192IN THE SUPREME COURT OF INDIA[Order XVI Rule 4(1)(e)](CIVIL
APPELLATE JURISDICTION)SPECIAL LEAVE PETITION(UNDER ARTICLE 136 OF
THE CONSTITUTION OF INDIA)SPECIAL LEAVE PETITION(CIVIL) Nos. OF
2012WITHPRAYER FOR INTERIM RELIEF(Arising from the Impugned
Judgment and Final Common Order dated 16-12-2011 passed in Regular
First Appeal No.271 of 1998 and in Regular First Appeal No.275 of
1998 by the Honble Division Bench of High Court of Karnataka at
Bangalore)(1) SLP (C) No. of 2012 arising out of Judgment in
Regular First Appeal No.271 of 1998 dated 16-12-2011:-IN THE MATTER
OF:- POSITION OF THE PARTIESIN THE IN THISHIGH COURT HON'BLE
COURTSri B.RudraiahSince Dead by his LRs
1. K.V.ChandrashekharaS/o R.VeerannaHindu, Major Respondent No.6
Petitioner No.1
2. Smt.K.V.PremakumariD/o R.VeerannaHindu, Major Respondent No.7
Petitioner No.2
3. Smt.K.V.YashodammaD/o R.VeerannaHindu, Major Respondent No.8
Petitioner No.3
4. Smt.K.V.RadhammaD/o R.VeerannaHindu, Major Respondent No.9
Petitioner No.4
Petitioners No.1 to 4 are residing at Kamakshipalya,Hamlet of
Saneguruvanahalli, Yeshwanthapura Hobli,Bangalore North
Taluk,Bangalore District
-VERSUS-
S.K.LakshminarasappaSince deceased by his L.Rs.,
1. Smt.NagarathanammaW/o late S.K.LakshminarasappaHindu, Major
Contesting Appellant No.1 Respondent No.1
2. Smt.Shamala Devi D/o late S.K. Lakshminarasappa Contesting
Appellant No.2 Respondent No.2
3. Sri MohanS/o late S.K.LakshminarasappaHindu, Major Contesting
Appellant No.3 Respondent No.3
4. Sri S.L.VijayakumarS/o late S.K.LakshminarasappaHindu, Major
Contesting Appellant No.4 Respondent No.4
5. Smt.S.L.UmadeviD/o late S.K.LakshminarasappaHindu, Major
Contesting Appellant No.5 Respondent No.5
6. Sri S.L.HarshaS/o late S.K.LakshminarasappaHindu, Major
Contesting Appellant No.6 Respondent No.6
7. Smt.S.L.LathaD/o late S.K.LakshminarasappaHindu, Major
Contesting Appellant No.7 Respondent No.7
8. Sri S.L.KishoreS/o late S.K.LakshminarasappaHindu, Major
Contesting Appellant No.8 Respondent No.8
Respondents No. 1 to 8 are residing at No.8412th Main Road,
Shivanagar (Shivanahalli) RajajinagarBangalore 560 010
9. Sri R.BhadrappaS/o late B.RudraiahHindu, Major,
ProformaRespondent No.2 Respondent No.9
10. R.VeerannaS/o Late B.RudraiahHindu, MajorProforma Respondent
No.3 Respondent No.10
11. Sri R.PuttaswamyS/o late B.RudraiahHindu, MajorProforma
Respondent No.4 Respondent No.11
12. Sri Yogeesh.BS/o late R.BhadrappaHindu, MajorProforma
Respondent No.5 Respondent No.12
13. Smt.KamalammaW/o R.VeerannaHindu, MajorProforma Respondent
No.6 Respondent No.13
Respondents No.9 to 13are residents of Kamakshipalya,Hamlet of
SaneguruvanahalliYeshwanthapura HobliBangalore -560 07914.
Smt.KittammaW/o late Narasimha MurthyHindu, Major,Previously
Residing at No.286, VI CrossSrirampuramBangalore-560 021 Proforma
Respondent No.11 Respondent No.14
15. Sri T.Gangadhara Murthy Proforma Respondent No.12 Respondent
No.15
16. Sri T.Ramachandra Proforma Respondent No.13 Respondent
No.16
17. Sri T.Ananda Proforma Respondent No.14 Respondent No.17
18. Sri T.Manju Proforma Respondent No.15 Respondent No.18
Respondents No. 15 to 18are MajorsSons of M.ThimmaiahResiding at
ShivanahalliWest of Chord Road Main Road, RajajinagarBangalore 560
010
19. Smt.GowrammaW/o MunivenkatappaHindu, Major, Residing at
Laggere VillageBangalore. Proforma Respondent No.16 Respondent
No.19
20. Smt.H.RathnammaD/o HanumanthappaW/o A.N.Murthy,Hindu,
Major,Near Shanthala School,Shivanahalli, BangaloreBangalore (also
at GidduAmia Building,Near Bus-stand, Malur and at Aruna Brick
& Tiles, Malur) Proforma Respondent No.17 Respondent No.20
21. Sri B.H.VenkataramaiahS/o late HanumanthappaHindu, Major,
residing atDoor No.45, Kamala Nehru Extension,
Yeshwanthapura,Bangalore Proforma Respondent No.18 Respondent
No.21
22. Sri DoddaiahS/o NanjundaiahHindu, MajorNo.307, 4th Main, 8th
Cross 6th Phase, Ist Stage, West of Chord Road Bangalore 560 044
Proforma Respondent No.19 Respondent No.22
23. Sri MunihanumaiahS/o late HonappaHindu, MajorNo.18, 4th Main
Road, 9th Cross, 6th Phase,West of Chord Road, Bangalore 560 044
Proforma Respondent No.20 Respondent No.23
24. Sri Lingaiah Proforma Respondent No.21 Respondent No.24
Respondents No.22,23and 24 are Hindus,Majors, residing at West
of Chord Road,Bangalore
25. Sri Jagannatha ShettyS/o Narayana ShettyHindu, MajorNo.1572,
II Cross, Nagappa Block (Srirampuram)Bangalore 560 021 Proforma
Respondent No.22 Respondent No.2526. Sri RamakrishnaS/o
LingappaiahHindu, MajorNo.306, 4th Main,8th Cross, 6th Phase,West
of Chord Road,Bangalore 560 044 Proforma Respondent No.23
Respondent No.26
27. Sri KrishnamurthyS/o LingappaiahHindu, Major No.306,4th
Main, 8th Cross,6th Phase, West of Chord RoadBangalore 560 044
Proforma Respondent No.24 Respondent No.27
28. Smt.SharadammaW/o K.NarayanaShetty Proforma Respondent No.25
Respondent No.28
29. Sri Sathyanarayanna ShettyS/o K.NarayanaShetty Proforma
Respondent No.26 Respondent No.29
30. Sri VenugopalShettyS/o K.NarayanaShetty Proforma Respondent
No.27 Respondent No.30
Respondents No.28 to 30are Hindus, Major,residing at No.1572,2nd
Cross, Nagappa Block,Bangalore 560 021
31. Sri S.N.Prahlada RaoDead by LRs
32. Smt.P.MitravindaW/o late S.N.Prahlada RaoAged about 65 years
Proforma Respondent No.28(a) Respondent No.31(a)
33. Smt.SudhaW/o late S.N.Prahlada RaoAged about 60 years
Proforma Respondent No.28(b) Respondent No.31(b)
34. Smt.SumitraD/o late S.N.Prahlada RaoAged about 40 years
Proforma Respondent No.28(c) Respondent No.31(c)
35. Smt.VasantiD/o late S.N.Prahlada RaoAged about 35 years
Proforma Respondent No.28(d) Respondent No.31(d)
36. Smt.VijayalakshmiD/o late S.N.Prahlada RaoAged about 34
years Proforma Respondent No.28(e) Respondent No.31(e)
37. Smt.BharathiD/o late S.N.Prahlada RaoAged about 33 years
Proforma Respondent No.28(f) Respondent No.31(f)
38. Sri MadweshS/o late S.N.Prahlada RaoAged about 30 years
Proforma Respondent No.28(g) Respondent No.31(g)
39. Sri VadirajaS/o late S.N.Prahlada Rao Proforma Respondent
No.28(h) Respondent No.31(h)
40. Smt.SavithriD/o late S.N.Prahlada RaoAged about 29 years
Proforma Respondent No.29(i) Respondent No.31(i)
Respondents No.31 to 31(i)are residing at No.84,12th Main
Road,Shivanagara, RajajinagarBangalore 560 010.
(2) In Special Leave Petition (Civil) No.of 2012 Arising out of
judgement in Regular First Appeal No.275 of 1998 dated
16-12-2011:-
IN THE MATTER OF:- POSITION OF THE PARTIESIN THE IN THISHIGH
COURT HON'BLE COURTSri B.RudraiahSince Dead by his LRs
1. K.V.ChandrashekharaS/o R.VeerannaHindu, Major Respondent No.5
Petitioner No.1
2. Smt.K.V.PremakumariD/o R.VeerannaHindu, Major Respondent No.6
Petitioner No.2
3. Smt.K.V.YashodammaD/o R.VeerannaHindu, Major Respondent No.7
Petitioner No.3
4. Smt.K.V.RadhammaD/o R.VeerannaHindu, Major Respondent No.8
Petitioner No.4Petitioners No.1 to 4 are residing atKamakshipalya,
Hamlet of Saneguruvanahalli,Yeshwanthapura Hobli,Bangalore North
Taluk,Bangalore District
-VERSUS-
Sri S.N.Prahlada RaoS/o Late Narasaiah Since Dead by his
L.RsAppellant
1. Smt.P.MitravindaW/o late S.N.Prahlada RaoAged about 65
yearContesting Appellant No.1(a) Respondent No.1(a)
2. Smt.SudhaW/o late S.N.Prahlada RaoAged about 60
yearsContesting Appellant No.1(b) Respondent No.1(b)3.
