IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE B.S.PATIL. R.S.A.No.2061/2012

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE BETWEEN: DATED THIS THE 11 TH DAY OF JANUARY, 2013 BEFORE THE HON BLE MR.JUSTICE B.S.PATIL R.S.A.No.2061/ M.M.Thammayya S/o late M.M.Muthanna Aged about 70 years r/at Kolthada Bygodu Village, Ammathinad Post, Virajpet Taluk, Kodagu District. 2. M.M.Suresh S/o late Muthanna Aged about 56 years r/at No , 2 nd Stage, Vijayanagar, Bangalore-40. APPELLANTS (By Sri L.M.Panduranga Swamy, Adv.) AND: Lt.Col.M.M.Aiyanna (Rtd.) s/o late M.M.Muttanna aged about 66 years r/at Kolthada, Bygodu Village, Ammathinad Post, Virajpet Taluk, Kodagu District. RESPONDENT (By Lt.Col.M.M.Aiyanna (Rtd.) party-in-person)

2 2 This R.S.A. is filed under Sec.100 of CPC., against the judgment and decree dated passed in R.A.32/2007 on the file of the Presiding Officer, FTC, Virajpet and etc. This appeal coming on for admission this day, the Court delivered the following: JUDGMENT 1. This regular second appeal is filed under Section 100 CPC challenging the judgment and decree dated passed in R.A.No.32/2007 by the learned Judge of the Fast Track Court, Virajpet, dismissing the appeal and confirming the judgment and decree dated passed in O.S.No.114/2004 by the learned Civil Judge (Sr.Dn.), Virajpet. 2. O.S.No.114/2004 was instituted seeking partition and separate possession of 1/3 rd share in the suit schedule property. Plaint A schedule property is an immovable property consisting of a residential house including the court yard, garages, godowns, cow sheds, etc. The house, as described in plaint A schedule, consists of ground floor having eight rooms and first floor consisting of seven rooms. Plaint B schedule property consists of movables such as furnitures, fixtures and other equipments in the house property.

3 3 3. The case of the plaintiff, in nutshell, is that he is the younger brother of defendant No.1 and elder brother of defendant No.2. They are sons of late Muthanna of Kolthoda- Bygodu Village in Virajpet Taluk of Kodagu District. Late Muthanna s family consisted of himself, his wife and seven sons, plaintiff being the 4 th son and the 1 st and 2 nd defendants being the 2 nd and 7 th sons respectively. It is not in dispute that Muthanna, the father of the plaintiff and the defendants died in the year After his demise, the wife and sons of Muthanna (including the plaintiffs and defendants herein) effected partition in the joint family property by a registered Partition Deed dated The said document is produced as Ex.P1. As is clear from this document and from the findings recorded by the Courts below, the joint family properties were got divided. 4. There were three houses as per the plaint averments. The three houses which belonged to the joint family were also got divided. Insofar as plaint A schedule house is concerned, the same was divided into three shares and the three brothers namely the M.M.Thammayya (defendant No.1), M.M.Mandanna (not made a party) and M.M.Suresh (defendant No.2) got 1/3 rd

4 4 share in the house, the court yard and the other appurtenant area. The Partition Deed does not mention the boundaries of the respective shares of the three brothers in the plaint A schedule property. It does not also say that the three brothers got the plaint A schedule property to their joint share so as to make it property jointly owned by the three brothers. This is evident from a reading of Ex.P1 Partition Deed and also from the findings recorded by both the Courts below. The fact remains that none of the three brothers got separate and exclusive possession of the house property as per the Partition Deed. It is in this context and in this background that the whole controversy has arisen between the parties. 5. It is relevant to notice here that M.M.Mandanna, who had 1/3 rd share in the house property as allotted to him in the registered Partition Deed, started constructing an independent house for himself in other property which had fallen to his share. According to the plaintiff, during the year 2000, for the purpose of completing the construction, M.M.Mandanna was in need of funds. He offered to alienate his share in the house to all his brothers including the defendants and the plaintiff for the purpose of raising funds to meet his needs. None of the

