALLI CROSS,
LAKSHMANAGAR, PEENYA 2ND STAGE,
BANGALORE-560091.
SINCE DEAD, REPRESENT BY HIS LR'S
10 (a) SMT. VIJAYAMMA,
W/O. SRINIVAS M,
AGED ABOUT 53 YEARS,
10 (b) MOHAN KUMAR.S,
S/O. SRINIVAS M. (LATE),
AGED ABOUT 43 YEARS,
10 (c) MURALI KUMAR.S,
S/O SRINIVAS M. (LATE),
AGED ABOUT 35 YEARS,
10 (d) SANJAY UMAS S
S/O SRINIVAS M. (LATE),
AGED ABOUT 33 YEARS,
ALL ARE RESIDING AT NO. E-22,
5TH CROSS, 1ST MAIN,
OPPOSITE MOHAN TALKIES,
HEGGANA HALLI CROSS,
LAKSHMANA NAGARA,
BENGALURU NORTH,
BENGALURU-560091.
11. SRI M. RAMACHANDRA
S/O CHIKKASWAMAPPA,
AGED ABOUT 56 YEARS,
NO.123, BASAVESHWARANAGAR,
BANGALORE-560086.
12. SRI M. LAKSHMAN
S/O CHIKKAMUNISWAMAPPA
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AGED ABOUT 54 YEARS,
NO.330, KAVIRAJ INDUSTRIES,
PEENYA INDUSTRIAL ESTATE,
1ST STAGE, BANGALORE-560058.
13. SRI M. GANESH
S/O CHIKKAMUNISWAMAPPA,
AGED ABOUT 43 YEARS,
NO.12, 1ST MAIN, MANI VILA GARDEN,
KAMALANAGAR, BANGALORE-560079.
14. SMT. KAMAKSHAMMA
W/O. SHIVALINGAMURTHY,
MAJOR, BEHIND WOODLANDS HOTEL,
TUMKUR-572101.
15. SMT. PARVATHI
W/O SHANTHA KUMAR,
MUNIKRISHNAPPA COMPOUND,
KAMAGUNDANAHALLY
JALAHALLI WEST,
BANGALORE-560015.
16. SMT. LAKSHMIDEVI
C/O. D. M. RAJAPPA ,
MUNIRAMAREDDY COMPOUND
BENNAGANAHALLY
OLD MADRAS ROAD,
BANGALORE-560091.
17. SRI SURYANARAYANA
FATHERS NAME NOT KNOWN
MAJOR, NO.1076, NGO'S COLONY,
KAMALANAGAR, BANGALORE-560079.
18. SRI C. R. SANTHOSH KUMAR,
S/O. C. RAMASWAMY
AGED ABOUT 40 YEARS,
NO.93, NANDI ROAD,
BASAVANAGUDI
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BANGALORE-560004.
19. TRASPOSED AS PLAINTIFF NO.1,
M/S. LAVAC ENGG/METAL CLOSURES,
SRI. NAGARAJA SHETTY
SINCE DEAD BY LRS
20. SMT. SHAKUNTALAMMA
W/O. NAGARAJA SHETTY (LATE),
AGED ABOUT MAJOR,
NO.95, 5TH CROSS,
SURVEYOR STREET,
BASAVANAGUDI,
BANGALORE-560004.
21. SRI PARTHASWARTHY
S/O. NAGARAJA SHEETY (LATE),
AGED ABOUT MAJOR,
NO.95, 5TH CROSS,
SURVEYOR STREET,
BASAVANAGUDI
BANGALORE-560004.
22. SRI PADMAPRAKASH
S/O. LAKSHMI NARASIMHA MURTHY,
AGED ABOUT 55 YEARS,
NO.572, 10TH CROSS, 7TH BLOCK,
JAYANAGAR, BANGALORE-560041.
23. M/S. TRIDENT AUTOMOBILES PVT. LTD,
PRIVATE LIMITED COMPANY INCORPORATED
UNDER THE COMPANEIS ACT,
HAVING OFFICE NO.1,
LOWER PLACE ORCHARD,
SANKEY ROAD,
BANGALORE-560003,
REPRESENTED BY ITS
AUTHORIZED SECRETARY
SRI M. BALACHANDRAN.
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24. SMT. C. P. BHARATHI
S/O. C.R. PRABHAKAR (LATE),
AGED ABOUT MAJOR,
NO. 20, 1ST FLOOR, SANNIDI ROAD,
BASAVANAGUDI, BANGALORE-560004.
25. SRI C. P. GAURAV,
S/O. C. R. PRABHAKAR (LATE),
AGED ABOUT MAJOR,
NO.20, 1ST FLOOR, SANNIDI ROAD,
BASAVANAGUDI, BANGALORE-560004.
26. SRI C. R. SATHYANARAYANA,
S/O. RAMASWAMY SHETTY,
AGED ABOUT MAJOR,
NO.20, 1ST FLOOR, SANNIDI RAOD,
BASAVANGUDI, BANGALORE-560004.
... RESPONDENTS
(BY SRI S. M. CHANDRASHEKAR, SENIOR ADVOCATE A/W.
SRI N. S. VISWANATHA, ADVOCATE FOR R1 TO R8;
SRI SHASHI KIRAN SHETTY, SENIOR ADVOCATE A/W.
SRI PRAKASH S. SURYAVANSHI, ADVOCATE FOR R10 (A) TO
(D) & R17;
V/O. DATED 24.03.2022 NOTICE TO R9 AND R18 TO R22 ARE
HELD SUFFICIENT;
V/O. DATED 05.10.2023, R10 STANDS DISMISSED AS ABATED;
SRI ADHITHYA SONDHI, SENIOR ADVOCATE A/W.
SMT. IRFANA NAZEER, ADVOCATE FOR R23)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR
THE RECORDS IN O.S.NO.8973/2006 AND SET ASIDE THE
JUDGMENT AND DECREE DATED 30.06.2016 PASSED BY THE
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HC-KAR
COURT OF THE I ADDITIONAL CITY CIVIL SESSIONS JUDGE
AT: BANGALORE AND ALL THIS APPEAL, IN THE INTEREST OF
JUSTICE AND JUSTICE.
IN RFA NO.1291/2016
BETWEEN
M/S. LUVAC ENGINEERING CORPORATION,
KNOWN AS METAL CLOSURES PVT. LTD.,
A PRIVATE LIMITED COMPANY,
INCORPORATED UNDER THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
NO.39/4B, 12 K.M. KANAKAPURA ROAD,
DODAKALLASANDRA VILLAGE,
BANGALORE SOUTH TALUK-560062,
REPRESENTED BY ITS MANAGING DIRECTOR
MR. B.PRASHANTH HEGDE,
SON OF V. RATHANAKAR HEGDE,
AGED ABOUT 70 YEARS.
...APPELLANT
(BY SRI P. S. RAJAGOPAL, SENIOR ADVOCATE, A/W.
SRI. AJITH ACHAPPA, ADVOCATE)
AND
1. SMT. MUNIYAMMA
WIFE OF ANJANAPPA (LATE),
AGED ABOUT 64 YEARS.
2. SMT. NAGAMMA
DAUGHTER OF ANJANAPPA (LATE),
AGED ABOUT 60 YEARS.
3. SMT. RATNAMMA
DAUGHTER OF ANJANNAPPA (LATE),
AGED ABOUT 56 YEARS.
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4. SMT. SUSHEELAMMA
DAUGHTER OF ANJANNAPPA (LATE),
AGED ABOUT 53 YEARS.
5. SRI SRINIVASA
SON OF ANJANAPPA (LATE),
AGED ABOUT 50 YEARS.
6. SRI VENKATESHA
SON OF ANJANAPPA (LATE),
AGED ABOUT 48 YEARS.
7. SMT. LAKSHMI
DAUGHTER OF ANJANAPPA (LATE),
AGED ABOUT 45 YEARS.
8. NETHRAVATHI
DAUGHTER OF ANJANAPPA (LATE),
AGED ABOUT 35 YEARS.
RESPONDENTS 1 TO 8 ARE
RESIDING AT DODDAKALASANDRA VILLAGE,
BANGALORE SOUTH TALUK-560062.
9. SRI D. M. ANJANAPPA
S/O. CHIKKAMUNISWAPPA,
AGED ABOUT 59 YEARS,
MUNIREDDY COLONY,
BINNIGANAHALLI,
OLD MADRAS RAOD,
BANGALORE-560091.
10. SRI M. SRINIVASA
S/O. CHIKKAMUNISWAPPA,
AGED ABOUT 57 YEARS,
6-A/7, HEGGANAHALLI CROSS,
LAKSHMANAGAR, PEENYA
2ND STAGE, BANGALORE-560091.
SINCE DEAD, REPRESENT BY HIS LR'S
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10 (A) SMT. VIJAYAMMA,
W/O. SRINIVAS M.,
AGED ABOUT 53 YEARS,
10 (B) MOHAN KUMAR S,
S/O. SRINIVAS M. (LATE),
AGED ABOUT 43 YEARS,
10 (C) MURALI KUMAR.S,
S/O SRINIVAS M. (LATE),
AGED ABOUT 35 YEARS,
10 (D) SANJAY KUMAS S.,
S/O SRINIVAS M. (LATE),
AGED ABOUT 33 YEARS,
ALL ARE RESIDING AT
NO. E-22, 5TH CROSS,
1ST MAIN, OPPOSITE MOHAN TALKIES,
HEGGANA HALLI CROSS,
LAKSHMANA NAGARA,
BENGALURU NORTH,
BENGALURU-560091.
11. SRI RAMACHANDRA
S/O. CHIKKAMUNISWAPPA,
AGED ABOUT 56 YEARS,
NO.123, BASAVESHWARANAGAR
BANGALORE-560086.
12. SRI M. LAKSHMAN
S/O. CHIKKAMUNISWAPPA
AGED ABOUT 54 YEARS,
NO.330, KAVIRAJ INDUSTRIES
PEENYA INDUSTRIAL ESTATE,
1ST STAGE, BANGALORE-560058.
13. SRI M. GANESH
S/O. CHIKKAMUNISWAPPA,
AGED ABOUT 43 YEARS,
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NO.12, 1ST MAIN, MANI VILA GARDEN,
KAMALANAGAR, BANGALORE-560079.
14. SMT. KAMASKHAMMA,
W/O. SHIVALINGAMURTHY,
AGED ABOUT 35 YEARS,
BEHIND WOODLANDS HOTEL,
TUMKUR-572101.
15. SMT. PARVATHI
W/O. SHANTHA KUMAR,
MUNIKRISHNAPPA COMPOUND
KAMAGUNDANAHALLY
JALAHALLI WEST,
BANGALORE-560015.
16. SMT. LAKSHMIDEVI
C/O. D.M. RAJAPPA,
MUNIRAMAREDDY COMPOUND
BENNAGANAHALLY
OLD MADRAS ROAD,
BANGALORE-560091.
17. SRI SURYANARAYANA
FATHERS NAME NOT KNOWN
MAJOR, NO.1076, NGO'S COLONY,
KAMALANAGAR, BANGALORE-560079.
18. SRI C. R. SANTHOSH KUMAR,
S/O. C. RAMASWAMY,
AGED ABOUT 40 YEARS,
NO.93, NANDI ROAD,
BASAVANAGUDI, BANGALORE-560004.
19. TRASPOSED AS PLAINTIFF NO.1,
M/S. LAVAC ENGINEERING/METAL CLOSURES.
SRI. NAGARAJA SHETTY,
SINCE DEAD BY LRS.
20. SMT. SHAKUNTALAMMA
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W/O NAGARAJA SHETTY (LATE),
AGED ABOUT MAJOR,
NO.95, 5TH CROSS, SURVEYOR STREET,
BASAVANAGUDI, BANGALORE-560004.
21. SRI PARTHASWARTHY
S/O. NAGARAJA SHEETY (LATE),
AGED ABOUT MAJOR, NO.95, 5TH CROSS,
SURVEYOR STREET, BASAVANAGUDI
BANGALORE-560004.
22. SRI PADMAPRAKASH
S/O. LAKSHMI NARASIMHA MURTHY
AGED ABOUT 55 YEARS,
NO.572, 10TH CROSS, 7TH BLOCK,
JAYANAGAR, BANGALORE.
23. M/S TRIDENT AUTOMOBILES PVT. LTD.
PRIVATE LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT,
HAVING OFFICE NO.1,
LOWER PLACE ORCHARD,
SANKEY ROAD, BANGALORE-560003,
BY ITS AUTHORIZED SECRETARY
SRI M. BALACHANDRAN.
24. SMT. C. P. BHARATHI,
S/O C.R. PRABHAKAR (LATE)
AGED ABOUT MAJOR, NO. 20,
1ST FLOOR, SANNIDI ROAD,
BASAVANAGUDI,
BANGALORE-560004.
25. SRI C. P. GAURAV,
S/O. C. R. PRABHAKAR (LATE),
AGED ABOUT MAJOR,
NO. 20, 1ST FLOOR, SANNIDI ROAD,
BASAVANAGUDI,
BANGALORE-560004.
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26. SRI C. R. SATHYANARAYANA
S/O. RAMASWAMY SHETTY,
AGED ABOUT MAJOR,
NO. 20, 1ST FLOOR,
SANNIDI RAOD,
BASAVANGUDI,
BANGALORE-560004.
... RESPONDENTS
(BY SRI S. M. CHANDRASHEKAR, SENIOR ADVOCATE A/W.
SRI N. S. VISWANATHA, ADVOCATE FOR R1 TO R8;
SRI SHASHI KIRAN SHETTY, SENIOR ADVOCATE A/W.
SRI CHANDRASHEKARAN, ADVOCATE FOR R10 TO R13 & R17;
NOTICE TO R14, R16, R24 AND R25 ARE SERVED;
SRI ANANTH MANDAGI, SENIOR ADVOCATE, A/W.
SRI AMITH A. MANDAGI, ADVOCATE FOR R26;
V/O. DATED 09.02.2022 NOTICE TO R9, R15 AND R18 TO R22
ARE HELD SUFFICIENT;
SRI ADHITHYA SONDHI A/W. SMT. IRFANA NAZEER,
ADVOCATE FOR 23)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR
THE RECORDS IN O.S.NO.8973/2006 AND SET ASIDE THE
JUDGMENT AND DECREE DATED 30.06.2016 PASSED BY THE
COURT OF THE I ADDITIONAL CITY CIVIL SESSIONS JUDGE
AT: BANGALORE AND ALL THIS APPEAL, IN THE INTEREST OF
JUSTICE AND JUSTICE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
RFA No.1291/2016 is filed by plaintiff No.1 in
O.S.No.8973/2006 challenging the judgment and decree
dated 30.06.2016 passed in O.S.No.8973/2006 (common
judgment delivered along with O.S.No.6873/2009) on the
file of I Additional City Civil and Sessions Judge, Bengaluru
City (CCH-2)1, thereby, the suit filed by the plaintiffs was
dismissed.
2. RFA No.1292/2016 is filed by plaintiff No.1 in
O.S.No.6873/2009 challenging the judgment and decree
dated 30.06.2016 passed in O.S.No.6873/2009 (common
judgment delivered along with O.S.No.8973/2006) on the
file of I Additional City Civil and Sessions Judge, Bengaluru
City (CCH-2), thereby, the suit filed by the plaintiffs was
dismissed.
1
hereinafter referred to as ‘the Trial Court’ for short
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3. For the sake of convenience and easy
reference, the parties are referred to as per their rankings
before the Trial Court.
BRIEF FACTS IN BOTH O.S.NO.8973/2006 AND
O.S.NO.6973/2009 (RFA NOS.1291 AND 1292/2016)
4. It is pleaded that plaintiff Nos.2 and 3 are the
legal heirs of late C.R. Prabhakar; plaintiff No.3 was the
co-owner and partner of the property owned by
C.S.R.Estate. Defendant Nos.1 to 8 are the legal heirs of
late Anjanappa, (who was the original plaintiffs in
O.S.No.1318/1980-partition suit-Ex.P-26) on the file of III
Additional City Civil Judge, Bengaluru, and was the
appellant in RFA No.606/1989 (Ex.P-29) before this Court.
Defendant Nos.9 to 17 are the legal heirs of Buddamma.
Defendant Nos.18 to 21 are the purchasers/co-owners of
the suit schedule property.
4.1 The plaintiffs have pleaded that plaintiff No.3
along with defendant No.18 and others formed a
partnership firm as per the partnership deed dated
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26.04.1970 (Ex.P-18) in the name and style of M/s.
Master Products. The said partnership firm purchased the
agricultural land measuring 1 acre 20 guntas in
Sy.No.39/4 of Doddakallasandra Village, Uttarahalli Hobli,
Bengaluru South Taluk, through a registered sale deed
dated 18.05.1970 (Ex.P-24) executed by Buddamma D/o.
Sri. Papanna. Subsequently, the said partnership firm was
reconstituted and finally there were only four partners
namely, the 3rd plaintiff, 18th defendant, Roopa
Surendranath and C.R. Ashwathanarayana. Due to internal
disputes and difference of opinion, the partnership firm
was dissolved as per the deed of dissolution dated
01.04.1987 (Ex.P-31). The immovable property above
stated, which was purchased in the name of partnership
firm was transferred to all the partners in equal
proportion.
4.2 One among the partners, Roopa Surendranath
transferred her right, title and interest in respect of
immovable property by executing a registered transfer
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deed dated 04.12.1991 (Ex.P-34) in favour of Sri. C.R.
Prabhakar, who is none other than husband of 1st plaintiff
and the father of 2nd plaintiff for valuable consideration;
accordingly, C.R. Prabhakar became co-owner of the said
suit schedule property. All the co-owners of above said
property entered into an agreement dated 29.01.1992 and
named the property as C.S.R.Estate and also defined the
rights of all the
co-owners. Sri. C.R. Prabhakar expired on 17.07.1995.
After his death, plaintiff Nos.2 and 3, being the legal heirs,
inherited the suit schedule property and plaintiff Nos.2 and
3 become the co-owners of the suit schedule property.
4.3 The co-owners of C.S.R. Estate themselves
divided the above said property by metes and bounds as
per the memorandum of agreement dated 25.01.1996 and
divided the entire joint family property into four parts,
such as suit schedule ‘A’, ‘B’, ‘C’ and ‘D’ for identification
purpose. The suit schedule ‘B’ property was allotted to the
joint share of plaintiff Nos.1 and 2 and the suit schedule
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‘C’ property was allotted to plaintiff No.3. The suit
schedule ‘A’ property was allotted to defendant No.18. On
the basis of Partition Agreement dated 25.01.1996, the
above said immovable property was separated among the
plaintiffs, 18th defendant and Sri. C.R. Ashwathanarayan.
Thereafter, the suit schedule ‘D’ property was sold to M/s.
Metal Closures Pvt. Ltd., by executing a registered sale
deed dated 18.01.2001 (Ex.P-39) and the
purchaser/company put up construction over the said
property and started industrial activities.
4.4 The suit schedule property allotted to the
plaintiffs and they are in possession and enjoyment of the
same. The revenue records standing in the name of the
plaintiffs and the property allotted to them is referred as
the suit schedule property. When this being the fact, in the
month of August 2005, plaintiff No.2 noticed that
defendant Nos.6 and No.18 on the suit schedule property
and observed that they were trying to measure the
property. The plaintiffs are not in good terms with
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defendant No.18 and later, they came to know that the
entire suit schedule property is under litigation and there
is partition suit and also a decree in favour of defendant
Nos.1 to 17. The plaintiffs also came to know that the suit
schedule property belonging to the plaintiffs was allotted
to the share of Sri. Anjanappa, who is predecessor of
defendant Nos.1 to 17. Then the plaintiffs arranged to
obtain the details of the litigation and partition suit and
came to know that as per the judgment and decree for
partition in RFA No.606/1989 (Ex.P-29) dated 24.11.1999,
the property above named is ordered to be partitioned and
final decree proceedings for division of the suit schedule
properties is also filed.
4.5 The said judgment and decree dated
24.11.1999 was modified as per the order dated
18.04.2001 passed in C.P.No.822/2001 (Ex.D-27) in RP
No.46/2000. The plaintiffs came to know that though they
are necessary parties and owners of certain portions of the
land involved in the partition suit, they were not made as
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parties either to the suit or to the Regular First Appeal or
in the Final Decree Proceedings, but the suit was decreed
granting partition. Further, it is pleaded that plaintiff No.1
has purchased the land to the extent of 15 guntas of land
in Sy.No.39/4 from C.R. Ashwathanarayana Setty by way
of a registered sale deed dated 18.01.2001 and the
plaintiffs are in possession over the said suit schedule
property. Defendant Nos.1 to 8 have filed an execution
petition in E.P.No.2253/2006 (Ex.P-128) and were
interfering with the possession and enjoyment of the
property of plaintiff No.1. Therefore, plaintiff No.1 has filed
the suit in O.S.No.6873/2009 and obtained an interim
order of temporary injunction.
4.6 Against the said order, defendant Nos.1 to 8
have preferred MFA No.8591/2009 before this Court and it
was dismissed. Against which, defendant Nos.1 to 8 have
preferred Special Leave Petition before the Hon’ble
Supreme Court, which was also dismissed.
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4.7 Further submitted that during the pendency of
the above suit in O.S.No.6873/2009, plaintiff No.1 has
purchased the suit schedule property from plaintiff Nos.2
to 4 through two registered sale deeds dated 21.07.2010
and 04.10.2010. At the time of registration of the above
said two sale deeds, defendant Nos.1 to 8 filed objection
to the Sub-Registrar, J.P. Nagar, Bengaluru, and the Sub-
Registrar refused to register and release the sale deeds
and impounded them making a reference to the District
Registrar, who in turn directed the Sub-Registrar not to
register the same.
4.8 Being aggrieved by this, plaintiff No.1 has
preferred Writ Petition in W.P.Nos.24487 and 25267/2010
before this Court and this Court issuing writ of mandamus
on 21.07.2010 issued directions to the District Registrar
and Sub-Registrar to register and release the two sale
deeds. Thus, in this way, plaintiff No.1 has become owner
of the suit schedule property.
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4.9 Defendant No.18 though he is a co-owner along
with the plaintiffs has joined hands with the other
defendants, who have filed partition suit in
O.S.No.1318/1980. The total suit property is measuring 4
acre 14 guntas, which includes the property belonging to
the plaintiffs. It is pleaded that to overcome from the legal
juggle and the consequences of partition decree dated
24.11.1999 passed in RFA No.606/1989, the plaintiffs
preferred RP No.645/2005 before this Court, seeking to
review the order dated 24.11.1999 and to give an
opportunity to the plaintiffs to defend their case. This
Court dismissed the Review Petition in RP No.645/2005 on
12.07.2007 with a direction to approach the Civil Court to
work out their remedies by filing a suit or any other
proceedings.
4.10 It is submitted due to the judgment and decree
passed for partition in O.S.No.1318/1980 and in RFA
No.606/1989, the rights of the plaintiffs are affected.
Though, defendant No.18 is made a party to the suit and
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in the RFA, he has represented on his individual and
personal capacity, but not on behalf of the partnership
firm. It is further pleaded that the original property
belonged to one Avalahalli Hanumanthappa, who sold the
same to Yediyoor Hanumanthappa under a registered sale
deed dated 12.06.1949. The said Yediyoor
Hanumanthappa and his son Chikka Muniyappa, through a
registered sale deed dated 05.10.1950 and on the very
same day, the purchasers once again sold the property in
favour of Muniyappa Reddy through a registered sale
deed. The said Avalahalli Hanumanthappa had executed
the settlement deed dated 22.12.1949, wherein, the half
share in the said property is allotted to defendant Nos.1 to
8. Before the said settlement deed, the executor had sold
the suit schedule property under a registered sale deed
and was not owner; therefore, the said settlement deed
could not have been executed by a person who does not
have any title over the suit schedule property.
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4.11 Initially, the City Civil Court has dismissed the
suit in O.S.No.1318/1980. Against which, RFA
No.606/1989 was filed before this Court and this Court
allowed the said RFA No.606/1989 reversing the judgment
and decree passed in O.S.No.1318/1980 and granted
decree for partition. Hence, the judgment and decree
passed in RFA amounts to continuation of the decree of
City Civil Court. Therefore, the plaintiffs filed the suit for
declaration to declare that the judgment and decree dated
24.11.1999 passed by this Court in RFA No.606/1989
reversing the judgment and decree dated 04.07.1989
passed in O.S.No.1318/1980 granting as it is, is not
binding insofar as the plaintiffs are concerned and other
consequential reliefs.
WRITTEN STATEMENT OF DEFENDANT NOS.1 AND 6:
5. Defendant Nos.1 to 6 have filed the written
statement contending that they do not have knowledge
regarding internal affairs of the plaintiffs. It is stated that
defendant No.18 was indicating himself as the Managing
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Partner of the firm namely Master Products had purchased
1 acre 20 guntas of land in Sy.39/4 through a registered
sale deed dated 18.05.1970. It is the contention that
immovable property was transferred to all the partners in
equal shares is untenable as it is only during pendency of
the suit in which defendant No.18 was contesting the suit
proceedings. It is submitted that whatever transactions
during the pendency of the suit are hit by principle of lis-
pendens and therefore such transactions do not in any
way confer any right, title or interest in respect of the suit
schedule property.
5.1 The contents of the co-owners of the CSR
Estate that they have visited the properties by metes and
bounds on 25.01.1996, are all absolutely false and
baseless and at any rate do not create any independent
right, inasmuch as, the said transactions are also during
the pendency of the suit. The claim of the property
allotted to plaintiffs is kept intact are all absolutely false
and baseless as it has fallen to the share of the defendants
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in RFA No.606/1989 and subsequently, confirmed in RFA
Nos.502 and 692/2003, which were filed against the final
decree proceedings to which defendant No.18 was also
one of the party.
