Final Special Leave Petition

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IN 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. WITH PRAYER 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. 2011:IN THE MATTER OF:POSITION OF THE PARTIES IN THE IN THIS HIGH COURT HON'BLE of 2012 arising out of Judgment in OF 2012
Regular First Appeal No.271 of 1998 dated 16-12-
COURT Sri B.Rudraiah Since Dead by his LRs 1. K.V.Chandrashekhara S/o R.Veeranna Hindu, Major Respondent No.6 Petitioner No.1 2. Smt.K.V.Premakumari D/o R.Veeranna Hindu, Major Respondent No.7 Petitioner No.2 3. Smt.K.V.Yashodamma D/o R.Veeranna
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Hindu, Major Respondent No.8 Petitioner No.3 4. Smt.K.V.Radhamma D/o R.Veeranna Hindu, 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 -VERSUSS.K.Lakshminarasappa Since deceased by his L.Rs., 1. Smt.Nagarathanamma W/o late S.K.Lakshminarasappa Hindu, 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 Mohan S/o late S.K.Lakshminarasappa Hindu, Major Contesting Appellant No.3 Respondent No.3 4. Sri S.L.Vijayakumar S/o late S.K.Lakshminarasappa Hindu, Major Contesting Appellant No.4 Respondent No.4 5. Smt.S.L.Umadevi D/o late S.K.Lakshminarasappa Hindu, Major Contesting Appellant No.5 Respondent No.5 6. Sri S.L.Harsha S/o late S.K.Lakshminarasappa Hindu, Major Contesting Appellant No.6 Respondent No.6
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7. Smt.S.L.Latha D/o late S.K.Lakshminarasappa Hindu, Major Contesting Appellant No.7 Respondent No.7 8. Sri S.L.Kishore S/o late S.K.Lakshminarasappa Hindu, Major Contesting Appellant No.8 Respondent No.8 Respondents No. 1 to 8 are residing at No.84 12th Main Road, Shivanagar (Shivanahalli) Rajajinagar Bangalore 560 010 9. Sri R.Bhadrappa S/o late B.Rudraiah Hindu, Major, 10. R.Veeranna S/o Late B.Rudraiah Hindu, Major
Proforma Respondent No.2 Respondent No.9
11. Sri R.Puttaswamy S/o late B.Rudraiah Hindu, Major Proforma Respondent No.4 Respondent No.11 12. Sri Yogeesh.B S/o late R.Bhadrappa Hindu, Major Proforma Respondent No.5 Respondent No.12 13. Smt.Kamalamma W/o R.Veeranna Hindu, Major Proforma Respondent No.6 Respondent No.13 Respondents No.9 to 13 are residents of Kamakshipalya, Hamlet of Saneguruvanahalli
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Yeshwanthapura Hobli Bangalore -560 079 14. Smt.Kittamma W/o late Narasimha Murthy Hindu, Major, Previously Residing at No.286, VI Cross Srirampuram Bangalore-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 Proforma Respondent No.15 Respondent No.18
18. Sri T.Manju
Respondents No. 15 to 18 are Majors Sons of M.Thimmaiah Residing at Shivanahalli West of Chord Road Main Road, Rajajinagar Bangalore 560 010 19. Smt.Gowramma W/o Munivenkatappa Hindu, Major, Residing at Laggere Village Bangalore. Proforma Respondent No.16 Respondent No.19 20. Smt.H.Rathnamma D/o Hanumanthappa W/o A.N.Murthy, Hindu, Major, Near Shanthala School, Shivanahalli, Bangalore
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Bangalore (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.Venkataramaiah S/o late Hanumanthappa Hindu, Major, residing at Door No.45, Kamala Nehru Extension, Yeshwanthapura, Bangalore Proforma Respondent No.18 Respondent No.21 22. Sri Doddaiah S/o Nanjundaiah Hindu, Major No.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 Munihanumaiah S/o late Honappa Hindu, Major No.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.22,23 and 24 are Hindus, Majors, residing at West of Chord Road, Bangalore 25. Sri Jagannatha Shetty S/o Narayana Shetty Hindu, Major No.1572, II Cross, Nagappa Block (Srirampuram)
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Bangalore 560 021 26. Sri Ramakrishna S/o Lingappaiah Hindu, Major No.306, 4th Main, 8th Cross, 6th Phase, West of Chord Road, Bangalore 560 044 Proforma Respondent No.22 Respondent No.25
27. Sri Krishnamurthy S/o Lingappaiah Hindu, Major No.306, 4th Main, 8th Cross, 6th Phase, West of Chord Road Bangalore 560 044 Proforma Respondent No.24 Respondent No.27 28. Smt.Sharadamma W/o K.NarayanaShetty Proforma Respondent No.25 Respondent No.28 29. Sri Sathyanarayanna Shetty S/o K.NarayanaShetty Proforma Respondent No.26 Respondent No.29 30. Sri VenugopalShetty S/o K.NarayanaShetty Proforma Respondent No.27 Respondent No.30 Respondents No.28 to 30 are Hindus, Major, residing at No.1572, 2nd Cross, Nagappa Block, Bangalore 560 021 31. Sri S.N.Prahlada Rao Dead by LRs 32. Smt.P.Mitravinda W/o late S.N.Prahlada Rao Aged about 65 years Proforma Respondent No.28(a) Respondent No.31(a) 33. Smt.Sudha W/o late S.N.Prahlada Rao Aged about 60 years
Proforma
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Respondent No.28(b) Respondent No.31(b) 34. Smt.Sumitra D/o late S.N.Prahlada Rao Aged about 40 years Proforma Respondent No.28(c) Respondent No.31(c) 35. Smt.Vasanti D/o late S.N.Prahlada Rao Aged about 35 years Proforma Respondent No.28(d) Respondent No.31(d) 36. Smt.Vijayalakshmi D/o late S.N.Prahlada Rao Aged about 34 years Proforma Respondent No.28(e) Respondent No.31(e) 37. Smt.Bharathi D/o late S.N.Prahlada Rao Aged about 33 years Proforma Respondent No.28(f) Respondent No.31(f) 38. Sri Madwesh S/o late S.N.Prahlada Rao Aged about 30 years Proforma Respondent No.28(g) Respondent No.31(g) 39. Sri Vadiraja S/o late S.N.Prahlada Rao Proforma Respondent No.28(h) Respondent No.31(h) 40. Smt.Savithri D/o late S.N.Prahlada Rao Aged 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, Rajajinagar Bangalore 560 010.