5 5 other brothers including defendants 1 & 2 showed any interest to purchase or acquire the 1/3 rd share of Mandanna. At that time, the plaintiff who was in service in the Indian Army and had retired during the year 2000 came forward to purchase the share of Mandanna in the house, as the plaintiff was not provided any facility for his housing in the registered Partition Deed. 6. It is the further case of the plaintiff that Mandanna received consideration for his 1/3 rd share from the plaintiff on in a sum of Rs.5,00,000/- and delivered possession of his share to the plaintiff on the same day. Thereafter, by way of a registered Release Deed dated , Mandanna transferred all his rights in his portion of the house property in favour of the plaintiff. It is also the case of the plaintiff that since then he and his family members have been living in the house. However, the defendants, having developed a hostile attitude against the plaintiff, were harassing and obstructing him from using the common facilities in the suit schedule house property. This made the plaintiff to institute the suit seeking partition by demarcating and delivering 1/3 rd share which was transferred to him by his

6 6 brother Mandanna. He also sought for permanent injunction to restrain the defendants from destroying, distributing or shifting any of the schedule B properties until a proper partition and division was effected in the said properties as per law st defendant filed written statement denying the material averments made in the plaint with regard to the right of the plaintiff. It was contended that in the Partition Deed dated , Mandanna got 1/3 rd undivided share in the plaint A schedule house property and the court yard. The movable properties did not belong to Mandanna as same of them were the absolute property of the defendants. In paragraph-8 of the written statement, defendant No.1 admitted that Mandanna was allotted E schedule property as per the registered Partition Deed dated including item No.5 that is the 1/3 rd portion of the residential house and the court yard. He denied that Mandanna was in possession of 1/3 rd undivided share in the plaint A schedule property. It was further asserted that during the year 1995 Mandanna took away his portion of the movable property including the furnitures and therefore, he had no right in respect of B

7 7 schedule movable properties. It was also urged that during the year 1995, the defendants requested Mandanna to sell his undivided portion of the residential house and the Court yard, but he did not comply with the same. In this connection they contended that on , the defendants had written a letter to Mandanna requesting to sell his 1/3 rd undivided share in the residential house which was untenably replied. Their defence was that the Release Deed dated executed by Mandanna was illegal and did not convey any right, title or interest in favour of the plaintiff. In that regard they contended that plaintiff did not pay any consideration to Mandanna and the transaction between the plaintiff and Mandanna was a sham transaction intended to defeat the right of the defendants. 8. They further contended that the defendants had preferential right to purchase the residential house and the court yard as per the provisions contained under Section 22 of the Hindu Succession Act and were ready to purchase the said property by paying the market value to be fixed by the Court. They also set up a plea that under Section 4 of the Partition Act, they acquired right of preemption to purchase the

8 8 residential house and the court yard. The defendants made a counter claim praying for an enquiry regarding their preferential right to purchase the share of Mandanna in the house property with a direction to Mandanna to execute the Release Deed. They also sought for a declaration that as per Section 4 of the Partition Act, the defendants acquired right of preemption to purchase the 1/3 rd share in the residential house and the court yard. 9. Plaintiff filed rejoinder to the written statement denying the right of preemption asserted by the defendants contending that in view of the admission of the clear division of all the family properties including the suit schedule properties as per the Partition Deed of the year 1981, the defendants were disentitled from seeking any relief under Section 4 of the Partition Act. 10. Based on the pleadings, the Trial Court framed necessary issues with regard to proof by the defendants that some of the movable properties described in plaint B schedule were the self-acquired property of the 1 st defendant. The plaintiff was called upon to prove his assertion that he was entitled for 1/3 rd share in the plaint A schedule house property. Additional

9 9 issues were framed with regard to proof of preferential right by the defendants to purchase the residential property and the court yard and also as regards their right of preemption under Section 4 of the Act to purchase 1/3 rd portion of the residential property of Mandanna. 11. Both parties led their evidence. On consideration of the evidence on record, both oral and documentary, the Trial Court found that the defendants were able to establish that some of the items of the movable properties found in plaint A schedule house were their absolute properties. But as regards the important issue with which we are concerned in this case pertaining to the preferential right of the defendants to purchase 1/3 rd share of Mandanna in the plaint A schedule house property and the right as urged by them under Section 4 of the Partition Act, the Trial Court found that the defendants were not entitled for any such preferential right or right of preemption. 12. The Trial Court further found that the plaintiff was able to establish that he had acquired title to the 1/3 rd share of Mandanna in plaint A schedule house property having paid a sum of Rs.5,00,000/- as consideration. It thus found that as