5.2 The contention of the plaintiffs that in the
month of August, 2005, plaintiff No.2 had seen the
defendant No.6 talking with defendant No.18 and that they
were trying to take measurement of the property is
absolutely false. Further contention of the plaintiffs that
they are not in good terms with defendant No.18 and that
they had somehow came to know that the property is
under litigation is absolutely false and baseless. The claim
of the plaintiffs that the property belonging to them were
allotted to the share of Anjanappa is false. Anjanappa is
not the predecessor of defendant Nos.1 to 17, but he
certainly predeceased defendant Nos.1 to 8. The judgment
and decree dated 24.11.1989 was challenged in CP
No.822/2001 and RP No.40/2001, but the same had not
been modified as contended. The claim of the plaintiffs
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that their share was involved in the litigation is also false
and baseless that the property never belongs to the
plaintiffs.
5.3 The contention of the plaintiffs that they had
made efforts to safeguard the suit schedule property from
defendant Nos.1 to 18 is vague as it lacks details as to
what efforts were made to suffice to state that the
plaintiffs have no right over the suit schedule property.
The claim that defendant No.18 is joining hands with the
other defendants is absolutely false as it is clear from the
very proceedings in O.S.No.1318/1980, which culminated
into final decree and confirmed by the High Court. It is
stated that the plaintiffs have no right over any portion of
the suit schedule property to the extent of 04 acres 14
guntas and reserving liberty by this Court will not create
any new right, which is not otherwise vested in the party
and therefore, claiming that the suit is filed perhaps, it is
liable to be dismissed.
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5.4 It is contended that all the necessary parties
have been arrayed and the decree has been obtained.
Defendant No.18 has contested the suit for the entire suit
property to the extent of 1 acre 20 guntas throughout
including in the final decree proceedings upon which he
had filed an appeal for the entire extent of 1 acre 20
guntas in RFA No.692/2003. Therefore, the contention
that defendant No.18 has not represented the plaintiffs is
absolutely false and baseless.
5.5 It is further contended that the defendants have
filed the suit and the property originally belonged to
Avalahalli Hanumanthappa and subsequent transactions
referred to were all subject matter of the earlier
proceedings in RFA No.606/1989. It is pleaded that there
is no cause of action to file the suit and cause of action
stated is illusory. The Court fee paid on the relevant claims
in the suits is not on the proper.
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5.6 In the appeal also, defendant No.18 had
safeguarded the interest of entire land to the extent of 1
acre 20 guntas in securing an observation that in the final
decree proceedings the said 1 acre 20 guntas is not
disturbed. The review petition filed in R.P.No.461/2002
and CP No.994/2001 are dismissed. Defendant No.18 has
contested the final decree proceedings in view of certain
observations made in RFA No.606/1989 and subsequent
orders there is no right recognized as per the sale deed
under which defendant No.18 had contested the suit.
Defendant No.18 diligently prosecuted the suit to its
logical conclusion. When defendant No.18 has prosecuted
the suit, all the partners in the partnership firm are
deemed to have knowledge regarding the proceedings.
Anything done are purported to have been done by any
partners in the partnership firm on behalf of the firm, it is
amounting to suit being contested and prosecuted by the
firm and its partners also. Therefore, the plaintiffs were
fully aware of the suit and the appeal proceedings and as
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such they are estopped from taking contention that they
do not know the suit proceedings.
5.7 It is contended that the suit filed by the
plaintiffs is barred by limitation. Filing of review petition
will not come in the way of computation of the limitation.
Also, the review petition is barred by limitation.
5.8 It is contended that in 30 guntas of land huge
construction is put up by defendant No.19 during the
pendency of the appeals in RFA Nos.502 and 692/2003
despite there being interim orders of status quo. The
plaintiffs have not filed the suit with clean hands and have
deliberately suppressed the material facts. Defendant
No.19 has constructed the buildings and installed the
turbines. It is contended that the whole exercise of the
plaintiffs is to thwart the right vested with defendant
No.19. The plaintiffs now cannot contend contrary to the
result in RFA No.692/2003. Hence, prays to dismiss the
suit.
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WRITTEN STATEMENT OF DEFENDANT NOS.2, 3, 4, 7
AND 8:
6. Defendant Nos.2, 3, 4, 7 and 8 have filed the
written statement contending that the suit filed is not
maintainable and the reliefs claimed by the plaintiffs are
barred by limitation by virtue of decree passed in
R.F.A.No.606/1989 in which, the plaintiffs made an
application by way of a review petition in RP No.645/2005
dated 12.07.2006. Hence, the review petition is barred by
limitation.
6.1 It is further contended that in the suit in O.S.
No.1318/1980, C.R. Santhosh Kumar, was a party in the
proceedings in the original suit. C.R. Santhosh Kumar is
the son of Ramaswamy Setty, thereby, the plaintiffs were
aware of the material fact of the family members
contending the proceedings. Also, he was partner as the
5th defendant in O.S. No.1318/1980 and he has contested
the said suit and also filed appeals in R.F.A. No.606/1989
and R.F.A. No.692/2003 against the order passed in the
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final decree proceedings representing not only himself, but
also M/s. Master Products. Therefore, he was party in the
suit as one of the partners and not only he himself
representing on personal capacity and also being partners
in the partnership firm has participated in the suit
proceedings in the appeals and in the review petitions.
Hence, the decree in the suit is binding on the 5th
defendant as well as on the all the partners in the
partnership firm.
6.2 The plaintiff’s husband though he is claiming
having certain rights over the suit schedule property, but
the suit schedule property was purchased by M/s. Master
Products during the pendency of the appeal in RFA
No.606/1989 and therefore, the present suit becomes
barred by limitation. Further contended that the suit is
barred by principles of res-judicata. The plaintiffs do not
get any right in view of the decisions in the application
filed under XXI Rule 97 of CPC in Execution No.2253/2006
dated 03.04.2008 and the same was dismissed. Also, RFA
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No.485/2008 was dismissed on 28.01.2009. Later, it was
confirmed by the Hon’ble Supreme Court and also the
appeals in RFA Nos.692 and 502/2003 were dismissed.
Hence, the suit is barred by principles of res-judicata.
6.3 Also, contended that the suit is barred under
Order II Rule 2 of CPC. The plaintiffs were co-owners and
partners owned by C.S.R. Estate. Defendant Nos.1 to 8
are LRs of late Anjanappa, were the original plaintiffs in
partition suit in O.S. No.1318/1980 and are the appellants
in RFA No.606/1989; hence, the suit has been dismissed.
Further, plaintiff No.3 and defendant No.18 formed
partnership firm namely Master Products on 26.04.1970,
but the partnership firm is debarred to purchase the
agricultural land under Sections 79A and 79B of the
Karnataka Land Reforms Act, 19612, disentitle to purchase
the agricultural land. The plaintiffs cannot have
independent right whether there is finality or decisions in
the suit as well as in the appeals.
2
for short ‘the KLR Act, 1961‘
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6.4 It is further pleaded that the co-owners of the
CSR Estate divided the properties by metes and bounds
and the allotment made in respect of the property on the
basis of partition and thereafter, owner of portion of the
property, Sri. Aswathnarayana, sold his portion to Metal
Closures Pvt. Ltd., through sale deed dated 18.01.2001
and put up construction and started industrial activities is
an act pursuant to the decree and before the finality of the
final decree proceedings, thereby, the alienations made
are hit by lis pendence. The lis pendence purchaser
purchasing a disputed property cannot improve upon his
rights on the basis of documents prepared subsequent to
the decree. Therefore, the documents that are adverted
to, are improvement of the original decree suffered by the
firm of Master Products and representing in the interest of
plaintiffs, C.R.Santosh Kumar, who represented all the
members and partners in the suit in O.S.No.1316/1980
and in RFA No.606/1989, has filed the written statement
and adduced evidence is accepted; therefore, he is being
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the authorized to represent not only the plaintiffs, but also
all persons in relation to Master Products.
6.5 It is pleaded that the plaintiffs in the month of
August, 2005, plaintiff No.2 had seen defendant No.6
talking with defendant No.18 in the schedule property and
were talking to each other and were taking measurement
of the property are all false. The plaintiffs are not in good
terms with defendant No.18 and somehow came to know
that the property is under litigation and there is a partition
suit and decree in favour of defendant Nos.1 to 17 are all
false and it is illusory one just to raise a false cause of
action. It is pleaded that the plaintiffs came to know that
the property belonging to the plaintiffs, was allotted to the
share of Anjanappa.
6.6 It is pleaded that the plaintiffs came to know
this fact as on the date of filing of the written statement in
O.S.No.1380/1980 filed by C.R.Santosh Kumar,
representing Master Products. The knowledge of judgment
and decree is correct and the plaintiffs are contesting the
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proceedings at the instructions of C.R.Santosh Kumar. The
pendency of proceedings adverting to the proceedings are
correct and it imputes knowledge in favour of C.R.Santosh
Kumar and family members represented and contending
the family members.
6.7 It is pleaded that if any portion is given to C.R.
Santosh Kumar that property would be the property of
M/s. Master Products. The final decree proceedings taking
into consideration this adjudication has come to a definite
conclusion that no property is allowed to be allotted in
favour of C.R.Santosh Kumar, representing Master
Products and no property is available for allotment and the
impleading application has been rejected by this Court and
it has attained finality.
6.8 It is pleaded that Buddamma and others
suffered a decree. During pendency of the proceedings, all
transactions are hit by lis pendence and all are bound by
the decree passed by this Court. Buddamma had sold the
property over and above her share. The plaintiffs cannot
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claim the property from the share of Anjanappa and it is
kept intact.
6.9 Further, it is pleaded that C.R. Santosh Kumar
has suffered decree with Master Products, which he was
representing. The lis pendence purchasers have no title
over the property, since all the transactions took place
during pendency of the litigation hit by lis pendence. No
rights can be conferred in favour of the plaintiffs by this
Court either by way of declaration or any relief. Therefore,
in view of the share allotted and demarcated in the final
decree proceedings in favour of Anjanappa, the same was
confirmed by the Hon’ble Supreme Court as against
Buddamma and others; the property purchased from
Buddamma over and above her share cannot assert the
right with the extent, share and right of Anjanappa.
6.10 Further, it is pleaded that the present suit has
been filed speculatively when the rights had been decided
in RFA Nos.692 and 582/2003. The present suit has been
filed on the same day when the judgment was pronounced
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by this Court. The suit has been filed immediately after the
pronouncement of the judgment, which is evidently clear
from the order sheet maintained by this Court in the
present suit, which shows the time and date of filing of the
present suit. Therefore, pray to dismiss the suit.
WRITTEN STATEMENT OF DEFENDANT NO.9:
7. Defendant No.9 has filed written statement
stating it is true that the legal representatives of
Anjanappa filed the suit in O.S.No.1318/1980 on the file of
City Civil Judge, Bengaluru, and thereafter they filed RFA
No.606/1989. This defendant stated that it is not within
his knowledge that plaintiff No.3 along with others formed
partnership firm in the name and style of Master Products
and purchased agricultural property measuring 01 acre 20
guntas in Sy.No.39/4 situated in Doddakallasandra,
Uttarhalli Hobli, Bengaluru North Taluk, Bengaluru, on
18.05.1970.
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7.1 Further, it is pleaded that it is not within the
knowledge of the defendants about execution of registered
transfer deed and division of property by entering into
memorandum of understanding. It is further pleaded that
defendant No.9 denied the fact that in the month of
August, 2005, plaintiff No.2 saw defendant No.6 in the
schedule property and his knowledge about litigation in
respect of schedule property. It is further pleaded that
originally the property belonged to Hanumanthappa, and
thereafter two children, namely, Chikka Munishamappa
and Anjanappa succeeded to the estate left behind the
said Hanumanthappa. Defendant Nos.9 to 17 are the
children of late Chikka Munishamappa. After his death,
some sale deeds were executed by using fraud on
Buddamma without their being any family necessities to
dispose of the property. Buddamma had no right and
interest whatsoever to alienate the property inherited by
her husband. Without being any family and legal
necessities, the transactions are not binding on these
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defendants. The transactions, if any, made by Buddamma
do not affect the right, title and interest of these
defendants. Further, the cause of action pleaded is an
imaginary one.
WRITTEN STATEMENT OF DEFENDANT NO.18:
8. Defendant No.18 has filed a written statement
contending that the factual matrix pleaded by the plaintiffs
is a matter of record to be proved by the plaintiffs. The
specific averments made in the plaint by the plaintiffs are
denied. It is further stated that the relationship between
the plaintiffs and defendant No.18 has been strained and
they are not in talking terms and defendant No.18 has
totally denied the case of the plaintiffs.
WRITTEN STATEMENT OF DEFENDANT NO.19:
9. Defendant No.19 has filed a written statement
contending that he has not disputed the averments made
in the plaint at Paragraph Nos.4 and 5. The property in
Sy.No.39/4 measuring 01 acre 30 guntas was purchased
by the partnership firm Master Products and held by the
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partnership firm until the dissolution of the partnership
firm in the year 1987. Upon dissolution of the partnership
firm, the partners jointly held the said property and in the
meanwhile one of the partners in the partnership firm,
namely, Roopa Surendranath transferred her right, title
and interest in favour of C.R.Prabhakar under a registered
transfer deed. Thereafter, the said C.R. Prabhakar died in
the year 1995 and plaintiff Nos.2 and 3 succeeded to his
estate.
9.1 Further contended that the averments made in
the Paragraph Nos.6, 7 and 8 are not disputed. The
property was divided into four parts by metes and bounds
and allotted to the four co-owners equally and the said
properties were marked as schedule ‘A’, ‘B’, ‘C’ and ‘D’
properties for the purpose of identification. Defendant
No.19 had purchased the portion ‘D’ property from its
owner C.R.Ashwatha Narayana under a registered sale
deed dated 18.01.2001 and after purchasing the said
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property defendant No.19 has put up an industrial shed
and running a business.
9.2 Further it is contended by defendant No.19 that
defendant Nos.1 to 18 have not made all the partners as
partners in the suit or in the appeals, but the only one
partner is made as party in the suit and also the
partnership firm is not made as party. It is prayer made by
defendant No.19 that the suit be allowed and decreed in
favour of the plaintiffs and defendant No.19 does not have
any objection to pass decree in favour of the plaintiffs.
WRITTEN STATEMENT OF DEFENDANT NO.21:
10. Defendant No.21 has filed a written statement
in the line of defendant Nos.1 to 18 and prays for
dismissal of the suit. Defendant No.19 has totally denied
the case made out by the plaintiffs. Hence, prays to
dismiss the suit.
WRITTEN STATEMENT OF DEFENDANT NO.22:
11. Defendant No.22 has filed a written statement
in consonance with and in line with the written statement
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filed by defendant Nos.1 to 18. Defendant No.22
contended that the plaintiffs alleged that matters of record
are liable to be proved in the suit in the trial, but denied
the pleadings in the plaint made by the plaintiffs.
11.1 Defendant No.22 has made pleadings in his
written statement on the facts stating that the property
bearing Survey No.39/4, to an extent of 4 Acres 14 Guntas
originally belongs to Avalahalli Hanumanthappa, son of
Eerappa, having purchased the same from Mastry
Huchappa, vide sale deed dated 04.06.1928, and settled
the said property in favour of his sons Chikka
Muniswamappa and Anjanappa, allotting 2 acres 7 guntas
to each of them and putting in possession of the same,
and after four years of the said settlement, a settlement
deed was drawn on 22.12.1949, and in the meantime he
executed a conditional sale deed dated 13.06.1949, in
favour of Hanumanthappa, son of Obalappa, and
Hanumanthappa son of Obalappa, in turn executed a
document in favour of Avalahalli Hanumanthappa, son of
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Eerappa, vide sale deed dated 05.10.1950, and the sale
deed was drawn in the name of Avalahalli
Hanumanthappa, son of Eerappa and his son Chikka
Muniswamappa, and after settling the said property in
favour of Anjanappa by his father Avalahalli
Hanumanthappa, Anjanappa continued to be in possession
and enjoument of his portion i.e., 02 acres 07 guntas of
land and possession of the property continued to be with
Anjanappa even after the execution of the sale deed dated
13.06.1949, and on 15.10.1950 a document was executed
by Avalahalli Hanumanthappa, son of Eerappa and his son
Chikka Muniswamappa, in favour of Muniyappa Reddy, and
it is required to be noted that neither Avalahalli
Hanumanthappa, son of Eerappa or his son
Chikka Muniswamappa, had any right, title or interest to
execute any document, much less the sale deed dated
05.10.1950, in favour of Muniyappa Reddy, as the
possession and right, title and interest in respect of 02
acres 07 guntas of said land vested with Anjanappa, and
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even after the existence of the said document dated
05.10.1950, possession of 02 acres 07 guntas of said land
continues to be with Anjanappa, son of Avalahalli
Hanumanthappa, and after the demise of Muniyappa
Reddy, the said property had been restored and the sale
deed was drawn in the name of Buddamma, wife of Late
Chikka Muniswamappa, and Buddamma will confer her
right only to an extent of 02 acres 07 guntas of said land
and not more than that and any sale transactions held by
Buddamma, wife of Late Chikka Muniswamappa, more
than 02 acres 07 guntas, the purchasers will not derive
any right, title and interest over the land settled in favour
of Anjanappa. In this regard, it is required to note that in
the said settlement deed dated 22.12.1949, Avalahalli
Hanumanthappa has clearly admitted that the properties
had been settled in favour of his sons Chikka
Muniswamappa and Anjanappa four years back and they
were put in possession of their respective shares and are
continued to be in occupation and enjoyment of the same
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and the settlement deed had been drawn in order to make
the records straight, and he has recited in the said
settlement deed that he has executed a sale deed in
favour of Hanumanthappa vide sale deed dated
13.06.1949, with a condition to re-convey the same in his
favor, by this it is crystal clear that 02 acres 07 guntas of
said land had been settled in favour of Anjanappa and this
defendant is claiming his right of 30 guntas of land
through Anjanappa.
11.2 Further, defendant No.22 has made pleadings
in his written statement that Anjanappa has filed a suit for
partition and separate possession of his half share in the
said Survey No.39/4, to an extent of 04 acres 14 guntas in
O.S. No.332/1971, which was later numbered as O.S.
No.1310/1990 (before the City Civil Court at Bangalore). A
purchaser of the said land has filed a suit bearing O.S.
No.177/1973, which was later numbered as O.S.
No.473/1981 before the City Civil Court at Bangalore, for
the reliefs of declaration and possession in respect of the
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property mentioned in the suit. These suits were clubbed
together and a common judgment was passed, and the
suit bearing O.S. No.1318/1990 before the City Civil Court
at Bangalore, filed by Anjanappa, came to be dismissed,
against which the LRs of Anjanappa filed RFA
No.606/1989, and O.S. No.473/1981 before the City Civil
Court at Bangalore was decreed, against which the LRs of
Anjanappa filed RFA No.324/1990. After contest, this
Court was pleased to allow the said appeals filed by the
LRs of Anjanappa by setting aside the judgment and
decree passed in O.S. No.1318/1990 before the City Civil
Court at Bangalore and O.S. No.473/1981 before the City
Civil Court at Bangalore, and a preliminary decree was
passed declaring that the LRs of Anjanappa are entitled to
a half share in the said property.
11.3 Against the same, the LRs of Anjanappa filed
FDP No.41/1999 on the file of the Addl. City Civil Judge at
Bangalore. In the said FDP No.41/1999, M/s. Luvac
Engineering Corporation by M/s. Metal Closures is the 2nd
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respondent and Santhosh Kumar is the 5th respondent,
and in the FDP proceedings it has been observed that
Buddamma, wife of Chikka Miniswamappa (brother of
Anjanappa), has sold 1 acre 20 guntas of the said land on
18.07.1966 in favour of respondent No.2, i.e., M/s. Luvac
Engineering Corporation by M/s. Metal Closures (1st
plaintiff in O.S. No.8973/2006 and plaintiff in O.S.
No.6873/2009), and Buddamma has sold 8 guntas on
03.08.1969 in favour of Padmaprakash, and Buddamma
has sold 01 acre of the said land on 26.03.1972 in favour
of Padmaprakash, and in total Buddamma has sold 01 acre
08 guntas in favour of Padmaprakash, and Buddamma has
sold 01 acre 20 guntas of the said land on 26.03.1972 in
favour of Santhosh Kumar, and Buddamma has sold 15
guntas of the said land on 13.03.1972 in favour of
Ravindranath. With regard to the apportionment of the
said land, the aggrieved purchasers have filed several
petitions before this Court at Bangalore, viz., (i) RFA
No.606/1999, C.P. No.822/2001, R.P. No.46/2000, R.P.
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No.461/2000, and C.P. No.994/2001, and after
considering all the observations made therein, the Court
was pleased to allow the said petitions.
11.4 Against the same, Santosh Kumar has preferred
R.F.A.No.692/2003, and the 1st plaintiff in
O.S.No.8973/2006 has preferred RFA No.502/2003, and
this Court was pleased to dismiss the said R.F.A.
No.692/2003, and the order passed by the Court below
was modified to the extent indicated in that part of the
judgment in R.F.A.No.502/2003, in pursuance of the
memo filed, and as such the above suits are liable to be
dismissed with exemplary costs.
11.5 Further, defendant No.22 has made pleadings
in his written statement that the 18th defendant-Santosh
Kumar had purchased the property as a partner of M/s.
Master products. After filing of the suit, he had contested
the suit throughout and intimated that the suit was at the
first instance dismissed and subsequently, on an appeal
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filed the 18th defendant had safeguarded the interest of
entire 01 acre 20 guntas securing an observation that in
the final decree proceedings, the said 01 acre 20 guntas of
land should not be disturbed. In view of the subsequent
changes through various review petitions filed, he had
again filed R.P.No.461/02 and C.P.No.994/01. The said
review petition was dismissed by an order dated
10.10.2001. The 18th defendant had contested the final
decree proceedings and in view of certain observations
made in R.F.A.No.606/1989 and subsequent orders no
right was recognized as per the sale deed under which the
18th defendant had contested the proceedings. Under the
circumstances, he had filed RFA No.692/2003 and secured
an interim order in respect of the suit schedule property in
the suit. Even during the course of arguments, the 18th
defendant had made efforts to safeguard the entire 01
acre 20 guntas as consisting of his property or others
property. He has diligently prosecuted the proceedings
throughout. It is filed beyond a period of 3 years from
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when the cause of action arose. Filing of RP will not come
in the way of computation of the limitation as in the review
petition also, a delay application was filed and without
going into the question of limitation, the review petition
was dismissed on the ground of maintainability. Therefore,
the suit is hopelessly barred by limitation.
11.6 Further, defendant No.22 has made pleadings
in his written statement that this Court has found that
Santhosh Kumar representing M/s. master products,
cannot be granted or allotted any land as the firm happens
to be the title third purchaser and there was no land
available in Buddamma’s share even to accommodat0e the
second purchaser to the extent he has purchased from
Buddamma. Therefore, it is conclusively held that M/s.
Master products cannot be allotted any land. The present
plaintiff cannot stand taller than its predecessor. When its
predecessor is not allotted any land, the plaintiffs cannot
claim to have acquired any land. In other words, the
alleged deed of dissolution of the partnership firm, its
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partner, including the 21st defendant getting 15 guntas of
land each towards their share in the alleged deed of
dissolution, its subsequent affirmation by way of
agreement dated 25.01.1996 and the subsequent sale of
the suit schedule property allegedly by the 21st defendant
in favour of the plaintiffs, pale into insignificance. The
plaintiffs cannot try to claim title over the property in
question on the basis of these documents.
11.7 Defendant No.22 has taken pleading in the
written statement that the pleadings made by the plaintiffs
that only Santosh Kumar was made as party, but the
partnership firm namely, M/s. Master Products, was not
made as party, does not have any merit and deserves to
be rejected by stating pleadings as follows:
(i) Santosh Kumar was the partner of M/s.
Master Products over which there was no
dispute.
(ii) Santosh Kumar filed his written statement
in O.S.No.1318/1980 in which he has not
claimed any individual right over the
property in question. It is clearly stated
that it is firm’s property. Reliance was also
place on the sale deed dated 18.05.1970
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under which M/s. Master Products allegedly
purchased 1 acre 20 guntas from
Buddamma.
(iii) Santosh Kumar gave evidence in
O.S.No.1318/1980 in which he has clearly
stated that he is representing the firm of
M/s. Master Products vis-a vis the property
in question.
(iv) In FDP 41/99 the present plaintiff which
was 2nd defendant filed an application to
implead all the partners.
(v) The FDP court rejected the said application
stating that Santosh Kumar is representing
the firm and therefore there is no necessity
for implelading the other partners.
(vi) The FDP court also stated that it is not the
case of 2nd defendant in the said
application that there is any conflict of
interest between Santosh Kumar and the
firm or Santosh Kumar is acting against the
interest of the firm.
(vii) The order stated above has attained finality
since the 2nd defendant did not challenge
the same in higher court.
(viii) Santosh Kumar who filed RFA No.692/2003
pleaded that in view of the sale deed dated
18.05.1970 under which M/s. Master
Products purchased certain extent of land
from Buddamma, in equity on
proportionate basis, some land needs to be
allotted to the firm also which was not
accepted by the Hon’ble High Court, and
hence the contention of the plaintiff that
the firm M/s. Master Products was not a
party in any of the proceedings and
therefore the orders passed in the
proceedings do not bind the firm and hence
the suit of the plaint deserves to be
dismissed with exemplary costs. It has
been conclusively held in all the
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proceedings that Santosh Kumar was
representing that Santosh Kumar was
representing M/s. Master Products only in
all the proceedings and he did not set up
any independent or individual right to the
property in question.