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(2) In Special Leave Petition (Civil) No. No.275 of 1998 dated 16-12-2011:IN THE MATTER OF:POSITION OF THE PARTIES IN THE IN THIS HIGH COURT HON'BLE of 2012 Arising out of judgement in Regular First Appeal
COURT Sri B.Rudraiah Since Dead by his LRs 1. K.V.Chandrashekhara S/o R.Veeranna Hindu, Major Respondent No.5 2. Smt.K.V.Premakumari D/o R.Veeranna Hindu, Major Respondent No.6 3. Smt.K.V.Yashodamma D/o R.Veeranna Hindu, Major Respondent No.7 4. Smt.K.V.Radhamma D/o R.Veeranna Hindu, Major Respondent No.8 Petitioners No.1 to 4 are residing at Kamakshipalya, Hamlet of Saneguruvanahalli, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore District -VERSUSSri S.N.Prahlada Rao S/o Late Narasaiah Since Dead by his L.Rs
Petitioner No.1
Petitioner No.2
Petitioner No.3
Petitioner No.4
Appellant
1. Smt.P.Mitravinda W/o late S.N.Prahlada Rao Aged about 65 year Appellant No.1(a)
Contesting Respondent No.1(a)
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2. Smt.Sudha W/o late S.N.Prahlada Rao Aged about 60 years Appellant No.1(b) 3. Smt.Sumithra D/o late S.N.Prahlada Rao Aged about 40 years Appellant No.1(c) 4. Smt.Vasanthi D/o late S.N.Prahlada Rao Aged about 35 years Appellant No.1(d) 5. Smt.Vijayalakshmi D/o late S.N.Prahlada Rao Aged about 34 years Appellant No.1(e) 6. Smt Bharathi D/o late S.N.Prahlada Rao Aged about 33 years Appellant No.1(f) 7. Sri Madwesh S/o late S.N.Prahlada Rao Aged about 30 years Appellant No.1(g) 8. Sri Vadiraja S/o late S.N.Prahlada Rao Aged about 28 years Appellant No.1(h) 9. Smt.Savithri D/o late S.N.Prahlada Rao Aged about 29 years Appellant 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.Rudraiah Hindu, Major Respondent No.1 Contesting Respondent No.1(b) Contesting Respondent No.1(c)
Contesting Respondent No.1(d)
Contesting Respondent No.1(e)
Contesting Respondent No.1(f)
Contesting Respondent No.1(g)
Contesting Respondent No.1(h)
Contesting Respondent No.1(i)
Proforma Respondent No.2
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11. Sri R.Veeranna S/o B.Rudraiah Hindu, Major Respondent No.2 12. Sri R.Puttaswamy S/o late B.Rudraiah Hindu, Major Respondent No.3 13 Sri B.Yogeesha S/o late R.Bhadrappa Hindu, Major Respondent No.4 Respondents No. 2 to 5 are all residing at Kamakshipalya, Hamlet of Saneguruvanahalli, Bangalore North Taluk, Bangalore District 14. Smt.Kamalamma W/o R.Veeranna Hindu, Major Residing at Kamakshipalya, Hamlet of Saneguruvanahalli, Bangalore North Taluk, Bangalore District Respondent No.9 15. Smt.Kittamma W/o late Narasimha Murthy No.286, VI Cross Srirampuram Bangalore 5600 021 Respondent No.10 16. Sri T.Gangadhara Murthy Major Respondent No.11 17. Sri T.Ramchandra Major Respondent No.12 18. Sri T.Ananda Major Respondent No.13 19. Sri T.Manju Major Respondent No.14 Proforma Respondent No.3
Proforma Resplendent No.5
Proforma Respondent No.7 Proforma Respondent No.8 Proforma Respondent No.9 Proforma Respondent No.10 Proforma Respondent No.11
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Respondents Nos.8 to 11 are majors, Sons of Thimmaiah, residing at Shivanahalli, West of Chord Road, Rajajinagar Bangalore 560 010 20. Smt.Gowramma W/o Munivenkatappa Leggare Village Bangalore Respondent No.15 21. Smt.H.Rathnamma D/o Hanumanthappa W/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) Respondent No.16 22. Sri B.H.Venkataramaiah S/o late Hanumanthappa Hindu, Major, residing at Door No.45, Kamala Nehru Extension, Yeshwanthapura, Bangalore Respondent No.17 23. Sri Doddaiah S/o Nanjundaiah Hindu, Major No.307, 4th Main, 8th Cross 6th Phase, Ist Stage, West of Chord Road Bangalore 560 044 Respondent No.18 24. Sri Munihanumaiah S/o late Honappa Hindu, Major No.18, 4th Main Road, 9th Cross, 6th Phase, West of Chord Road, Bangalore 560 044 Respondent No.19
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25. Sri Lingaiah No.19, residing at West of Chord Road, Bangalore Respondent No.20 26. Sri Jagannatha Shetty S/o Narayana Shetty Hindu, Major No.1572, II Cross, Nagappa Block (Srirampuram) Bangalore 560 021 Respondent No.21 27. Sri Ramakrishna Major Respondent No.22 28. Sri Krishnamurthy Respondent No.23 Respondents No.19 and 20 Both are Sons of Lingappaiah No.306, 4th Main, 8th Cross, 6th Phase, West of Chord Road Bangalore 560 044 Respondent No.24 29. Smt.Sharadamma W/o K.NarayanaShetty Major Respondent No.24 30. Sri Sathyanarayanna Shetty S/o K.NarayanaShetty Respondent No.25 31. Sri Venugopal Shetty S/o K.NarayanaShetty Respondent No.26 Respondents No.21 to 23 are Hindus, Major, residing at No.1572, II Cross, Nagappa Block, Bangalore 560 021 32. Sri S.K.Lakshminarasappa Since Deceased by L.Rs 33. Smt.Nagarathnamma Proforma Respondent No.17
Proforma Respondent No.18 Proforma Respondent No.19 Proforma Respondent No.20
Proforma Respondent No.21 Proforma Respondent No.22 Proforma Respondent No.23
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W/o late S.K.Lakshminarasappa Respondent No.27(a) 34. Smt.Shamala Devi D/o late S.K.Lakshminarasappa Respondent No.27(b) Proforma Respondent No.23(a) Proforma 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.Vijayakumar S/o late S.K.Lakshminarasappa Proforma Respondent No.23(d) Respondent No.23(d) 37. Smt.S.L.Umadevi D/o late S.K.Lakshminarasappa Proforma Respondent No.23(e) Respondent No.23(e) 38. Sri S.L.Harsha S/o late S.K.Lakshminarasappa Proforma Respondent No.23(f) Respondent No.23(f) 39. Smt.S.L.Latha D/o late S.K.Lakshminarasappa Proforma Respondent No.23(g) Respondent No.23(g) 40. Sri S.L.Kishore S/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 of the Supreme Court of India The humble petition of the Petitioners above named MOST RESPECTFULLY SHOWETH: 1. The Petitioners above-named respectfully submit that these Petitions seeking Special Leave to Appeal (Civil)
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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
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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
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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 160] notwithstanding and Neelakantha the decisions in Baman v. Chandra Acharya v. Balaram Achary [AIR 1966 Ori Pillai Ramachandran 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
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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?
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(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 wellestablished rule of Hindu law as well as to the decision
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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 cosharers 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-
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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 transferorcosharer 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?
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(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]?
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(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 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 without even hearing the Bangalore Development Authority is not wholly unsustainable in
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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?
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(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
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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
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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 mischaracterised 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
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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
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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
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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.
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(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,
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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
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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 01-021963. 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, 1103-1970. 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.
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(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
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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 7-81978 by a 'holder' or an 'authorised holder', before regrant 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
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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 7-81978). 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 1-21963 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 78-1978, 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 7-81978. 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
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the High Court in Syed Basheer Ahmed v State of Karnataka. (xxvi) As the impugned the suit Judgment has misas
characterised
schedule
properties
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
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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
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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, strangerpurchasers 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-
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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
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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 nonjoinder 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
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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
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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.
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(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 wellconsidered dismissal Order of the Trial Court.
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(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.
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(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
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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.275/1998 The 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:
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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 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 and rendered its Judgment dated
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
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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
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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 1612-2011. 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 09-112006 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
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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 1612-2011 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)
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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 11-031970. 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 1103-1970 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 11-031970 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
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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
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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 and Narasimha 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 the law had squarely demanded the plaintiffs to recognise that none of the following obligations were sole or exclusive obligation of Narasimha Murthy:
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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
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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. Prahlada adversity As such, were both Lakshminarasappa ignorant their about own in and the Rao and wholly
difficulties
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.