Smt.SumithraD/o late S.N.Prahlada RaoAged about 40 yearsContesting
Appellant No.1(c) Respondent No.1(c)
4. Smt.VasanthiD/o late S.N.Prahlada RaoAged about 35
yearsContesting Appellant No.1(d) Respondent No.1(d)
5. Smt.VijayalakshmiD/o late S.N.Prahlada RaoAged about 34
yearsContesting Appellant No.1(e) Respondent No.1(e)
6. Smt BharathiD/o late S.N.Prahlada RaoAged about 33
yearsContesting Appellant No.1(f) Respondent No.1(f)
7. Sri MadweshS/o late S.N.Prahlada RaoAged about 30
yearsContesting Appellant No.1(g) Respondent No.1(g)
8. Sri VadirajaS/o late S.N.Prahlada RaoAged about 28
yearsContesting Appellant No.1(h) Respondent No.1(h)
9. Smt.SavithriD/o late S.N.Prahlada RaoAged about 29
yearsContesting Appellant No.1(i) Respondent No.1(i)
Respondents No.1(a) to 1(i)are residing at No.84,12th Main
Raod,Shivanagar, Rajajinagar,Bangalore 560 010
10. Sri R.Bhadrappa S/o Late B.RudraiahHindu,
MajorProformaRespondent No.1Respondent No.2
11. Sri R.VeerannaS/o B.RudraiahHindu, MajorProformaRespondent
No.2Respondent No.3
12. Sri R.PuttaswamyS/o late B.RudraiahHindu,
MajorProformaRespondent No.3Respondent No.4
13 Sri B.YogeeshaS/o late R.BhadrappaHindu,
MajorProformaRespondent No.4Resplendent No.5Respondents No. 2 to
5are all residing at Kamakshipalya, Hamlet of
Saneguruvanahalli,Bangalore North Taluk,Bangalore District
14. Smt.KamalammaW/o R.VeerannaHindu, MajorResiding at
Kamakshipalya,Hamlet of Saneguruvanahalli,Bangalore North
Taluk,Bangalore DistrictProformaRespondent No.9Respondent No.6
15. Smt.Kittamma W/o late Narasimha MurthyNo.286, VI Cross
SrirampuramBangalore 5600 021ProformaRespondent No.10Respondent
No.7
16. Sri T.Gangadhara MurthyMajorProformaRespondent
No.11Respondent No.8
17. Sri T.RamchandraMajorProformaRespondent No.12Respondent
No.9
18. Sri T.AnandaMajorProformaRespondent No.13Respondent
No.10
19. Sri T.ManjuMajorProformaRespondent No.14Respondent
No.11Respondents Nos.8 to 11are majors, Sons of Thimmaiah,residing
at Shivanahalli,West of Chord Road, RajajinagarBangalore 560
010
20. Smt.GowrammaW/o MunivenkatappaLeggare
VillageBangaloreProformaRespondent No.15Respondent No.12
21. Smt.H.RathnammaD/o HanumanthappaW/o A.N.Murthy,Residing at
12th Main Road,Near Shanthala School,Shivanahalli, Bangalore (also
at Giddu Amia Building,Near Bus-stand,Malur and at Aruna Brick&
Tiles, Malur,Behind Police Station)ProformaRespondent
No.16Respondent No.13
22. Sri B.H.VenkataramaiahS/o late HanumanthappaHindu, Major,
residingat Door No.45,Kamala Nehru Extension,Yeshwanthapura,
BangaloreProformaRespondent No.17Respondent No.14
23. Sri DoddaiahS/o NanjundaiahHindu, MajorNo.307, 4th Main,8th
Cross 6th Phase,Ist Stage, West of Chord Road Bangalore 560
044ProformaRespondent No.18Respondent No.15
24. Sri MunihanumaiahS/o late HonappaHindu, MajorNo.18, 4th Main
Road,9th Cross, 6th Phase,West of Chord Road, Bangalore 560
044ProformaRespondent No.19Respondent No.16
25. Sri LingaiahNo.19, residing atWest of Chord
Road,BangaloreProformaRespondent No.20Respondent No.17
26. Sri Jagannatha ShettyS/o Narayana ShettyHindu, MajorNo.1572,
II Cross,Nagappa Block(Srirampuram)Bangalore 560
021ProformaRespondent No.21Respondent No.18
27. Sri RamakrishnaMajorProformaRespondent No.22Respondent
No.19
28. Sri KrishnamurthyProformaRespondent No.23Respondent
No.20
Respondents No.19 and 20Both are Sons of LingappaiahNo.306, 4th
Main,8th Cross, 6th Phase,West of Chord RoadBangalore 560
044ProformaRespondent No.24Respondent No.21
29. Smt.SharadammaW/o K.NarayanaShettyMajorProformaRespondent
No.24Respondent No.21
30. Sri Sathyanarayanna Shetty S/o
K.NarayanaShettyProformaRespondent No.25Respondent No.22
31. Sri Venugopal ShettyS/o K.NarayanaShettyProformaRespondent
No.26Respondent No.23Respondents No.21 to 23are Hindus, Major,
residingat No.1572, II Cross,Nagappa Block,Bangalore 560 021
32. Sri S.K.LakshminarasappaSince Deceased by L.Rs33.
Smt.NagarathnammaW/o late S.K.Lakshminarasappa Proforma Respondent
No.27(a) Respondent No.23(a)34. Smt.Shamala DeviD/o late
S.K.Lakshminarasappa Proforma Respondent No.27(b) Respondent
No.23(b)
35. Sri Mohan S/o late S.K.Lakshminarasappa Proforma Respondent
No.27(c) Respondent No.23(c)
36. Sri S.L.VijayakumarS/o late S.K.Lakshminarasappa Proforma
Respondent No.23(d) Respondent No.23(d)
37. Smt.S.L.UmadeviD/o late S.K.Lakshminarasappa Proforma
Respondent No.23(e) Respondent No.23(e)
38. Sri S.L.HarshaS/o late S.K.Lakshminarasappa Proforma
Respondent No.23(f) Respondent No.23(f)
39. Smt.S.L.LathaD/o late S.K.Lakshminarasappa Proforma
Respondent No.23(g) Respondent No.23(g)
40. Sri S.L.KishoreS/o late S.K.Lakshminarasappa Proforma
Respondent No.23(h) Respondent No.23(h)
Respondents No.23(a) to 23(h)all are residing at No.84, 12th
Main Road Shivanagar, (Shivanahalli)Rajajinagar, Bangalore 560
010
To,The Honble Chief Justice of India and his Companion Judges
ofthe Supreme Court of IndiaThe humble petition of the Petitioners
above namedMOST RESPECTFULLY SHOWETH:1. The Petitioners above-named
respectfully submit that these Petitions seeking Special Leave to
Appeal (Civil) under Article 136 of our Constitution are arising
from the grievance from the impugned Judgment and Final Common
Order dated 16-12-2011 passed in Regular First Appeal No.271 of
1998 and Regular First Appeal No.275 of 1998 by the Honble Division
Bench of High Court of Karnataka at Bangalore, whereby the Honble
Division Bench of the High Court has very erroneously and
incorrectly reversed a considered and a compelling Judgment and
decree passed by the Learned City Civil Court, Bangalore City in
Original Suit No.10311 of 1983 on 27-02-2008 wherein a suit for
partition, separate possession, etc against the petitioners herein
was correctly dismissed by the said Trial Court.
2. QUESTIONS OF LAW:-The impugned Order and Judgment raises
substantial questions of law. The same, for the consideration of
this Honble Court, are as under: (for the sake of simplicity, the
impugned Order and Judgment shall be referred to as impugned
Judgment)
(i) Whether the impugned Judgment that has grossly erred in
interpreting the provisions of the Karnataka Village Offices
Abolition Act, 1961 is not sustainable in law?
(ii) Whether the impugned Judgment by a Division Bench of the
High Court that has failed to recognise the vested rights of a
purchaser of erstwhile inam land as protected by an earlier
Division Bench decision of the High Court in Lakshmana Gowda v.
State of Karnataka [1981 (1) Kar LJ 1 approved in State of
Karnataka v. G.Seenappa [AIR 1992 SC 1531 : 1993 Supp (1) SCC 648]
and the Constitution Bench decision of the High Court in Syed
Basheer Ahmed v. State of Karnataka [AIR 1994 Kant 227 : 1994 (1)
Kar LJ 385] is unsustainable in law?
(iii) Whether the Hon'ble Division Bench has wholly erred in
reversing the well considered judgment and decree of the Trial
Court without assigning any justification or satisfactory finding
to support such reversal?
(iv) Whether the impugned Judgment that has held that a person
in actual possession of an erstwhile joint family property is not a
necessary party at all to a partition suit seeking his ejection is
wholly opposed to the established rule of Hindu law as also to the
decision of this Honble Court in Vishwambhar v. Laxminarayana
(Dead) through LRs [AIR 2001 SC 2607 : 2001 (6) SCC 163] and so,
unsustainable in law?
(v) Whether the impugned Judgment that has held that justice is
done when a person in actual possession of an erstwhile joint
family property is heard for the first time after having suffered a
preliminary decree against his interest and possession is not
contrary to the decision of this Honble Court in Kanakarathanammal
v. Loganatha Mudaliar [AIR 1965 SC 271 : 1964 (6) SCR 1] and is
therefore, wholly unsustainable in law?
(vi) Whether the impugned Judgment that has held that subsequent
purchasers from original stranger-purchaser of erstwhile joint
family properties are not necessary parties to a partition suit
even when the coparceners possess knowledge of the fact of
subsequent sale and of the fact that the original purchaser is no
longer in possession is wholly unsustainable in law?
(vii) Whether the impugned Judgment that has led to a
preliminary decree without intending it to be final even with
respect to matters already decided by the Court is wholly opposed
to the provisions of the Code of Civil Procedure, 1908 as also to
the decision of this Honble Court in Venkata Reddi v. Pothi Reddi
[AIR 1963 SC 992] and so, unsustainable in law?