11.8 Defendant No.22 has contended that he is bona
fide purchaser of 00.30 guntas of land out of 01 acre 36
guntas and got it converted from agricultural into
non-agricultural purpose on 17.01.2009 and purchased it
through registered sale deed dated 01.04.2010 from the
LRs of Anjanappa and from the date of the sale, he is in
continuous possession and enjoyment of the same, but
M/s. Metal Closures Pvt. Ltd., and Prashanth Hegde tried
to interfere with his possession. Therefore, defendant
No.22 was constrained to file a suit in O.S.No.25973/2011
before the Additional City Civil Judge, Mayo Hall,
Bengaluru, for permanent injunction and it is still under
pending consideration and the possession of 01 acre 36
guntas of land belongs to LRs of Anjanappa i.e.,
Muniyamma and others has been confirmed by the order
dated 21.08.2012 passed by the Hon’ble Apex Court in
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Special Leave to Appeal (Civil) No.6079/2011 filed by
Santosh Kumar against Muniyamma and others. Hence,
the suit filed by the plaintiffs is liable to be dismissed.
Thus, defendant No.22 prays to dismiss the suit.
AMENDED WRITTEN STATEMENT OF DEFENDANT
NOS.1 TO 6 AND 8:
12. Defendant Nos.1 to 6 and 8 have further filed
additional written statement under Order VIII Rule 1 of
CPC and also on behalf of Power of Attorney holders,
which are taken in the original written statement filed by
them. Hence, they prayed to dismiss the suit.
REJOINDER OF THE PLAINTIFFS:
13. After filing the written statement by all the
defendants, the plaintiffs have filed rejoinder under Order
VIII Rule 9 of CPC to the common written statement filed
by defendant No.22 in O.S.No.8973/2006 and defendant
No.24 in O.S.No.6873/2009. The plaintiffs once again
reiterated the contentions taken in the plaint and denied
the averments of the written statement as false.
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13.1 In the rejoinder, the plaintiffs have reiterated
the pleadings made in the plaint and there is no need to
repeat the same except the new pleadings stated in the
rejoinder.
13.2 The plaintiffs have stated that Sections 79A,
79B and 79C of the KLR Act, 1961 were inserted with
effect from 01.03.1974, but the sale deed had been taken
place prior to the passing of the amendment to the Act
i.e., 18.05.1970. Therefore, the provisions of the KLR Act,
1961, are not applicable in this case. The plaintiffs have
admitted that the alleged partnership firm M/s. Master
Products existed on 26.04.1970 was dissolved by
dissolution deed dated 01.04.1987 with effect from
31.03.1987. Hence, the sale of the land, which is
purchased by the plaintiffs, is valid and denied the
pleadings made by the defendants. The plaintiffs admitted
that Sri. Ashwathanarayana sold his portion to M/s. Meta
Closures through a sale deed dated 18.01.2001 and
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denied that Sri. Ashwathanarayana did not have right to
alienate the alleged property.
13.3 Further, the plaintiffs have made averments in
Paragraph No.5 that the property bearing Sy.No.39/4, to
an extent of 04 acres 14 guntas, originally belonged to Sri.
Avalahalli Hanumanthappa S/o Eerappa, having purchased
the same from Maistry Huchchappa vide sale deed dated
04.06.1928 and he settled the said property in favour of
his sons, namely Chikka Muniswamappa and Anjanappa by
allotting 02 acres 07 guntas to each of them and each of
them were in possession of the same and after four years
the said settlement deed was drawn, are all denied as
false.
13.4 Further, the plaintiffs have made averments
that, in the meantime, he (not clear who) executed a
conditional sale deed dated 13.06.1949 in favour of
Hanumappa S/o Obalappa and the said Hanumappa S/o
Obalappa, in turn, executed a document in favour of
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Avalahalli Hanumanthappa S/o Eerappa, vide sale deed
dated 05.10.1950, that the sale deed was drawn in favour
of Avalahalli Hanumanthappa and his son Chikka
Muniswamappa and after settling the said property in
favour of Chikka Muniswamappa and Anjanappa, they
continued to be in possession and enjoyment of their
respective portions i.e., 02 acres 07 guntas and the
possession of the property continued to be with Avalahalli
Hanumanthappa even after execution of the sale deed
dated 13.06.1949 and on 05.10.1950. A document was
executed by Avalahalli Hanumanthappa S/o Eerappa and
his son Chikka Muniswamappa in favour of Muniyappa
Reddy and the possession, right, title and interest in
respect of 02 acres 07 gunats of land vested with
Anjanappa are all denied as totally false.
13.5 Further averment that, it is required to be
noted here that neither Avalahalli Hanumanthappa S/o
Ereppa nor his son Chikka Muniswamappa had any right,
title and interest to execute any document, much less the
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sale deed dated 05.10.1950 in favour of Muniyappa Reddy
as the possession, right, title and interest in respect of 02
acres 07 guntas of the said land vested with Anjanappa
and even after the execution of the document, possession
of 02 acres 07 guntas of the said land continued to be with
Anjanappa S/o Ereppa and after the demise of Muniyappa
Reddy, the said property was restored and a sale deed
was drawn in the name of Buddamma W/o. Chikka
Muniswamappa and Buddamma was conferred with the
right only to an extent of 02 acres 07 guntas of land and
not more than that and any sale transaction held by
Buddamma W/o. late Chikka Muniswamappa exceeding 02
acres 07 guntas, the purchaser will not derive any right,
title and interest over the land settled in favour of
Anjanappa, are all denied as false and baseless.
13.6 Firstly, defendant Nos.22 and 24 in respective
suits may be called upon to produce the conditional sale
deed dated 13.06.1949 and disclose the conditions
mentioned in the said sale deed. The further averments
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that, in this regard, it is required to be noted that in the
said settlement deed dated 22.12.1949, Avalahalli
Hanumanthappa has clearly admitted that the properties
had been settled in favour of his sons Chikka
Muniswamappa and Anjanappa four years back and they
were put in possession of their respective shares and
continued to be enjoying the said property and settlement
deed has drawn in order to make the record straight and
he has received in the said settlement deed that he has
executed a sale deed in favour of Hanumanthappa, vide
sale deed dated 13.06.1949 with a condition to re-convey
the same in his favour, by this, it is crystal clear that 02
acres 07 guntas of land was settled in favour of Anjanappa
and Anjanappa became the absolute owner of 02 acres 07
guntas of land and this defendant is claiming right over
the same, are all denied as false.
13.7 Further, the plaintiffs have stated that in the
suit filed by them, the partnership firm, namely M/s.
Master Products was not a party and the suit filed without
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making the registered partnership firm a party to the said
suit proceedings. It is further stated that there is no
pleading giving clear averment that the suit in
O.S.No.177/1973 later re-numbered as O.S.No.473/1981
for the relief of declaration and possession lacks clarity.
13.8 It is further pleaded that the firm M/s. Master
Products or its partners were not made as parties either in
the suit in O.S.No.1318/1990 or in the appeal RFA
No.692/2003. The preliminary decree was passed
declaring that the LR’s of Sri. Anjanappa are entitled to
half share in the suit schedule property. Thereafter, LRs of
Anjanappa filed F.D.P.No.41/1989 on the file of Additional
City Civil Judge, Bengaluru. In the said F.D.P.No.41/1989,
it has been observed that Buddamma W/o. Sri. Chikka
Muniswamappa has sold 01 acre 20 guntas of land on
18.07.1966 in favour of the 2nd respondent and further
sold 08 guntas of land in favour of Padmaprakash. The
said Buddamma has sold 08 guntas on 03.08.1969 and 01
acre on 26.03.1972 all together 01 acre 08 guntas and
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Buddamma has sold 01 acre 20 guntas in favour of
Santosh Kumar and Buddamma had sold 15 guntas of land
in favour of Ravindranath.
13.9 Further, it is pleaded that the plaintiffs have
filed RFA No.606/1999, CP No.822/2001, RP No.461/2000
and CP No.994/2001 and after considering all the
observations made therein, the Court allowed the said
petition. Against which, Santosh Kumar preferred
RFA.No.692/2003 and the 1st plaintiff in
O.S.No.8973/2006 preferred RFA.No.502/2003 and this
Court has dismissed RFA.No.693/2003 and the order
passed by the Trial Court was modified to the extent
indicating that in pursuance of the memo filed, are all
matters of record and do not need any traverse. The sale
deed dated 26.03.1972 executed in favour of Santosh
Kumar has nothing to do with the claim of the plaintiffs.
13.10 Further, it is denied that Santosh Kumar
and defendant No.18 had purchased the suit schedule
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property as partner of M/s. Master Products, which is false.
It was the firm Master Products had purchased the suit
schedule property and Santosh Kumar was authorized only
to admit the execution of the sale deed executed by the
firm M/s. Master Products. Defendant No.18, Santosh
Kumar had not purchased the suit schedule property on
his individual capacity. Further, defendant No.18, Santosh
Kumar has contested the suit in his individual capacity and
not as a partner of the firm M/s. Master Products or with
any authority given to him to contest on behalf of the
plaintiffs. The plaintiffs, while filing the suit had not
formed a partnership firm as already and there is an
explanation forthcoming from defendant Nos.22 to 24.
13.11 Further, it is contended that the FDP Court
stated that it is not the case of defendant No.2 in the said
application that there is no conflict of interest between
Santosh Kumar and the firm or Santosh Kumar is going
against the interest of the firm when the FDP Court had
not heard the other partners and when Santosh Kumar
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colluded with defendant Nos.1 to 18, there was no one to
prove these aspects and represent the interest of the
partnership firm effectively before the Court; therefore, it
is contended that the said application is liable to be
rejected. It is stated that Santosh Kumar had truly
represented the interest of the partnership firm he ought
to have filed the appeal against the said order, but he did
not do so. Hence, the said order does not bind on the
vendors of the plaintiffs herein since they were not parties
to it. Therefore, submitted that any order passed by the
Court is binding only on the parties in the suit
proceedings. Hence, when the firm and other partners
were not parties to and had not contested the said
proceedings and there being no notice to them, defendant
Nos.22 to 24 cannot rely on certain things and put them
before the Court stating that the judgment and decree are
binding on the firm and on all the partners.
13.12 Further, averments that Santosh Kumar,
who filed an appeal in RFA No.692/2003 pleaded that in
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view of the sale deed dated 18.04.1970 under which M/s.
Master Products purchased certain extent of land from
Buddamma on an equitable proportionate basis, some land
needs to be allotted by the firm also; it is not accepted by
the Court. The said observation is nothing to do with the
partnership firm Master Products. Hence, the contentions
of the plaintiffs that the firm Master Products was not a
party in any of the proceedings and therefore, the order
passed in the proceedings does not bind on the firm are
true and correct. Further, it is stated that though Santosh
Kumar was represented the firm M/s. Master Products in
all the proceedings he did not set up an independent
individual right to the property in question.
13.13 Further, the plaintiffs denied as false the
averments made in Paragraph No.10 that the defendants
are the bona fide purchasers of 30 guntas of land out 01
acre 36 guntas in Sy.No.39/4A situated at
Doddakallasandra Village, Uttarahalli Hobli, Bengaluru
South Taluk, converted from agricultural to non
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agricultural for commercial use vide final memorandum
dated 17.01.2009 for a sale consideration vide sale deed
dated 01.04.2010 from the LRs of Anjanappa S/o.
Avalahalli Hanumanthappa without notice and that since
the date of purchase of the said property, they have been
in continuous possession and enjoyment of the same
exercising it to the exclusion of others. It is stated that
defendant Nos.22 to 24 are not the bona fide purchasers
and they have purchased the property during the
pendency of the litigation. The said property was
purchased by defendant Nos.22 to 24.
13.14 When there was an interim order not to
alienate the property, the said property was purchased
when execution case No.2253/2006 had directed to
restore the possession taken by defendant Nos.1 to 8 from
Santosh Kumar back to Santosh Kumar. Defendant Nos.22
to 24 were aware of the pending litigation.
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13.15 Further contended that in
O.S.No.25973/1991 initially, the Trial Court granted an
order of temporary injunction, but it was vacated after the
defendant appeared by filing objections and written
statement. Against which, an appeal in MFA was filed
before this Court and that was dismissed. It was held in
the said MFA that defendant Nos.22 to 24 cannot get any
better title than their vendors.
13.16 Whatever the observations were made in
the SLP No.6079/2001 by the Hon’ble Supreme Court are
not binding on the firm M/s. Master Products and its
partners since they are not partners to it. Further, it is
contended that whether the defendants are asked for
declaration declaring that the judgment and decree are not
binding on them, the plaintiffs have rightly followed the
relief under Section 24(d) of the Karnataka Courts Fees
and Suits Valuation Act, 19583.
3
for short ‘the KCFSV Act, 1958’
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13.17 The cause of action stated in the suit is
true and correct. Whatever contentions defendant Nos.22
to 24 have taken are without significance. It is contended
that Santosh Kumar suppressed the facts before the Court
by stating that Avalahalli Hanumanthappa purchased the
property in Sy.No.39/2 presently bearing Sy.No.39/4
measuring 04 acre 30 guntas from one Hucchhappa. On
13.06.1949, Avahalli Hanumanthappa sold the suit
property to one Yadiyur Hanumanthappa S/o. Obalappa
under a registered sale deed. On 27.12.1949, Avalahalli
Hanumanthappa executed a registered settlement deed in
favour of his three children namely, Doddamuniswamappa,
Chikka Muniswamappa and Anjanappa. It is submitted that
Avalahalli Hanumanthappa could not have executed the
settlement deed since he did not have the property in his
name at that point of time as he had already sold it to
Yadiyur Hanumanthappa.
13.18 These aspects of the matter were ignored
throughout the proceedings. However, Santosh Kumar
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never took up these contentions in the appeal or in his
written statement; therefore, Santosh Kumar colluded with
other defendants to defeat the rights of partnership firm.
Further, on 05.10.1950, Avalahalli Hanumanthappa, after
executing the settlement deed dated 27.12.1949 had re-
purchased the property in Sy.No.39/2 measuring 04 acres
14 guntas from Yadiyur Hanumanthappa. Further,
Avalahalli Hanumanthappa on the same day sold the
property to Muniyappa Reddy by way of an absolute sale
deed. Therefore, there was absolutely no property to settle
in favour of the children of Avalahalli Hanumanthappa. On
22.07.1963, the wife of Muniyappa Reddy sold the
property under a sale deed in favour of Buddamma since
Muniyappa Reddy had expired leaving behind his wife
namely Muniyamma. Thereafter, on 18.05.1970,
Buddamma sold the land to an extent of 01 acre 20 guntas
in favour of partnership firm namely M/s. Master Products.
13.19 Further, on 12.10.1970, the partnership
firm, namely M/s. Master Products converted the property
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from agricultural into non-agricultural use for industrial
purposes vide order dated 12.10.1970. Earlier, the
vendors of Buddamma namely Yediyur Hanumanthappa
and Muniyappa, were not made parties to the suit. Then,
the said registered sale deeds executed in favour of
Muniyappa Reddy and Yediyur Hanumanthappa are still in
force and as on the date have not been set aside.
Therefore, this clearly goes to show that he has colluded
with defendant Nos.1 to 18 to defeat the rights of the
partnership firm and its partners.
13.20 Further, it is contended that plaintiff Nos.2
to 4 came to know by O.S.No.8973/2006 and
O.S.No.6873/2009 from the beginning that the 18th
defendant namely Santosh Kumar colluded with defendant
Nos.1 to 8 and by all of them have suppressed the filing of
the suit in O.S.No.1318/1980 and decree passed thereon.
The plaintiffs further pleaded that defendant Nos.1 to 8
and Buddamma, the erstwhile vendor of the suit schedule
property also colluded with defendants to defeat the rights
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of the plaintiffs in respects of the suit schedule property.
Defendant Nos.1 to 8 were aware of the sale deed dated
18.05.1970 executed by Buddamma in favour of the
partnership firm, namely M/s. Master Products, but they
intentionally did not make the said partnership firm or
defendant No.21 parties to the proceedings.
13.21 Further, Buddamma, who was the vendor
of the suit schedule property did not contest the case by
filing an appeal against the judgment in RFA.No.606/1980;
therefore, the suit filed by the Anjanappa is nothing but a
collusive suit to defeat the rights of the partnership firm
and the partners are intentionally and deliberately not
made parties. Defendant Nos.1 to 8 in the suit in
O.S.No.1318/1980 did not call in question the sale deed
dated 18.09.1970 executed in favour of partnership firm
namely M/s. Master Products, no declaration was sought in
the same suit to set aside the sale deed dated 18.05.1970
under which defendant No.21 has become the owner.
Though, defendant Nos.1 to 8 were aware of the fact that
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registration of the sale deed dated 18.05.1970 in favour of
the partnership firm, namely M/s. Master Products and the
partners have not been made as parties in the suit in
O.S.No.1318/1980. Thus, the title of defendant No.21
acquired under the registered sale deed has never been
questioned.
13.22 In the suit in O.S.No.1318/1980,
defendant Nos.1 to 8 made only Buddamma as party and
subsequently got the plaint amended on 03.06.1972 and
have impleaded defendant No.18 herein as party to the
suit in his personal capacity by showing his residential
address in the cause title. In O.S.No.1318/1980,
defendant No.18 has not been arrayed as a partner
representing the partnership firm namely M/s. Master
Products and also has nowhere stated that defendant
No.18 Santosh Kumar is a partner of the partnership firm.
13.23 When, defendant Nos.1 to 8 were trying to
execute the decree in the suit in O.S.No.1318/1980
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against the Buddamma and were trying to dispossess the
plaintiffs they have filed RP.No.645/2005. Defendant
Nos.1 to 8 were trying to dispossess the plaintiffs from the
suit property under the grab of executing the decree, to
which defendant No.21 is not made as party. The suit in
O.S.No.1318/1980 is not maintainable against Buddamma
as she had already sold the property in favour of the
partnership firm namely M/s. Master Products much prior
to the filing of the suit. Defendant Nos.1 to 8 have
obtained decree against a person who had no title by
suppressing the fact that she had already alienated the
suit schedule property; therefore, the plaintiffs are
claiming that they are in possession over the suit schedule
property. Hence, prays to dismiss the suit.
14. Upon the pleadings of the parties, the Trial
Court has framed the following issues:
ISSUES IN O.S.NO.8973/2006:
1. Whether the suit is maintainable?
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2. Whether the plaintiffs are entitled for the
relief sought in the plaint?
3. What Order or decree?
ADDITIONAL ISSUES FRAMED ON
12.08.2010:
1. Whether plaintiffs prove that Judgment and
decree dated 24.11.1998 passed by the
Hon’ble High Court of Karnataka in RFA
606/1989 reversing the Judgment and
decree dated 4.7.1989 passed by the City
Civil Court in O.S.No.1318/1980 granting
partition is not binding on the plaintiffs?
2. Whether the suit is properly valued and
Court fee paid is sufficient?
3. Whether the suit is barred by limitation?
4. What Order or decree?
ADDITIONAL ISSUE DATED 19.08.2010:
5. Whether the suit is barred by doctrine of res
– judicata?
ADDITIONAL ISSUES DATED 01.08.2011:
6. Whether the suit is barred by time in so far
as the transposed first plaintiff?
7. Whether the suit is hit by the principles of lis
pendense in view of O.S.No. 1318/1980?
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8. Whether the suit is barred by principles of
waiver and estoppels?
ISSUES IN O.S.NO.6873/2009:
1. Whether the suit in the present form and
nature is maintainable?
2. Whether plaintiff proves that he is not bound
by the judgment and decree OS.No.
1318/1980 and RFA 606/1989?
3. Whether the plaintiff proves the judgment
and decree in OS.No. 1318/1980 and RFA
606/1989 is not binding on the plaintiff’s
vendor and thereby on the plaintiff?
4. Whether suit is barred by limitation?
5. What Order or decree?
ADDITIONAL ISSUES DATED 31.10.2015 IN
BOTH OS 8973/2006 & 6873/2009:
1. Whether the plaintiffs prove that the
defendant no.22 purchased the suit schedule
property from defendant no. 1 to 8?
2. Whether the defendant no.22/24 proves that
the sale deed dated 18.5.1970?
3. Whether the defendant no.22/24 further
proves that it is a bonafide purchaser of 30
guntas of land out of 1 acre 36 guntas in
Sy.no.39/4A situated at Doddakallasandra
village?
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4. Whether the defendant no.22/24 further
proves that it is in lawful possession and
enjoyment of the property purchased?
5. Whether the defendant no.22/24 further
proves that the plaintiffs ought to have pay
the court fee under Sec.24(b) of the
Karnataka Court Fee & Suit Valuation Act
and not under sec.24(d)?
6. What decree or order?
15. During the trial, the managing director of
plaintiff No.1 Company is examined as PW-1 and got
marked as Exs.P.1 to Exs.P.141 documents. On behalf of
the defendants, defendant No.6 is examined as DW-1,
defendant No.21 is examined as DW-2, and defendant
No.22 in O.S.No.8973/2006 and defendant No.24 in
O.S.No.6873/2009 is examined as DW-3 and got marked
Exs.D.1 to Exs.D.84.
REASONING OF THE TRIAL COURT:
16. Upon appreciation of both oral and
documentary evidence in the background of the pleadings
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of the parties, the Trial Court dismissed the suit of the
plaintiffs.
17. The trial Court held that the suit of the plaintiffs
is not maintainable and it is hit by Res-judicate, waiver
and estoppels. It is further held that defendant No.22/24 a
bonafide purchaser of 30 guntas of land out of total extent
of 1 acre 37 guntas in Sy.No.39/4A situated at
Doddakallasandra village, and that he is in lawful
possession thereof.
18. The Trial Court assigned reasons that
Defendant No.22 in O.S.No.8973/2006 and Defendant
No.24 in O.S. No.6873/2009, namely C.R. Santosh Kumar,
along with nine others, formed a partnership firm in the
name and style of M/s. Master Products on 26.04.1970.
M/s. Master Products purchased 1 acre 20 guntas in
Sy.No.39/4 from one Buddamma under a registered sale
deed dated 18.05.1970. The suit is contested by partner
C.R. Santosh Kumar on behalf of the partnership firm,
M/s. Master Products. The Trial Court, upon appreciating
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the admission given by PW-1, held that C.R. Santosh
Kumar, as partner, had executed documents in respect of
the property purchased by M/s. Master Products. It further
appreciated the evidence under Ex.D-1, which specifically
mentioned that the purchase was made on behalf of M/s.
Master Products represented by C.R. Santosh Kumar. C.R.
Santosh Kumar had also given evidence in O.S.
No.1318/1980 as DW-1. Accordingly, it was held that the
plaintiff firm was effectively represented by C.R. Santosh
Kumar both in O.S. No.1318/1980 and in RFA
No.606/1989.
19. The trial Court further appreciated the evidence
of PW-1 with cross examination and held that M/s. Metal
Closures had taken over M/s.Luvac Engineering
Corporation in the year 1980 and M/s. Metal Closures was
well aware of pendency of O.S.No.1318/1980. It is further
appreciated that C.R.Santosh Kumar had independently
filed RFA No.692/2003, and he has urged the interest of
entire 1 acre 20 guntas. Based on the evidence on record,
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the trial Court formed the opinion that the plaintiff firm
was effectively represented by C.R.Santosh Kumar not
only on his individual capacity but also as a partner of the
plaintiff partnership firm. The trial Court further held that
M/s.Metal Closures Private Limited, having taken over
M/s.Luvac Engineering Corporation, was not a stranger to
the suit proceedings. The chairman of both companies was
one and same i.e., Prashanth Hegde. Therefore, it is held
that whatever proceedings relating to M/s.Luvac
Engineering Corporation is also binding on M/s. Metal
Closures Private Limited. Further it is observed that
plaintiff No.1 in present suit, who is also second defendant
in O.S.No.1318/1980 is party to the proceedings and
plaintiff No.1 was representing by M/s. Luvac Engineering
Corporation in RFA Nos.692/2003 and 502/2003.
Therefore, held that judgments and decree passed in both
RFAs is binding on the plaintiff and the plaintiff cannot
seek declaratory relief.
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20. Further it is held that C.R.Santosh Kumar,
representing M/s. Master Products, had purchased the
property measuring 1 acre 20 guntas from Buddamma.
Prior to the execution of sale deed Ex.P.35 dated
18.05.1970, Buddamma had sold 1 acre 20 guntas to
Ramamurthy and another 1 acre 20 guntas to Padma
Prakash out of the total extent of 4 acre 15 guntas. The
remaining land was 1 acre 20 guntas, however, as per
Ex.P.35 she sold 1 acre 20 guntas, which made it clear
that she had sold 5 guntas of land that was not standing in
her name.
21. The Trial Court further assigned reasons that in
O.S.No.1318/1990, C.R.Santosh Kumar filed his written
statement (Ex.D-1), wherein he categorically stated that
the subject property purchased by him was assigned as
Sy.No.39/4A. It is held that C.R.Santosh Kumar
represented the partnership firm in the said suit as well as
in RFA No.606/1989. The Court observed that non-
mentioning of C.R.Santosh Kumar as partner of M/s.
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Master Products in the cause title was not fatal. It was
further observed that, as per Ex.P-25, M/s.Luvac
Engineering Corporation was the second defendant in the
suit and the first plaintiff in O.S. No.6873/2009, and that
the said M/s.Luvac Engineering Corporation was
subsequently taken over by M/s.Metal Closures Private
Limited. Both entities were represented by Prashanth
Hegde, who was examined as PW-1. Therefore, it was held
that M/s.Metal Closures Private Limited was a party to
Ex.P-25.