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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
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Murthy received properties valued at Rs.2666.68, Lakshminarasappa valued at received A properties deed valued at Rs.2666.66 and Prahlada Rao received properties Rs.2500. 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 06-011971 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.
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(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.
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(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.
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(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 immoral in 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 void in 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
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(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 and Narasimha Rao Murthy, had not Lakshminarasappa Prahlada
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
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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 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 merely co-sharers. The Trial Court had correctly noticed the fact that the plaintiffs were merely co-sharers between themselves and that their coparcenary had already disrupted by reason of their partition and separation deed entered into on 11-081960. As such, the Trial Court came to the correct conclusion concerning the mutual obligations and relations between the plaintiffs. (v) However, the High Court fell into error in characterising the plaintiffs as coparceners and not as are joint family properties. Therefore, as on today, they are joint
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co-sharers. By reason of such mis-characterisation, the High Court has misdirected itself and has reached a wrong result. (vi) The High Court has failed to note that on 11-081960, the plaintiffs and Narasimha Murthy had entered into a partition and separation deed between themselves. The recitals in the said partition deed were not even noticed by the Honble High Court whereas the Trial Court rested some of its contextual findings on the recitals contained in the said partition deed. The recitals in the said partition deed read as under: All the three of us were residing in joint family and that conflicts have arisen between us and we have lost mutual cordiality between us. We have accordingly decided to separate by entering into this Deed of Partition Parikath executed among us before other family members who are our well-wishers and close to us, and accordingly all the three of us this day got divided all the properties available in our joint family under this Parikath. (vi) The Partition deed had further stated that: The parties to this Deed hereby agree that hereafter being the lawful and absolute owners in respect of the properties allotted to their respective shares are entitled (vi) Further, the partition deed had also stated that: ...and they have this day taken possession of the properties fallen to their respective shares (vii) Finally, the partition deed had put an end to the joint family that: status between Narasimha Murthy, Lakshminarasappa and Prahlada Rao. It declares
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Hereafter there will be only bodily relationship between us and there will be no financial relationship between us. Thus, we have executed and signed this Deed of Partition Parikath out of our (Atmasantosha) true will and consent. (vii) The High Court fell into grave error in not recognising the law applicable to the disruption of the joint status of a Hindu Joint family. It has been judicially too well established that a joint Hindu family is a creation of custom and usage and that parties cannot even form themselves into a joint Hindu family by consent, agreement, desire or arrangement. (viii) Also, the High Court failed to note that in view of the fact that the existence, continuance or dissolution of a Hindu Joint family is not regulated by statute, Courts have consistently held that a Joint Hindu family is dissolved merely when members unequivocally indicate their desire to separate from each other. (ix) Further, the High Court also failed to note the consistent body of Hindu law that has developed in regard to what outward actions of the members of a Hindu Joint family have the effect of dissolving the status of a Hindu Joint family. The entering into of a partition and separation deed on the ground that the members have lost all cordiality amongst themselves is the greatest indication that coparceners could possibly give to the world that their joint status stands effectively disrupted. (x) Further, the plaintiffs were not content to merely disrupt their relationship privately. They opted to register the said partition deed and to give notice to the world at large that they had decided to disrupt the status of their joint family. Moreover, the said
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partition was entered into in the presence of their family members, well-wishers and rank outsiders. Added to it, the partition deed itself states that the executants would have mere bodily relationship thereafter and nothing more. (xi) As the High Court clearly had the benefit of the judgment of the Trial Court that had correctly applied the applicable law based on a due perusal of the said partition deed, the decision of the High Court to reverse the reasoning and analysis of the Trial Court and not offer any explanation of its own for its refusal, it is respectfully submitted, is grossly erroneous and is not sustainable. (xii) Accordingly, the impugned Judgment is wholly
unsustainable as it has grossly upset the wellestablished Hindu law jurisprudence on what facts and circumstances disrupt the status of a Hindu joint family. (xiii)Further, the High Court also failed to note that, under the Hindu law, even the filing of a partition suit by a member of a Hindu joint family could have the effect of disrupting the joint status of the family. Also, the High Court failed to note that, on the same principle, even the mere filing of a disruptive written statement could have the effect of disrupting the joint status of the family. Simply put, the High Court failed to note that between 1968 and 2012, the supposed and with coparceners had continually, bitterly
enormous hostility litigated in numerous Courts of law and Tribunals without any respite. In the face of a consistent line of authorities saying that even the mere filing of a partition suit could have the effect of disrupting the joint family status, the decision of the
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High Court that the joint family status had not disrupted on the facts before it is simply inexplicable and is without any precedent and is unsupported by any known principle of Hindu law. (xiv) The plaintiffs had initiated several dozen different proceedings in various Courts or Tribunals against Narasimha Murthy and Narasimha Murthy had initiated similar number of proceedings against the plaintiffs. Between themselves, they have relentless litigated continuously for well over 42 years. Further, the plaintiffs had repeatedly applied to the Trial Court and also to the High Court that Smt.Kittamma should be jailed on their unfounded allegation that she had instigated Rudraiah to deliberately violate an Order of the Court. The High Court failed to wholly assess that such action on the part of a plaintiff-coparcener against the defendant-coparcener could never have preserved the joint status of the family at all. As such, the High Court wholly erred in holding that notwithstanding such hostile, wholly disruptive and bitter litigation between members of a Hindu joint family, the joint family status had continued and that it would not disrupt. (xv) As such, the decision of the High Court that the partition deed entered into between the plaintiffs on 11-08-1960 that had loudly declared that they had lost cordiality between themselves and that they would have mere bodily relationship between themselves and no financial relationship did not disrupt their joint family status is inexplicable and wholly erroneous. (xvi) Further, the decision of the High Court that filing of multiple partition suits, prolonged and bitterly fought