10 10 per the registered Release Deed executed by Mandanna, the plaintiff had become owner of 1/3 rd portion of Mandanna s share in the plaint A schedule house property. However, as plaint A schedule property was not divided by demarcating the boundaries, the Trial Court decreed the suit for partition directing division of the property by metes and bounds, thereby holding that the plaintiff would be entitled for 1/3 rd share. The suit filed by the plaintiff was dismissed in respect of B schedule property insofar as items for which the defendants were held entitled exclusively. However, as regards some of the items of the movable properties, the plaintiff was held entitled to 1/3 rd share. 13. This judgment and decree was challenged by the defendants by filing R.A.No.32/2007. The Appellate Court has concurred with the findings of the Trial Court and has dismissed the appeal. Aggrieved by the concurrent findings of both the Courts below, the present second appeal is filed. 14. I have heard Sri L.M.Panduranga Swamy, learned counsel for the appellants and the party-in-person Sri M.M.Aiyanna the plaintiff respondent herein.

11 It is the contention of the learned counsel for the appellants that plaint A schedule property fell to the joint share of defendants 1 & 2 and Sri Mandanna in the registered Partition Deed of the year 1981 and thus the three brothers continued to enjoy the house as a joint family property. Therefore, in view of Section 4 of the Partition Act, a dwelling house belonging to an undivided family could not have been transferred in favour of a person who was not a member of such family and even where such transfer was effected to a non-member of the family when such transferee sues for partition, the Court is bound to make the valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, in case, any of the members of the family being a shareholder undertakes to buy the share of such transferee. 16. He further contends that in view of Section 22 of the Hindu Succession Act, 1956, where any interest in any immovable property of an intestate devolves upon two or more heirs specified in Class-I of the schedule and any one of such heirs proposes to transfer his or her interest in such property, the other heirs shall have preferential right to acquire the

12 12 interest proposed to be transferred. Based on these provisions, it is contended that the defendants had the preferential right to purchase the undivided share of Mandanna in the joint family house property to the exclusion of the plaintiff who was not a member of the joint family as he had taken away his share in the other joint family property and had severed his relationship from the family. 17. It was next contended by the learned counsel for the appellants that the Release Deed marked as Ex.P2 was void and unenforceable as release of property by one co-owner in favour of another co-owner having pre-existing right in the property is permissible and no release in favour of a stranger is permissible as per law. In support of this contention, he has placed reliance on the judgment in the case of CHIEF CONTROLLING REENUE AUTHORITY, REFERRING OFFICER Vs. RUSTORN NUSSERWANJI PATEL AIR 1968 MADRAS Party-in-person Sri M.M.Aiyanna submits that as per Ex.P1 Partition Deed, there was division of the family properties including plaint A schedule house property. He takes me through Ex.P1 to demonstrate that defendants 1 & 2 and Mandanna have not been jointly allotted the house

13 13 property, nor have they continued their joint status either as regards plaint A schedule house property or as regards any other ancestral properties which had come to their share. His contention is that there was specific allocation of different shares to defendants 1 & 2 and as also to Mandanna in respect of all joint family properties including plaint A schedule house property. It is his further contention that his status insofar as plaint A schedule house property was no different than the status that Mandanna enjoyed being a divided brother of the joint family. He further contends that as defendants 1 & 2 and Mandanna were not the members of the joint family and as plaint A schedule house property was not enjoyed by them as their joint family property or as co-owners of the same, they were not entitled for any preferential right. His submission is that merely because the house property was not demarcated by describing the boundaries of 1/3 rd share of each of the sharers, it cannot be said that three of them (defendants 1 & 2 and Mandanna) continued as joint family members and that plaint A schedule property continued as a joint family property.

14 In the light of these respective contentions, I have carefully considered the arguments advanced by the counsel for the appellants and the party-in-person Sri M.M.Aiyanna. I have perused the judgments of both the Courts below and Exs.P1 & P2 documents which are made available and the provisions on which reliance is placed by the counsel for the appellants. 20. Section 4 of the Partition Act, 1893 reads as under: 4.Partition suit by transferee of share in dwellin-house.-(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any members of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. 21. It is clear from Section 4 that in order to attract this provision, the dwelling-house must belong to an undivided family and a share in the dwelling-house of the undivided family must have been transferred to a person who is not a