22. In O.S.No.1318/1980, C.R.Santosh Kumar filed
an affidavit in support of an application under Order XIII
Rules 1 and 2 of CPC, marked as Ex.D-69, wherein he
stated that he was representing M/s. Master Products.
Further, under Ex.P-35, the sale deed dated 18.05.1970,
C.R.Santosh Kumar was shown as representing M/s.
Master Products as a partner in the purchase of property
bearing Sy.No.39/4. Therefore, it was held that the
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plaintiff firm was effectively represented by partner
C.R.Santosh Kumar.
23. Upon appreciation of the oral and documentary
evidence, including Exs.P-92, D-52, P-97, P-10, P-3, D-4,
D-6, D-7, and D-8, and the oral evidence of PW-1, the
Trial Court held that the partnership firm was duly
represented by C.R.Santosh Kumar and that the plaintiff
firm had knowledge of such representation. The Court
further appreciated Ex.D-13, the certified copy of RSA
No.692/2003, wherein a Commissioner was appointed to
measure Sy.No.39/4 and demarcate half share to be
allotted to the plaintiff. It was observed that the parties
had consented to such appointment. Ex.D-19, an
interlocutory application in FDP No.41/1999, revealed that
Adishesha, representing M/s.Luvac Engineering
Corporation (now known as M/s.Metal Closures Private
Limited), had filed an application to implead present
Plaintiff Nos.2 to 4 in O.S. No.8973/2006. The Court
concluded that the plaintiff firm had knowledge of the
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proceedings. Further, Review Petition No.461/2002 and CP
No.994/2001 filed by C.R.Santosh Kumar were rejected.
Accordingly, upon consideration of the entire evidence, the
Trial Court concluded that the decree was not obtained
behind the back of the plaintiff firm and dismissed the suit.
24. The Trial Court also observed, based on Ex.D-2
(the deposition of C.R.Santosh Kumar in
O.S.No.1318/1980), that he had categorically deposed
that he was a partner of M/s. Master Products. If he had
appeared only in his individual capacity, he would have so
stated that he represented in his individual capacity but
had not stated so. His conduct clearly established that he
appeared as partner and not merely in his personal
capacity. It was further observed that the partners of M/s.
Master Products were members of the same family.
Therefore, merely because the partnership firm has not
given authority to Santosh Kumar itself is not ground to
hold the he has represented to the said suit as partner of
M/s. Master Product. The Court thus concluded that the
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plaintiff partnership firm was effectively represented by
its partner C. R.Santosh Kumar and dismissed the suit.
25. It is also held that Court fee paid by the
plaintiffs is not sufficient on the relief claimed by them.
GROUNDS RAISED IN THE MEMORANDUM OF APPEAL:
26. Being aggrieved by the dismissal of the suit, the
plaintiffs partnership firm preferred the present appeal by
raising various grounds, which are summarized hereunder;
27. Apart from the raising grounds that the
judgment and decree passed in suffering from error and
evidence are not properly assessed, but a specific ground
raised is that C. R.Santosh Kumar was representing M/s.
Master Products of his individual capacity in the suit.
Further raised ground that the trial Court has failed to
appreciate that no where in the plaint filed by Muniyamma
and others has there any mentioned that C.R.Santosh
Kumar is being sued to the partner representing either the
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firm M/s. Master Products or the other partner in
accordance with Order XXX Rule 1 of CPC.
28. Also contended that Buddamma herself has sold
the land measuring 1 acre 20 guntas to M/s. Master
Products much prior to filing of suit by Muniyamma and
others, whether in such situation, when Buddamma ceased
to be the owner of 1 acre 20 guntas the Doctrine of lis-
pendens is not attracted. Further raised grounds that the
trial Court is erroneously held that Trident Automobiles
defendant No.21 is in possession but the actual aspect is
that the plaintiffs is the factory is in possession over the
suit schedule property. The trial Court has much gone into
as aspect regarding the possession over the property but
the real question is whether decree suffered by
C.R.Santosh Kumar is binding on the plaintiff’s firm and
other partner has not at all been considered.
29. Further it is raised grounds that the trial Court
rather appreciated evidence correctly regarding the suit
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filed by the plaintiff is much prior to the execution
proceedings taken out by the decree holder in
O.S.No.1318/1980 and executing Court dismissed the
application which give raise the plaintiff to filing review
petition before the High Court of Karnataka in RP
No.645/2005 and the Review petition dismissed with an
observation that review petitioners namely C.P.Bharathi
and Sathyanarayana were not parties in the original suit
filed by Anjanappa and also they were not parties in the
appeal filed by the legal heirs of Anjanappa.
30. Also raised ground that the trial Court did not
examine the careful aspect whether defendants had
obtained a decree against Buddamma who had no title in
the immovable property on the date of filing of the suit
against the person who had title prior to the date of
institution of the suit and whether the decree could
binding on the plaintiffs
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31. Further contended that the trial Court did not
take consideration the right of conveyance alleged and
asserted by Avalahalli Hanumanthappa which could be
transfered and assignable and could be enforceable since
the sale was different and had right of repurchase Yadiur
Hanumanthappa as per the term agreed upon between
them Avalahalli Hanumanthappa had right to
reconveyance of the property from Yadiur
Hanamanthappa. Therefore, whatever rights Avalahalli
Hanumanthappa had in respect of the property related to
the suit on his rights got relinquished and Anajappa and
Chikka Muniswappa are alone by virtue of settlement deed
were capable of enforcing it having taking assignment of
those rights.
32. Further contended that the trial Court did not
take consideration that on 05.10.1950 Avalahalli
Hanumanthappa and Chikk Muniswamappa obtained said
property from Yadiur Hanumathappa on the very same
day both of them had sold the said property to Muniyappa
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Reddy and both transactions the Anjanappa is not a party.
Therefore, in this circumstance the Court has not
considered as to what is the right of the Anjanappa in
respect of the property granted under the settlement
deed. Therefore, obtaining the sale deed from Yadiur
Hanamanthappa by Avalahalli Hanumanthapp from Chikk
Muniswamappa becomes distinct transactions and sale
deed obtained from Yadiur Hanumanthappa on 05.10.1950
virtually is contrary to the rights create under the
settlement deed by Avalahalli Hanumanthappa himself and
independently although he relinquished all his rights.
33. Further contended that the trial Court is not
taken consideration the question of competing claims to
two registered documents in respect of the same
properties by the same person as per Section 48 of the
Transfer of property Act is not applicable. Therefore,
Anjanappa ought to have taken action in respect of
whatever rights he had under the settlement deed and at
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an appropriate stage by calling for reconveyance in his
favour which he has not done.
34. Further contended that the trial Court has not
taken into consideration that defendant No.22 Trident
Automobiles has claimed that he had purchased 36 guntas
in Sy.No.39/4A from defendant Nos.1 to 8 and got into
converted from the agriculture land which is contrary to
the evidence on record and it is perverse.
35. The trial Court erroneously held in concluding
that defendant No.22 Trident Automobiles is in possession
over the suit property.
36. Therefore, by raising various grounds as
summarized above the plaintiffs have preferred the
present appeal.
37. Upon issuance of notice the
defendants/respondents have appeared through their
respective advocates.
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38. Heard arguments and perused the records.
ARGUMENTS OF APPELLANTS:-
39. Learned Senior Counsel Sri Ananth Mandagi,
appearing for the appellant, submitted that Plaintiff No.1
partnership firm was not a party to O.S.No.1318/1980 (old
O.S.No.332/1971) also O.S.No.167/1976.
O.S.No.332/1971 was filed on 09.05.1971, but Plaintiff
No.1 was not a party therein. Therefore, the judgment and
decree in RFA No.606/1989 reversing O.S.No.1318/1980
dated 04.07.1989 were not binding on the plaintiffs. He
argued with reference to Order XXX Rules 1, 2, and 3 of
CPC and Section 14 of the Indian Partnership Act, 19324
that representation by a single partner without impleading
the firm does not constitute compliance with the said
provisions i.e., Order XXX Rules 1, 2 and 3 of CPC and
Section 14 of the Act, 1932..
4
Hereinafter referred to as ” the Act, 1932″
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40. It is submitted that the plaintiff partnership firm
purchased the property as per the Exs.P.24 and 25 on
18.05.1970 and thus suit schedule property becomes the
property of partnership firm therefore, when the subject
matter of suit is property belongs to partnership firm then
firm shall be necessary party and in the absence of
impleading the plaintiff partnership firm whatever
judgment and decree passed are not binding on the
partnership firm. The deceased Buddamma was made a
party in the suit who is vendor of the property, but not
made a plaintiff firm as a party. Buddamma purchased the
property on 20.02.1963 and sold to the plaintiff firm on
18.05.1970 and therefore, when defendant Nos.1 to 8
claiming they are owners of property but plaintiff firm
ought to have been made as a party in the suit
proceedings in O.S.No.332/1971. Therefore, raised
question when plaintiff firm is not made party in the suit,
after disposal of the suit RFA No.606/1989 is filed, even in
the appeal proceedings also plaintiff firm ought to have
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been made a party. Buddamma died in the year 1984 but
in RFA proceedings legal heirs of Buddamma are not made
parties. Therefore, there is no compliance of Order XXX
Rules 1, 2 and 3 and Section 14 of the Act, 1932.
Therefore, judgment and decree in RFA No.606/1989 not
binding on the plaintiff firm.
41. Further argued with reference to Order XXII
Rule 9 of CPC, if party in the suit died the suit stands
abated against the party because legal heirs of Buddamma
are not brought on record. Therefore, submitted judgment
and decree passed in RFA No.606/1989 is void decree.
Further submitted that plaintiff firm not making party in
the appeal is not cureable defect. Therefore, submitted
that judgment and decree passed in RFA No.606/1989 is
not binding on the plaintiff firm. Therefore prays to allow
the appeal.
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42. Learned Senior Counsel Sri Ananath Mandagi
relied upon the following judgments in support of his
contentions.
i) V Tulasamma and ors vs. V Sesha
Reddi (dead) by l.rs.5
ii) Dhanalashmi and others vs P Mohan
and others6
iii) Rajendra prasad and another vs
khirodhar mahto and others7
iv) Sushil k chakravarty (d) thr.l.rs. Vs tej
properties pvt.ltd8
v) Jaladi Suguna (deceased) through lrs
vs Satya Sai Central Trust and others9
vi) T Ganavel vs T.S. Kanagaraj another10
vii) Sharadamma vs Mohammed Pyarejan11
viii) Gangabai Gopaldas Mohata vs Fulchand
and others12
ix) B.L.Shreedhar and others vs
K.M.Munireddy (dead) and others13
x) Vijay Narayan Thatte and others vs
State of Maharastra and others14
5
(1977) 3 SCC 99
6
(2007) 10 SCC 719
7
1994 Supp (3) SCC 314
8
AIR 2013 SC 1732
9
2008 (8) SCC 521
10
(2009) 14 SCC 394
11
AIR 2015 SCC 3747
12
(1997) 10 SCC 387
13
(2003) 2 SCC 355
14
(2009) 9 SCC 92
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43. Learned Senior counsel Sri.P.S.Rajgopal,
appearing for Plaintiff Nos.2 to 4, submitted that under
Order XXII Rule 4 of CPC, upon the death of Buddamma,
her legal heirs were not brought on record, nor was any
exemption sought by Defendant Nos.3 to 8 prior to the
judgment.
44. Further submitted that under Order XXII Rule 4
of CPC, where no application is made within the prescribed
time to implead the legal representatives of a deceased
party, the suit abates as against such deceased party.
Therefore, it was contended that the entire appeal stood
abated, particularly when Defendant Nos.1 to 8 were
claiming partition in respect of property that had already
been sold by Buddamma to the plaintiff firm. Accordingly,
prayed to allow the appeal.
45. In support of his arguments learned Senior
Counsel Shri P.S.Rajgopal relied the following judgments;
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i) T.Gnanavel vs T.S. Kanagaraj and others15
ii) Budh Ram and others vs Bansi and others16
iii) Gurnam Singh (dead) through legal
representatives and others vs Gurbachan
Kaur (dead) by legal representatives17
ARGUMENTS BY RESPONDENTS:-
46. Per contra, learned Senior Counsel Shri S.M.
Chandra Shekhar submitted that Buddamma had remained
ex parte in O.S.Nos.8973/2006 and 6873/2009. He further
submitted that the plaintiff firm was duly represented by
C.R.Santosh Kumar, who was one of its partners. In his
written statement, C.R.Santosh Kumar stated that he is
representing not only himself but also the plaintiff firm. It
is contended that the partnership firm was a family entity
and that C.R.Santosh Kumar is a family member of the
other partners; hence, the other partners were well aware
of the suit proceedings. Therefore, it could not be
15
(2009) 14 SCC 294
16
(2010) 11 SCC 476
17
(2017) 13 SCC 414
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contended that the judgments and decree were passed
behind their back.
47. It is further submitted that under Section 18 of
the Act, 1932 a partner is an agent of the firm, and under
Section 19, a partner has implied authority to bind the
firm in acts done in the usual course of business. Under
Section 22 the Act, 1932 of a partner bind the firm.
Therefore, the representation by C.R.Santosh Kumar is
binding on the partnership firm. Further contended that
under Section 28 of the Act, 1932, the doctrine of “holding
out” applied, and hence all acts done by C.R.Santosh
Kumar is binding on the firm. Accordingly, he argued that
the plaintiff’s contention lacked merit.
48. It is further submitted that under Section
19(1)(e) and (f) of the Partnership Act, acts done by a
partner in carrying on the business in the usual way bind
the firm. Participation in litigation concerning partnership
property would bind the firm. Therefore, when
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C.R.Santosh Kumar represented the firm in the suit, it is
not merely in his individual capacity but also as partner of
the firm.
49. It is further submitted that the plaintiff firm not
only had knowledge of the proceedings but was
constructively aware thereof. Hence, the plaintiffs were
estopped from contending that they had no notice of the
suit proceedings.
50. Learned Senior Counsel further submitted that
admissions made by PW-1 during cross-examination
clearly established that the plaintiff firm was duly
represented by partner C.R.Santosh Kumar.
51. It was further submitted that the judgment and
decree passed in RFA No.606/1989 stood merged with the
order passed in SLP No.6079/2011 by the Hon’ble
Supreme Court. By virtue of the doctrine of merger, the
issues raised by the plaintiff were carried to the Hon’ble
Supreme Court and the Hon’ble Supreme Court rejected
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their prayer. Therefore, the plaintiff could not re-agitate
the same issues.
52. It is sum and substance, it is contended that
the partnership firm was duly represented by C.R.Santosh
Kumar, who was a family member and partner, and that
all issues relating to non-impleadment of the firm had
attained finality up to the Hon’ble Supreme Court. Hence,
the present appeal was devoid of merit.
53. Learned Senior Counsel further elaborated upon
the documentary and oral evidence, particularly the
admissions of PW-1 in cross-examination, to demonstrate
that all partners were aware of and had knowledge of the
suit proceedings.
54. In support of his arguments learned Senior
Counsel Shri.S.M.Chandra Shekhar relied the following
judgments;
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i. A.V. Papayya Sastry and others vs. Govt. of
A.P. And others18
ii. Kunhayammed v. State of Kerala and another19
iii. Municipal Borad, Lucknow vs. Pannalal
20
Bhargava and others
iv. Shivshankara and another vs. H.P.Vedavyasa
Char21
v. Delhi Development Authority vs. Diwan Chand
Anand and ors22
vi. Mangal Singh and others vs. Smt. Rattno
(dead) by her legal representatives and
another23
vii. Kanhaiyalal vs. Rameshwar and others24
viii. Vantaku Appalanaidu and others vs. Peddinti
Demudamma and another25
ix. Bhurey Khan vs. Yaseen Khan (dead) by L.Rs.
And others26
x. Manovikas Kendra Rehabilitation & Research
Institute vs. Prem Prakash Lodha27
xi. K. Naina Mohamed (dead) through L.Rs. Vs.
A.M.Vasudevan Chettiar (dead) through L.Rs.
And others28
xii. Raghunath Keshava Kharkar vs. Ganesh alias
Madhukar Balakrishna Kharkar and others29
18
(2007) 4 SCC 221
19
(2000) 6 SCC 359
20
(1976) 3 SCC 85
21
(2023) SCC online SC 358
22
2022 LiveLaw (SC) 581
23
AIR 1967 SC 1786
24
(1983) SC 260
25
1981 SCC online AP 155
26
1995 SUPP (3) SCC 331
27
(2005) 7 SCC 224
28
(2010) 7 SCC 603
29
AIR 1964 SC 234
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xiii. Kanhaiyalal vs. Mulla Abdul Hussain and
others30
xiv. Krishnaveni and 4 others vs. Ramchandra Naidu
and others31
xv. Collector of 24 Parganas vs. Lalith Mohan
Mallick and others32
xvi. P.P.K. Gopalan Nambiar vs. PPK Balakrishna
Nambiar and others33
xvii. Lachmi Narai Marwari vs. Balmukund Marwari
and another34
xviii. Bk Basha vs. Mohd. Ali & other35
xix. Krishndevi Malchand Kamatia and others vs.
Bombay Environmental Action Group and
others36
xx. Ashutosh vs. State of Rajasthan & others37
55. Learned Senior Counsel Sri Aditya Sondi and Sri
Shashikant Shetty submitted that the judgment and
decree in O.S.No.6673/2009 are not binding on
Respondent Nos.11 to 17, as they are passed against
deceased persons. It is submitted that the appeal filed by
the plaintiff is frivolous and liable to be dismissed.
30
ILR 1984 MP 393
31
1998 (I) CTC 423
32
(1988) SUPP. SCC 578
33
1995 SUPP 2 SCC 664
34
AIR 1924 JC 321
35
C.R.P.(NPD) No.771/2014
36
(2011) 3 SCC 363
37
(2005) 7 SCC 308
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POINTS FOR CONSIDERATIONS:-
56. Upon hearing the learned Senior Counsel and
considering the submissions, the following points arise for
consideration:
i. Whether, under the facts and circumstances
involved in the case, the defendants have
proved that the plaintiff firm was represented
by C.R. Santosh Kumar on behalf of the plaintiff
partnership firm in O.S. No. 1318/1980 and in
RFA No. 606/1989, and whether such
representation amounts to the plaintiff firm
being duly represented by its partner?
ii. Whether, under the facts and circumstances
involved in the case, the judgment and decree
dated 24.04.1998 passed by this Court in RFA
No. 606/1989 is binding on the
appellant/plaintiff?
iii. Whether, under the facts and circumstances
involved in the case, the representation made
by C.R. Santosh Kumar amounts to
representation for and on behalf of the plaintiff
firm, M/s Master Products, in O.S. No.
1318/1980 and in RFA No. 606/1989, not only
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in his individual capacity but also on behalf of
the plaintiff firm?
iv. Whether, under the facts and circumstances
involved in the case, on account of the death of
Buddamma, the appeal in RFA No. 606/1989
stood abated for failure to bring the legal heirs
of late Buddamma on record?
v. Whether, under the facts and circumstances
involved in the case, the non-filing of a written
statement by Buddamma in the suit, her death
during the pendency of RFA No. 606/1989, and
the failure to bring her legal heirs on record
amount to abatement of the appeal in its
entirety?
vi. Whether, under the facts and circumstances
involved in the case, on account of the death of
Buddamma, the appeal in RFA No.606/1989
abated in view of the LRs of Buddamma not
being brought on record in the appeal?
vii. Whether, under the facts and circumstances
involved in the case, the suits filed in
O.S.No.8973 of 2006 and O.S.No.6873 of 2009
are hit by principle of res-judicata as per
Section 11 of CPC?
viii. Whether, under the facts and circumstances
involved in the case, re-conveyance of property
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made as per the settlement deed dated
22.12.1949 is applicable in determining the
shares of parties in the suit in O.S.No.1318 of
1980 (O.S.No.334 of 1971) and in RFA No.606
of 1989?
REASONING:-
57. In V. Tulasamma, as noted supra, the Hon’ble
Supreme Court has authoritatively interpreted the
provisions of Section 14 of the Hindu Succession Act. In
the present case, the appellants have confined their
arguments to substantial questions of law pertaining to the
interpretation of sub-sections (1) and (2) of Section 14 of
the Hindu Succession Act, 1956. The following two points
arise for consideration in relation to the interpretation of
sub-sections (1) and (2) of Section 14 of the Hindu
Succession Act, as stated in paragraph No.4, as follows:
4. Thus the two points that fall for determination in
this appeal may be stated thus:
“(1) whether the instrument of compromise under
which the properties were given to the appellant
Tulasamma before the 1956 Act in lieu of
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maintenance falls within Section 14(1) or is covered
by s. 14(2) of the 1956, Act and
(2) Whether a Hindu widow has a right to property in
lieu of her maintenance, and if such a right is
conferred on her subsequently by way of
maintenance it would amount to mere recognition of
a pre-existing right or a conferment of new title so
as to fall squarely within Section 14(2) of the 1956
Act.”
58. Therefore, in view of the difference in the
factual matrix involved in the above-stated case and the
present case, the said case is not applicable to the present
case.
59. The sum and substance of the plaintiff’s
contention, as urged in the plaint and in arguments, is that
the judgment passed in RFA No.606/1989 (Ex.P-29),
arising out of dismissal of O.S.No.1318/1980, is not
binding on the plaintiff firm. It is contended that the
plaintiff firm was not a party to O.S.No.1318/1980 or RFA
No.606/1989 and therefore was not represented therein.
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Consequently, the judgment and decree passed therein
are not binding on the plaintiff firm.
60. Per contra, it is the contention of the
defendants that C.R.Santosh Kumar, being a partner of
the plaintiff firm, represented the firm in both proceedings
not only in his individual capacity but also on behalf of the
partnership firm.
61. It is not in dispute that C.R.Santosh Kumar was
subsequently impleaded as Defendant No.6 in O.S.
No.1318/1980 on 03.06.1992. The question for
consideration is whether the plaintiff firm was represented
by its partner in the said suit and appeal and whether the
partnership firm had knowledge of the proceedings such
that the decree cannot be said to have been passed
behind its back.
62. It is the case of the plaintiff that the partnership
firm purchased the suit schedule property in Sy.No.39/4 of
Doddakallasandra Village, Uttarahalli Hobli, Bengaluru,
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measuring 1 acre 20 guntas from Buddamma under a
registered sale deed dated 18.05.1970 (Ex.P-24). Ex.P-18,
the partnership deed dated 26.04.1970, reveals that C.R.
Santosh Kumar and others formed the partnership firm
M/s. Master Products. It is not disputed that C.R.Santosh
Kumar was one of the partners and that the property was
purchased on behalf of the firm.
63. Learned Senior Counsel Sri Ananth Mandagi
contended that upon purchase, the property became
partnership property under Section 14 of the Act, 1932,
therefore, the firm was a necessary party in any suit
concerning the property. In the absence of impleading the
firm, decree passed would not bind the partnership firm.
64. Section 18 of the Act, 1932 provides that a
partner is an agent of the firm for the purposes of the
business of the firm. Section 4 of the Act, 1932 defines
partnership as a relationship between persons who agree
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to share profits of a business carried on by all or any of
them acting for all.
65. The Hon’ble Supreme Court, in the case of
Controller and Auditor General v. Kamlesh Vadilal
Mehta38, held that a partnership firm is not a separate
legal entity like a company but is a collective of individual
partners. Therefore, whether representation by one
partner amounts to representation of all partners requires
consideration.
66. Under Section 19 of the Act, 1932, acts done by
a partner in carrying on the business of the firm in the
usual manner bind the firm. There is implied authority in
such acts.
67. Therefore, if a partner appears in proceedings
with the intention to bind the firm, such participation may
constitute implied authority, and other partners are bound
under Section 22 of the Act, 1932.
38
(2003) 2 SCC 349
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68. In the present case, C.R.Santosh Kumar
represented the firm in the suit and appeal concerning
partnership property. The question is whether such
representation binds the firm, considering the evidence on
record.
69. In O.S.No.167/1966 filed by Anjanappa against
Buddamma and others in which, defendant No.5 is C.R.
Santosh Kumar, who has filed written statement in the
said suit, which is marked as Ex.D-21 and has made a
statement in the written statement that in Sy.No.39/4
(formerly bearing Sy.No.39/2) of Doddakallasandra village
measuring 04 acres 14 guntas was owned and possessed
by one Mystry Hucchappa S/o. Subbanna. The said
Hucchhappa sold the said property under a registered sale
deed dated 04.06.1928 to Avalahalli Hanumanthappa S/o.
Eerappa. The said Avalahalli Hanumanthappa was in
possession and enjoyment of the said property. The said
property was his separate and self acquired property. The
said Avalahalli Hanumanthappa sold the entire land under
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a registered sale deed dated 18.06.1949 to one
Hucchhappa S/o. Hoblappa and put him in possession of
the same. The said Hucchhappa S/o. Hoblappa transferred
and granted the said land under registered sale deed
dated 05.10.1950 to Avalahalli Hanumanthappa and his
son Chikka Munishamappa. On the same day, i.e., on
05.10.1950, Avalahalli Hanumanthappa and his son Chikka
Munishamappa conveyed, transferred and sold the
property under the registered sale deed to Muniyappa
Reddy and put in possession. The said Muniyappa Reddy
sold the property under registered sale deed dated
22.07.1963 in favour of defendant No.1-Buddamma (In
O.S.No.167/1966) and thereafter the said Buddamma sold
the property to M/s. Master Products represented by
defendant No.5-C.R. Santosh Kumar under a registered
sale deed dated 08.05.1970 and conveyed 01 acre 20
guntas out of said Sy.No.39/4.