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property disputes, initiation of several dozen hostile proceedings between themselves in several Courts and Tribunals, the filing of disruptive written statements and above all, the making of applications by some supposed coparceners to the Court that their own defendant-coparcener should be jailed would also not have the effect of disrupting the joint status of the family is a decision without any precedent and is not supported by any principle of Hindu law. (xvii) Further, the High Court also failed to note that any principle that would hold that notwithstanding such hostility and express conduct, a joint family would continue in status would call for the search of another principle to identify when a joint family status would disrupt, if at all. Since a principle of Hindu law could not say that come what may, a Hindu joint family could never disrupt at all no matter what the coparceners say or do to each other, the High Court also failed to consider what more should have coparceners done to each other to disrupt their joint status. (xviii) As such, the and impugned is wholly Judgment in conflict is grossly the
erroneous
with
established rule of Hindu law and is therefore, liable to be set aside. (xix) Further, the decision of High Court that the joint status of a Hindu joint family is not disrupted until and unless there is an actual division of the property by metes and bounds is exactly opposite to the established Hindu law principle as declared authoritatively by the Privy Council in Appovier v. Ramasubba Aiyar [1886 (11) M.I.A. 75] and adopted by the High Courts and fully approved by this Honble
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Court. The High Court erred in not noticing from the said decision of the Privy Council that: It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place; (xx) Further, the aforesaid principle has also been fully approved by this Honble Court in Girija Nandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124 : 1967 (1) SCR 93] wherein it was held that: Partition consists in defining the shares of the coparceners in the joint property; actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property. Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrator's, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property (xxi) Further, the decision of the High Court to hold that the filing of a partition suit does not have the effect of disrupting the joint status of a Hindu joint family is wholly contrary to the established principle of Hindu law as enunciated in numerous decisions and a
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leading authority on the issue, the case of Soundararajan v. Arunachalam Chetti [1915 (29) MLJ 793 : (1916) ILR 39 Mad 159 Full Bench], had held that: It seems to me that if the plaint is filed, not merely for a declaration of the plaintiff's right as a coparcener in an undivided family (as in the old Calcutta case Debee Pershad v. Phool Koeree alias Cheena Koeree (1869) 12 W.R. 510), but is brought for a partition of the joint family property on the basis that the plaintiff wishes to be treated as a divided coparcener from the date of the plaint (if not from an earlier date) and if he seeks for mesne profits at least from the date of the plaint, if not from an earlier date, and asks for the division of the properties as they stood at the date of the plaint, if not at an earlier date, it seems to me difficult to conceive of a stronger, more unequivocal and more unambiguous declaration of an intention to separate himself and if that intention is communicated through the court by summonses issued to the defendants (the remaining coparceners) in that case, such clear expression of intention becomes fully effectual to create division in status. I take it that the phrase 'clearly expressed' means 'clearly expressed to the definite knowledge of the other coparceners. (xxii) Further, the decision of the High Court that the filing of disruptive written statements and of seeking imprisonment of a coparcener would not disrupt the joint status is again opposed to the established principle of Hindu law as laid down consistently. The impugned Judgment wholly contradicts the decision in T.S.Swaminatha Odayar v. T.S.Gopalaswami
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Odayar [AIR 1939 Mad 81 : (1938) 2 MLJ 704] wherein it was held: As a severance in status can result from the filing of a plaint, it stands to reason that the filing of a written statement can produce a similar result, for, the instituting of a suit is, as mentioned above, but an instance of the application of the rule that a partition of rights can be brought about by an intimation of an unequivocal desire to separate. Thus, if upon a proper construction of a written statement it contains an expression of such a fixed desire to sever, there is no reason why it should not effect a separation in the same manner as a plaint in a partition suit does (xxiii) As such, the decision of the High Court that the joint status was still intact between Narasimha Murthy, Lakshminarasappa and Prahlada Rao is wholly opposed to established law as well to the numerous decisions of this Honble Court and is accordingly, liable to be set aside. (xxiv) Further, the High Court also grossly erred in not noticing the fact that in the Original Suit No.3 of 1971, Lakshminarasappa had stated that he had indeed purchased 8 guntas of land in Sy.No.1 sometime after partition effected in 1960. The Division Bench failed to note that Hindu coparceners do not purchase and sell properties between themselves such a conduct is unknown to Hindu Joint families. As such, the Division Bench also failed to note that Lakshminarasappa did not have to buy anything from Narasimha Murthy in respect of Sy.No.1 of Shivanahalli if only Lakshminarasappa had any right or even a vestige of right over the said Sy.No.1. Sy.No.1 is one of six items of suit property that has
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been decreed by the High Court. Therefore, the entire cause of action claimed by the plaintiffs on the ground that they are coparceners of a Hindu joint family is in complete opposition to the principles of Hindu law. As such, the impugned Judgment is liable to be set aside. (K) The possession of Rudraiah was wholly adverse to whatever right the plaintiffs held over Sy.No.62 - for a period exceeding the statutory bar of 12 years: (i) The High Court failed to note that Rudraiahs possession over Sy.No.62 of Saneguruvanahalli was clearly adverse to the interests of the plaintiffs from the date on which he was put in possession by Narasimha Murthy on 11-03-1970. (ii) The High Court failed to note that a party who wishes to plead adverse possession need not always begin by recognising someone else as a true owner and oneself as illegally in occupation of the land. In the instant case, the possession and title, albeit imperfect, of Rudraiah was taken under the sale deed dated 11-031970. This sale deed was not revocable even at the will of Narasimha Murthy. Narasimha Murthy had purported to transfer all that he possessed with respect to Sy.No.55 and 62 of Saneguruvanahalli to Rudraiah. As such, upon a public declaration by Narasimha Murthy that he held Sy.No.55 and 62 exclusively in his own name and interest, the interest of Lakshminarasappa and Prahlada Rao necessarily stood excluded from those properties. It is this exclusion that is hostile and adverse to the plaintiffs. As such, Rudraiah need not have alleged that someone else was a true owner of Sy.No.62 in order to
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claim adverse possession against the plaintiffs. The Division Bench failed to note that the concept of adverse possession merely refers to hostility as opposed to permissiveness. (iii) The possession of Rudraiah over Sy.No.62 was not permissive Narasimha under Murthy the as plaintiffs or even Murthy under had Narasimha
purported to absolutely divest himself of all that he held in those properties. (iv) The High Court failed to note that the doctrine of adverse possession as applied by the Courts of law in India is not a common law doctrine. Rather, it is a doctrine solely evolved for the purpose of interpreting certain provisions of the Limitation Act. The language employed under the Limitation 1963, Act clearly imposes a bar to the institution of a suit beyond a period of 12 years from the day on which the possession of the defendant becomes adverse to the plaintiff. (v) As may be seen from the plain language employed in the statute itself, for the purpose of deciding whether the possession of the defendant has become adverse to the plaintiff, it is not essential that the defendant should label the plaintiff as the true owner of the property in question. (vi) The decision of the High Court that the defendants are not entitled to plead adverse possession simply because they have always claimed their possession to be lawful and in furtherance of their own title is grossly erroneous. The decision of the High Court has wholly missed the true scope of the provisions of the Limitation Act, 1963.