(viii) Whether the impugned Judgment is opposed to the
provisions of the Code of Civil Procedure, 1908 to the extent it
has directed the addition of fresh parties under Order 1 Rule 10
after the passage of a preliminary decree notwithstanding the
decisions in Baman Chandra Acharya v. Balaram Achary [AIR 1966 Ori
160] and Neelakantha Pillai Ramachandran v. Ayyappan Pillai [AIR
1978 Ker 152] that hold that any such addition is limited to
purchasers of property subsequent to the passage of the preliminary
decree and to legal representatives of a party who dies subsequent
to the passage of the decree?
(ix) Whether the impugned Judgment is a complete nullity by
reason of the law laid down by this Honble Court in Jaladi Suguna
(Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC
521] wherein it was held that a decision on who is a legal
representative of a dead person delivered after a judgment on
merits is a decision made by purporting to hear that dead person
and so, both the judgment on merit as well as the decision itself
are complete nullities in the eyes of law? (x) Whether the impugned
Judgment that does not uphold alienation that is fully supported by
family necessity and in the absence of a specific prayer for
cancellation of the Sale Deed is wholly opposed to well-established
Hindu law and is also contrary to the decision of this Honble Court
in Sushil Kumar v. Ram Prakash [1988 (2) SCC 77 : AIR 1988 SC 576 ]
and so, unsustainable in law?
(xi) Whether the impugned Judgment that has permitted, in the
absence of any excuse, the institution and prosecution of a
partition suit by coparceners against stranger purchasers without
bringing in the entire joint family property is contrary to the
established rule of Hindu law as well as to the decision of this
Honble Court in Kenchegowda v. Sidde Gowda [1994 (4) SCC 294 : JT
1994 (4) SC 125] and so, unsustainable in law?
(xii) Whether the impugned Judgment that has held that a person
in lawful possession of a property acquired under a registered
instrument and not barred under any law in force and never
impeached thereafter should first admit another as the true owner
in order to prevail on a claim of adverse possession is contrary to
well established law and specifically, to the decision of this
Honble Court in State of West Bengal v. Dalhousie Institute Society
[(1970) 3 SCC 802 : AIR 1970 SC 1778] and is so, unsustainable in
law?
(xiii) Whether the impugned Judgment holding that a second
partition suit is not barred under Order 9, Rule 9 of the Code of
Civil Procedure, 1908 is grossly perverse in law and so,
unsustainable to the extent it has extended such a principle to
previously dismissed partition suits involving
stranger-purchasers?
(xiv) Whether the impugned Judgment that has held that the joint
status of a Hindu joint family is not disrupted even after
execution and adherence to a formal, irrevocable and unequivocal
registered separation and partition deed by and between all the
coparceners is opposed to the well-established rule of Hindu law as
well as to the decision of this Honble Court in Girija Nandini Devi
v. Bijendra Narain Choudhary [AIR 1967 SC 1124 : 1967 (1) SCR 93]
and so, unsustainable in law?
(xv) Whether the impugned Judgment that has held that the joint
status of a Hindu joint family is not disrupted even when a member
thereof institutes and prosecutes a partition suit against other
coparceners demanding equal share and separate and distinct
possession is wholly opposed to the well-established rule of Hindu
law as well as to the decision in Soundararajan v. Arunachalam
Chetti [1915 (29) MLJ 793 :(1916) ILR 39 Mad 159] and so,
unsustainable in law?
(xvi) Whether the impugned Judgment that has held that the joint
status of a Hindu joint family is not disrupted even when a member
thereof claims separateness in a disruptive written statement made
in response to a disruptive partition suit is wholly opposed to the
well-established rule of Hindu law as well as to the decision in
T.S.Swaminatha Odayar v. T.S.Gopalaswamy Odayar [AIR 1939 Mad 81 :
1938 (2) MLJ 704] and is so, unsustainable in law?
(xvii) Whether the impugned Judgment that has held that the
joint status of a Hindu joint family is not disrupted even when the
plaintiff coparcener seeks imprisonment of defendant coparcener
through a court of law in the course of prosecution of a disruptive
partition suit is wholly opposed to the well-established rule of
Hindu law and is so, unsustainable in law?
(xviii) Whether the impugned Judgment that has mischaracterized
mere co-sharers as co-parceners of a non-existent Hindu joint
family and has accordingly misapplied the law of co-parceners to
defacto co-sharers is not contrary to the decision of this Honble
Court in Kalika Prasad v. Chhatrapal Singh (Dead) [AIR 1997 SC 1699
: 1997 (2) SCC 544] and so, unsustainable in law?
(xix) Whether the impugned Judgment that has created a rule
permitting coparceners to continue an appeal from a dismissed
partition suit against stranger purchasers upon the death of the
only coparcener-vendor is unsustainable in law besides being
contrary to the decision of this Honble Court in Perinadu village
v. Bhargavi Amma (Dead) by LRs [2008 (8) SCC 321]?
(xx) Whether the impugned Judgment that has arisen from a
proceeding that suppressed the argument of a dead and
non-substituted coparcener-vendor who acted as the only vital link
between plaintiff-coparceners and defendant-stranger purchasers is
unsustainable in law?
(xxi) Whether the impugned Judgment that failed to dismiss the
partition suit instituted on suppression, lies and fraud is
contrary to the decision of this Honble Court in Chengalvaraya
Naidu v. Jagannath [1994 AIR 853 : 1994 (1) SCC 1 ] and is so,
unsustainable in law?
(xxii) Whether the impugned Judgment that has held that the
possession of a transferee-stranger from a co-sharer through a
registered instrument in which the transferor-cosharer proclaims
absolute ownership is not adverse to the non-alienating cosharers
from the date of possession by that transferee-stranger is contrary
to well established law as well as to the decision of this Honble
Court in Achal Reddi v. Ramakrishna Reddiar [AIR 1990 SC 553 : 1990
(4) SCC 706] and so, unsustainable in law?
(xxiii) Whether the impugned Judgment that has misconstrued the
scope of a regrant proceeding under the Karnataka Village Offices
Abolition Act, 1961 is unsustainable in law?
(xxiv) Whether the impugned Judgment that has held that a
regrant proceeding under the Karnataka Village Offices Abolition
Act, 1961 is in the nature of a proceeding described under Section
14 of the Limitation Act, 1963 in relation to post-regrant
partition suits is contrary to the decision of this Honble Court in
Rajendar Singh v. Santa Singh [AIR 1973 SC 2537 : 1974 SCR (1) 381]
and is so, unsustainable in law?
(xxv) Whether the impugned Judgment that has held that the
limitation to disturb the lawful possession of a person in an
erstwhile inam land begins only upon the passage of a regrant Order
made under the Karnataka Village Offices Abolition Act, 1961 is
contrary to well established law governing injunction and so,
unsustainable in law?
(xxvi) Whether the impugned Judgment that has held that the
limitation to sue is arrested and dissolved once the underlying
regrant Order is set aside is unsustainable in law besides being
opposed to Section 3 of the Limitation Act, 1963?
(xxvii) Whether the impugned Judgment that has held that a mere
regrant Order under the Karnataka Village Offices Abolition Act,
1961 enables a regrantee to seek mandatory injunction with respect
to construction or improvement effected by a person in lawful
possession of the erstwhile inam land is wholly opposed to the
established interpretation of the Karnataka Village Offices
Abolition Act, 1961 and therefore, unsustainable in law?
(xxviii) Whether the impugned Judgment that has misconstrued the
scope of a regrant Order passed under the Karnataka Village Offices
Abolition Act, 1961 by not recognising the power of a civil court
to determine the benefit from such regrant Order is unsustainable
in law as it is opposed to the decision of this Honble Court in
State of Rajasthan v. Harpool Singh (Dead) by LRs [2000 (5) SCC 652
: 2000 (4) SCALE 336]?
(xxix)Whether the impugned Judgment that has held that a
partition suit instituted by persons who have secured a regrant
under the Karnataka Village Offices Abolition Act, 1961 becomes
non-est, null and void in the eyes of law in the event of a
subsequent set-aside of the regrant order is unsustainable in
law?
(xxx) Whether the impugned Judgment that has, in essence, ruled
that all decrees, injunction or other Order passed by a competent
court of civil jurisdiction upon a partition suit instituted by
regrantees under the Karnataka Village Offices Abolition Act, 1961
are automatically nullified, set at naught and rendered void in the
event the regrant order is subsequently set aside is wholly bad in
law?
(xxxi) Whether the impugned Judgment that has awarded two
preliminary decrees with respect to the same piece of Government
land is unsustainable in law?
(xxxii) Whether the impugned Judgment that has decreed title and
separate possession of property upon suit property that has become
Government land and is under the control of the Bangalore
Development Authority without even hearing the Bangalore
Development Authority is not wholly unsustainable in law?
(xxxiii) Whether the impugned Judgment that has held that
dispossessed coparceners in a partition suit against
stranger-purchasers need only pay a nominal fee instead of
ad-valorem fees is fully contrary to the well established rule of
law and so, unsustainable in law besides being in violation of the
Karnataka Court Fees And Suits Valuation Act, 1958?
(xxxiv) Whether the impugned Judgment is sustainable in law when
it declares that, notwithstanding the previous decision of a
Division Bench of the High Court that the possession of a certain
person is lawful, a Civil Court may still reach a different
conclusion on the very controversy settled by the previous decision
of the High Court?
(xxxvi) Whether the impugned Judgment is unsustainable in law
when it departs from the presumption that a prior partition between
coparceners of a Hindu joint family is complete, both as to parties
and properties without any evidence offered to rebut that
presumption and so, acts contrary to the decision in Narmada
Tulsiram Shet Agarwal v. Rupsing Bhila (AIR 1938 Bom 69)?
(xxxvii) Whether the impugned Judgment that has limited the
doctrine of estoppel to mere acts of representation and not to acts
of omission and conduct is contrary to the decision of this Honble
Court in B.L.Sreedhar v. K.M.Munireddy (Dead) [AIR 2003 SC 578 :
2003 (2) SCC 355] and is therefore, unsustainable in law?