70. Further, it is averred in the said written
statement that defendant No.5-C.R.Santosh Kumar,
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formed a layout with permission from the competent
authorities and a portion of Sy.No.39/4 was assigned as
Sy.No.39/4A and it is contended that defendant No.5-C.R.
Santosh Kumar had invested considerable amount for
business. It is contended that when Avalahalli
Hanumanthappa parted with his right over the said land on
18.06.1949 in favour of Hucchhappa S/o. Hoblappa he had
lost title and interest as on 22.12.1949. When the alleged
settlement deed was executed, therefore, Avalahalli
Hanumanthappa did not have competency to transfer any
right as on 22.12.1949. Hence, defendant No.5-C.R.
Santosh Kumar had appeared on behalf of firm-M/s.
Master Products in the earlier suit proceedings in
O.S.No.167/1966. Hence, the plaintiff-M/s. Master
Products, cannot contend that he was got surprised, it
proves that the plaintiff-M/s. Master Products, knew about
the legal proceedings.
71. Further, in the evidence of C.R.Santosh Kumar
in O.S. No.1318/1980, produced as Ex.D-2 in the present
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case, he deposed in chief examination that he was one of
the partners of M/s. Master Products and that the firm had
purchased the suit land. In cross-examination, he has
admitted that there were five partners, four of whom were
brothers and one the wife of a brother. Therefore, the
partners were not strangers to him. When C.R.Santosh
Kumar participated in O.S. No.1318/1980, it must be
inferred that the other partners were aware of the
proceedings and had authorized him to represent the firm.
Accordingly, the partnership firm cannot now contend that
it had no knowledge of the proceedings.Further after the
said land sold to the plaintiff partnership firm and same
was got re-surveyed and assigned Sy.No.39/4A.
Therefore, it is proved that C R Santosh Kumar definitely
having awareness of the property in question in the suit
proceedings and this fact is proved to be known by the
partnership firm and other partners.
72. Considering partners in the plaintiff partnership
firm all the partners are the family members and the
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partnership firm is family entity. It is further evident from
Ex.P-18, the partnership deed dated 26.04.1970, that the
partners were residing at the same address, namely
No.20, SST Street, V.V.Puram, Bengaluru. C.R.Santosh
Kumar’s address is shown as the same. Therefore, it
cannot be contended that the partners were unaware of
the litigation and they are strangers.
73. Under Order XXX of CPC, a partner may sue or
be sued in the name of the firm. When a partner contests
proceedings concerning partnership property, it amounts
to representation of the firm. Therefore, the participation
of C.R. Santosh Kumar as partner constitutes
representation of the partnership firm, and the decree
cannot be said to have been passed behind its back.
74. Ex.P-18, though an unregistered partnership
deed dated 26.04.1970, discloses that C.R.Santosh Kumar
(Party No.7), C.P.Satyanarayana (Party No.8), Sooramma
(Party No.9), and Roopa (Party No.10) shared the same
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address. Hence, it cannot be asserted that they were
strangers to one another or unaware of the proceedings.
75. Certificate of Registration dated 03.01.1972
(Ex.P-59), Partnership Deed dated 01.06.1974 (Ex.P-20),
Retirement Deed dated 01.04.1980 (Ex.P-21), Partnership
Deed dated 01.04.1980 (Ex.P-22), Dissolution Deed dated
01.04.1987 (Ex.P-31), Agreement of Co-Ownership dated
01.05.1987 (Ex.P-33), and Deed of Transfer dated
04.12.1991 (Ex.P-34) demonstrate that all partners were
residing at No.20, Subramaniyaswamy Temple Street,
V.V.Puram, Bengaluru. Therefore, it is reasonable to
conclude that the firm was duly represented by C.R.
Santosh Kumar in both the suit and the appeal.
76. The plaintiff partnership firm is a family entity.
M/s Master Products partnership firm was registered on
03.09.1972. C.R.Santosh Kumar had filed impleading
application on 18.01.1972 in a suit filed on 29.05.1971,
therefore, as on the date of filing of the suit and on the
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date of sale deed dated 18.01.1970 the partnership firm
was unregistered. Therefore, the partnership firm was duly
represented by C.R.Santosh Kumar who is acted on behalf
of the firm and dependant estate of deceased Buddmma
throughout proceedings.
77. The admission of PW-1 Prashanth Hegde further
establishes that C.R.Santosh Kumar participated in the
proceedings on behalf of M/s. Master Products throughout.
Hence, the judgment and decree in RFA No.606/1989
(Ex.P-29) is binding on M/s. Master Products and its
partners.
78. Ex.D.69 is the application filed by C.R.Santosh
Kumar in O.S.No.1318/1980, (Ex.P-26) being defendant
No.5, and he deposed that M/s. Master Products,
represented by him, had purchased 1 acre 20 guntas of
land out of the suit land from its previous owner,
Buddamma, who was defendant No.1 in the suit, under a
registered sale deed dated 18.05.1970. He has also
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deposed in the written statement as to how his
predecessor-in-title, M/s. Master Products, acquired rights
in the said suit property and has given details of the
transactions. Therefore, by this very admission, it is
proved that C.R.Santosh Kumar, not only in his individual
capacity but also as a partner of the plaintiff partnership
firm, has contested the suit in O.S. No.1318/1980.
79. The plaintiff partnership firm filed an application
under Order I Rule X(2) of CPC in FDP No.41/1999 (Ex.D-
38) to implead C.R.Satyanarayana as respondent No.5(a),
C.R.Prabakar as respondent No.5(b), and
C.R.Ashwathnarayana as respondent No.5(c). In the
affidavit, the partnership firm deposed that the present
respondents are also partners of the said firm and that 1
acre 20 guntas of land was purchased by M/s. Master
Products from Buddamma by respondent No.5, and that
the proposed respondents are all partners of the said firm.
It is observed in the order (Ex.D-39) in FDP No.41/1999
that the firm M/s. Master Products was already
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represented by one of its partners, namely C.R.Santosh
Kumar. It is further observed in the order that
C.R.Santosh Kumar was not neglecting the interest of the
firm, nor was it the case of the partners that his interest
was conflicting with that of the proposed respondents.
Therefore, it is observed that C.R.Santosh Kumar duly
represented the proceedings on behalf of the other
partners and that his interest was not conflicting with that
of the other partners and the partnership firm. Therefore,
it cannot be said that the judgment and decree were
passed behind the back of the other partners and the
partnership firm.
80. Plaintiff No.4, who is a partner of the plaintiff
partnership firm, preferred Special Leave Petition
No.18464/2009 (Ex.D-10) before the Hon’ble Supreme
Court and raised the ground that in O.S.No.1318/1980,
(Ex.P-26) the plaintiff firm M/s. Master Products and its
partners were not made parties. Therefore, the judgment
and decree are not binding on the plaintiff firm, but this
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contention was not accepted by the Hon’ble Supreme
Court. Therefore, the plea taken by the plaintiff firm has
attained finality up to the Hon’ble Supreme Court, and the
Hon’ble Supreme Court has rejected their contentions.
81. Shanthanath Shetty filed an application under
Order XXI Rule 97 read with Section 151 of CPC in
Execution Case No.2253/2006 (Ex.D-70) and the said
application was rejected, against which the plaintiff filed
RFA No.385/2009, but it was also dismissed.
82. The plaintiff filed RFA No.951/2008 against the
order passed in O.S.No.25813/2008, being aggrieved by
the rejection of the plaint under Order VII Rule 11(a) and
(d) of CPC. This appeal was also dismissed on 19.11.2009,
and the said document is marked as Ex.D-18.
83. In this appeal, this Court addressed this issue
and observed, giving findings that when the issue was
taken to the Hon’ble Supreme Court against the order
passed in the RFAs, the contention raised by the plaintiff
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attained finality, and the decree holders in O.S.
No.1318/1980 (Ex.P-26) have attained finality as they
have got half share in the suit schedule properties.
Therefore, Muniyamma and the LRs of Anjanappa are
entitled to 2 acres 7 guntas of land in the concerned
survey number. Therefore, even the share granted by this
Court in RFA No.606/1989 (Ex.P-29) has attained finality
on its merits. Therefore, the trial Court is correct in
dismissing the suit.
84. The further contention of the plaintiff that the
judgment and decree passed in O.S. No.1318/1980 (Ex.P-
26) against which RFA No.606/1989 (Ex.P.29) was filed, is
not binding on them, is well addressed in Execution Case
No.2253/2006 (Ex.P-128). The plaintiff herein filed an
application under Order XXI Rule 97 of CPC as an
obstructer in executing the decree, and it was observed
and found that C.R. Santosh Kumar was a party to the suit
proceedings and also in appeal, and that he represented
not only himself but also the partnership firm. Thus, the
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said obstruction application was dismissed, which was
challenged in RFA No.485/2008 (Execution) (Ex.D-64),
and the said RFA No.485/2008 was rejected.
85. At the time of filing O.S.No.1318/1980 (Ex.P-
25) (old O.S. No.332/1971) also O.S.No.167/1976 (Ex.D-
20 and 21) the firm M/s. Master Products was not a
registered firm, and it was not registered at the time of
purchasing the suit property. Therefore, the representation
made by C.R.Santosh Kumar in the suit was well thought
by the plaintiff, as C.R.Santosh Kumar had purchased the
property on behalf of an unregistered firm. Therefore,
C.R.Santosh Kumar was made a party as defendant No.5
in the suit, as there was no necessity to make the other
partners parties to the suit because the partnership firm
was not registered at that point of time.
86. The appellants/plaintiffs have raised the
question that the judgment and decree in RFA
No.606/1989 (Ex.P-29) are a nullity as Buddamma died
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during the pendency of the appeal in RFA No.606/1989
and her LRs were not brought on record; therefore, it is
contended that the judgment and decree passed in the
appeal abated in whole.
87. Here, the pertinent question to be considered in
this context is whether non-arraying of the LRs of
deceased Buddamma on record abates the appeal and
causes any prejudice to the appellants/plaintiffs. The
plaintiff partnership firm purchased the property from
Buddamma, and the said Buddamma was defendant No.1
in O.S.No.1318/1980. Initially, after notice to her, she
remained absent and was placed ex parte. The records
disclose that Buddamma filed an application for recalling
the order placing her ex parte, and the order was recalled
and she was allowed to contest the suit. However,
thereafter, she did not file any written statement and did
not contest the suit. It is pertinent to mention here that
the purchaser from Buddamma stepped into her shoes.
Therefore, Buddamma remained silent. C.R. Santosh
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Kumar, who is a partner of the plaintiff firm, namely M/s.
Master Products, represented the suit by stepping into the
shoes of Buddamma also, on behalf of the other partners
and the partnership firm. Therefore, there is no question
of non-representation in the suit affecting the rights of the
plaintiffs, including the firm.
88. The entire appeal would not abate when there
were other respondents who duly represented and
contested the appeal. Buddamma was given two
opportunities to contest the suit as stated above, but she
remained absent and was placed ex parte. She also
remained ex parte in the appeal upon issuance of notice,
as she had sold the excess land to the plaintiff. Therefore,
the plaintiff, in the place of Buddamma, was contesting the
suit through C.R.Santosh Kumar. C.R.Santosh Kumar
contested the suit as a partner of the firm and on behalf of
the other partners. It is pertinent to mention here that, as
discussed above, all were residing under the same roof at
the same address; therefore, at no point of time can it be
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said that the judgment and decree passed in the suit or in
the appeal were behind the back of the plaintiff.
89. The plaintiffs/appellants have brought the legal
heirs of Buddamma on record in RP No.46/2000 (Ex.D-3),
CP No.822/2001 (Ex.D-27), RP No.461/2001 (Ex.D-28)
and CP No.994/2001; therefore, the legal heirs of
Buddamma have also contested the issue in various
litigations. Therefore, the judgment and decree in RFA
No.606/1989 have merged with the orders passed in the
above review petitions and civil petitions. Thus, the appeal
is not abated. The other defendants/respondents
contested RFA No.606/1989 by representing the estate of
Buddamma. M/s. Luvac Engineering (presently known as
Metal Closers) was arrayed as defendant No.2 in O.S.
No.1318/1980.
90. After the judgment and decree were passed in
RFA No.606/1989 holding that Buddamma was entitled to
half share, M/s. Luvac Engineering purchased from M/s.
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Master Products an extent of 1 acre 20 guntas, which is in
excess of the half share; therefore, M/s.Luvac Engineering
is estopped from contending that the order passed against
a dead person is not binding on them. In the contest,
having regard to the fact that M/s. Luvac Engineering was
a party to the proceedings throughout, non-arraying of the
legal heirs of Buddamma cannot abate the appeal
proceedings.
91. In the final decree proceedings in FDP
No.41/1999 (Ex.D-40), RFA No.692/2003 (Ex.D-59), RFA
No.502/2003 (Ex.D-55) and SLP No.3278/2007, this Court
as well as the Hon’ble Supreme Court held that no land
was available to C.R.Santosh Kumar, who had purchased 1
acre 20 guntas, and the same was in excess of the share
of Buddamma. M/s. Luvac Engineering is holding 1 acre 5
guntas, knowingly well that the conveyance of the
property by Buddamma was in excess of her later
determined share of 2 acres 7½ guntas; M/s. Luvac
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Engineering purchased 1 acre 5 guntas from the partners
of M/s. Master Products.
92. Buddamma died on 12.11.1984 during the
pendency of the appeal in RFA No.606/1989. In RP
No.46/2000, CP No.822/2001 (Ex.D-27), RP No.461/2001
(Ex.D-28) and CP No.994/2001, in all the proceedings the
legal heirs of Buddamma were parties, and there is no
question that the legal heirs of Buddamma were not
heard. What was allotted to Buddamma’s share in RFA
No.606/1989, the same quantum of extent of land would
go to the plaintiff firm. Further, the same was ratified by
subsequent legal proceedings as stated above. Therefore,
merely on technicality, substantial justice cannot be
curtailed, and the plaintiff does not have excess rights
beyond what was allotted to Buddamma in RFA
No.606/1989. The whole attempt of the plaintiff is nothing
but to thwart the rights, interests, and entitlements of
defendant Nos.1 to 8 as per RFA No.606/1989. Therefore,
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considering the provisions of Order XXII Rule 6 and Rule
10 of CPC, the appeal would not stand abated.
93. The plaintiff purchased land from Buddamma in
excess of what she was entitled to in RFA No.606/1989,
wherein the share was determined in the suit for partition
in O.S.No.1318/1980. C.R.Santosh Kumar has contested
the suit in the place of Buddamma on behalf of the
partnership firm and other partners. Therefore, the
technical contention that the legal heirs of Buddamma
were not brought on record in the appeal and that the
whole appeal stands abated is misconceived, and by such
misconceived arguments the plaintiff is now trying to
curtail the determined rights of defendant Nos.1 to 8 to
get the share that was awarded in RFA No.606/1989. The
whole scheme of the suits in O.S.No.8973/2006 and
O.S.No.6873/2009 is nothing but contesting on technical
aspects of law to somehow see that the judgment and
decree passed in RFA No.606/1989 are set aside so as to
cause deprivation of the rights of defendant Nos.1 to 8 for
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claiming their legitimate share. The plaintiff purchased the
property from Buddamma, and they do not possess any
independent title or right other than what Buddamma had;
therefore, the plaintiff and other defendants who are
claiming through the plaintiff and having beneficial interest
in the suit have stepped into the shoes of Buddamma.
Therefore, they are deemed to have the characteristics of
legal representatives as defined under Section 2(11) of
CPC. There is a difference between legal heirs and legal
representatives. Section 2(11) of CPC defines legal
representatives as follows:
“legal representative” means a person who in law
represents the estate of a deceased person, and
includes any person who intermeddles with the
estate of the deceased and where a party sues or is
sued in a representative character the person on
whom the estate devolves on the death of the party
so suing or sued;
94. Therefore, when C.R.Santosh Kumar and other
defendants who are claiming through the plaintiff were
representing the estate of deceased Buddamma, because
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C.R.Santosh Kumar, being one of the purchasers and
representing the partnership firm, is to be considered as a
legal representative of Buddamma. Therefore, upon
considering Section 2(11) and Order XXII Rule 10 of CPC,
it would clearly demonstrate that the plaintiff and
C.R.Santosh Kumar have already stepped into the shoes of
Buddamma, and it is not open for them to contend that
they were not represented in the suit and in RFA
No.606/1989.
95. In SLP No.6079/2011 (Ex.D-68), the Hon’ble
Supreme Court held that defendant Nos.1 to 8 are entitled
to land to the extent of 1 acre 36.5 guntas. Therefore, the
determination of the share has attained finality up to the
proceedings before the Hon’ble Supreme Court. Therefore,
when considering substantial justice vis-Ã -vis the technical
aspects raised in the suit, the Hon’ble Supreme Court,
while considering all these aspects, has correctly held that
the determination of the share made in RFA No.606/1989
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is correct by holding that defendant Nos.1 to 8 are entitled
to 1 acre 36.5 guntas of land.
96. Non-arraying of the LRs of Buddamma shall not
abate the appeal in whole, and in this regard I place
reliance on the judgment of the Hon’ble Supreme Court in
the case of Shivashankara and others vs.
H.P.Vedvyasa Char, Bhurey Khan Vs Yaseen Khan, as
stated supra, and State of Andhra Pradesh vs. Pratap
Karan39.
97. Upon the death of the deceased Buddamma,
the joint interest was fully and substantially carried
forward in the proceedings by the appellant along with the
substituted legal representatives of the deceased. This
aspect is agitated in RFA No.692/2003 C/w RFA
No.502/2003 (Ex.P-28), in which C.R.Santosh Kumar and
M/s. Luvac Engineering Corporation have challenged the
order dated 10.03.2003 passed in FDP No.41/1999 (Ex.P-
27) on the file of VI Additional City Civil Judge, Bengalore
39
(2016) 2 SCC 82
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City, CCCH-11 and in these appeals, the legal
representatives of Buddamma were made parties as
respondent Nos.9(a) to 9(i); therefore, the legality and
propriety of the decree passed in RFA No.606/1989 is also
considered and C.R. Santosh Kumar and M/s. Luvac
Engineering Corporation have pleaded equity and this
Court has observed that in the name of equity this Court
cannot interfere with or modify a valid and just order
passed by the Courts, however sympathetic it may be to
its cause.
98. In the order it is observed that though it may
cause considerable hardship and heartburn for
C.R.Santosh Kumar and M/s. Luvac Engineering
Corporation in losing the entire extent of land, though they
claim to be in possession to an extent of 01 acre 20
guntas from the year 1970, the suit itself is of the year
1971 (O.S.No.334/1971) and the interval between the
purchase and the date of filing of the suit being just one
year, such equities cannot be pleaded at this point of time.
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Hence, the validity of the decree passed in RFA
No.606/1989 is also considered and filing these appeals,
C.R. Santosh Kumar and M/s. Luvac Engineering
Corporation, as a lost hope, pleaded equity by accepting
the decree passed in RFA No.606/1989; therefore, the
grievance of the plaintiff/partnership firm and its partners
are fully heard and considered.
99. Further, the appellants/plaintiffs have filed an
undertaking and an affidavit dated 12.06.2001 before the
final decree proceedings Court that M/s. Luvac Engineering
Corporation and its partners will not plead equities and
sought for permission to complete the partly constructed
structures, etc.; therefore, it is at their risk that they have
started construction and filed the affidavit not to plead
equity. Therefore, considering all these aspects, it cannot
be said that the legal heirs of Buddamma as well as the
plaintiff/partnership firm and its partners have not been
heard.
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100. Further, the Hon’ble Supreme Court has
observed that Order XXII Rule 1 of CPC declares that the
death of plaintiff or defendant shall not cause the suit to
abate if the right to sue survives. In the present case, the
purchasers through Buddamma have accrued their rights
by contesting in the final decree proceedings. Though the
legal representatives of Buddamma are required to be
brought on record, it would not be of any consequences as
the legal representatives of Buddamma would not benefit
out of the decree, since the purchasers of Buddamma are
already placed on record. Hence, though Buddamma died
and her legal representatives were not brought on record
in RFA No.606/1989, the right to sue survives as the
purchasers are contesting the appeal by stating in the suit
as the legal representatives of Buddamma. In this regard,
I place reliance on the judgment of Hon’ble Supreme Court
in the case of DDA VS. DIWAN CHAND ANAND AND
OTHERS, as stated supra, which has observed that non-
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impleading of legal representatives in all cases would not
abate the suit as a whole. It is held at Paragraph Nos. 9,
9.1, 9.2, 9.3,9.4, which reads as under:
“9. While considering the impugned order passed by
the High Court dated 09.07.2007, dismissing the
appeal as having abated, the law on abatement and
on Order 22 CPC is required to be discussed. Order
22 CPC fell for consideration before this Court in the
recent decision in the case of Venigalla
Koteswaramman (supra) in which this Court
considered in detail the earlier decisions of this Court
in the case of Nathu Ram (supra) as well as the
other decisions including the later decision in the
case of Hemareddi (supra). The relevant discussion
on Order 22 CPC in paragraphs 42 to 44.8 are
extracted as under:
“42. The rules of procedure for dealing with death, marriage,
and insolvency of parties in a civil litigation are essentially
governed by the provisions contained in Order 22 of the Code.
42.1. Though the provisions in Rule 1 to Rule 10 A of Order 22
primarily refer to the proceedings in a suit but, by virtue of Rule
11, the said provisions apply to the appeals too and, for the
purpose of an appeal, the expressions “plaintiff”, “defendant”
and “suit” could be read as “appellant”, “respondent” and
“appeal” respectively.
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42.2. Rule 1 of Order 22 of the Code declares that the death of
a plaintiff or defendant shall not cause the suit to abate if the
right to sue survives. When read for the purpose of appeal, this
provision means that the death of an appellant or respondent
shall not cause the appeal to abate if the right to sue survives.
42.3. Rule 2 of Order 22 of the Code ordains the procedure
where one of the several plaintiffs or defendants dies and right
to sue survives to the surviving plaintiff(s) alone, or against the
surviving defendant(s) alone. The same procedure applies in
appeal where one of the several appellants or respondents dies
and right to sue survives to the surviving appellant(s) alone, or
against the surviving respondent(s) alone. The procedure is
that the Court is required to cause an entry to that effect to be
made on record and the appeal is to proceed at the instance of
the surviving appellant(s) or against the surviving
respondent(s), as the case may be.
42.4. However, by virtue of Rule 4 read with Rule 11 of Order
22 of the Code, in case of death of one of the several
respondents, where right to sue does not survive against the
surviving respondent or respondents as also in the case where
the sole respondent dies and the right to sue survives, the
contemplated procedure is that the legal representatives of the
deceased respondent are to be substituted in his place; and if
no application is made for such substitution within the time
limited by law, the appeal abates as against the deceased
respondent.
42.5. Of course, the provisions have been made for dealing
with the application for substitution filed belatedly but the same
need not be elaborated in the present case because it remains
an admitted fact that no application for substitution of legal
representatives of Defendant 2 (who was Respondent 3 in AS
No.1887 of 1988) was made before the High Court.
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42.6. The relevant provisions contained in Rules 1, 2, subrules
(1), (2) and (3) of Rule 4 and Rule 11 of Order 22 could be
usefully reproduced as under
“1. No abatement by party’s death, if right to sue survives.–
The death of a plaintiff or defendant shall not cause the suit to
abate if the right to sue survives.
2. Procedure where one of several plaintiffs or defendants dies
and right to sue survives.– Where there are more plaintiffs or
defendants than one, and any of them dies, and where the
right to sue survives to the surviving plaintiff or plaintiffs alone,
or against the surviving defendant or defendants alone, the
Court shall cause an entry to that effect to be made on the
record, and the suit shall proceed at the instance of the
surviving plaintiff or plaintiffs, or against the surviving
defendant or defendants.
* * *
4. Procedure in case of death of one of several defendants or of
sole defendant.–(1) Where one of two or more defendants dies
and the right to sue does not survive against the surviving
defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the
Court, on an application made in that behalf, shall cause the
legal representative of the deceased defendant to be made a
party and shall proceed with the suit.
(2) Any person so made a party may make any
defence appropriate to his character as legal
representative of the deceased defendant.
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(3) Where within the time limited by law no
application is made under sub-rule (1), the suit shall
abate as against the deceased defendant.
* * * 11. Application of Order to appeals.--In the
application of this Order to appeals, so far as may
be, the word “plaintiff” shall be held to include an
appellant, the word “defendant” a respondent, and
the word “suit” an appeal.”
43. For determining if Order 22 Rule 2 could apply,
we have to examine if right to sue survived against
the surviving respondents. It is not the case that no
legal heirs were available for Defendant 2. It is also
not the case where the estate of the deceased
Defendant 2 passed on to the remaining parties by
survivorship or otherwise. Therefore, applicability
of Order 22 Rule 2 CPC is clearly ruled out.
44. Admittedly, steps were not taken for
substitution of the legal representatives of Defendant
2, who was Respondent 3 in AS No. 1887 of 1988.
Therefore, sub-rule (3) of Rule 4 of Order 22 of the
Code directly came into operation and the said
appeal filed by Defendants 16 to 18 abated against
Defendant 2 (Respondent 3 therein). We may
profitably recapitulate at this juncture that in fact,
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the other appeal filed by Defendants 4, 13 and 14
(AS No.1433 of 1989) was specifically dismissed by
the High Court as against the deceased Defendant 2
on 25-4-2006.