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(vii) The High Court failed to note that a suit for partition is an equitable remedy and the provisions of the Limitation Act cast no duty upon a Court of Equity to embark upon a discovery of the true owner for the purpose of applying the bar contained therein. The period of limitation is a statutory bar to the institution of a suit. As such, the provisions of a limitation statute are to be construed in a manner that would permit a Court to summarily determine whether the case before it attracts such a bar. The argument of the plaintiffs that the claim of adverse possession cannot be taken except in the presence of and upon affirmation of a true owner presupposes that who is a true owner for the purpose of the Limitation Act is readily in law. (viii) The very pleading and deposition of the plaintiffs and the pleading and deposition of Rudraiah unequivocally establishes that Rudraiah has been in uninterrupted, peaceful and continuous possession of the suit property for more than 12 years and that Rudraiah had at all times claimed that he was the true, lawful and proper owner of the suit property and that his possession was taken under a validly executed Sale Deed that was duly registered and never impeached thereafter. (ix) The High Court failed to note that Courts have often prescribed that, in order to determine whether the possession of the defendant has become adverse to the plaintiff, a certain animus or hostility ought to have been visible on the part of the defendants. Such hostility, Courts have held, was necessary to inform the plaintiffs that the defendants were acting for discoverable by the Court. Such a presupposition is erroneous and is without any basis
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themselves and not for the plaintiffs. In some cases, the standard prescribed is that it should lead to an inference that the defendants seek to exclude the plaintiffs altogether. (x) The instant case satisfies such a test of hostility to the utmost extent. Rudraiah had put up permanent and imposing structures, after obtaining due approvals from the Government and other statutory agencies, in a most open and transparent manner. And, as the plaintiffs have themselves admitted extensively in their deposition, Rudraiah was always acting for himself and in every forum, he asserted his own title and not of anybody else. And, in their deposition, the plaintiffs have deposed that they always knew about such acts of Rudraiah. (xi) Rudraiah had developed his property in much the same manner as any prudent person, acting for himself and for none else and without intending to account for anyone else, would have done. Rudraiah had, at all times, fortified his property, excluded all but his own family members from his property, put up permanent constructions and structures and corresponded with the Government and agencies in his own name and for himself, secured registration and deeds for the property in his own name. These elements are what constitute hostility to any person who somehow assumes that he is, in some manner, entitled to the very lands that are in the possession of Rudraiah. (xii) As such, Rudraiah had most clearly demonstrated hostility to the fullest extent as would be demanded by the circumstances of this case. As a matter of law, there was abundant hostility and further, as a matter
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of fact, hostility was too well established by the deposition of the very plaintiffs. The plaintiffs, acting as ordinary, reasonable, rational or prudent individuals, could have reached one conclusion only that from the very first day after 11-03-1970, everything that Rudraiah had done upon Sy.No.62 was to the absolute exclusion of the plaintiffs. (xiii)As such, Rudraiah is wholly justified in invoking the plea of adverse possession. The High Court failed to note the following authorities that were cited to it for the proposition that it was unnecessary for Rudraiah to claim that someone else was the true owner of the property in question: (xiv) In the case of Chander Singh v. Jamuna Prasad [AIR 1958 PAT 193], the Patna High Court had decisively upheld the claim of adverse possession pleaded by a defendant who had maintained, all through the trial, that he was the proper and legal owner of the property in question: In my opinion a sale is complete when a sale deed is executed by the vendor Subsequently On 10-11-1930, the appellants entered into possession of the disputed land under a claim, or, more precisely, colour of title, that is to say, by virtue of a document which was void in law and did not confer on them a valid title. Although the title that the defendants had under the sale deed was void, their possession nevertheless being under a claim or colour of title, must be regarded as adverse to the persons entitled to possession. They remained in such possession consequently for upwards acquired a of twelve perfected years title and by
prescription: see the case of Bageswari Charan Singh v. Jagarnath Kuari, AIR 1929 Pat 117 (FB).
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I hold, therefore, that the plaintiffs' suit for recovery of possession of the disputed properties in possession of the appellants is barred by limitation. (xv) In the case of State of West Bengal v. Dalhousie Institute [AIR 1970 SC 1778 : 1970 (3) SCC 802], this Honble Court had upheld the Order of the Calcutta High Court which held that one, Dalhousie Institute perfected its title to a certain stretch of land by adverse possession though it had claimed in Court to be the lawful owner of the land in question. As a matter of fact (though not, strictly in accordance with law), the Dalhousie Institute was granted or gifted a certain stretch of land by the Government. And Dalhousie Institute had always claimed that it was the lawful owner of the said stretch and had remained in continuous, peaceful and uninterrupted possession of the stretch for more than 60 years the statutorily prescribed duration. Several agencies of the Government had dealt with the Dalhousie Institute as if it were the owner of the land in question. The High Court has grossly erred in overlooking the decision of this Honble Court in the said Dalhousie Institute case (supra). (xvi) The Division Bench simply failed to see the legal effect of the partition effected between Narasimha Murthy, Lakshminarasappa and Prahlada Rao on 11-08-1960. It was the intention of all the three individuals that there should be no financial or unique relationship between them from that day onwards. As such, they were never a joint family after that day. Any property that was jointly provided to the three individuals thereafter would still be a joint property but not a joint family property. For the same reason, the three persons between them merely shared the relationship
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of co-sharers and not of coparceners. Therefore, the Honble Court failed to note that the possession of Narasimha Murthy over any particular property could not be construed as the possession of the other two as well if only Narasimha Murthy had demonstrated exclusion or hostility in respect of that property. (xvii) That Narasimha Murthy did proceed and execute a Sale Deed in favour of Rudraiah on 11-03-1970 by claiming exclusivity over Sy.Nos.55 and 62 and had registered the same, his acts constituted hostility against the plaintiffs. As such, hostility between Narasimha Murthy and the plaintiffs began on the day that Rudraiah stepped into Sy.No.62 as an exclusive owner 11-03-1970. His possession between 11-031970 and 21-07-1983 was peaceful, uninterrupted and continuous and was also in excess of the statutorily prescribed period of limitation of 12 years. The High Court failed to note as much and has accordingly, committed a grave error in refusing to dismiss the suit on the ground of adverse possession by Rudraiah in respect of Sy.No.62 of the suit property. (xviii) Further, the hostility between Narasimha Murthy, Lakshminarasappa and Prahlada Rao appears to be anterior to 11-03-1970. The hostility had begun as early as 1961 when Narasimha Murthy secured the mutation in respect of the inam lands. Prahlada Rao has in his deposition stated that they had opposed Narasimha Murthy at that juncture itself. Also, in the first partition suit, O.S.No.3 of 1971, Lakshminarasappa and Prahlada Rao had sought mesne profits and accounts from Narasimha Murthy for the period from 1960 itself. As such, the hostility between Narasimha Murthy, Lakshminarasappa and
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Prahlada Rao was evident right from 1961. Yet, the High Court has overlooked these aspects and has therefore, wrongly dismissed the argument of adverse possession advanced by Rudraiah in respect of Sy.No.62 of Saneguruvanahalli. (xix) Further, the decision of the High Court that Rudraiah could not have claimed adverse possession is also contrary to the decision of this Honble Court in Kalika Prasad v. Chhatrapal Singh (Dead) by LRs [AIR 1997 SC 1699 : 1997 (2) SCC 544] wherein a person who was put into possession of an inam land as a Power of Attorney Holder and remained therein despite revocation of the Power of Attorney was protected against non-alienating regrantees who had sought to eject him. This Honble Court had held that: The appellant claimed title through one of the principals who had given power of attorney under Ex. P.3. Respondent admitted that he had come into possession thereunder and, therefore, he cannot plead adverse possession against the appellant He nowhere admitted the Mukhtiyarnama being given by plaintiffs Kalika Prasad and Ambika Prasad or his possession being through the plaintiffs at any time We are unable to agree with the learned counsel. The learned Judge has recorded the finding that even after the abolition till the date of the filing of the suit, the respondent had remained in uninterrupted possession and thereby he perfected his title by prescription. It is also an admitted position that the power of attorney given to the respondent was cancelled and thereafter no action was taken to have him ejected from the lands in his possession. After the abolition of the estate, no attempt was made to have him ejected