(xxxviii) Whether the impugned Judgment that has refused to
uphold the claim of estoppel in the circumstances of the case is
contrary to the decision of this Honble Court in Manibhai v. Hemraj
[1990 (3) SCC 68 : 1990 (2) SCR 40] and so, unsustainable in
law?
(xxxix) Whether the decision of the Division Bench to permit two
living wives of a deceased Hindu male and children born to the two
wives to represent his estate in a subsisting partition suit that
was instituted by him to claim ancestral property violates Section
16(3) of the Hindu Marriage Act, 1955 and is so, unsustainable in
law? (in terms of the decision of this Honble Court in Jinia Keotin
v. Kumar Sitaram Manjhi [2003 (1) SCC 441 : 2002 (10) JT 571].
(xl) Whether the Hon'ble Division Bench has grossly erred in
proposing in paragraphs 61, 88 and 99 of the impugned Judgment,
propositions of law that wholly derogate from the principles of
natural justice and deprive a person of property without adhering
to the procedure established by law?
(xli) Whether the impugned Judgment is grossly perverse when it
proposes that the title, interest and relief in respect of
subsequent impleaders to the suit properties could be decided even
without a full-fledged trial?
(xlii) Whether a partition-Court is empowered to decree the suit
by granting reliefs not claimed or granting reliefs beyond what is
claimed in a suit?
(xliii) Whether a Court may treat a purchaser through a
registered transfer deed as an intermeddler for the purpose of
Section 2(11) of the Code of Civil Procedure, 1908 even without
hearing such a purchaser?
(xliv) Whether a body of unknown, indefinite and shifting
persons could be treated by any Court as the legal representatives
of a deceased person in terms of Section 2(11) of the Code of Civil
Procedure, 1908?
3. DECLARATION IN TERMS OF RULE 4(2):The Petitioners states that
no other Petition seeking Special Leave to Appeal has been filed by
them against the above said impugned Judgment and Final Common
Order dated 16-12-2011 passed in Regular First Appeal No.271 of
1998 and in Regular First Appeal No.275 of 1998 by the Honble
Division Bench of High Court of Karnataka at Bangalore.
4. DECLARATION IN TERMS OF RULE 6:-The Annexure-P/1 to P/
produced along with the Special Leave Petitions are true copies of
the pleading/documents which form part of the record of the case in
the Courts below against whose order the Leave to Appeal is sought
for in these Petitions.
5. G R O U N D S:-(A) The interpretation by the Division Bench
of the provisions of the Karnataka Village Offices Abolition Act,
1961 is grossly erroneous:- (i) The High Court fell into complete
error in the matter of interpreting the provisions of the Karnataka
Village Offices Abolition Act, 1961 to the facts of this case. As
such, by reason of such erroneous interpretation of the statute,
the High Court has deprived Rudraiah of a bundle of rights that had
lawfully accrued to him. (ii) Further, the High Court fell into
error in assuming that the suit schedule lands were Government
lands. To begin with, the suit schedule lands were not Government
lands. Since the High Court had mis-characterised the suit schedule
lands as Government lands, the High Court fell into further error
by refusing to notice the vested rights of Rudraiah who had
acquired lands that the High Court had already mis-characterised as
Government lands. (iii) The High Court failed to assess the scope
of the Karnataka Village Offices Abolition Act, 1961 in the correct
perspective. A short and compact legislation, the Karnataka Village
Offices Abolition Act, 1961 had abolished all village offices on
and from the appointed date. The High Court has wholly erred in
viewing this statute as if it were passed solely for the welfare of
village officers and to the detriment of whoever came into contact
with erstwhile inam lands. (iv) The object and reasons to this
statute had said that: in pursuance of the Government policy of
abolition of intermediaries, it is considered desirable to abolish
all the hereditary village officesMoreover, these offices are a
relic of the old feudal system and Government considers that the
time has come to abolish them. Further, Section 9 of the Karnataka
Village Offices Abolition Act, 1961 did provide for a scheme for
compensation to the erstwhile holders of village offices. The said
scheme is both elaborate and substantial. As such, the High Court
failed to notice that persons who had acquired erstwhile inam lands
did not deserve to be penalised or denied the due protection of the
laws that apply to other persons similarly situated as them. In the
instant case, Rudraiahs conduct with Narasimha Murthy was truthful
and he has stated and maintained as such in every Court or
Tribunal.(v) Section 4 of the Karnataka Village Offices Abolition
Act, 1961 had provided that all lands that were annexed to the
village offices stood resumed to the Government on and from the
appointed date. Specifically, the provision read: Section 4:
Abolition of village offices together with incidents thereof.
Notwithstanding anything in any usage, custom, settlement, grant,
agreement, sanad, or in any decree or order of a Court, or in an
existing law relating to village offices, with effect on and from
the appointed date -(1) all village offices shall be and are hereby
abolished;(2) all incidents (including the right to hold office and
the emoluments attached thereto, the right to levy customary fees
or perquisites in money or in kind and the liability to render
service) appertaining to the said village offices shall be and are
hereby extinguished;(3) subject to the provision of Section 5,
Section 6 and Section 7, all land granted or continued in respect
of or annexed to a village office by the State shall be and is
hereby resumed, and shall be subject to the payment of land revenue
under the provisions of the Code and the rules and orders made
thereunder as if it were an unalienated land or ryotwari land.(vi)
The High Court failed to appreciate the fact that the word resumed
occurring in Section 4 above had acquired a well-established
judicial meaning by reason of the fact that the word resume in such
legislation meant nothing more than a symbolic or nominal
resumption with a clear right upon the erstwhile office holder to
seek regrant of such resumed lands. Primarily, upon the coming into
force of the statute, the statute did not even equate resumption
with dispossession as the Holder or the Authorised Holder continued
to be in possession of the resumed land and his possession over the
resumed land was unambiguously allowed by the statute itself. Also,
the statute did not even vest the Government with any discretion to
not regrant resumed land when sought by the Holder or the
Authorised Holder. Similarly, the Government did not possess any
authority to put the resumed land to a different or public purpose
at all. As such, the land resumed under Section 4(3) was not and
never Government land but a land awaiting a formal declaration from
the Government in favour of a private person through the medium of
regrant under Section 5 or 6. The High Court wholly failed to
notice so much.(vii) To repeat, nothing in the said statute had
imposed any requirement that the erstwhile village officer (Holder)
or Authorised Holder should be dispossessed from the erstwhile inam
lands that stood resumed to the Government on the appointed
date.(viii) Further, the High Court failed to note that the
Karnataka Village Offices Abolition Act, 1961 had not, when
enacted, imposed any bar, express or implied, upon the alienation
of resumed land by the erstwhile holder of village office. On
11-03-1970, the day on which the erstwhile holder of village
office, Narasimha Murthy, alienated Sy.No.55 and 62 of
Saneguruvanahalli village to Rudraiah, there existed no statutory
bar upon such alienation. This principle has been judicially too
well settled. Further, when a statute did not forbid alienation, it
is only proper to assume that alienation was not opposed to public
policy either.(ix) As such, the sale of the resumed land by
Narasimha Murthy to Rudraiah on 11-03-1970 was perfectly valid in
the eyes of law though it did not immediately confer a perfect tile
upon Rudraiah. After such alienation, any event whereby the title
of Narasimha Murthy would become perfected would operate instantly
to also perfect the title of Rudraiah. This much is a
well-established principle of law referred to as feeding of grant
by estoppel.(x) As such, the Sale Deed entered into between
Narasimha Murthy and Rudraiah on 11-03-1970 to discharge a
pre-existing lawful family debt and a moral and pious obligation
was not illegal under any statute, much less, the Karnataka Village
Offices Abolition Act, 1961. The High Court, therefore, erred in
not noticing that the Sale Deed entered into between Narasimha
Murthy and Rudraiah did not violate any term of the Karnataka
Village Offices Abolition Act, 1961 or of any other statute in
effect in the territory of the State of Karnataka.(xi) Therefore,
the High Court failed to recognise the vested rights that Rudraiah
had acquired under the said Sale Deed. As such, without a due and
proper recognition of the rights that stood vested in Rudraiah
pursuant to the Sale Deed dated 11-03-1970, the High Court has
fallen into error by not duly adjudging the rights of Rudraiah
under the said Sale Deed.(xii) Further, the High Court appears to
have been erroneously influenced by the argument of the plaintiffs
that Rudraiah was an unauthorised holder within the meaning of the
Karnataka Village Offices Abolition Act, 1961. The plaintiffs had
also made representations to several statutory bodies asking them
to summarily evict Rudraiah and his family members from the suit
properties. Although the argument of the plaintiffs was fully
negatived by Rudraiah, the High Court appears to have been misled
by the repeated argument of the plaintiffs to the effect that
Rudraiah was an unauthorised holder and that he deserved to be
evicted summarily from the suit properties.(xiii) The definition of
unauthorised holder as it occurs in Section 2(m) of the Karnataka
Village Offices Abolition Act, 1961 says: Unauthorised holder means
a person in possession of a land granted or continued in respect of
or annexed to a village office by the State without any right, or
under any lease, mortgage, sale, gift or any other kind of
alienation thereof, which is null and void under the existing law,
relating to such village office.(xiv) The aforesaid definition of
an unauthorised holder is, therefore, wholly dependent upon the
further definition of existing law occurring in the same
statute.(xv) Section 2(f) of the Karnataka Village Offices
Abolition Act, 1961 defines existing law as under: Existing law
relating to a village office includes any enactment, ordinance,
rule, bye-law, regulation, order, notification, Firman, hukum, vat
hukum or any other instrument or any custom or usage having the
force of law, relating to a village office, which may be in force
immediately before the appointed date.(xvi) By a notification dated
20-07-1961, the Karnataka Village Offices Abolition Act, 1961 was
brought into effect from 01-02-1963. As such, the law that governed
village offices only up to 01-02-1963 is the reference point for
determining if a person is an unauthorised holder. Simply put,
certain statutes and other laws that governed village offices until
the commencement of the Karnataka Village Offices Abolition Act,
1961 were to be referred to for the purpose of determining who is
an unauthorised holder.(xvii) Further, Section 12 of the Karnataka
Village Offices Abolition Act, 1961 had specified that: Section 12
- Repeal and savings: The enactments specified in Schedule I and
any existing law relating to a village office in force in any area
of the State of Karnataka so far as they apply to village offices
or to emoluments attached to such offices are hereby
repealed.(xviii) Schedule I to the Karnataka Village Offices
Abolition Act, 1961 had originally covered these statutes: the
Mysore Village Offices Act, 1908, the Madras Hereditary Village
Offices Act, 1895, the Bombay Hereditary Offices Act, 1874, the
Bombay Hereditary Offices (Amendment) Act, 1886, the Madras
Proprietary Estates Village Service Act, 1894 and the Madras
Karnams Regulation, 1802.(xix) Accordingly, the aforesaid statutes
that were included in Schedule I to the Karnataka Village Offices
Abolition Act, 1961 stood expressly repealed upon the very moment,
the statute was brought into effect on 01-02-1963. As such, to
constitute an unauthorised holder, a person ought to have violated
one or more of those statutes or other regulation at a point of
time prior to 01-02-1963 as all such statutes and laws stood
expressly repealed by the commencement of the statute on
01-02-1963.(xx) Therefore, an unauthorised holder should have come
into contact with inam land in derogation of the statutes repealed
by the Karnataka Village Offices Abolition Act, 1961 at a point of
time prior to 01-02-1963. The Sale Deed entered into between
Narasimha Murthy and Rudraiah was not entered into prior to
01-02-1963. It was entered into on 11-03-1970 - a full seven years
after the Karnataka Village Offices Abolition Act, 1961 was brought
into effect.(xxi) Therefore, the High Court failed to note that the
entering into and execution of the Sale Deed between Narasimha
Murthy and Rudraiah did not violate any known law or statute on the
date it was executed, 11-03-1970. For the same set of reasons, even
42 years after it was entered into and executed, it has not run
afoul of any known law or statute.(xxii) Further, it was only in
the year 1978 that the Karnataka Village Offices Abolition Act,
1961 was amended to provide an express statutory bar upon
alienation of resumed land by the holder of an erstwhile village
office. In the context of interpreting such a bar introduced from
1978, alienations made prior to 1978 Amendment (07-08-1978) were
judicially held to be completely protected.(xxiii) First in 1981,
in the case of Lakshmana Gowda v. State of Karnataka [1981 (1) Kar
LJ 1 approved by this Honble Court in State of Karnataka v.