44.1. Once it is found that the appeal filed by
Defendants 16 to 18 abated as against Defendant 2
(Respondent 3), the question arises as to whether
that appeal could have proceeded against the
surviving respondents i.e. the plaintiff and
Defendants 1 and 3 (who were Respondents 1, 2 and
4). For dealing with this question, we may usefully
refer to the relevant principles, concerning the effect
of abatement of appeal against one respondent in
case of multiple respondents, as enunciated and
explained by this Court.
44.2. The relevant principles were stated and
explained in depth by this Court in State of Punjab v.
Nathu Ram [State of Punjab v. Nathu Ram, AIR 1962
SC 89]. In that case, the Punjab Government had
acquired certain pieces of land belonging to two
brothers jointly. Upon their refusal to accept the
compensation offered, their joint claim was referred
to arbitration and an award was passed in their
favour that was challenged by the State Government
in appeal before the High Court. During pendency of
appeal, one of the brothers died but no application
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was filed within time to bring on record his legal
representatives. The High Court dismissed [Province
of East Punjab v. Labhu Ram, 1954 SCC OnLine P&H
132] the appeal while observing that it had abated
against the deceased brother and consequently,
abated against the surviving brother too. The order
so passed by the High Court was questioned before
this Court in appeal by certificate of fitness.
44.3. While dismissing the appeal and affirming the
views of the High Court, this Court in Nathu
Ram case [State of Punjab v. Nathu Ram, AIR 1962
SC 89] enunciated the principles concerning the
effect of abatement and explained as to why, in case
of joint and indivisible decree, the appeal against the
surviving respondent(s) cannot be proceeded with
and has to be dismissed as a result of its abatement
against the deceased respondent; the basic reason
being that in the absence of the legal representatives
of deceased respondent, the appellate court cannot
determine between the appellant and the legal
representatives anything which may affect the rights
of the legal representatives. This Court pointed out
that by abatement of appeal qua the deceased
respondent, the decree between the appellant and
the deceased respondent becomes final and the
appellate court cannot, in any way modify that
decree, directly or indirectly.
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44.4. The Court observed in that case, inter alia, as
under: (Nathu Ram case [State of Punjab v. Nathu
Ram, AIR 1962 SC 89] , AIR pp. 9091, paras 46 & 8)
“4. It is not disputed that in view of Order 22 Rule 4,
Civil Procedure Code, hereinafter called the Code,
the appeal abated against Labhu Ram, deceased,
when no application for bringing on record his legal
representatives had been made within the time
limited by law. The Code does not provide for the
abatement of the appeal against the other
respondents. Courts have held that in certain
circumstances, the appeals against the co
respondents would also abate as a result of the
abatement of the appeal against the deceased
respondent. They have not been always agreed with
respect to the result of the particular circumstances
of a case and there has been, consequently,
divergence of opinion in the application of the
principle. It will serve no useful purpose to consider
the cases. Suffice it to say that when Order 22 Rule
4 does not provide for the abatement of the appeals
against the co-respondents of the deceased
respondent there can be no question of abatement of
the appeals against them. To say that the appeals
against them abated in certain circumstances, is not
a correct statement. Of course, the appeals against
them cannot proceed in certain circumstances and
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have therefore to be dismissed. Such a result
depends on the nature of the relief sought in the
appeal.
5. The same conclusion is to be drawn from the
provisions of Order 1 Rule 9 of the Code which
provides that no suit shall be defeated by reason of
the misjoinder or nonjoinder of parties and the court
may, in every suit, deal with the matter in
controversy so far as regards the rights and interests
of the parties actually before it. It follows, therefore,
that if the court can deal with the matter in
controversy so far as regards the rights and interests
of the appellant and the respondents other than the
deceased respondent, it has to proceed with the
appeal and decide it. It is only when it is not possible
for the court to deal with such matters, that it will
have to refuse to proceed further with the appeal
and therefore dismiss it.
6. The question whether a court can deal with such
matters or not, will depend on the facts of each case
and therefore no exhaustive statement can be made
about the circumstances when this is possible or is
not possible. It may, however, be stated that
ordinarily the considerations which weigh with the
court in deciding upon this question are whether the
appeal between the appellants and the respondents
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other than the deceased can be said to be properly
constituted or can be said to have all the necessary
parties for the decision of the controversy before the
court. The test to determine this has been described
in diverse forms. Courts will not proceed with an
appeal (a) when the success of the appeal may lead
to the court’s coming to a decision which be in
conflict with the decision between the appellant and
the deceased respondent and therefore which would
lead to the court’s passing a decree which will be
contradictory to the decree which had become final
with respect to the same subject matter between the
appellant and the deceased respondent; (b) when
the appellant could not have brought the action for
the necessary relief against those respondents alone
who are still before the court; and (c) when the
decree against the surviving respondents, if the
appeal succeeds, be ineffective, that is to say, it
could not be successfully executed.
* * *
8. The difficulty arises always when there is a joint
decree. Here again, the consensus of opinion is that
if the decree is joint and indivisible, the appeal
against the other respondents also will not be
proceeded with and will have to be dismissed as a
result of the abatement of the appeal against the
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deceased respondent. Different views exist in the
case of joint decrees in favour of respondents whose
rights in the subject-matter of the decree are
specified. One view is that in such cases, the
abatement of the appeal against the deceased
respondent will have the result of making the decree
affecting his specific interest to be final and that the
decree against the other respondents can be suitably
dealt with by the appellate court. We do not consider
this view correct. The specification of shares or of
interest of the deceased respondent does not affect
the nature of the decree and the capacity of the joint
decree-holder to execute the entire decree or to
resist the attempt of the other party to interfere with
the joint right decreed in his favour. The abatement
of an appeal means not only that the decree between
the appellant and the deceased respondent has
become final, but also, as a necessary corollary, that
the appellate court cannot, in any way, modify that
decree directly or indirectly. The reason is plain. It is
that in the absence of the legal representatives of
the deceased respondent, the appellate court cannot
determine anything between the appellant and the
legal representatives which may affect the rights of
the legal representatives under the decree. It is
immaterial that the modification which the Court will
do is one to which exception can or cannot be taken.
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“9.1 After referring to the decision of this Court in
the case of Nathu Ram (supra), in the case of
Vennigalla Koteswaramma vs. Malampati Suryamba
and Others, (2003) 3 SCC 272, it is observed by this
Court that the nature and extent of the abatement in
a given case and the decision to be taken thereon
will depend upon the facts of each case and,
therefore, no exhaustive statement can be made
either way and that the decision will ultimately
depend upon the fact whether the decree obtained
was a joint decree or a separate one. It is further
observed that this question cannot and should not
also be tested merely on the format of the decree
under challenge or it being one or the manner in
which it was dealt with before or by the Court which
passed it.
Thus, as observed and held by the Court:
(i) The death of a plaintiff or defendant shall not cause the suit
to abate if the right to sue survives;
(ii) If there are more plaintiffs or defendants than one, and any
of them dies, and where the right to sue survives to the
surviving plaintiff or plaintiffs alone, or against the surviving
defendant or defendants alone, the Court shall cause an entry
to that effect to be made on the record, and the suit shall
proceed at the instance of the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants (Order 22 Rule
2);
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(iii) where one of two or more defendants dies and
the right to sue does not survive against the
surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the
right to sue survives, the Court, on an application
made in that behalf, shall cause the legal
representative of the deceased defendant to be
made a party and shall proceed with the suit. Where
within the time limited by law no application is made
under sub-rule 1 of Order 22 Rule 4, the suit shall
abate as against the deceased defendant;
(iv) the provision of Order 22 shall also apply to the
appeal proceedings also.
9.2 As observed and held by this Court in the
aforesaid decisions while considering whether the
suit/appeal has abated due to non-bringing the legal
representatives of plaintiffs/defendants or not, the
Court has to examine if the right to sue survives
against the surviving respondents. Thereafter the
Appellate Court has to consider the question whether
non-bringing the legal representatives of some of
the defendants, the appeal could have proceeded
against the surviving respondents. Therefore, the
Appellate Court has to consider the effect of
abatement of the appeal against each of the
respondents in case of multiple respondents.
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9.3 Applying the law laid down by this Court in the
aforesaid decisions to the impugned judgment and
order dated 09.07.2007 passed by the High Court, it
appears that the High Court has mechanically and
without holding any further enquiry which was
required to be conducted as observed hereinabove,
has simply dismissed the entire appeal as having
abated due to non-bringing on record the legal
representatives of some of the respondents – the
original defendants who, as such, neither contested
the suit nor filed the written statements. At the cost
of repetition, it is observed that as such the original
plaintiffs instituted the suit being co owners/co-
sharers and for and on behalf of all the co
owners/cosharers of the entire land sought to be
acquired under the Land Acquisition Act.
9.4 As observed and held by this Court in the case
of K. Vishwanathan Pillai (supra), the coowner is as
much an owner of the entire property as a sole
owner of the property. No coowner has a definite
right, title and interest in any particular item or a
portion thereof. On the other hand, he has right, title
and interest in every part and parcel of the joint
property. He owns several parts of the composite
property along with others and it cannot be said that
he is only a part owner or a fractional owner in the
property. It is observed that, therefore, one co–
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owner can file a suit and recover the property
against strangers and the decree would enure to all
the co-owners. The aforesaid principle of law would
be applicable in the appeal also. Thus, in the instant
case, when the original plaintiffs – two co-owners
instituted the suit with respect to the entire suit land
jointly owned by the plaintiffs as well as defendants
nos. 9 to 39 and when some of the
defendants/respondents in appeal died, it can be
said that estate is represented by others – more
particularly the plaintiffs/heirs of the plaintiffs and it
cannot be said that on not bringing the legal
representatives of the some of the co sharers-
defendants-respondents in appeal the appeal would
abate as a whole”.
101. The above view is fortified also by the judgment
of the Hon’ble Supreme Court in the case of
SIRAVARAPU APPA RAO AND OTHERS VS. DOKALA
APPA RAO40, wherein it was observed that the entire suit
cannot be held to be abated on the death of one of the
plaintiffs. The matter is still pending consideration before
the executing Court in Ex.No.2253/2006. The purchasers
40
Civil Appeal No.7145 of 2022
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from Buddamma, namely the plaintiffs and C.R.Santosh
Kumar have filed cases are after other whatever the
possible in their attempt, even after the judgment of the
Hon’ble Supreme Court and now the executing Court has
issued delivery warrant.
102. Further, the Hon’ble Supreme Court in the case
of V. UTHIRAPATHI VS. ASHRAB41 has held that
abatement does not apply to execution proceedings. It is
relevant to mention here that as on the date of the filing
of the suit in O.S.No.1318/1980 (O.S.No.334/1971),
Buddamma has already transferred her interest in the
entire schedule property in favour of the other defendants;
therefore, quite naturally, Buddamma did not participate in
the above said suit and or in the appeal. The plaintiffs,
viz., plaintiff/partnership firm and its partners, being
purchasers from Buddamma filed a written statement and
stepped into the shoes of Buddamma and led evidence
before the Trial Court; hence, Buddamma was well
41
(1998) 3 SCC 148
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represented by her purchasers. Therefore, it cannot be
said that the judgment and decree were passed behind the
back of the plaintiffs.
103. In O.S.No.1318/1989, C.R.Santosh Kumar and
other purchasers from Buddamma have filed the written
statement by stating that they protected the interest of
Buddamma by contending that she was the absolute
owner of the suit schedule property and that she sold the
same to them for valuable consideration. M/s. Luvac
Engineering Corporation and C.R. Santosh Kumar have
contested the suit and appeal as the legal representatives
of Buddamma as they acquired interest over the suit
schedule property by way of sale deeds from Buddamma.
104. The cause of action to file the suit in
O.S.No.1318/1989 has survived and the adjudication of
claim has continued as the purchasers as well as
C.R.Santosh Kumar and the plaintiff/partnership firm have
substantially represented the estate of Buddamma in the
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proceedings and the plea of abatement or nullity of the
appeal in RFA No.606/1989 does not arise for
consideration. Further, the Hon’ble Supreme Court in the
case of SHIVSHANKARA AND ANOTHER VS.
H.P.VEDAVYASA, as stated supra has stated that non-
impleading of all legal representatives would not abate the
suit if the estate of the deceased is substantially
represented by other defendants. In the present case, the
plaintiff/partnership firm and other partners, being
purchasers from Buddamma were representing contesting
the suit; therefore, there is no question of abatement
merely because of the death of Buddamma. Also, places
reliance on the judgment of the Hon’ble Supreme Court in
the cases of BHUREY KHAN VS. YASEEN KHAN (dead)
by L.Rs. and others, and ANDHRA PRADESH VS.
PRATAP KARAN, as stated supra.
105. Hence, applying the principles of law laid down
by the Hon’ble Supreme Court stated above, upon the
death of the deceased Buddamma, the joint interest was
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fully and substantially taken forward in the proceedings by
the plaintiff/partnership firm and partners by substituting
the legal heirs of deceased Buddamma and also when the
said appeal was duly accepted. Therefore, it is not open
for the appellants to contend that the final judgment and
decree passed in RFA No.606/1989 have to be held abated
owing to the non-substitution of all the legal heirs of the
deceased Buddamma.
106. The plaintiff/partnership firm and partners
being purchasers from Buddamma stepped into the shoes
of Buddamma by virtue of Order XXII Rule 10 of CPC.
They were heard and thereafter, the judgment and decree
in RFA No.606/1989 was passed. It is contended that the
property in question has divested to Buddamma by virtue
of sale deed dated 22.07.1963 cannot be accepted as such
because of children of Avalahalli Hanumanthappa i.e.,
Chikka Muniswamappa (husband of Buddamma) and
Anjanappa/plaintiff in O.S.No.1318/1980, entered into a
settlement deed wherein 02 acres 07 guntas of land was
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allotted to Chikka Muniswamappa and Anjanappa each.
Thus, applying principle of Doctrine of Feeding out grant
by estoppel embodied under Section 43 of the Transfer of
Property Act, 1882, the land in question to the extent of
02 acres 07 guntas stood vested with the
plaintiff/Anjanappa by virtue of the said settlement deed.
This is also considered on its merits in the appeal in RFA
No.606/1989 (Ex.P-29) even in RP No.46/2000, CP
No.822/2001, RP No.461/2001 and CP No.944/2001
(which were filed seeking review of the judgment in RFA
No.606/1989) and in the final decree proceedings as well
as in the execution proceedings, where the plaintiffs have
sought allotment of their shares out of the shares of
Buddamma by accepting the decree.
107. The judgment and decree passed in RFA
No.606/1989 is accepted by the plaintiff/partnership firm
and its partners and other respondents/defendants, who
are supporting the plaintiff/partnership firm have accepted
the judgment and decree passed in RFA No.606/1989 and
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the review petitions and civil petitions filed by them are
also dismissed; but once again, the present suit for
recalling the judgment and decree passed in RFA
No.606/1989 is nothing but misconceived one. The
plaintiff/partnership firm has raised a technical ground
that the legal heirs of Buddamma were not represented;
this technicality is nothing but another attempt to curtail
the rights of defendant Nos.1 to 8, to get their shares as
per the decree passed in RFA No.606/1989. At one stage,
the decree passed in RFA No.606/1989 is accepted and at
another stage, it is being opposed; therefore, the conduct
of the plaintiff/partnership firm and its partners and C.R.
Santosh Kumar is nothing but approbation and
reprobation. The purchasers from Buddamma have
stepped into the shoes of Buddamma and therefore, being
legal representatives of Buddamma have contested the
suit and appeal; therefore, such representation is valid as
per Order XXII Rule 10 of CPC read with Sections 2 and 11
of CPC and therefore, there is no question of abating the
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appeal. Hence, the argument canvassed in this regard is
found to be meritless.
108. In Dhanalakshmi, case as stated supra, an
application for impleadment was filed and came to be
dismissed. In the said case, the appellants had purchased
the property under two registered sale deeds and,
therefore, claimed to be bonafide purchasers for value and
entitled to the share of the alienor in equity. On that basis,
they contended that they were necessary parties for the
effective adjudication of the dispute in the suit.
109. The said application having been dismissed, a
revision petition was preferred before the High Court;
however, the High Court also dismissed the application.
The same was thereafter challenged before the Hon’ble
Supreme Court. In this background, it was observed in
paragraph No.5 as follows:
“5. Section 52 deals with a transfer of property
pending suit. In the instant case, the appellants have
admittedly purchased the undivided shares of the
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respondents nos.2, 3, 4 & 6. It is not in dispute that
the first respondent P. Mohan has got an undivided
share in the said suit property. Because of the
purchase by the appellants of the undivided share in
the suit property, the rights of the first respondent
herein in the suit or proceeding will not affect his
right in the suit property by enforcing a partition.
Admittedly, the appellants, having purchased the
property from the other co-sharers, in our opinion,
are entitled to come on record in order to work out
the equity in their favour in the final decree
proceedings. In our opinion, the appellants are
necessary and proper parties to the suit, which is
now pending before the Trial Court. We also make it
clear that we are not concerned with the other suit
filed by the mortgagee in these proceedings”.
110. Therefore, the facts and circumstances of
the above-stated case are different from those of the
present case. Accordingly, the said judgment is not
applicable to the present case.
111. In Rajendra Prasad, case as stated supra,
the facts are that the suit was one for partition of
property. The suit came to be decreed; however, during
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the pendency of the appeal, the plaintiff died and his legal
heirs were not brought on record. Consequently, it was
held that the appeal stood abated. The facts and
circumstances are observed in paragraph No. 4 as follows:
“4. Though Shri A.K. Srivastava, learned counsel for
the appellants sought to contend that the entire
decree is a nullity as held by the High Court and the
High Court ought to have held that as legal
representative of donor was not brought on record the
declaration that Tapeshari Kuer is not the daughter of
Ramyad Mahto should not have been given and the
dismissal of the suit in its entirety by the appellate
decree is not warranted and the appellants are
accordingly entitled to the preliminary decree in
respect of Schedule 4 properties. It is not necessary
to go into that question as per the findings of the High
Court itself. It is seen that the preliminary decree for
partition consists of two items, namely, Schedule 4
and Schedule 5. As regards Schedule 4 is concerned,
it is declared that the appellants are entitled to half
share and preliminary decree in that behalf was
granted. Equally second part relates to Schedule 5
declaring that Tapeshari Kuer is entitled to half share
therein. Pending appeal when Tapeshari Kuer died,
her legal heirs were not brought on record. The
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appeal abates as against the interest of her in respect
of second part of the decree relating to Schedule 5. As
regards Schedule 4 is concerned, the appellants had
already acquired interest even prior to the institution
of the suit by virtue of gift over on June 28, 1965 and
that they claimed that possession was also delivered
and they are in possession of the Schedule 4
properties under the gift deed. In the appellate court
the right of the respondent in regard to 4th Schedule
properties depends upon the status of Tapeshari Kuer.
The question whether she is the daughter of Ramyad
Mahto or not is required to be gone into only when
her legal representatives were brought on record and
properly contested but the legal representatives were
not brought on record. As rightly pointed out by the
High Court, the decree as against the dead person is a
nullity. Therefore, the declaration that Tapeshari Kuer
is not the daughter of Ramyad Mahto also is not valid
in law. Since the High Court has held that the decree
of the appellate court is a nullity and the respondents
did not file any appeal against that part of the decree.
It is not necessary for us to go into that question as
the entire appellate decree became a nullity. The
result is that the preliminary decree became final”.
112. However, in the present case, although
Buddamma has died and her legal heirs have not been
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brought on record, their interest is contested by the
plaintiff firm. Therefore, in light of the principles of law laid
down by the Hon’ble Supreme Court under Order XXII
Rules 4 and 9 of the Code of Civil Procedure, as discussed
above, the appeal does not abate. Accordingly, the
decision in Rajendra Prasad is not applicable to the present
case, having regard to the difference in the factual matrix.
113. In Sushil K. Chakravarthy, as stated
supra, the facts were that the defendant, Sushil K.C., died
and his legal representatives were not brought on record;
nevertheless, the proceedings were continued. In this
background, the issue that arose was whether the
continuation of the proceedings, without bringing the legal
heirs of the deceased Sushil K.C. on record, was legally
sustainable. In this regard, it was observed in paragraphs
Nos.26 and 27 as follows:
“26. We have given our thoughtful consideration to
the submissions advanced at the hands of the learned
Counsel for the Appellant. The real issue which needs
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to be determined with reference to the contention
advanced at the hands of the learned Counsel for the
Appellant under Order XXII Rule 4(4) of the Code of
Civil Procedure is whether the learned Single Judge
while proceeding with the trial of CS (OS) No.2501 of
1997 was aware of the death of the plaintiff Sushil
K.C. (the Appellant herein). And further, whether the
learned Single Judge of the High Court had thereafter,
taken a conscious decision to proceed with the suit
without insisting on the impleadment of the legal
representatives of the deceased Defendant Sushil K.C.
It is possible for us, in the facts of this case, to record
an answer to the question posed above. We shall now
endeavour to do so. It is not a matter of dispute, that
Sushil K.C. had died on 3.6.2003. It is also not a
matter of dispute, that on 29.8.2003 the plaintiff Tej
Properties (the Respondent herein) had filed an
interlocutory application, being IA No.9676 of 2003
under Order XXII Rule 4(4) of the Code of Civil
Procedure, for proceeding with CS (OS) No.2501 of
1997 ex-parte, by bringing to the notice of the
learned Single Judge, that Sushil K.C. had died on
3.6.2003. That being the acknowledged position,
when the learned Single Judge allowed the
proceedings in CS(OS) No.2501 of 1997 to progress
further, it is imperative to infer, that the court had
taken a conscious decision under Order XXII Rule
4(4) of the Code of Civil Procedure, to proceed with
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the matter ex-parte as against interests of Sushil
K.C., (the defendant therein), without first requiring
Tej Properties (the plaintiff therein) to be impleaded
the legal representatives of the deceased defendant.
It is therefore, that evidence was recorded on behalf
of the plaintiff therein, i.e., Tej Properties (the
respondent herein) on 28.1.2005. In the aforesaid
view of the matter, there is certainly no doubt in our
mind, that being mindful of the death of Sushil K.C.,
which came to his knowledge through IA No.7696 of
2006, a conscious decision was taken by the learned
Single Judge, to proceed with the matter ex-parte as
against the interests of Sushil K.C. This position
adopted by the learned Single Judge in CS(OS)
No.2501 of 1997 was clearly permissible under Order
XXII Rule 4(4) of the Code of Civil Procedure. A trial
court can proceed with a suit under the
aforementioned provision, without impleading the
legal representatives of a Defendant, who having filed
a written statement has failed to appear and contest
the suit, if the court considers it fit to do so. All the
ingredients of Order XXII Rule 4(4) of the Code of
Civil Procedure stood fully satisfied in the facts and
circumstances of this case. In this behalf all that
needs to be noticed is, that the defendant Sushil K.C.
having entered appearance in CS (OS) No. 2501 of
1997, had filed his written statement on 6.3.1998.
Thereafter, the defendant Sushil K.C. stopped
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appearing in the said civil suit. Whereafter, he was
not even represented through counsel. The order to
proceed against Sushil K.C. ex- parte was passed on
1.8.2000. Even thereupon, no efforts were made by
Sushil K.C. to participate in the proceedings of CS(OS)
no.2501 of 1997, till his death on 3.6.2003. It is
apparent, that the trial court was mindful of the
factual position noticed above, and consciously
allowed the suit to proceed further. When the suit was
allowed to proceed further, without insisting on the
impleadment of the legal representatives of Sushil
K.C. it was done on the court’s satisfaction, that it
was a fit case to exempt the plaintiff (Tej Properties)
from the necessity of impleading the legal
representatives of the sole defendant Sushil K.C. (the
appellant herein). This could only have been done, on
the satisfaction that the parameters postulated under
Order XXII Rule 4(4) of the Code of Civil Procedure,
stood complied. The fact that the aforesaid
satisfaction was justified, has already been
affirmatively concluded by us, hereinabove. We are
therefore of the considered view, that the learned
Single Judge committed no error whatsoever in
proceeding with the matter in CS (OS) no.2501 of
1997 ex-parte, as against the sole defendant Sushil
K.C., without impleading his legal representatives in
his place. We therefore, hereby, uphold the
determination of the learned Single Judge, with
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reference to Order XXII Rule 4(4) of the Code of Civil
Procedure.
27. For the reasons recorded hereinabove, we find
no merit in the instant appeals and the same are
accordingly dismissed”.
114. In the above-stated case, the Court was
satisfied that it was an appropriate case to exempt the
plaintiff from the necessity of impleading the legal
representatives of the sole defendant, Sushil K.C.
Accordingly, it was observed that the interest of the
appellant was duly considered, and the proceedings were
held not to have abated.
115. In Jaladi Suguna, case as stated above it is
observed in paragraphs No.14 to 18 as follows.
“14. When a respondent in an appeal dies, and the
right to sue survives, the legal representatives of the
deceased respondent have to be brought on record
before the court can proceed further in the appeal.
Where the respondent-plaintiff who has succeeded in
a suit, dies during the pendency of the appeal, any
judgment rendered on hearing the appeal filed by
the defendant, without bringing the legal
representatives of the deceased respondent –
plaintiff on record, will be a nullity. In the appeal
before the High Court, the first respondent therein
(Suguna) was the contesting respondent and the
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second respondent (tenant) was only a proforma
respondent. When first respondent in the appeal
died, the right to prosecute the appeal survived
against her estate. Therefore it was necessary to
bring the legal representative/s of the deceased
Suguna on record to proceed with the appeal.