15 15 member of such family. In such circumstances, when such transferee sues for partition, the Court is enjoined with a duty to direct the sale of such share to the other shareholders, provided the members of the family namely the other shareholders come forward and undertake to buy the share of such transferee. The purpose and intent of the provision in Section 4 of the Partition Act is to ensure that in the case of a dwelling-house belonging to an undivided family, one of the sharers at his own whims and fancies cannot introduce a stranger to the family to become a co-sharer to occupy the family house and even if he sells such a property to a third party, when the third party sues for partition, the other sharers will be entitled to purchase the same as per the valuation to be made by the Court. 22. In the instant case, as is evident from Ex.P1 registered Partition Deed all the properties of the family have been divided. Plaint A schedule house property is also divided among the three brothers. Although there were seven brothers who got share in different properties, so far as the house property mentioned in plaint A schedule, only defendants 1 & 2 and another brother Sri Mandanna got 1/3 rd share each.

16 16 There is no recital in the Partition Deed that these brothers continued as members of the joint family or atleast that in respect of plaint A schedule house property, they continued as members of the joint family jointly enjoying the same. No doubt, while granting 1/3 rd share to each of these three brothers in plaint A schedule house property, the boundaries of their respective shares are not mentioned, which at best could mean that it was for them to work out their remedy separately for demarcating their respective portion. This by itself cannot mean that the plaint A schedule property was an undivided family property of the joint family consisting of defendants 1 & 2 and Mandanna. Their status as members of joint family has been disrupted not only in respect of other joint family properties, but also in respect of plaint A schedule house property. Therefore, Section 4 of the Partition Act has no application to the facts of the instant case. 23. As rightly contended by the respondent, his status in relation to his family members/brothers, particularly defendants 1 & 2 was same as that of Mandanna. He is also right and justified in contending that Mandanna has not introduced any stranger to share the family house by

17 17 transferring his right over the property in favour of the plaintiff, as he has transferred his share to another brother and not to any stranger. In fact, this is the process of reasoning of both the Courts below while negativing the contentions urged by the defendants in support of their defence. 24. Insofar as Section 22 of the Hindu Succession Act, the preferential right to acquire the interest proposed to be transferred in the joint family property devolving upon two or more heirs specified in Class-I of the schedule, the same would arise only when such an interest in any immovable property has jointly devolved upon his heirs meaning thereby that there was no partition among them of the property in question. In the instant case, as held by the Courts below there was indeed partition of plaint A schedule house property between the members of the family and therefore, question of enjoying any preferential right by defendants 1 & 2 to acquire 1/3 rd share of Mandanna in the plaint A schedule house property does not arise. It has to be stated here that the Partition Deed does not refer to any such right of defendants 1 & 2, nor does it either expressly or impliedly suggest that the three brothers

18 18 continued to enjoy the plaint A schedule house property as members of joint and undivided family, which is the prerequisite to claim preferential right under Section 22 of the Hindu Succession Act. 25. Insofar as the other contentions urged by the learned counsel for the appellants that Ex.P2 registered Release Deed is not a valid document enabling the plaintiff to acquire any right over plaint A schedule house property, it has to be stated that at the stage of marking this document, no objection was taken by the defendants regarding the admissibility of this document on the ground that it was not properly stamped. It is clear from the document and the evidence on record that the value of 1/3 rd share of Mandanna in the plaint A schedule house property was received by him in a sum of Rs.5,00,000/- and thereafter, he has executed the registered Release Deed. At this stage, the question whether any right was validly transferred in favour of the plaintiff by Mandanna cannot be gone into as no such objection was raised by the defendants in their written statement regarding the validity of this transaction, nor there was any occasion for the Courts below to examine the nature of this document to find out whether it

19 19 had the effect of transferring the right, title and interest of Mandanna in favour of the plaintiff. Merely because it is styled as a Release Deed, it is not necessary for this Court to hold that the transaction was in the nature of release of the rights of one co-owner in favour of another co-owner who had a preexisting right. In the light of the findings recorded by both the Courts below holding that the defendants were not the joint owners being the joint family members of the plaint A schedule house property, this contention pales into insignificance as answer to this question will not confer any right in favour of the defendants. 26. Hence, looked from any angle, the concurrent findings recorded by both the Courts below do not suffer from any illegality. No substantial question of law arises for consideration. Hence, this appeal is dismissed. However, in the facts and circumstances of the case, both parties shall bear their respective costs. PKS Sd/- JUDGE