Seenappa, [ AIR 1992 SC 1531 : 1993 Supp (1) SCC 648 As we are of
the view that the judgment in Lakshmana Gowda's case deserves to be
upheld ] it was held that: From this pronouncement of the Supreme
Court, it follows that the holder or the authorised holder of a
Service Inam land did not get title to such land simultaneously
with the coming into force of the Principal Act providing for
resumption and regrant of such land only after such actual regrant
was made, though by such actual regrant, his title to the land
related back to the date of commencement of the Principal Act We
have already held that though the holder or the authorised holder
of a Service Inam Land got title to such land only when it was
actually regranted to him under Section 5 or 6 of the Principal
Act, such title related back to the date of coming into force of
that Act. From this, it would follow that if he purported to
alienate such land before it was regranted to him, but after the
Principal Act came into force, the doctrine of feeding the grant by
estoppel embodied in Section 43 of the Transfer of Property Act
came into force, the doctrine of feeding the grant by estoppel
embodied in Section 43 of the Transfer of Property Act would apply
and the title he subsequently acquired on such regrant of that
Land, would enure to the benefit of his alienee who would get a
good title to such land after such regrant into his alienor. There
is also no good reason why the benefit of Section 43 should be
denied to such an alienee when the Principal Act did not prohibit
the holder or the authorised holder of a Service Inam Land from
transferring his interest or right therein after it was resumed and
before it was regranted to him(xxiv) Notwithstanding the clear and
decisive reasoning in the aforesaid decision, judicial doubts were
again raised about the correctness of the aforesaid decision. To
resolve such recurring doubts and conflicts over the correctness of
the aforesaid decision, a Constitution Bench of the Honble
Karnataka High Court was convened and it decided as under: [Syed
Basheer Ahmed v. State of Karnataka decided on 20-12-1993 and
reported in AIR 1994 Kant 227 : ILR 1994 KAR 159 : 1994 (1) Kar LJ
385]: The definitions of the terms 'holder', authorised holder' and
'unauthorised holder' in the Act have one thing in common. They are
all with reference to the appointed date, namely, 1-2-1963 An
alienee in possession of a service inam land, in pursuance of an
alienation between 1-2-1963 and 7-8-1978, is not a person without
any right, but a person, who gets an imperfect title with
possession on the date of alienation and whose title gets perfected
on re-grant in favour of the alienor. Further an alienation of a
service inam land between 1-2-1963 and 7-8-1978 is not an
alienation which is null and void under the existing law relating
to the village office, that is, laws in force immediately before
1-2-1963. It therefore follows that a person in whose favour, a
service inam land is alienated during the period 1-2-1963 to
7-8-1978 by a 'holder' or an 'authorised holder', before re-grant
to such holder or authorised holder under S. 5(1) or 6, will
neither be a 'holder' or an 'authorised holder' or an unauthorised
holder'. Such a person will be an 'alienee from a holder/authorised
holder with imperfect title (hereinafter referred to as 'Alienee
with Imperfect Title' or 'Alienee between 1-2-1963 and 7-8-1978).
There is no provision in the Act for summary eviction of an alienee
with imperfect title that is an alienee between 1-2-1963 and
7-8-1978 We therefore hold that alienations between 1-2-1963 and
7-8-1978 cannot be invalidated on the ground that there was no
regrant prior to 7-8-1978 We are not in agreement with the said
view. What has been overlooked in Chikkanarasaiah [ILR (1989) Kant
1520] is that where the sale is prior to 7-8-1978, and a re-grant
is after 7-8-1978, the benefit of re-grant relates back to the date
of commencement of the Principal Act and thereby enures to the
benefit of the alienee in whose favour, alienation has been made
prior to 7-8-1978. The bar against alienation affected only
alienations after 7-8-1978 and not alienations prior to 7-8-1978
There is no provision in the Act authorising the State Government
or its authorities to evict an alienee under an alienation made
between 1-2-1963 and 7-8-1978. Section 7 is not applicable, as such
an alienee is not an 'unauthorised holder'(xxv) As such, the
impugned Judgment has grossly erred in not recognising the vested
rights of Rudraiah pursuant to the Sale Deed dated 11-03-1970
executed by Narasimha Murthy in his favour. As such, the Division
Bench has applied the law contrary to the Division Bench decision
of the High Court in Lakshmana Gowda v. State of Karnataka [1981
(1) Kar LJ 1] and of the Constitution Bench decision of the High
Court in Syed Basheer Ahmed v State of Karnataka.(xxvi) As the
impugned Judgment has mis-characterised the suit schedule
properties as Government lands and has accordingly recognised
little or fewer rights in the hands of Rudraiah, it deserves to be
set aside.(B) Because, the High Court grossly erred in deciding
upon who is a necessary party to a partition suit seeking ejectment
of stranger-purchasers and recovery of possession thereof. The Suit
is bad for non-joinder of necessary parties.(i) The High Court
wholly erred in considering and applying the law relating to who is
a necessary party to a partition suit brought about by coparceners
to recover property alienated without consent by a
defendant-coparcener.(ii) The decision of the High Court that in a
partition suit by coparceners to eject stranger-purchasers and to
recover possession therefrom, stranger-purchasers are not even
necessary parties is a decision without any precedent. With the
greatest of respects, it is submitted that the declaration of law
in this regard as stated by the Honble High Court in paragraph 61
of the impugned Judgment is wholly absurd and puts the entire
judgment of the High Court to grave doubt.(iii) That the High Court
was indeed dealing with a partition suit seeking relief against
stranger purchasers who had held not less than 90% of the suit
property, the declaration of the Court in regard to who are
necessary parties at the stage of a preliminary decree may be
noted: 61. In a suit for partition, at the stage of passing of a
preliminary decree for partition, the only question that needs to
be adjudicated by the trial Court is, whether the property in
question is a coparcenery property or a joint family property and
if so, what is the share to which these family members are entitled
to. For the declaration of such shares, the presence of alienees is
not necessary. Even in their absence the suit of the plaintiff can
be adjudicated upon and their presence is in no way necessary for
the court to determine the questions involved in the suit. It is
only after declaration of shares, at the stage of dividing the
property by metes and bounds and putting them in possession of the
extent of the share so declared, the character, validity and the
nature of alienations have to be taken note of. It is at that
stage, it is necessary to hear the persons who are claiming title
through such members of the family and who have parted with
valuable consideration and who are in possession of the
property(iv) With the greatest of respects, it is submitted that
the aforesaid expression of law is grossly absurd. The Honble High
Court appears to have wholly missed the fundamental characteristic
of a partition suit against stranger-purchasers. The law as laid
down by the High Court is not even applicable to a text book case
of partition simpliciter between coparceners as such a suit would
merely seek a declaration concerning coparcenary property and the
only parties to such a suit being the coparceners and none else,
the very question of a preliminary decree being passed in such a
suit would not arise as whatever declaratory Order is passed in the
first instance should itself dispose off the whole controversy and
nothing would survive for consideration by a Final Decree Court.
And, stranger-purchasers would have no role whatsoever in such
proceedings and such a declaration would be worthless and
ineffective against stranger-purchasers in any fresh suit or
proceeding.(v) Further, the High Court failed to appreciate the
proper context for the passage in Hindu Law by Mulla wherein it has
been said that purchasers are not necessary parties to a partition
suit. Under the prevailing scheme of the Code of Civil Procedure,
should some coparceners choose to institute a partition suit solely
against other coparceners and do not wish to seek any relief
against alienees, the law does not compel such plaintiffs to also
bring in the alienees. That a plaintiff-coparcener in a partition
suit is the dominus litus, the law does not cast any duty upon him
to bring in alienees as well if he chooses not to. Instead, the
interpretation placed by the High Court upon that passage is
erroneous and holds potential for great mischief. (vi) As such, the
Honble High Court has laid down a grossly absurd proposition that
declarations may be made against a stranger-purchasers interest and
possession without even hearing him in a partition suit. The
preliminary decree that the plaintiffs had sought was not for a
mere declaration but for actual division, ejectment of
stranger-purchasers and for possession therefrom. As such, the
preliminary decree issued by the High Court is not a mere
declaration that the suit properties are joint family properties.