15. Filing an application to bring the legal
representatives on record, does not amount to
bringing the legal representatives on record. When
an LR application is filed, the court should consider it
and decide whether the persons named therein as
the legal representatives, should be brought on
record to represent the estate of the deceased. Until
such decision by the court, the persons claiming to
be the legal representatives have no right to
represent the estate of the deceased, nor prosecute
or defend the case. If there is a dispute as to who is
the legal representative, a decision should be
rendered on such dispute. Only when the question of
legal representative is determined by the court and
such legal representative is brought on record, it can
be said that the estate of the deceased is
represented. The determination as to who is the
legal representative under Order 22 Rule 5 will of
course be for the limited purpose of representation
of the estate of the deceased, for adjudication of that
case. Such determination for such limited purpose
will not confer on the person held to be the legal
representative, any right to the property which is the
subject matter of the suit, vis-vis other rival
claimants to the estate of the deceased.
16. The provisions of Rules 4 and 5 of Order 22 are
mandatory. When a respondent in an appeal dies,
the Court cannot simply say that it will hear all rival
claimants to the estate of the deceased respondent
and proceed to dispose of the appeal. Nor can it
implead all persons claiming to be legal
representatives, as parties to the appeal without
deciding who will represent the estate of the
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deceased, and proceed to hear the appeal on merits.
The court cannot also postpone the decision as to
who is the legal representative of the deceased
respondent, for being decided along with the appeal
on merits. The Code clearly provides that where a
question arises as to whether any person is or is not
the legal representative of a deceased respondent,
such question shall be determined by the court. The
Code also provides that where one of the
respondents dies and the right to sue does not
survive against the surviving respondents, the court
shall, on an application made in that behalf, cause
the legal representatives of the deceased respondent
to be made parties, and then proceed with the case.
Though Rule 5 does not specifically provide that
determination of legal representative should precede
the hearing of the appeal on merits, Rule 4 read with
Rule 11 make it clear that the appeal can be heard
only after the legal representatives are brought on
record.
17. The third respondent, who is the husband of the
deceased, wants to come on record in his capacity as
a sole legal heir of the deceased, and support the
case of the Trust that there was a valid gift by the
deceased in its favour. On the other hand, the
appellants want to come on record as testamentary
legatees in whose favour the suit property was
bequeathed by will, and represent the estate of the
deceased Suguna as intermeddlers. They want to
continue the contest to the appeal. When Suguna –
the first respondent in the appeal before the High
Court died, the proper course for the High Court, was
first to decide as to who were her legal
representatives. For this purpose the High Court
could, as in fact it did, refer the question to a
Subordinate Court under the proviso to Rule 5
of Order 22 CPC, to secure findings. After getting the
findings, it ought to have decided that question, and
permitted the person/s who are held to be the legal
representative/s to come on record. Only then there
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would be representation of the estate of the
deceased respondent in the appeal. The appeal could
be heard on merits only after the legal
representatives of the deceased first respondent
were brought on record. But in this case, on the
dates when the appeal was heard and disposed of,
the first respondent therein was dead, and though
rival claimants to her estate had put forth their claim
to represent her estate, the dispute as to who should
be the legal representative was left undecided, and
as a result the estate of the deceased had remained
unrepresented. The third respondent was added as
the legal representative of the deceased first
respondent only after the final judgment was
rendered allowing the appeal. That amounts to the
appeal being heard against a dead person. That is
clearly impermissible in law. We, therefore, hold that
the entire judgment is a nullity and inoperative.
18. We may look at it from yet another angle. The
relief sought by Suguna in the suit was one in regard
to which the right to sue would have survived to her
legal representatives if she had died during the
pendency of the suit. She successfully prosecuted
the suit and obtained the decree declaring the deed
to be void. The said decree would continue to be in
force unless it is set aside in a manner known to law.
It could be set aside in an appeal filed by the
aggrieved party, but only after hearing the plaintiff
who had secured the decree. Pronouncement of
judgment in a case, can be only after the case has
been heard. (Vide section 33, Order 20 Rule 1
and Order 41 Rule 30 of CPC). When the respondent
– plaintiff died and his/her estate remains
unrepresented, it cannot be said that the appeal was
`heard’. When the respondent-plaintiff died, the
legal representatives who succeeded to her estate
will have to be brought on record and they should be
heard in their capacity as persons representing the
estate of deceased plaintiff. If they are not heard,
there is no `hearing’ of the appeal in the eye of law.
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Consequently the judgment of the trial court could
not be disturbed or set aside by the appellate court.
Be that as it may”.
116. It was held in the above judgment that,
without impleading the legal representatives of a deceased
party, the proceedings cannot be continued. However, as
discussed above, during her lifetime, Buddamma had sold
the property to the plaintiff firm, exceeding her share.
Consequently, the plaintiff firm has stepped into the shoes
of Buddamma, and the plaintiff is contesting the suit on
legal heirs of Buddamma and since Buddamma has
already sold the land to plaintiff and bringing L.Rs. of
Buddamma on record is not necessary in the proceedings
as L.Rs. interest is taken care of by the plaintiff.
117. The question, therefore, arises whether
bringing the legal representatives of Buddamma is
necessary, or merely a legal formality, given that the
plaintiff firm already holds her interest and is actively
contesting the suit. This implies that the interest of
Buddamma’s legal representatives is effectively
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represented and contested. Accordingly, even after
Buddamma’s death, the right to sue survives.
118. This distinction in the factual matrix clearly
differentiates the present case from the above-stated
case. Therefore, the said judgment is not applicable to the
present case.
119. Similarly, for the reasons discussed above, the
judgments in T. Gnanavel vs. T.S. Kanagaraj,
Sharadamma vs. Mohammed Pyarejan, and
Gangabai Gopaldas Mohata vs. Fulchand and Others,
as stated supra are not applicable.
120. Further, the judgment relied upon by the
learned counsel for the appellant in B.L. Shreedhar, case
is also not applicable, having regard to the difference in
the factual matrix between that case and the instant case.
Therefore, the said case cannot be applied to the present
proceedings.
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121. The learned Senior Counsel for the
appellants also relied on the decisions in Vijay Narayan
Thatte and Madhya Pradesh Development Authority,
which, as discussed above, are rendered in pari materia.
However, the judgments delivered by this Court in RFA,
CP, and RP, as discussed above, are neither illegal nor
contrary to statute. Hence, the cited decisions are not
applicable to the present case.
122. In Budh Rama and Others, as stated supra,
while dealing with Order XXII Rules 1 to 4 of the Code of
Civil Procedure regarding abatement of appeal, the Hon’ble
Supreme Court considered the circumstances under which
an appeal stands abated upon the death of a party and
when the right to sue survives. The observations in
paragraphs Nos. 10 to 18 are relevant and are held as
follows:
“10. Abatement takes place automatically by
application of law without any order of the court.
Setting aside of abatement can be sought once the
suit stands abated. Abatement in fact results in
denial to hearing of the case on merits. Order 22
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Rule 1 CPC deals with the question of abatement on
the death of the plaintiff or of the defendant in a Civil
Suit. Order 22 Rule 2 relates to procedure where one
of the several plaintiffs or the defendants die and the
right to sue survives. Order 22 Rule 3 CPC deals with
procedure in case of death of one of the several
plaintiffs or of the sole plaintiff. Order 22 Rule 4 CPC,
however, deals with procedure in case of death of
one of the several defendants or of the sole
defendants. Sub-clause (3) of Rule 4 makes it crystal
clear that“4. (3) where within the time limited by law, no
application is made under sub-Rule (1) the suit
shall abate as against the deceased defendant.
(emphasis in original)
11. The provisions of Order 22 Rule 4 (4) CPC,
provide that in case, the deceased defendant did
not contest the suit and did not file a counter
affidavit, the substitution may not be warranted.
In the instant case, the High Court repelled the
submission regarding application of Order 22 Rule
4(4) CPC on the ground that the said provision
requires the presentation of an application before
the Court, before it pronounces its judgment for
seeking such a relief and once such an application
is allowed, in that case, it can only be taken
against the said defendant notwithstanding the
death of such defendant and such a decree shall
have the same force and effect as if it was
pronounced before the death had taken
place. This view stands fortified by the Judgments
of this Court in Zahirul Islam Vs. Mohd. Usmani
and T. S. kanagarajii. Thus, it has rightly been
held by the High Court that the provisions of
Order 22 Rule 4(4) CPC were not attracted in the
facts of this case.
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12. In State of Punjab Vs. Nathu Ramiii while
interpreting the provisions of Order 22 Rule
4(3) CPC read with Rule 11 thereof, this Court
observed that an appeal abates as against the
deceased respondents where within the time
limited by law no application is made to bring his
heirs or legal representatives on record. However,
whether the appeal stands abated against the
other respondents also, would depend upon the
facts of a case.
13. In Sri Chand Vs. M/s Jagdish Pershad Kishan
ChanDiv, this Court held that in case one of the
respondents dies and the application for
substitution of his heirs or legal representatives is
not filed within the limitation prescribed by law,
the appeal may abate as a whole in certain
circumstances and one of them could be that
when the success of the appeal may lead to the
courts coming to a decision which may be in
conflict with the decision between the appellant
and the deceased respondent and, therefore, it
will lead to the court passing a decree which may
be contradictory and inconsistent to the decree
which had become final with respect to the same
subject matter between the appellant and the
deceased respondent in the same case.
14. In Ramagya Prasad Gupta V. Murli Prasadv,
this Court examined the same issue in a case of
dissolution of a partnership firm and accounts and
placed reliance upon two judgments referred to
immediately hereinabove and held as under: (SCC
pp. 16-17 para 16)“16. ……..The courts will not proceed with an appeal (a)
when the success of the appeal may lead to the court’s
coming to a decision which may be in conflict with the
decision between the appellant and the deceased
respondent and, therefore, it would lead to the court’s
passing a decree which will be contradictory to the decree
which had become final with respect to the same subject
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matter between the appellant and the deceased
respondent; (b) when the appellant could not have brought
the action for the necessary relief against those respondents
alone who are still before the court and (c) when the decree
against the surviving respondents, if the appeal succeeds,
be ineffective that is to say it could not be successfully
executed. These three testes ……. are not cumulative tests.
Even if one of them is satisfied, the court may dismiss the
appeal”.
(Emphasis added)
15. In Sardar Amarjit Singh Kalra V. Pramod Guptavi a
Constitution Bench of this Court, while dealing with the
similar issue, has after considering large number of
judgments of this Court, reached the following conclusion :
(SCC p. 294, para 21)
“21…..(a) In case of “Joint and indivisible decree”, “Joint
and inseverable or inseparable decree”, the abatement of
proceedings in relation to one or more of the appellant(s) or
respondent(s) on account of omission or lapse and failure to
bring on record his or their legal representatives in time
would prove fatal to the entire appeal and require to be
dismissed in toto as otherwise inconsistent or contradictory
decrees would result and proper reliefs could not be
granted, conflicting with the one which had already become
final with respect to the same subject matter vis-a-vis the
others; (b) the question as to whether the Court can deal
with an appeal after it abates against one or the other
would depend upon the facts of each case and no
exhaustive statement or analysis could be made about all
such circumstances wherein it would or would not be
possible to proceed with the appeal, despite abatement,
partially; (c) existence of a joint right as distinguished from
tenancy in common alone is not the criteria but the joint
character of the decree, dehors the relationship of the
parties inter se and the frame of the appeal, will take colour
from the nature of the decree challenged; (d) where the
dispute between two groups of parties centerd around
claims or based on grounds common relating to the
respective groups litigating as distinct groups or bodies —
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the issue involved for consideration in such class of cases
would be one and indivisible; and (e) when the issues
involved in more than one appeals dealt with as group or
batch of appeals, which are common and identical in all
such cases, abatement of one or the other of the connected
appeals due to the death of one or more of the parties and
failure to bring on record the legal representatives of the
deceased parties, would result in the abatement of all
appeals.”
(Emphasis added)
The Court further observed that any relief granted and the
decree ultimately passed, would become totally
unenforceable and mutually self-destructive and unworkable
vis-`-vis the other part, which had become final. The appeal
has to be declared abated in toto. It is the duty of the court
to preserve and protect the rights of the parties.
16. In Shahazada Bi v. Halimabivii , this Court
considered the same issue and held as under :-
(SCC P. 360, para 9)
“9………………That, so far as the statute is concerned, the
appeal abates only qua the deceased respondent, but the
question whether the partial abatement leads to an
abatement of the appeal in its entirety depends upon
general principles. If the case is of such a nature that the
absence of the legal representative of the deceased
respondent prevents the Court from hearing the appeal as
against the other respondents, then the appeal abates in
toto. Otherwise, the abatement takes place only in respect
of the interest of the respondent who has died. The test
often adopted in such cases is whether in the event of the
appeal being allowed as against the remaining respondents
there would or would not be two contradictory decrees in
the same suit with respect to the same subject matter. The
Court cannot be called upon to make two inconsistent
decrees about the same property, and in order to avoid
conflicting decrees the Court has no alternative but to
dismiss the appeal as a whole. If, on the other hand, the
success of the appeal would not lead to conflicting decrees,
then there is no valid reason why the Court should not hear
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the appeal and adjudicate upon the dispute between the
parties.”
(Emphasis added)
19. Therefore, the law on the issue stands
crystallised to the effect that as to whether non-
substitution of LRs of the defendants/respondents
would abate the appeal in toto or only qua the
deceased defendants/ respondents, depend upon
the facts and circumstances of an individual case.
Where each one of the parties has an independent
and distinct right of his own, not inter-
dependent upon one or the other, nor the parties
have conflicting interests inter se, the appeal may
abate only qua the deceased respondent.
However, in case, there is a possibility that the
Court may pass a decree contradictory to the
decree in favour of the deceased party, the appeal
would abate in toto for the simple reason that the
appeal is a continuity of suit and the law does not
permit two contradictory decrees on the same
subject matter in the same suit. Thus, whether
the judgment/decree passed in the proceedings
vis-`-vis remaining parties would suffer the vice
of being a contradictory or inconsistent decree is
the relevant test.
18. The instant case requires to be examined in
view of the aforesaid settled legal propositions.
Every co-owner has a right to possession and
enjoyment of each and every part of the property
equal to that of other co-owners. Therefore, in
theory, every co-owner has an interest in every
infinitesimal portion of the subject matter, each
has a right irrespective of the quantity of its
interest, to be in possession of every part and
parcel of the property jointly with others. A co-
owner of a property owns every part of the
composite property along with others and he
cannot be held to be a fractional owner of the
property unless partition takes place”.
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123. It is well established that non-substitution of
the legal representatives (L.Rs.) of a deceased party does
not automatically result in abatement of the appeal.
Whether non-substitution leads to abatement depends
upon the facts and circumstances of each case. As
discussed above, the principle of law is that where the
right to sue survives, mere non-joinder of the L.Rs. of the
deceased does not cause the appeal to abate.
124. In the present case, the plaintiffs are contesting
the suit in place of Buddamma. Consequently, the interest
of the L.Rs. of Buddamma is effectively represented.
Undisputedly, Buddamma had sold the property to the
plaintiff firm, after which respondent Nos. 1 to 8 filed a
suit for partition, which was decreed in RFA No. 606/1989.
Therefore, the interests of Buddamma and her L.Rs. have
already been considered.
125. In these circumstances, mere non-joinder of the
L.Rs. of Buddamma does not abate the appeal, and the
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appeal survives for consideration. Abatement would occur
only if the rights of the L.Rs. of the deceased were
affected by their non-joinder. In the present case, since
Buddamma had already sold the property to the plaintiff
firm, the rights of her L.Rs. are not prejudiced, as the
plaintiffs stand in her place. Therefore, the death of
Buddamma does not give rise to abatement of the appeal.
126. Accordingly, the judgment in Budh Rama is not
applicable to the present case. Similarly, the judgment in
Guramma Singa, supra, is also not applicable, having
regard to the difference in the factual matrix between that
case and the present case.
DOCTRINE OF MERGER:
127. C.R. Santosh Kumar, who was respondent
No.22 in RFA No.606/1989 filed I.A. under Section 148 of
CPC for restoration of possession in Ex.No.2253/2006
(Ex.P-128) and the same was allowed. Respondent Nos.1
to 8 (defendant Nos.1 to 8) in O.S.No.8973/2006, being
the children of Anjanappa have challenged the same
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before this Court in W.P.No.2338/2010 and RFA
No.904/2010 (Ex.P-81), which were also dismissed.
Respondent Nos.1 to 8 filed a Special Leave Petition in SLP
No.6079/2011 (Ex.D-68), wherein, the Hon’ble Supreme
Court was pleased to allow the special leave petition by
confirming the delivery warrant of land measuring to an
extent of 01 acre 36.5 guntas in favour of respondent
Nos.1 to 8 vide order dated 21.08.2012.
128. It is submission of the learned counsel
appearing on behalf of respondent Nos.1 to 8 that the
order passed in RFA No.606/1989 arising out of
O.S.No.1318/1980 has merged with the order passed in
SLP No.6079/2011; therefore, the allotment of shares
made in RFA No.606/1989 is also dealt with in SLP
No.6079/2011 and the Hon’ble Supreme Court has
confirmed the said allotment of shares. Hence, all the
judgments, decrees and orders by passed by way of the
preliminary decree in RFA No.606/1989 on its merits
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merged with SLP No.6079/2011 and reliance is placed on
the judgment of Hon’ble Apex Court.
129. The Hon’ble Supreme Court in the case of A.V.
PAPAYYA SASTRY AND OTHERS VS. GOVT. OF A.P.
AND OTHERS, as stated supra at Paragraph No.38, it is
held as follows:
“38. The matter can be looked at from a different
angle as well. Suppose, a case is decided by a
competent Court of Law after hearing the parties and
an order is passed in favour of the applicant/plaintiff
which is upheld by all the courts including the final
Court. Let us also think of a case where this Court does
not dismiss Special Leave Petition but after granting
leave decides the appeal finally by recording reasons.
Such order can truly be said to be a judgment to
which Article 141 of the Constitution applies. Likewise,
the doctrine of merger also gets attracted. All orders
passed by the courts/authorities below, therefore,
merge in the judgment of this Court and after such
judgment, it is not open to any party to the judgment
to approach any court or authority to review, recall or
reconsider the order.”
130. Further, the Hon’ble Supreme Court in the case
of KUNHAYAMMED AND OTHERS VS. STATE OF
KERALA AND ANOTHER, as stated supra at Paragraph
No.44, it is held as under:
“44. To sum up, our conclusions are:
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(i) Where an appeal or revision is provided against an order
passed by a court, tribunal or any other authority before
superior forum and such superior forum modifies, reverses or
affirms the decision put in issue before it, the decision by the
subordinate forum merges in the decision by the superior forum
and it is the latter which subsists, remains operative and is
capable of enforcement in the eye of law.
ii) The jurisdiction conferred by Article 136 of the Constitution
is divisible into two stages. First stage is upto the disposal of
prayer for special leave to file an appeal. The second stage
commences if and when the leave to appeal is granted and
special leave petition is converted into an appeal.
(iii) The Doctrine of merger is not a doctrine of universal or
unlimited application. It will depend on the nature of
jurisdiction exercised by the superior forum and the content or
subject-matter of challenge laid or capable of being laid shall be
determinative of the applicability of merger. The superior
jurisdiction should be capable of reversing, modifying or
affirming the order put in issue before it. Under Article 136 of
the Constitution the Supreme Court may reverse, modify or
affirm the judgment-decree or order appealed against while
exercising its appellate jurisdiction and not while exercising the
discretionary jurisdiction disposing of petition for special leave
to appeal. The doctrine of merger can therefore be applied to
the former and not to the latter.
iv) An order refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case it does not
attract the doctrine of merger. An order refusing special leave
to appeal does not stand substituted in place of the order under
challenge. All that it means is that the Court was not inclined to
exercise its discretion so as to allow the appeal being filed.
v) If the order refusing leave to appeal is a speaking
order, i.e. gives reasons for refusing the grant of leave,
then the order has two implications. Firstly, the statement
of law contained in the order is a declaration of law by the
Supreme Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration of law,
whatever is stated in the order are the findings recorded
by the Supreme Court which would bind the parties
thereto and also the court, tribunal or authority in any
proceedings subsequent thereto by way of judicial
discipline, the Supreme Court being the apex court of the
country. But, this does not amount to saying that the
order of the court, tribunal or authority below has stood
merged in the order of the Supreme Court rejecting
special leave petition or that the order of the Supreme
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Court is the only order binding as res judicata in
subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate
jurisdiction of Supreme Court has been invoked the order
passed in appeal would attract the doctrine of merger;
the order may be of reversal, modification or merely
affirmation.
(vii) On an appeal having been preferred or a petition
seeking leave to appeal having been converted into an
appeal before Supreme Court the jurisdiction of High
Court to entertain a revew petition is lost thereafter as
provided by sub-rule (1) of Rule (1) of Order 47 of the
C.P.C“.
131. The Hon’ble Supreme Court in the case of
EXPERION DEVELOPERS PRIVATE LTD., VS.
HIMANSHU DEWAN AND SONALI DEWAN AND
OTHERS42, at Paragraph Nos.32, 33, 34.
“32. The dismissal of the appeal in the case of
Pawan Gupta (supra) without any reasons being
recorded would not attract Article 141 of the
Constitution of India as no law was declared by the
Supreme Court, which will have a binding effect on
all courts and tribunals in India. There is a clear
distinction between the binding law of precedents
in terms of Article 141 of the Constitution of India
and the doctrine of merger and res judicata. To
merge, as held in Kunhayammed (supra), and42
2023 Live Law (SC) 674
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Khoday Distilleries Ltd. (supra) means to sink or
disappear in something else, to become absorbed
or extinguished. The logic behind the doctrine of
merger is that there cannot be more than one
decree or operative orders governing the same
subject matter at a given point of time. When a
decree or order passed by an inferior court, tribunal
or authority is subjected to a remedy available
under law before a superior forum, then the decree
or order under challenge continues to be effective
and binding; nevertheless, its finality is put in
jeopardy. Once the superior court disposes the
dispute before it in any manner, either by affirming
the decree or order, by setting aside or modifying
the same, it is the decree of the superior court,
tribunal or authority, which is the final binding and
operative decree. The decree and order of the
inferior court, tribunal or authority gets merged
into the order passed by the superior forum.
However, as has been clarified in both decisions,
this doctrine is not of universal or unlimited
application. The nature of jurisdiction exercised by
the superior court and the content or subject
matter of challenge laid or could have been laid will
have to be kept in view.
33. What is important is the distinction drawn by
this Court between the law of precedents and res
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judicata. In State of Rajasthan v. Nemi Chand
Mahela and Others14, it is held:
“11. The learned counsel for the petitioners had drawn our
attention to para 22 of the decision in Manmohan Sharma
case , (2014) 5 SCC 782 which refers to the case of one
Danveer Singh whose writ petition had been allowed and the
order had attained finality as it was not challenged before the
Division Bench or before the Supreme Court. Termination of
services in the case of Danveer Singh, it was accordingly held,
was not justified and in accordance with law. The reasoning
given in paras 22 and 23 in Manmohan Sharma case relating
to the case of Danveer Singh would reflect the difference
between the doctrine of res judicata and law of precedent.
Res judicata operates in personam i.e. the matter in issue
between the same parties in the former litigation, while law of
precedent operates in rem i.e. the law once settled is binding
on all under the jurisdiction of the High Court and the
Supreme Court. Res judicata binds the parties to the
proceedings for the reason that there should be an end to the
litigation and therefore, subsequent proceeding inter se
parties to the litigation is barred. Therefore, law of res
judicata concerns the same matter, while law of precedent
concerns application of law in a similar issue. In res judicata,
the correctness of the decision is normally immaterial and it
does not matter whether the previous decision was right or
wrong, unless the erroneous determination relates to the
jurisdictional matter of that body.”
This ratio was followed and approved by a three
judges’ Bench in Malook Singh and Others v. State of Punjab
and Others15.
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34. In Makhija Construction & Engg. (P) Ltd. v. Indore
Development Authority and Others16, after referring to
several earlier decisions, this Court has observed that a
precedent operates to bind in similar situations in a distinct
case, whereas res judicata operates to bind parties to
proceedings for no other reason, but that there should be end
to litigation. Principle of res judicata should apply where the
lis was inter-parties and has attained finality on the issues
involved. The principle of res judicata will have no application
in cases where the judgment or order has been passed by the
Court having no jurisdiction thereof or involving a pure
question of law.17 Law of binding precedents, in terms of
Article 141 of the Constitution of India, has a larger
connotation as it settles the principles of law which emanates
from the judgment, which are then treated as binding
precedents”.
132. Ex.D-68 is the copy of the order passed in SLP
No.6079/2011; Ex.D-69 is the copy of order passed on
I.A. filed in O.S.No.1318/1980 and Ex.D-70-copy of order
sheet in Ex.No.2253/2006.
133. The Hon’ble Supreme Court in SLP
No.6079/2011 (Ex.D-68) has passed order as follows:
“ORDER
We have heard Mr. Rajesh Mahale, learned
counsel for the petitioners, and Mr. T. S. Doabia,
learned senior counsel for the respondent.
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Special leave petition is disposed of by the
following order:-
(i) The petitioners are entitled to the land
admeasuring 1 acre 36.5 guntas details of which
has been given in the Schedule in the final decree
which reads as under:-
SCHEDULE
Area marked as- B, C, D, E, F, G, H,
measuring 1 acres in respect of Sy. No.39/4
situated at Doddakalasandra village consisting of
4-14 guntas of land.”
(ii) The land in excess of the above land, if
delivered to the petitioner pursuant to the delivery
warrant, shall be taken back by the executing
court from the petitioners and restituted to the
respondent.”