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(xx) Similarly, the decision of the High Court that Rudraiah could not claim adverse possession against the plaintiffs is squarely opposed to the decision of the High Court itself in Allah Baksh v. Mohammed Hussain [1996 (2) Kar LJ 336] wherein it was decisively held that: The possession of the defendant had started under the unregistered transaction and under the garb thereof, the ownership had been transferred. The defendant started using to be in possession and continued in possession claiming himself to be the owner sufficient to show hostile title and possession and cannot be said to be permissive. When, I so hold that defendants possession under illegal transfer was adverse from the very inception, I find support from the decisions of the various High Courts including the High Court of Allahabad, Chief Court of Oudh, Madras, Erstwhile Nagpur, as well as the decision of the Supreme Court which are being mentioned hereinafter In the case of Smt. Chandrakantaben J. Modi and Narendra Jayantilal Modi v Vadilal Bapalal Modi and Others their Lordships of the Supreme Court have also taken the similar view that As it well settled by the decisions of the Privy Council and the Supreme Court mentioned above that possession of a person under an invalid deed of transfer after entering into possession of it, prima facie becomes hostile and adverse to that of the real owner when the transferee claims ownership on the basis of that invalid deed and that on completion of continuous possession for the requisite period of 12 years or more, such person acquires title by adverse possession
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(L) Adverse Possession - A regrant Order is of a nominal nature only and the rights and entitlement of a regrantee are to be separately and independently decided only in a civil suit: (i) The Division Bench further erred in not noticing that hundreds of regrant Orders issued under the Karnataka Village Offices Abolition Act, 1961 have failed to secure any tangible benefit to the regrantees simply because a regrant Order by itself provides nothing in respect of erstwhile inam land alienated by the Holder. A regrant Order does not arrest the running of the period of limitation. A holder who alienates erstwhile inam land prior to the 1978 Amendment secures nothing from a regrant Order except to perfect the title of his alienee and nothing else. A regrant Order, therefore, confers a nominal benefit only also due to the fact that the scope of enquiry before the regranting authority is merely of a summary nature. A regrant Order does not convey possession and it is not even the law in the State of Karnataka that the person seeking regrant should be in possession of the land at the time of seeking regrant. Further, where an applicant is not even in possession and had previously alienated the land in question, the securing of a title would not even remain with him and would return to the alienee by operation of the principle of feeding of grant by estoppel. (ii) As such, the High Court failed to note that where a person is aggrieved by the fact that he is dispossessed from property over which he has a future expectation of regrant, he could have simply sued for possession alone by attacking the taking of possession by another without a better title and on the further ground that
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between the possessory right of the plaintiff and that of the defendant, that of the plaintiff ought to prevail over that of the defendant. As such, the very argument of the plaintiffs that they needed a regrant Order to question Rudraiahs possession does not stand to legal reasoning at all. (iii) The High Court failed to note that the Karnataka Village Offices Abolition Act, 1961 had nowhere stated that Holders would be dispossessed in respect of lands resumed by the Government. A Holder who was in possession of the erstwhile inam land continued to remain in possession of such land even after 01-021963. As such, even with respect to land resumed by the Government, the Holder had a possessory right. As such, the very reasoning of the High Court that the plaintiffs lacked a remedy without a proper regrant Order is without any basis in law or under the controlling statute, the Karnataka Village Offices Abolition Act, 1961. (iv) If a Holder lacked title but was entitled to possession, a person who dispossessed the Holder himself could have been easily sued by the Holder to recover possession. It would be absurd for the Holder to claim that he would have to wait for title by way of a regrant Order in order to recover possession. The regrant proceeding would never arrest the running of the period of limitation and yet, if the Holder were to choose to wait for a perfect title to do what he could have done without it at any rate, he takes the consequences and the Division Bench has not allowed the plaintiffs to suffer the legal consequences that flow from their own election to not disturb Rudraiahs possession limitation. over Sy.No.62 within the period of
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(v) Further, the Division Bench failed to note that in terms of the decisions of the High Court itself in Patel Veerabasappa v. Smt.Basamma [1996 (2) KLJ 102 : ILR 1996 Kar 1435] and Venkataiah v. State of Karnataka [1995 (3) KLJ 402 : ILR 1995 Kar 915], the scope of a regrant Order was extremely limited. These decisions abundantly clarify that the re-granting authorities are not empowered to partition the properties and that the regrant authorities have no power to decide the question of availability of land for partition. The enquiry contemplated under the Act is limited to finding out whether the land was attached to a Village Office and whether the person claiming regrant was a Holder of the village office or not. Expect for deciding these two facts, no other right of the parties could be decided by the regrant authorities. (vi) Further, the High Court failed to note that the pendency of the re-grant proceedings will not hit a transaction separately entered into by the Holder with third parties. As held by the High Court in G.V.Subba Rao v. Tahsildar [1998 (3) KLJ 413 : ILR 1998 Kar 2371], regrant proceedings have nothing to do with the possessory rights of the parties. The High Court had held: It legally follows that entitlement to regrant of the service Inam land, the village office holder need not necessarily be in actual possession and cultivation of that land and that the payment of land revenue with respect thereto from the appointed day is also not a condition precedent for the same. It is left open for him to pursue the remedy to recover possession of the land in due course of law
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(vii) Further, the Division Bench also failed to note the well-established decision of interpretation High of the itself Karnataka in Patel Village Offices Abolition Act, 1961 as contained in the the Court Veerabasappa (Dead) by Lrs v Smt.Basamma (Dead) by Lrs [1996 (2) Kar.L.J 102] wherein it was held that: It may be mentioned here, the Government is entitled for value of the property for the regrant of the land and each applicant need not pay the said amount. The section also stipulates only one application from the person who held the office just prior to the coming into force of the Act and all the persons who claim to be the members of the joint family cannot make application As stated above, the Tahsildar has no power to partition the property before the land is regranted. The Act also does not empower the Tahsildar to pass such an order regranting the property in favour of other members of the family. On the other hand, as stated above, the Tahsildar has to regrant the land to the person who held the office just prior to the coming into force of this Act (viii) As such, the High Court failed to note that the pendency of regrant proceedings does not inhibit vested civil rights based on the law of limitation. (ix) Also, the impugned Judgment refusing to uphold Rudraiahs claim of adverse possession is contrary to the decision of this Honble Court in Vishwambhar v. Laxminarayana (Dead) through LRs [AIR. 2001 SC 2607 : 2001 (6) SCC 163 : 2001 AIR SCW 2616], wherein it was held: There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of
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the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too lateRegarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable (x) In the present case the sale is effected on 11-03-1970 and for a period of 12 years therefrom, no challenge whatsoever is made in respect of possession taken under the said sale. Not just under the law, but even on facts, the sale is deemed to be consented to by the plaintiffs. (xi) The High Court failed to note that when Rudraiah took possession of the property, the possession of Rudraiah was that of the owner and he had a clear animus when he possessed the property in his own right. When possession is transferred by a co-sharer to an alienee, the alienees possession becomes adverse to the non alienating co-sharers. The impugned Judgment is also contrary to the law laid down in the decision of this Honble Court in Achal Reddi v. Ramakrishna Reddiar [AIR 1990 SC 553 : 1990 (4) SCC 706], wherein it was held that:
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The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clear animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property (xii) The High Court ignored the fact that Rudraiah did not derive possession from the plaintiffs. Rudraiah had never held the possession under the plaintiffs. And the plaintiffs have themselves alleged in Original Suit No.3 of 1971 that they were entitled to participate in the sharing of profits with Narasimha Murthy after 1960 and that they were provided with no account by Narasimha Murthy. And, Narasimha Murthy did secure mutation entries in 1961 by asserting his exclusive title in respect of Sy.Nos.55, 62 and other survey numbers. (xiii)Further, as stated in the Original Suit No.3 of 1971, Lakshminarasappa had indeed purchased 8 guntas of land in Sy.No.1 sometime after partition effected in
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1960. The Division Bench failed to note that coparceners do not purchase and sell properties between themselves. As such, between these persons, there existed no co-parcenary. As such, Narasimha Murthy excluded the plaintiffs sometime in 1961 itself when he secured Khata over the properties at issue. (xiv) The impugned Judgment of the Division Bench is also contrary to the decision of the Privy Council in Govind Rao v. Rajabai [AIR. 1931 Privy Council 48] wherein it was held: the question was whether the defendants possession had been adverse to the plaintiffs for more than the statutory period. It was contended by Mr.Dube that, if not, they were held by the parties as tenants-in-common, and that the possession of one tenant-in-common was not adverse to the other, citing Corea v. Appuhamy. In that case however what was decided by the Board was that the possession would not be adverse until ouster. The defendants predecessors had not only been in sole possession and perception of the profitsfor more than the statutory period, butGopal claimed mutation in his sole name and denied that plaintiff 1 had any interest in them. he must have known that his interest in them was not admitted, and their Lordships are of opinion that on these facts the appellate Court was justified in holding that the possession of the defendant was adverse for more than the statutory period. Their Lordships are also of opinion thatAssuming that Gopal and Sonbaji were at one time joint in estate, the District Judge has found, and their Lordships see no reason to differ from that finding, that they had separated before Sonbais death, and
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the effect of that separation was that any immovable joint property which continued undivided was no longer joint family property (xv) Similarly, the Division Bench has ignored the
following authorities that were also argued before it in support of the claim of adverse possession: In Adinarayanaswamy v. Girraju Papamma [AIR 1963 A.P. 121], the Andhra Pradesh High Court had held: A Full Bench of the Madras High Court in Palania Pillai v. Amjath Ibrahim Rowther, [1942 (2) Mad LJ 321 : AIR 1943 Mad 622 (FB) ] The learned Chief Judge, who delivered the judgment on behalf of the Court, followed the decision in Secy. of State v. Debendra Lal Khan, [ILR 61 Cal 262 : AIR 1934 PC 23] and observed thus:"When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit, the other cosharers must unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests, they must take the consequences." The learned Chief Justice held that the possession of a stranger in itself indicates that his possession is adverse to the true owner, and that there is no difference between a vendee put in possession and a mortgagee. We respectfully follow this decision and hold that the enjoyment of the entire suit property by the three sisters and their putting third parties like Jayarama Sastry and Venkata Lakshamma in possession of the same is clear of the knowledge of the
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adverse possession on the part of the first plaintiff, as well as the second plaintiff. In Bharit v. Board of Revenue, U.P [AIR 1973 Allahabad 201], the Allahabad High Court had held that: The reason is not far to seek. If a person executes a deed of sale of his rights and interest he purports to transfer all that he possesses in the property which is the subject-matter of the sale. The transferee claimed prima facie to remain in possession in accordance with the terms of the deed of sale, namely, as the full owner of the rights which were the subject-matter of transfer. In case the sale is found to be invalid for any reason the passing of the title may be frustrated; but nonetheless the transferee claimed to remain in possession in accordance with the terms of the invalid sale deed, namely as the full owner of the rights in the plots, which were the subject-matter of sale. It is from this point of view it has been said that the possession of such a transferee is adverse to the transferor from the very first day when the transferee enters possession of the land. The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interest in the property. The transaction did not create or retain any privity between the parties. In such a situation, the transferee's possession could not in law, be on behalf of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale is invalid the transferee gets no title under it. His possession will not be referable to any legal title, it would be adverse to the transferor.
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In Narayan Jivaji Patil v. Gurunath Khandapagowda Patil, [1938 (40) Bom LR 1134] the Bombay High Court had held that: Upon a careful consideration of the various decisions to which I have referred, it is not permissible to any Court to travel beyond the provisions of the Indian Limitation Act. In other words, when time has begun to run owing to a right to sue having arisen or accrued to a person not under any legal disability, any subsequent disability or inability to sue is not a ground of exemption from the operation of the ordinary rule of limitation save as provided by the statute. That is, when once a period of limitation has begun to run, it would not be suspended for any reasons other than those specified in the Act itself. In Nagendra Nath Dey v. Suresh Chandra Dey their Lordships of the Privy Council observed that in construing the Indian Limitation Act equitable considerations are out of place. But no decision, I venture to think, has gone the length of laying down a new rule of limitation not covered by the Indian Limitation Act, or saying that in deciding questions of limitation it is permissible to a Court to go sometimes outside the specific provisions of the Act. In my opinion, it is difficult to hold that, apart from the provisions of the Indian Limitation Act, any principle can legitimately be invoked to add to or supplement the provisions of the Indian Limitation Act. I must, therefore, reject this contention. I started in this case with a good deal of sympathy for the unfortunate appellant and I regret the result. This is a hard case, but as it has been said, hard cases should not be allowed to make bad law, and, in
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my opinion, the law is entirely on the side of the respondent (xvi) Upon further appeal to the Privy Council from the aforesaid judgment, that Court held in Narayan Jivaji patil v. Gurunath Khandappagowda Patil. [AIR (37) 1950 Privy Council 43] that: Their Lordships have nothing to add to the reasons given in the judgment of the High Court In Joseph v. John [AIR 1960 Kerala 27], the Kerala High Court had held: On principle, and in accordance with the weight of judicial pronouncements, I come to the conclusion, that the possession of a transferee from a co-owner, of the whole property, is adverse to the other coowners from the moment of his entry (xvii) The Kerala High Court had distinguished, for the purpose of adverse possession between the: (a) position of a co-owner vis--vis other co-owners and (b) position of a transferee from a co-owner vis--vis other co-owners (which is adverse possession by a stranger vis--vis non-alienating co-owners) The Kerala High Court had held: The sole possession of a co-owneris referable to his lawful title as co-ownerBut this principle has no application to the sole possession of one, who is not in fact a co-owner, but who has obtained possession of the whole property from one who was a co-owner, by virtue of transfer or otherwise; for this purpose, he must, as he really is, be treated to be stranger to the other co-owners Adverse possession as between strangers, has only to be in the language of the Privy Council in
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Radhamoni Debi v. Collector of Khulna (ILR 27 Cal 943) adequate in continuity, in publicity and in extent, to show that it is adverse to the competitor; it is sufficient, that such possession was overt, and without any attempt at concealment, so that, the person against whom time was running ought, if he exercised due vigilance, to be aware of what was happening. The possession of a stranger, of joint property is prima facie adverse, and satisfies these elements of adverse possession In Bhagirathi Rout v. Gopal Charan Rout [AIR 1972 Orissa 206] the Orissa High Court had held that: In this suit, the cause of action for the nontransferring co sharer arose when defendant No.1 came into possession on the strength of his purchase in 1940 and limitation must be deemed to have commenced from that date. Therefore, even if there was any partition between defendant No.2 and defendant No.3 in 1952, the said partition cannot give a fresh cause of action so far as the property alienated in 1940 is concerned and as such, the suit is barred by limitation (xviii) Finally, the decision of the High Court is wholly opposed to the decision of this Honble Court in Rajendar Singh v. Santa Singh [AIR 1973 SC 2537 : 1973 (2) SCC 705], wherein it was held that: If Section 52 of the Transfer of Property Act was really intended to strike at the running of the period of limitation, based on the considerations mentioned above, it would have made it clear that the law excludes the period spent in any litigation from computation. Exclusion of time in computing periods of limitation is a different subject altogether to which the whole of Part III of the Limitation Act is devoted.