It is so much more than that and is clearly against the interests
of known and unknown stranger-purchasers. As such, the impugned
Judgment is wholly liable to be set aside for a gross absence of
application of judicial mind.(C) The High Court overlooked its own
quotation from Hindu Law by Mulla wherein it is said that
purchasers from plaintiff should be impleaded in a partition suit.
Purchasers from Plaintiff Prahlada Rao in Sy.No.1 are according to
the High Court, necessary parties. Yet, none of these purchasers
are brought into the suit.(i) Further, the very text of Mullas
Hindu Law relied upon by the High Court in paragraph 60 of the
impugned Judgment states that The plaintiff in a partition suit
should implead as defendants, the purchaser of a portion of the
plaintiffs share, the plaintiff himself being a coparcener.(ii) The
High Court has failed to note that, in the partition deed dated
11-08-1960 executed between Narasimha Murthy, Lakshminarasappa and
Prahlada Rao, one of the items of property that was divided was
Sy.No.1 of Shivanahalli measuring 2 Acres 10 Guntas. This is an
inam land as well as suit property.(iii) Both the first regrant
Order dated 20-06-1970 and the second regrant Order dated
21-04-1982 correctly describe Sy.No.1 as inam land. As such, it was
vehemently contended before the Trial Court by Smt.Kittamma that
Sy.No.1, an inam land so known to the plaintiffs was itself
partitioned in 1960. It was this fact and argument that lent
support to the further argument of Rudraiah in Court that Narasimha
Murthy therefore acted as if he was solely entitled to Sy.No.55 and
62 properties not included in the partition deed dated
11-08-1960.(iv) In the partition deed dated 11-08-1960, Prahlada
Rao was conferred with 30 Guntas in the said Sy.No.1, an inam land.
The Trial Court has duly noted the deposition of Prahlada Rao on
the aspect of what he did with the 30 guntas in Sy.No.1 of
Shivanahalli that came to his share and possession. Prahlada Rao
had himself stated in his evidence that he had made several sites
in Sy.No.1 and had sold off all of it to various persons. Yet,
Prahlada Rao had not made any buyer of those sites in Sy.No.1 as
defendants to the suit. On this ground, the Trial Court correctly
dismissed the suit as not-maintainable due to non-joinder of
necessary parties.(v) As such, even the plaintiffs own argument
that original purchasers alone are necessary parties to a partition
suit and that later-purchasers from the original purchaser are not
necessary parties works against them so far as Sy.No.1 is
concerned. That there is no dispute that 30 Guntas in Sy.No.1 had
already been sold off by Prahlada Rao, there has been no
representation whatsoever from those purchasers of Sy.No.1. This is
also the correct ground on which the Trial Court has held that the
suit was not maintainable. Yet, the High Court has completely
ignored this aspect. As such, the High Court grossly erred when it
held that the original purchasers were on record in this partition
suit. Sy.No.1 does not contain original purchasers from sales
effected by Prahlada Rao and the suit is therefore, bad in law and
on facts. As such, the High Court was bound to notice so much and
to dismiss the appeal in entirety. The decreeing of the suit in
favour of the plaintiffs instead is therefore, perverse and liable
to be set aside.(D) Should the reasoning by the High Court on the
issue of necessary party be held to be correct, the very question
of Courts dismissing partition suits on grounds of alienation for
family necessity, adverse possession, implied consent, non
tendering of ad-valorem Court fee, suit barred by estoppel or
acquiescence or ostensible authority, person in possession not
impleaded and the like would not arise at all as it could be wholly
overcome by altogether dispensing with stranger-purchasers as
defendants: If only the reasoning of the High Court on the issue of
necessary party is held to be correct, the very question of Courts
dismissing partition suits involving stranger-purchasers on diverse
and multifarious grounds would not arise at all. Just to
demonstrate the absurdity of the reasoning by the Honble High
Court, it could be said that A, B and C, three coparceners could
simply set up a partition suit between themselves and secure a
preliminary decree by paying a nominal court fee to the Court and
ask for ejection of all stranger-purchasers and for recovery of
their possession. In the process they could easily defeat all the
decisions of the various High Courts, Privy Council and of this
Honble Court that could have come in their way on the issues of
alienation for family necessity, adverse possession, implied
consent, non tendering of ad-valorem court fee, suit barred by
estoppel or acquiescence, person in possession not impleaded and
the like. Say, with a preliminary decree that declares that each of
the three coparceners is entitled to partition and possession of
the suit properties, the Final Decree Court would have no option
but to altogether dismiss the defense all such bar to the decreeing
of a partition suit. Such a result, with the greatest of respects
to the High Court, may only be termed as grossly absurd.(E) If a
purchaser alone is a necessary party to a partition suit and not
the subsequent purchaser who is in actual possession, the bringing
of survivors of a deceased original purchaser may not serve any
legal purpose or objective:(i) The High Court also failed to notice
that the Trial Court had also correctly noted that it would be
farcical to state that only the original purchaser is a necessary
party in a partition suit and that the purchasers from the original
purchasers who are in actual possession are not necessary parties.
The Trial Court had held in essence that, if such a principle were
to be accepted, upon the death of such original purchaser, no
worthwhile purpose would be served by bringing in his legal
representatives at all as whatever reason is there to bring in an
original purchaser has simply disappeared upon his death and that
bringing in his legal representatives may have to be done
mechanically and for no intelligible reason. (ii) Particularly, the
plaintiffs had brought in the legal representatives of a few
deceased original purchasers notwithstanding their full knowledge
that the original purchasers had already alienated the property and
that the same was in the possession of subsequent purchasers. (ii)
As such, the Trial Court correctly held that the plaintiffs could
not at all be heard to say that original purchasers alone are
necessary parties under circumstances where the original purchasers
are dead and the plaintiffs bring in the legal representatives
notwithstanding their own knowledge that the property is in the
possession of someone else. The Trial Court correctly analysed this
aspect of the matter. Yet, the High Court has completely omitted to
address this substantive issue altogether.(iii) The High Court
simply failed to note that if it was simply enough to bring in the
original purchaser of a joint family property in a suit for
partition without any regard to who is in possession of the
property, it should be equally possible to dispense with the
original purchaser altogether should he be dead on the date of the
institution of the suit. In a case such as this where sales and
alienations were effected prior to 1971, none of the original
purchasers are believed to be alive as of today. Numerous partition
suits that are instituted across the country involve alienations
made to persons who are often dead by the time a partition suit is
instituted by coparceners. Should the impugned Judgment be held to
have laid down the law correctly, it should be entirely possible
for such partition suits to dispense with purchasers altogether and
secure a decree for dispossession of property even against
subsequent purchasers who are in actual possession in their
complete absence and behind their back. It is submitted with the
greatest of respects that any rule that leads to such a result is
oppressive, unjust and legally absurd. As such, the Honble High
Court committed a grave error in reversing the well-considered
dismissal Order of the Trial Court.(iv) The High Court failed to
note that the legal representatives of some of the original
purchasers who had sold off those properties prior to the
institution of the partition suit and who had, therefore no
interest whatsoever in the suit property had deposed that they had
never in their lifetime either seen or had been to the suit
property. As such, there is no intelligible reason that the High
Court could provide to hold that it is sufficient to place as
defendants in a partition suit, persons who have no interest in
suit property and persons who have never seen or had ever been to
the suit property.(F) The plaintiffs had full knowledge that 84
different purchasers from Rudraiah were in possession of Sy.No.55
and that Rudraiah had no interest in it. Yet, the High Court
inexplicably reverses the finding of the Trial Court that the suit
is bad for non-joinder of those persons:The High Court also erred
in not noticing that the plaintiffs had themselves stated in their
deposition that they were aware that 84 different persons were in
possession of Sy.No.55 of Saneguruvanahalli and that none of them
were arrayed as defendants. Therefore, the reasoning of the High
Court that persons in actual possession of suit properties are not
necessary parties even when the plaintiffs possess actual knowledge
about who is in possession is grossly erroneous and is liable to be
reversed.(G) The proceeding at the High Court after 16-04-2005 is a
complete nullity as the High Court purported to hear a dead
plaintiff, Prahlada Rao. Such proceeding and the impugned Judgment
are complete nullities in the eyes of law.(i) The proceeding as
well as the impugned Judgment are nullities in the eye of law in
terms of decision of this Honble Court in Jaladi Suguna (Deceased)
Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521] (ii) That
Prahlada Rao had expired on 03-12-2004, his legal representatives
had made an application to the High Court on 16-04-2005 to come on
record. The said application dated 16-04-2005 states that the
appeal had abated. Three distinct applications were made by these
legal representatives on the said date one for delay in filing the
applications, the second seeking setting aside the abatement and
the third for coming on record as legal representatives. Further,
there were nine persons who sought to come on record as such legal
representatives. There were two wives and seven children and no
information is provided on whether these seven children were born
to the first wife or to the second wife. It may be noted that under
Section 16(3) of the Hindu Marriage Act, 1955, children born to the
second marriage are precluded from claiming any right with respect
to the ancestral property of their parents [Jinia Keotin v. Kumar
Sitaram Manjhi 2003 (1) SCC 441 : 2002 (10) JT 571]. (iii) However,
for the next six years, the Honble High Court did not decide upon
the said applications notwithstanding the request of counsel for
defendants that the applications were required to be first
adjudicated. It is only on 16-12-2011, after the pronouncement of
the final judgment on that very day that the Honble High Court has
permitted the legal representatives of deceased Prahlada Rao to
come on record. The High Court ruled on 16-12-2011 after delivering
its final judgment that:16-Dec-2011:Order in RFA No.275/1998The
appellant is dead. Wife and children have filed an application to
come on record. There is a delay in filing the applications to
bring the LRs on record and an application for setting aside
abatement was also filed.Accepting the cause shown in the
affidavits filed in support of the applications, application for
condoning the delay, application for setting aside abatement and
application to bring the LRs on record are allowed. Appellant to
amend the cause title.(iv) As such, for the period of six and a
half years between 16-04-2005 and 16-12-2011, the High Court had
purported to hear a dead person. As such, applying the decision of
this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya
Sai Central Trust [2008 (8) SCC 521] which involved identical
facts, the entire proceeding between 16-04-2005 and 16-12-2011 is
bound to be declared as a nullity and the impugned Judgment
delivered pursuant to hearing a dead person is therefore, a nullity
in view of the mandatory provisions of the Code of Civil Procedure,
1908 as decisively laid down by this Honble Court in Jaladi Suguna
(Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC
521] wherein it was held that: the High Court ought to have
determined the question as to who are the legal representatives of
the deceased Suguna, as required by Order 22 Rule 5 CPC. But it did
not do so. Instead, it proceeded to hear the main appeal itself as
also the said two LR applications and rendered its Judgment dated
19.9.2006 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
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. 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 provisions of Rules 4 and 5 of Order 22 are
mandatory. 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. 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. 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 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.(iv) As such, the
impugned Judgment is delivered in a proceeding that purported to
hear a dead person, plaintiff Prahlada Rao between 16-04-2005 and
16-12-2011. As such, the impugned Judgment is liable to be declared
as a nullity in view of the mandatory provisions of the Code and
the decision of this Honble Court in Jaladi Suguna (Deceased)
Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521].