134. Therefore, the order passed by the Hon’ble
Supreme Court in SLP No.6079/2011 has become final and
has attained finality and the only recourse is to execute
the decree passed in RFA No.606/1989; therefore, when
the preliminary decree is passed by this Court in RFA
No.606/1989 and the merits of making allotment of shares
is confirmed by the Hon’ble Supreme Court and also
considering that the question of abatement and on the
issue of legal representatives are all answered and an
order is passed on merits. Hence, whatever orders are
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passed in Regular First Appeals, Civil Petitions, Review
Petitions and Execution Petition, all are merged with the
order passed in SLP No.6079/2011.
135. Upon considering all the evidence on record,
the judgment and decree passed in RFA No.606/1989 has
not been challenged and the said judgment and decree
has attained finality. Now, the grounds taken that the
appeal has abated and the order passed against a dead
person is a nullity cannot be accepted as the said
contentions are nothing but an attempt to protract the
proceedings merely to defeat the fruits of the decree
passed in RFA No.606/1989.
136. Arising out of the decree passed in RFA
No.606/1989, the shares were finally demarcated in FDP
No.41/1999. Being aggrieved in the order passed in FDP
No.41/1999, the appeals were filed before this Court in
RFA Nos.502 and 692/2003, against which SLP
No.3278/2007 was filed; however, the same was
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dismissed. Therefore, the orders passed at the
intermediary stage while getting the fruit of decree in RFA
No.606/1989 are all merged with SLP No.3278/2007.
Hence, the doctrine of merger is applicable in the present
case as per the principle of law laid down above stated by
the Hon’ble Supreme Court.
137. Further, defendant Nos.1 to 8 in
O.S.No.8973/2006, who are plaintiffs in
O.S.No.1318/1980 have initiated Execution Petition in
Ex.No.2253/2006 (Ex.P.128) to get their share as per
divisions in FDP No.41/1999 and objections filed in this
regard by C.R. Santosh Kumar and the partnership firm
under Order XXI Rule 97 of CPC are rejected. Against
which, RFA No.485/2008 (Ex.D-64) was filed and the same
was also dismissed. Against which, SLP No.18464/2009
(Ex.D-17) was filed and the same was also dismissed;
therefore, as discussed above, whatever intermediary
stage was initiated and orders passed by the executing
Court and by this Court are merged with SLP
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No.18464/2009 (Ex.D-17). Hence, the principles of law
laid down by the Hon’ble Supreme Court are squarely
applicable to the case on hand as per doctrine of merger.
Further, the Hon’ble Supreme Court in SLP No.6079/2011
(Ex.D-68) has put to rest the controversy involved in the
case and the judgment and decree passed in RFA
No.606/1989 has attained finality; therefore, the appeal
does not stand abated in view of the death of Buddamma
as the purchasers from Buddamma have represented in
the appeal. Therefore, there is no technical law and also
the judgment and decree passed in RFA No.606/1989 are
found to be well merited; hence, respondent Nos.1 to 8,
who are children of Anjanappa are entitled to 01 acre 36.5
guntas of land as per the judgment and decree passed in
RFA No.606/1989. Thus, the Trial Court is correct in
dismissing the suit in O.S.No.8973/2006 and
O.S.No.6873/2009. Hence, the present appeals are also
liable to be dismissed.
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138. As discussed above, the judgment and decree
passed in RFA No.606/1989 has attained finality and the
objectors’ applications filed by the partners under Order
XXI Rule 97 of CPC in Ex.No.2253/2006 (Ex.P-128) and
the order passed in RFA No.485/2008 (Ex.D-64) are all
merged with the order passed in SLP No.18464/2009
(Ex.D-10); therefore, this Court and the Hon’ble Apex
Court have considered the entire issue on its merits as
well as the plea of technical aspects and ultimately it is
held that the children of Anjanappa, who are respondent
Nos.1 to 8 in this appeal (defendant Nos.1 to 8 in
O.S.No.8973/2006 and O.S.No.6873/2009) are entitled to
the share of 01 acre 36.5 guntas of land. Hence, the entire
issue went before the Hon’ble Supreme Court and all the
orders passed at intermediary stages as discussed above
have been merged with the order passed in SLP and
ultimately the rights of children of Anjanappa are
recognized by the Hon’ble Supreme Court in SLP
No.6079/2011 (Ex.D-68). Therefore, as per doctrine of
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merger, the appeals filed are found to be devoid of merits
and also are not maintainable. Thus, the judgment and
decree passed by the Trial Court are liable to be
confirmed.
139. Learned counsel appearing on behalf of
defendant Nos.1 to 8 (the children of Anjanappa) has
argued that the suit in O.S.No.8973/2006 and
O.S.No.6873/2009 are hit by the principle of res-judicata.
It is submitted that no person should be vexed twice for
the same cause of action. Learned counsel appearing on
behalf of the plaintiff/partnership firm and its partners and
C.R.Santosh Kumar submitted that the above two suits are
not hit by principle of res-judicata.
140. The judgment and decree passed in RFA
No.606/1989 has attained finality. There is no challenge to
this and the rights of parties in getting their respective
shares are finally decided in RFA No.606/1989, respondent
Nos.26 and 28 in RP No.645/2005 (Ex.D-32). The objector
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application filed under Order XXI Rule 97 of CPC was filed
by them in Ex.No.2253/2006 (Ex.P-128) and the same
was dismissed. Thereafter, respondent No.26/C.R.
Santosh Kumar preferred RFA No.485/2008 before this
Court, which was also dismissed. Against which, SLP
no.18484/2008 was filed before the Hon’ble Supreme
Court and was also dismissed as having no merits, since
the proceedings under Order XXI Rule 97 of CPC in
Ex.No.2253/2006 were adjudicated as a suit and all the
questions have attained finality including the allotment of
share and whatever orders were passed under Order XXI
Rule 97 of CPC is a decree.
141. Therefore, when an issue is finally and
substantially decided in RFA No.606/1989 and for
enforcement of the preliminary decree in the execution
petition filed in Ex.No.2253/2006 (Ex.P-128), the rights
are determined finally and substantially; therefore, filing of
the suits in O.S.No.8973/2003 and O.S.No.6873/2009 are
hit by principle of res-judicata.
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142. Though, C.R.Santosh Kumar, in his written
statement and also in his affidavit evidence in
O.S.No.1318/1980 has taken the plea that he has acted
on behalf of the firm in the dispute. The partnership firm,
after accepting the judgment and decree in RFA
No.606/1989 has filed Review Petitions, Civil Petitions and
participated in the final decree proceedings and execution
of decree since the judgment and decree in RFA
No.606/1989 has attained finality and the Civil and Review
Petitions and I.A’s filed in FDP and in execution cases are
dismissed. Hence, the right of sharers is finally
determined; therefore, it operates as res-judicata. Thus,
the suit in O.S.No.8973/2006 and O.S.No.6873/2009 are
not maintainable, as the same are hit by the principle of
res-judicata, which is correctly decided by the Trial Court.
143. Further, the grounds urged in the present
appeals and the grounds urged in SLP No.18464/2009
(Ex.D.10) are one and the same and the Hon’ble Supreme
Court in SLP No.18464/2009 has dealt with this issue;
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hence, filing of the subsequent suit and appeal are not
permissible, as they are hit by principle of res-judicata.
Therefore, the suits filed in O.S.No.8973/2006 and
O.S.No.6873/2009 are not maintainable in view of the
principle of res-judicata, which is correctly appreciated by
the Trial Court and there is no perversity found in the
order passed by the Trial Court. Thus, the appeals are
liable to be dismissed.
144. Section 43 of the Transfer of Property Act, 1882
stipulates as follows:
“43. Transfer by unauthorised person who
subsequently acquires interest in property
transferred.– Where a person 43[fraudulently or]
erroneously represents that he is authorised to
transfer certain immoveable property and
professes to transfer such property for
consideration, such transfer shall, at the option of
the transferee, operate on any interest which the
transferor may acquire in such property at any
time during which the contract of transfer
subsists.
Nothing in this section shall impair the right
of transferees in good faith for consideration
without notice of the existence of the said option.”
43
Ins. By Act 20 of 1929, sec. 13.
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145. It is contention taken by the
plaintiffs/partnership firm, C.R.Santosh Kumar and other
partners that the settlement deed dated 22.12.1949
(Ex.P-73) is relevant in the suit. This Court, in RFA
No.606/1989, has discussed it as follows:
“8. The point is there was settlement deed by
Huchappa on 22-12-1949 through which B.
schedule property was allotted to plaintiff Anja….
And defendant of defendant -1 Chikka
Muniswamappa. It is seen that after the purchase
of the property under Ex.D-1, Huchappa, the
settler, had sold to avalahalli Hanumanthappa
under Ex.D.19 on 13.06.1949 the entire property, 4
acres 14 guntas, on 22-12-1949 the settlement
deed in question in respect of B-schedule property
consisting the suit property came into existence.
Under Ex.D.2 Avalahalli Hanumanthappa has sold
the property back to Hanumanthappa and Chkka
Muniswamappa on 05-10-1950 and Chikka
Muniswamappa and Hanumanthappa sold the
property to one Muniyappa Reddy under Ex.D.3 on
the same day i.e., on 05.10.1950. Now Muniappa
Reddy’s wife seslls to defendant-1 under Ex.D.20
again the entire property and defendant-1 in turn
has sold 1 acre 20 guntas to one santosh kumar
who is 5th respondent herein under Ex.D.27 dated
18-5-1970. The property so sold to him was only 1
acre 20 guntas.
9. The suit was dismissed by the trial court
on the ground that the settlement deed conveyed
onbly a right of reconveyance and not the property.
The trial court omitted to consider the application
of section 43 of the T.P. Act. When the property is
sold back to Hanumanthappa and chikka
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Muniswamappa, in my opinion, Chikka
Muniswamappa’s name appering in the sale deed
does not give any better title than the half share as
granted to him under the settlement deed dated
22-12-1949. Therefore, Hanumanthappa has no
right to sell after Settlement and any sale exercised
by Hanumanthappa to others after the settlement
deed is not valid in the eye of law and they are no
est in the eyr of law. In any event the share of the
plaintiff, namely, 2 acres 12 guntas, can never be
held by anybody and any sale taken between by
any partly will not bind the plaintiff’s Share. Once
it is held that by virtue of repurchase made by
Hanumanthappa, he gets back the right which he
conveys under the settlement deed on 22-12-1949.
Under the sale deed the plaintiff is entitled to 2
acres 12 guntas of land which right cannot be
denied by anybody.”
146. As discussed above, the judgment and decree
passed in RFA No.606/1989 has attained finality. Upon
considering the same, the plaintiff/partnership firm, C.R.
Santosh Kumar and other partners cannot rake up the
issues that are already settled. Upon considering the
pleadings in the suit in O.S.No.8973/2006 and in
O.S.No.6873/2009, there is no pleading or issues
regarding this non appreciation of Section 43 of the TP
Act, 1882. There was a settlement deed by Hucchhappa on
22.12.1949, through which the schedule property was
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allotted to plaintiff – Anjanappa and defendant No.1 –
Chikka Muniswamappa. After purchase of the property
under Ex.D-1 (O.S.No.1318/1980), Hucchhappa, the
settler, sold the property to Avalahalli Hanumanthappa
under Ex.D-19 (O.S.No.1318/1980) on 13.06.1949, the
entire property to the extent of 04 acre 14 guntas.
Avalahalli Hanumanthappa sold the property back to
Hanumanthappa and Chikka Muniswamappa on
05.10.1950 and Chikka Muniswamappa and
Hanumanthappa sold the property to one Muniyappa
Reddy on the same day i.e., on 05.10.1950. Buddamma,
who is the wife of Muniyappa Reddy sold the entire extent
to defendant No.2 represented by C.R. Santosh kumar.
Once it is held that by virtue of the repurchase made by
Hanumanthappa he gets back the right which he conveyed
under the settlement deed dated 22.12.1949; therefore,
under the said sale deed, the plaintiff is entitled to an
extent of 02 acre 07 guntas of land. Therefore, the
applicability of Section 43 of the TP Act, 1882 has attained
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finality and when it is held in RFA No.606/1989, Section 43
of the TP Act, 1882, is applicable to the settlement deed
dated 22.12.1949 (Ex.D-73). In this regard, I place
reliance on the judgment of Kerala High Court
RAMASWAMY PATTAMALI AND OTHERS VS.
LAKSHMI AND OTHERS44, at Paragraph Nos. 14,15, 16,
19, and 20 it is held as under:
“14. Counsel for the appellants contended that on the
date of Ext. M. the plaintiffs’ branch had no real
interest in the suit properties which were then held by
Ananthalakshmi Ammal in succession to her father,
that they had nothing more than a mere possibility of
becoming the reversioners in the off chance of
Ananthalakshmi Ammal dying, issue-less, that such a
possibility not being transferable there could not be a
transfer in regard to the suit properties under Ext. M.
The recitals in Ext. M ??? not purport to transfer an
expectancy or a possibility of reversion. What it
purports to transfer is property in praesenti. It might
be that the assignors had at the time only a chance of
becoming-reversioners, and therefore had nothing
further than that to assign; but certainly that was not
what they professed to assign to the defendants’
branch as per the terms and recitals in Ext. M. It may
be that the assignors had no real title to the properties
assigned; but as observed by Viswanatha Sastri, J.
in Veeraswami v. Durga Venkata Subbarao, AIR 1957
Andh Pra 288:
44
AIR 1962 KERALA 313
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To attract an application of Section 43 of the
Transfer of Property Act, it is not prohibited by law
though it may not be effective to vest ownership of
the property in the transferee”.
To attract an application of Section 43 of the
Transfer of Property Act, it is enough if the transferor
in form professed to transfer property which he
erroneously or fraudulently represented to be within
his power to transfer and received consideration for
his act. In other words, if a person who has no title to
the property purports to transfer it to another by a
deed which in form carries the legal estate and
receives consideration therefor and he subsequently
acquires an interest in the property sufficient to satisfy
the transfer, the estate will pass to the transferee
without any further act on the part of the transferor
provided the transferee having not rescinded the
transfer opts for such effectuation.
15. That such a case is covered by Section 43 of the
Transfer of Property Act, is clear from the illustration
to the section, which reads:
“A, a Hindu who has separated from his father B, sells
to C three fields X, Y and Z, representing that A is
authorised to transfer the same. Of these fields Z does
not belong to A, it having been retained by B on the
partition; but on B’s dying A as heir, obtains Z.C., not
having rescinded the contract of sale, may require A
to deliver Z to him.”
In the property Z, retained by B at the partition,
what A can have at the time of the transfer is nothing
but a chance of succession on B’s death, which, by the
provisions of Section 6(a) of the Act, cannot be the
subject of a transfer. Nonetheless the legislature has
said that the transfer would become valid if ever in
fact A became the owner of that property. Illustrations
in enactments provided by the legislature are valuable
aids in under-standing the real scope of the text
thereof. It may be that if the text is clear and an
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illustration is beyond it, the illustration cannot be
taken as extending or limiting the scope of the text.
But in all other cases the illustration shall be taken as
explanatory of the section. It has been laid down by
the Privy Council:
“In the construction of the….. Act, it is the duty of
a Court of law to accept–if that can be done– the
illustrations given as being both of relevance and
value in the construction of the text”. (Mahomed
Syedol Ariffin v. Yeoh Ooi Gark, AIR 1916 PC 242.)
16. Nor is the principle far to seek. If a person
purports to transfer property to which he has really no
title then and receives consideration therefor, he will
he held always bound by his transfer and will not be
heard to assert the contrary thereto. If subsequent to
the transfer, the property besoms his then also he will
not be heard to disown the title of his transferee to
the property, if the transfer has not been rescinded by
the transferee.
(See Kamaraju v. Venkatalakshmipathi.–AIR 1925
Mad 1043) Here one distinction has to be kept in view.
If the transfer was one forbidden by law, that cannot
be effectuated by an application of Section 43 of the
Transfer of Property Act. Thus in the illustration cited
above if A has purported to transfer his chance of
succession to his father in the estate Z, the transfer
will not be validated by the section when subsequently
the chance turns a reality.
19. Counsel for the appellants contended further that
the right to a limited estate vested in Ananthalakshmi
Animal at the time of Ext. M was well known to the
members of the defendants’ branch and therefore the
representation could not have misled them to act on
its faith as now to entitle them to the benefit of
Section 43 of the Transfer of Property Act. The section
prescribes only three conditions for its applicability,
and they are: (1) the transferor should have made a
fraudulent or erroneous representation (2) the
transfer should be for consideration, and (3) there
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should not be another transferee in good faith for
consideration without notice of the existence of the
option to be pre-judicially affected by its exercise. No
fourth requirement for the attraction of Sec. 43 finds a
place in the enactment. As held
in Parmanand v. Champa Lal, (S) AIR 1956 All 225
(FB).
“Section 43 of the Transfer of Property Act, does
not require that the transferee who can take
advantage of it should be one to whom not only a
fraudulent or erroneous representation about the
transferor’s authority to transfer the property is made
but should also be one who did not have knowledge of
the true factual position and had merely acted on the
belief of the erroneous or fraudulent representation
made to him by the transferor”.
AIR 1957 Andh Pra 288 also held:
“In the application of the doctrine of equity it is
immaterial that the transferee knew the truth that the
transferor had no authority to transfer the interest
which he purported to transfer”.
We are in respectful agreement with the above
dicta and hold that even if the defendants’ branch
knew of the defect in the title of the plaintiffs’ branch
it is of no relevance so far as the applicability of Sec.
43 is concerned.
20. The principle applicable to a case of this kind has
been pointed out by the Supreme Court in T.V.R.
Subbu Chetty’s Family Charities v. M. Raghava
Mudaliar, AIR 1961 SC 797 (801) thus:
“………..it may be taken to be well-settled that
if a presumptive reversioner is a party to an
arrangement which may properly be called a
family arrangement and takes benefit under it,
he would be precluded from disputing the
validity of the said arrangement when
reversion falls open and he becomes the actual
reversioner.”
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It is often characterised as a rule of estoppel
(See Dhiyan Singh v. Jugal Kishore, (1952) 1 SCC 184
: AIR 1952 SC 145) but it is not the estoppel which is
a rule of evidence preventing a party from alleging
and proving the truth of facts. Plaintiffs are not
prevented from proving anything in the case. Having
allowed the parties to prove every detail about the
transaction we are only finding the legal consequences
thereof; and the consequence is found to be that the
arrangement or transfer made by the plaintiffs for
consideration is binding on them and their interests in
the properties though made before they became
actually entitled thereto. (See Sahu Madho
Das v. Mukand Ram, (S) AIR 1955 SC 481). If it be a
rule of estoppel in the words of Denning L.J. in Lyle-
meller v. A. Lawis and Co. (Westminster), Ltd.(1956)
1 All ER 247 (251)
“It was not the old kind of estoppel, which was
only a rule of evidence. It was the new kind of
estoppel which affects legal relations.”
147. Further, I place reliance on the judgment of
Hon’ble Supreme Court in the case of N.P SASEENDRAN
VS. N.P POONAMMA AND OTHERS45 at Paragraph
Nos.14, 14.1, it is held as under:
“14. In Mathai Samuel v. Eapen Eapen0, while
examining a composite document, this Court outlined
the requirements for both a Will and a gift, which read
as under:
45
Civil Appeal No.4312 of 2025 (arising out of SLP (C) No.698/2023
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“16. We may point out that in the case of a will, the
crucial circumstance is the existence of a provision
disposing of or distributing the property of the testator
to take effect on his death. On the other hand, in case
of a gift, the provision becomes operative immediately
and a transfer in praesenti is intended and comes into
effect. A will is, therefore, revocable because no
interest is intended to pass during the lifetime of the
owner of the property. In the case of gift, it comes
into operation immediately. The nomenclature given
by the parties to the transaction in question, as we
have already indicated, is not decisive. A will need not
be necessarily registered. The mere registration of
“will” will not render the document a settlement. In
other words, the real and the only reliable test for the
purpose of finding out whether the document
constitutes a will or a gift is to find out as to what
exactly is the disposition which the document has
made, whether it has transferred any interest in
praesenti in favour of the settlees or it intended to
transfer interest in favour of the settlees only on the
death of the settlors.
17. A composite document is severable and in part
clearly testamentary, such part may take effect as a
will and other part if it has the characteristics of a
settlement and that part will take effect in that way. A
document which operates to dispose of property in
praesenti in respect of few items of the properties is a
settlement and in future in respect of few other items
after the deaths of the executants, it is a testamentary
disposition. That one part of the document has effect
during the lifetime of the executant i.e. the gift and
the other part disposing the property after the death
of the executant is a will. Reference may be made in
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this connection to the judgment of this Court in M.S.
Poulose v. Varghese [1995 Supp (2) SCC 294].
18. In a composite document, which has the
characteristics of a will as well as a gift, it may be
necessary to have that document registered otherwise
that part of the document which has the effect of a
gift cannot be given effect to. Therefore, it is not
unusual to register a composite document which has
the characteristics of a gift as well as a will.
Consequently, the mere registration of document
cannot have any determining effect in arriving at a
conclusion that it is not a will. The document which
may serve as evidence of the gift, falls within the
sweep of Section 17 of the (2012) 13 SCC
80 Registration Act. Where an instrument evidences
creation, declaration, assignment, limitation or
extinction of any present or future right, title or
interest in immovable property or where any
instrument acknowledges the receipt of payment of
consideration on account of creation, declaration,
assignment, limitation or extinction of such right, title
or interest, in those cases alone the instrument or
receipt would be compulsorily registerable
under Section 17(1)(b) or (c) of the Registration Act,
1908. A “will” need not necessarily be registered. But
the fact of registration of a “will” will not render the
document a settlement. Exhibit A-1 was registered
because of the composite character of the document.”
14.1. Thus, the legal position is well settled. There
must be a transfer of interest in praesenti for a gift or
a settlement and in case of postponement of such
transfer until the death of the testator, the document
is to be treated as a will. The fact that a document is
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registered, cannot be the sole ground to discard the
contents and to treat the document as a gift, just
because the law does not require a will to be
registered. The act and effect of registration depends
upon the nature of the document, which is to be
ascertained from a wholesome reading of the recitals.
The nomenclature given to the document is irrelevant.
The contents of the document have to be read as a
whole and understood, while keeping in mind the
object and intent of the testator. What is not to be
forgotten is that in case of a gift, it is a gratuitous
grant by the owner to another person; in case of a
settlement, the consideration is the mutual love, care,
affection and satisfaction, independent and resulting
out of the preceding factors; in case of a will, it is
declaration of the intention of the testator in
disposition of his property in a particular manner.
Therefore, even when there is any ambiguity in
understanding the nature of the documents from its
contents, we are of the view that the subsequent
conduct of the executant must also be considered to
take a decision. It is possible that in a single
document, there could be multiple directions in
different clauses though seemingly repugnant but in
reality, it could only be ancillary or a qualification of
the earlier clause. Therefore, the document must be
harmoniously read to not only understand the true
intent and purport, but also to give effect to each and
every word and direction”.
148. The said settlement deed dated 22.12.1949 is
found to be for valid consideration. Therefore, upon
considering the nature of the settlement deed, Section 43
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of the TP Act, 1882, is applicable and moreover, this issue
has attained finality in RFA No.606/1989. Therefore, in
conclusion, when the entire evidence, both oral and
documentary evidence are meticulously perused and
scanned, the right of entitlement of shares in the suit
schedule properties by the children of Anjanapa has
attained finality on its merits up to the Hon’ble Supreme
Court as discussed above.
149. Further, the entire suits in O.S.No.8973/2006
and O.S.No.6873/2009 are framed on technical plea that
C.R.Santosh Kumar, who is the 5th defendant in
O.S.No.1318/1980, has duly represented the firm has
given evidence on behalf of the partnership firm as one of
the partners. Moreover, the plaintiff/partnership firm is
mainly a characteristic family entity and were living under
one roof; therefore, the other partners of the firm knew
very well the proceedings and were watching the
proceedings amounting to deemed participation through
C.R. Santosh Kumar. Hence, they defended the suit and
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the appeal very well and the partnership firm and other
partners had full and complete knowledge of the
developments in the suit and in the appeals.
150. Though, C.R. Santosh Kumar alone is defendant
No.5 in O.S.No.1318/1980, upon considering his evidence,
both oral and documentary evidence as discussed above
and appreciated by the Trial Court and once again upon
re-appreciation by this Court in the appeal, there is no
merit found in the contention urged by the partnership
firm, C.R. Santosh Kumar and other partners.
151. Further, it is borne out from the entire records
as discussed above, filing of two suits above stated
O.S.No.8973/2006 and in O.S.No.6873/2009 are nothing
but a futile attempt just to avoid respondent Nos.1 to 8
getting fruitful decree in RFA No.606/1989. Furthermore,
the Hon’ble Supreme Court in SLP No.6079/2011 (Ex.D-
68) has upheld the share to be given to the children of
Anjanappa to an extent of 01 acre 36.5 guntas. Therefore,
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the appeals are found to be devoid of merits and the same
are liable to be dismissed. Accordingly, I answer point
Nos.(i) to (iii), (vii) and (viii) in the Affirmative and point
Nos.(iv) to (vi) in the Negative. Therefore, for the
aforesaid reasons, the appeals are liable to be dismissed
with cost of Rs.25,000/-.
152. In the result, I proceed to pass the following:
ORDER
i. The Regular First Appeals are dismissed
with cost of Rs.25,000/-.
ii. The common judgment and decree dated
30.06.2016 passed in O.S.No.8973/2006
and O.S.No.6873/2009 by the I
Additional City Civil and Sessions Judge,
Bengalore City (CCH-2) is hereby
confirmed.
iii. Registry is directed to send back the
Trial Court Records along with a copy of
this judgment to the Trial Court.
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In view of dismissal of the appeals, pending IAs’ if
any, shall stand disposed of.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA, ASN
List No.: 19 Sl No.: 1