(G) Again, the proceeding at the High Court after 09-11-2006 is
a complete nullity as the High Court purported to hear a dead
defendant, Smt.Kittamma. Again, such proceeding and the impugned
Judgment are complete nullities in the eyes of law.(i) Smt.Kittamma
expired on 26-06-2005 without any issues or survivors and that the
fact of her death was brought to the notice of the High Court on
many occasions. The High Court committed a grave error by
withholding judgment on who would constitute the legal
representatives of Smt.Kittamma. The High Court was informed by the
counsel for Rudraiah whereupon, the High Court had passed the
following Order on 09-11-2006: Sri Surana, learned counsel would
say that the cause of action is not available in the light of the
death of Kittamma. Office to list this matter after two weeks for
the purpose of hearing with regard to the availability of the
suit(ii) However, instead of immediately adjudicating upon the
effect of the death of Smt.Kittamma or upon the issue of who would
constitute her legal representatives and could act as such in the
course of appeal, the High Court has committed a grave error by not
adjudging upon either of the two issues and by indicating its
response only in the Final Order and Judgment delivered 6 years
later on 16-12-2011. As such, the High Court has failed to
recognise that the appeal was bound to and had abated once it was
informed about the fact of Smt.Kittammas death 6 years prior to the
passage of the final judgment. As such, by reason of operation of
Order 22 Rule 3(2) of the Code of Civil Procedure, the appeal
simply stood abated on the expiry of 90 days from the date of death
of Smt.Kittamma on 26-06-2005.(iii) Upon such abatement, there was
simply no jurisdiction available to the High Court to continue with
the matter in the absence of a determination of who would
constitute the legal representatives of Smt.Kittamma. The
continuation of the proceeding before the High Court between
09-11-2006 and 16-12-2011 is tantamount to the Honble High Court
purporting to hear a dead person and the law does not recognise as
valid any judicial proceeding that purports to hear from a dead
person. The decision of this Honble Court in Jaladi Suguna
(Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC
521] is therefore, twice applicable to the impugned Judgment.
Accordingly, the impugned Judgment is liable to be set aside as a
complete nullity in the eyes of law.(iv) As such, despite request
by the counsel for Rudraiah on 09-11-2006 and repeatedly thereafter
during the course of later hearings, the failure of the High Court
to adjudge upon the abatement of the appeal as well as upon the
issue of who would constitute the legal representatives of
Smt.Kittamma and the adjudication only through the final Order and
Judgment on 16-12-2011 is grossly illegal as also without
jurisdiction.(I) The Sale Deed dated 11-03-1970 is a bar to decree
the plaintiffs suit:(i) The well-established principle of Hindu Law
necessitated the upholding of the sale deed executed by Narasimha
Murthy in favour of Rudraiah on 11-03-1970. By wholly ignoring the
said sale deed, the High Court committed a gross and grave error of
law and the impugned Judgment is therefore, unsustainable in
law.(ii) The High Court fell into grave error in not noticing the
proper and legal impact of the Sale Deed entered into between
Narasimha Murthy and Rudraiah on 11-03-1970 for a consideration of
Rs.20,000/-. This sale deed was no private document. It was validly
entered into, duly executed and promptly registered on 11-03-1970
with the office of the Sub-Registrar, Bangalore North Taluk
(Register No: 3984/69-70, Volume 2726, Book No. I, Pages 171-174).
Further the subject of Sale was not a portion of any item of
property but the entire property itself. Sy.No.55 and 62 of
Saneguruvanahalli was sold in entirety.(iii) Both Rudraiah and
Smt.Kittamma had always and at all times maintained, in every
Court, Tribunal and forum that all of the recitals in the Sale Deed
dated 11-03-1970 were true and speak to the complete truth. As of
this day, no person, not even the plaintiffs, has sought to impeach
the said Sale Deed. That is, no person has made any effort,
howsoever, to secure any judicial Order to invalidate the said Sale
Deed.(iv) The High Court failed to note that, as the plaintiffs had
never bothered to lead evidence in a Court of law to show that the
recitals in the Sale Deed were not true or that the state of
affairs presented in the said Sale Deed were not true, the
plaintiffs were not free to avoid the adverse consequences flowing
from the said Sale Deed to their interests. The terms of the said
Sale Deed and the legal meaning and impact thereof, in the absence
of challenge, was completely ignored by the High Court.(v) The High
Court failed to note the recitals altogether in the said Sale Deed.
Some of the recitals were as under: Narasimha Murthy - That I am
now in dire need of money due to certain family necessities and
adverse family circumstances. I had raised loans for construction
of house earlier, for performing the obsequies and religious
rituals upon the death of my mother and for performing marriages
and related expenses. For clearing these liabilities and also for
the purpose of discharging debt incurred by my mother; Narasimha
Murthy - I hereby declare that being the absolute and lawful owner
in respect of these lands, I have delivered absolute possession
under this document. I hereby assure you, should any dispute or
litigation arise in the future, it will be binding on me to set
right the same out of my own cost and responsibility; Narasimha
Murthy - I hereby declare that I have not alienated the schedule
property in favour of any other person or persons;Narasimha Murthy
- I hereby declare that hereafter, being the sole and absolute
owner of the schedule property, you and your children and your
descendants are at full liberty to enjoy the same peacefully with
all that the treasure, trees, fences, detunes, water ways, water
crosses, liberties, privileges and appurtenances whatsoever
available in the schedule property. And, hereafter you are at
liberty to enjoy the schedule property by getting the transfer of
Khata and other records in your name and by paying the taxes to the
Government andNarasimha Murthy - thus I have executed and signed
this Absolute Sale Deed in respect of the schedule property in your
favour out of my own free will and consent.(vi) The High Court
failed to note that as the plaintiffs had called themselves as
coparceners of the Hindu Joint family and that Narasimha Murthy was
their Manager and Karta, Hindu law had squarely demanded the
plaintiffs to recognise that none of the following obligations were
the sole or exclusive obligation of Narasimha Murthy:medical
expenses of an ailing family member, a mother, no less;expenses for
funeral, obsequies and performance of religious rites upon the
death of the mother;repayment of lawful debts incurred by that
mother;repayment of loans raised for conducting marriage and other
religious ceremonies and for connected expenses.(vii) The above
pre-existing obligations for the due discharge of which, Narasimha
Murthy proceeded to transact with Rudraiah and to sell the property
bearing Sy.No.55 and 62 of Saneguruvanahalli village were simply
the joint family obligations upon all members of the Hindu joint
family. As such, in their capacity as coparceners, the plaintiffs
were not free, under whatever interpretation of any text of the
Hindu law, ancient, modern or contemporary, to claim that they did
not have any obligation towards the aforesaid financial, familial,
moral, pious and religious obligations of their family.(viii) As
such, the High Court failed to note that the Hindu law deems that
the said Sale Deed executed by Narasimha Murthy for the benefit of
the family would fully bind the other members of that family. For
all practical purposes, it is as if the plaintiffs too were joined
with Narasimha Murthy in the said Sale Deed.(ix) The High Court
failed to note that Hindu law does not permit the plaintiffs, as
members of that family, to evade their obligation and
responsibility to their joint family and to still stake claim to
the joint family property. Under the Hindu law, there is no
requirement that every Hindu joint family should hold some property
or the other. However, where a Hindu joint family holds any
property, the same is held in trust for the good and welfare of the
family. Such property is always held in trust for the due discharge
of the familial, moral, religious and pious obligations of the
family.(x) Further, Prahlada Rao had himself deposed during trial
that he did not know anything about the loans raised by Narasimha
Murthy to treat his ailing mother. As such, both Lakshminarasappa
and Prahlada Rao were wholly ignorant about the adversity and
difficulties in their own family. Therefore, the High Court failed
to note that the plaintiffs claim to family property without
assuming the financial, moral and religious obligation of the
family is simply unsupported to any tenet of Hindu law. As such,
the High Court fell into grave error in allowing the plaintiffs to
simply stake claim to the joint family property without first
subjecting that property to satisfy the familial, moral, pious and
religious obligations cast upon the plaintiffs.(xi) Therefore, the
preliminary decree passed by the High Court purporting to apply the
Hindu law is fully opposed to the very basic faith and tenet of
Hindu law. The impugned Judgment is therefore contrary and wholly
opposed to the well-established principles of Hindu law as
administered in this country. (xii) As such, unless and until the
plaintiffs proceeded to a Court of law and sought the invalidation
of the Sale Deed made in favour of Rudraiah on 11-03-1970, the Sale
Deed is legally deemed to bind the plaintiffs and is further deemed
to have been made for the benefit of the joint family and
therefore, also represents the will of the plaintiffs themselves.
Therefore, unless a Court of law received due evidence to
invalidate the Sale Deed and proceeded to invalidate the Said Deed
containing the aforesaid terms, the Sale Deed stands in the eye of
law and the plaintiffs have no legal choice but to be bound by
it.(xiii) Therefore, the plaintiffs were never entitled to any
decree in respect of Sy.No.55 and 62 of Saneguruvanahalli village
in view of their own choice, despite repeated argument and
insistence in the Courts for the past 40 years that their claims
upon Sy.No.55 and 62 may only be heard after they impeach the said
Sale Deed. Forty Two years later, after it was executed, the Sale
Deed continues to be free from any attack and remains in
force.(xiv) Further, the High Court failed to note that the
plaintiffs were under no disability of any kind to challenge the
said Sale Deed. On the date the Sale Deed was executed .i.e., on
11-03-1970, Narasimha Murthy was aged 50 years. His brother
Lakshminarasappa was aged 49 years, and his nephew, Prahlada Rao
was aged 34 years. Therefore, neither Lakshminarasappa nor Prahlada
Rao were minors or suffered from any legal disability. (xv) The
High Court also failed to note that, only ten years prior to the
said Sale Deed, a partition deed was entered into between Narasimha
Murthy, Lakshminarasappa and Prahlada Rao on 11-08-1960. A bare
perusal of this document clearly establishes that all the three
individuals possessed the skills and ability to negotiate an
equitable partition each of the 3 individuals negotiated and
received properties the individual-wise valuation of which was
remarkably near the value got by the other members - Narasimha
Murthy received properties valued at Rs.2666.68, Lakshminarasappa
received properties valued at Rs.2666.66 and Prahlada Rao received
properties valued at Rs.2500. A deed disclosing such mathematically
equitable partition clearly reveals that the executants were fully
skilled in negotiating for their full legal entitlement. (xvi)
Further, the High Court failed to note that Prahlada Rao had
himself deposed in his evidence before the Trial Court that both he
and Lakshminarasappa were very well educated and that both of them
could read and write English very well. As such, the plaintiffs
were under no legal or factual disability, having previously
negotiated an equitable partition amongst themselves. Further, the
record clearly shows that the plaintiffs were too familiar with
litigation in Courts and Tribunals having litigated relentlessly
for well over 40 years. So, the plaintiffs had every opportunity to
ask for setting aside of the said Sale Deed. Yet, they chose not
to. (xvii) Within 11 months of the execution and registration of
the said Sale Deed, the plaintiffs sued Narasimha Murthy in a Court
of Law. They filed a partition suit against Narasimha Murthy on
06-01-1971 in the Court of the Principal City Civil Judge at
Bangalore. They conducted the partition suit for the next 7 years
and even brought in Rudraiah as a fellow defendant. Even with
awareness of their own legal right and the further awareness that
Rudraiah held Sy.Nos.55 and 62 in his own name and had taken
complete possession thereof on 11-03-1970 itself, the plaintiffs
chose to not make any effort to seek the setting aside of the Sale
Deed.(xvii) The High Court failed to note that the plaintiffs
simply chose to not legally disturb those recitals despite electing
to sue the very person in possession of those lands. Within the
time allowed by the law of limitation to impeach such a Sale Deed,
the plaintiffs chose to not disturb the recitals in the said deed.
Even beyond the date of limitation, the plaintiffs chose to not
even make a feeble attempt to disturb the said Sale Deed
notwithstanding that any such belated attempt could not have been
statutorily allowed.(xviii) The High Court failed to note that
during their life time, the plaintiffs pursued every available line
of attack against Narasimha Murthy and Rudraiah except an attack on
the truthfulness of the said Sale Deed. The Sale Deed and all of
its recitals remain intact. As such, with respect to Sy.No.55 and
62 of Saneguruvanahalli, the partition-Court was bound to rule that
neither Lakshminarasappa nor Prahlada Rao could stake any claim
unless the Sale Deed was lawfully impeached. That neither
Lakshminarasappa nor Prahlada Rao chose to impeach it despite
possessing the skill, opportunity, knowledge and resources to make
an effort in that direction, no claim from them should have been
rewarded with regard to Sy.No.55 and 62 of Saneguruvanahalli
village.(xix) As such, in view of the fact that in the Sale Deed
dated 11-03-1970, Narasimha Murthy had assigned specific, distinct
and definite pre-existing reasons for the sale of property bearing
Sy.No.55 and 62 of Saneguruvanahalli village to Rudraiah, the
impugned Judgment decreeing the partition suit is made in complete
ignorance of Hindu law and is wholly unsustainable in law and on
facts. (xx) The High Court also failed to notice the applicable
Hindu Law doctrine by Mayne (16th Edition, Bharat Law House, page
840) which states: .The text of Vyasa cited in the Mitakshara
states the extent of the powers of the managing member, whether a
father or not, to dispose of family property. Even a single
individual may conclude a donation, mortgage, or sale of immovable
property, during a season of distress, for the sake of the family,
and especially for pious purposes. (xxi) Further, the burden upon
Rudraiah was of bonafide enquiry and good faith both of which were
duly discharged by him and in particular, due to his knowledge of
the affairs of the family of Narasimha Murthy in view of his tenure
as a tenant under him for two decades. In fact, even a routine
allegation that is generally found in partition suits such as
consideration was inadequate was not alleged by the plaintiffs.
(xxii) As declared by the Full Bench decision of the Madras High
Court in the case of Peramanayakam v. Sivaram [AIR 1952 Mad 419,
(1952) 1 MLJ 308]: Where an alienation is made by a father or
manager of a joint Hindu Family and if either the alienation is
fully supported by necessity or supported by necessity except to a
small extent, the alienation has to be upheld., the Division Bench
was under a duty to uphold the alienation in respect of Sy.No.55
and 62 of Saneguruvanahalli which was the subject of the Sale Deed
dated 11-03-1970 in view of absence of any challenge to its
truthfulness. As such, the impugned Judgment deserves to be set
aside in relation to Sy.No.55 and 62 of Saneguruvanahalli. (xxiii)
Further, the decision of the High Court to not uphold the Sale Deed
is also contrary to the decisions of this Honble Court: in
Vriddhachalam Pillai v. Chaldean Syrian Bank Ltd [AIR 1964 SC 1425
: 1964 SCR (5) 647] wherein it was held: ...(1) A father can by
incurring a debt, even though the same be not for any purpose
necessary or beneficial to the family so long as it is not for
illegal or immoral purposes, lay the entire joint family property
including the interests of his sons open to be taken in execution
proceedings upon a decree for the payment of that debt.(2) The
father can, so long as the family continues undivided alienate the
entirety of the family property for the discharge of his antecedent
personal debts subject to their not being illegal or immoralin
Manibhai v. Hemraj [1990 (3) SCC 68 : 1990 (2) SCR 40], wherein it
was held:In any event, an alienation by the Manager of the Joint
Hindu Family even without legal necessity and not tainted with
immorality but for his personal benefit would be voidable and not
voidin Sushil Kumar v. Ram Prakash [AIR 1988 SC 576 : 1988 (2) SCR
623 : 1988 (2) SCC 77] wherein this Honble Court had held:The
managing member or Karta has not only the power to manage but also
power to alienate joint family property. The alienation may be
either for family necessity or for the benefit of the estate. Such
alienation would bind the interests of all the undivided members of
the family whether they are adults or minors(xxiv) Further, the
decision of the High Court to grant relief to the plaintiffs
despite their election to not ask for setting aside of the Sale
Deed is also contrary to the decision of this Honble Court in
Shamshersingh, v Rajinder Prashad [AIR 1973 SC 2384 : 1974 SCR (1)
322], wherein it was held:In a suit by the son for a declaration
that the mortgage decree obtained against his father is not binding
upon him, it is essential for the son to ask for setting aside the
decree as a consequence of the declaration claimed and to pay ad
valorem Court fee under s. 7(iv)(c). A decree against the father is
a good decree against the son and unless the decree is set aside,
it will remain executable against the son and it is essential for
the son to ask to set aside the decree(J) The plaintiffs and
Narasimha Murthy were not coparceners at all as there was no joint
Hindu family in existence after 11-08-1960:(i) The High Court has
proceeded on the basis that the joint family status between
Narasimha Murthy, Lakshminarasappa and Prahlada Rao had not
disrupted and that both the partition suits were made in respect of
joint family property. It is said in the impugned Judgment [High
Court: 46. The plaintiffs suit is for partition of certain joint
family property which was jointly held at the time of the previous
suit and continues to be joint up to now]. In the judgment of the
Trial Court, it has been held that: [Trial Court: 89Admittedly, the
jointness of the family got disrupted on 11-08-1960 when all the
ancestral properties and other joint family properties were put
into the hotch-pot and dividedIn view of the absence of the joint
family as on this day, it cannot be said that the present schedule
properties are joint family properties. Therefore, as on today,
they are joint properties](ii) While the petitioners respectfully
submit that there was no joint family at all after 11-08-1960
between the plaintiffs and Narasimha Murthy, even on the
implausible theory that they were still a joint family, the
petitioners submit that the impugned Judgment is not sustainable.
As such, in some references, Lakshminarasappa, Prahlada Rao and
Narasimha Murthy are referred to as coparceners for the purpose of
argument and convenience only and not as an admission.(iii) The
High Court committed a grave error in ruling that the plaintiffs
were coparceners and that the joint family status between them was
intact and not disrupted. Due to this mis-characterisation, the
High Court has wrongly applied the law applicable to coparceners to
mere co-sharers.(iv) The High Court failed to note that the
plaintiffs were not coparceners at all with Narasimha Murthy. They
were