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There, we find Section 14, which deals with exclusion of time of proceeding bona fide in Court without jurisdiction. There are certain conditions for the applicability of Section 14 of the Limitation Act. One of these is that the plaintiff should have prosecuted, with due diligence, civil proceedings founded upon the same cause of action. In the case before us, the cause of action arose, according to the plaintiffs, after the decision of the previous suit. The cause of action in the previous suit was entirely different. Indeed, it was the defendants-respondents who had sought relief there and set up a cause of action. Section 14 of the Limitation Act of 1908, which is the only provision of the statute specifically dealing with exclusion of time spent in another litigation, could not obviously apply to the case now before us. The only mode of relief open to the plaintiffs was to have instituted a suit of their own within the prescribed period of limitation. They did institute the suit now before us but did so long after the period of limitation had expired. In such a case Section 52 of the Transfer of Property Act could not, in our opinion, apply at all. The matter could only be covered, if at all, by some provision of the statute of limitation which, as already observed, makes no provision for such a case. The effect of Section 3 of Limitation Act is that it expressly precludes exclusion of time on a ground outside this Act even if it parades under the guise of a doctrine which has no application whatsoever here. (xix) The High Court therefore erred when it held that Rudraiah should have first accepted the plaintiffs as the true owner and thereafter claimed illegal occupation and adverse possession. The purchase is made by Rudraiah not from the plaintiffs but from
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Narasimha Murthy. Narasimha Murthy had parted with his rights in its entirety and Rudraiah had been in possession and enjoyment of the properties in his own right and against any right claimed by the plaintiffs. Therefore, the possession of Rudraiah is adverse to the claim of the plaintiffs possession or title. The suit filed more than 12 years after the date of sale was liable to be dismissed. (N) The High Court made a serious error of fact fundamental to the very dispute before it. (i) The High Court made a central error of fact that goes to the heart of the controversy. The High Court has held that: 36. The material on record discloses that after his death, his three sons continued as members of Hindu Undivided Family for some time and thereafter they effected a partition in respect of all their joint family properties under a registered deed dated 11-08-1960 except the suit schedule lands which were inam lands (ii) It is respectfully submitted that the High Court simply failed to notice an aspect that was a fundamental and obvious part of the record. The partition deed dated 11-08-1960 actually involved Sy.No.1 of Shivanahalli, an inam land. The obvious reference to Sy.No.1 is to be found in: (iii) The partition deed dated 11-08-1960: To the share of Prahlada Rao, the property allotted includes All that piece and parcel of the land bearing Survey Number 1 of Shivanahalli Village of the same Yeshwanthapura Hobli to an extent of 30 Guntas;
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(iv) Further, the plaintiffs had also lied in 1971 when they stated in their plaint that: 4. The plaintiffs submit that they along with the defendant effected partition of certain joint family properties under a registered deed of partition on 11-08-1960 and as the suit schedule properties formed service inamthi, they were not partitioned (v) Further, Sy.No.1 of Shivanahalli measuring 2 Acres 10 Guntas is the subject of regrant both in the First Order of Regrant on 20-06-1970 and in the second Order of Regrant on 19-04-1982. (vi) Further, Sy.No.1 of Shivanahalli is the very first item of suit property in the first partition suit, O.S.No.3 of 1971. It is the third item of suit property in the second partition suit, O.S.No.10311 of 1983. (vii) In the course of his deposition, Prahlada Rao had submitted during Trial that: 83I was allotted 30 guntas of land in Sy.No.1 84I have sold 30 guntas of land in Sy.No.1 during the year 1972 88Entire land in Sy.No.1 is a built up area as residential houses have been put up. I know about the purchasers of the land in Sy.No.1.I have n ot made the persons who purchased lands from me in Sy.No.1 as parties to this suit. (viii) The Trial Court correctly dismissed the suit with reference to the above factors. That the Trial Court had correctly noted the facts that were critical to the dispute, the reversal by the High Court of the considered Order of the had held: Trial Court is grossly erroneous and is liable to be set aside. The Trial Court
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96. PW-2 had got 30 guntas of land in Sy.No.1 at a partition on 11-08-1960 and he has already sold 30 guntas of land and the persons who have purchased 30 guntas from PW-2 are also not made parties in this suit as they are also purchasers of land in Sy.No.1, which subsequently came to be regranted jointly. The deposition of PW-2 as recorded in page No. 46 vide paragraph No.57 states that PW-2 has sold 30 guntas of land in Sy.No.1 and that he has not made purchasers of 30 guntas of land in Sy.No.1 as parties to this suit. And he does not know as to what purchasers from him have done. He has even admitted that Smt. Gowramma was in possession of land even prior to filing of O.S.No.3/71. At page 53, he has admitted that purchasers from Narasimha Murthy had taken possession even before filing O.S.No.3/71. PW-2 had admitted that he was present in Court Hall on 19-06-1975, when Gowramma had appeared in O.S.No.3/71. But, he states that he does not remember whether Gowramma had made such submission in Court Hall. And he does not know about the persons to whom Gowramma sold her property. And he has not made any attempts to ascertain the purchasers of the lands sold by Smt. Gowramma. These admissions are found in paragraph No. 67 of deposition of PW-2. (ix) Accordingly, the Trial Court had correctly ruled that the suit is bad for non-joinder of purchasers from Prahlada Rao in respect of 30 guntas in Sy.No.1 of Shivanahalli to dismiss the suit. (x) The grave error of fact committed by the High Court as aforesaid has further caused the commission of numerous other errors of fact and law by the High
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Court. The High Court is therefore, bound to have and has indeed erred in fact and law on: the issue of disruption of joint family property by reason of the partition on 11-08-1960; the issue of presumption of prior partition being complete both as to parties and properties; the issue of the suit being bad for non-inclusion of all the joint family properties; the issue of the suit being bad for non-inclusion of original purchasers and on the issue of the suit being bad for non-payment of ad-valorem Court fee. (xi) As such, the impugned Judgment is bound to be set aside as it is wholly vitiated by a gross error of fact fundamental to the dispute. (O) Presumption as to prior partition being complete both as to parties and properties is a complete bar to the decreeing of this suit: (i) The High Court committed a grave error in not noticing that even a mere partition amongst coparceners carries a presumption with it that the partition is complete, both as to parties and property. As laid down in the authoritative decision of Narmadabai Tulsiram Shet Agarwal v. Rupsing Bhila (AIR 1938 Bombay 69): "when a partition is admitted or proved, the presumption is that all the property was divided, and a person alleging that family property in the exclusive possession of one of the members after the partition is joint and is liable to be partitioned, has to prove his case As such, the argument of both Smt.Kittamma and Rudraiah that the partition was complete as regards parties and properties and that
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Narasimha Murthy simply acted as if he was the sole owner in respect of could Sy.No.55 not have and been 62 of Saneguruvanahalli lightly
rejected by the Honble High Court unless it had received a reasonable explanation from the plaintiffs to rebut the presumption cast with regard to partition being complete, both as to parties and properties. (ii) The High Court also failed to note that no explanation was offered howsoever by the plaintiffs on why, when the partition deed dated 11-08-1960 had categorically stated that all joint family properties are being partitioned off and that Sy.No.1 of Shivanahalli, an inam land was also included in the partition then, the plaintiffs could still claim that the balance inam lands were to be subject to the common interest. (iii) The plaintiffs were under a legal duty to satisfy the Court with a satisfactory explanation on why other inam lands were to be subject to common interest at all when one inam land came to be partitioned and removed from common interest. That the plaintiffs never offered any explanation to rebut this presumption in Hindu law, the impugned Judgment is liable to set aside. Further, the High Court failed to notice the crucial phrase in the partition deed dated 11-08-1960 that all joint family properties are hereby partitioned. As such, the impugned Judgment is liable to be set aside. (P) The second partition suit was a fraud on the Court, under the circumstances of the case; Second partition suit was wholly illegal and barred: (i) The High Court failed to note that a partition suit built on lies, fraud, suppression, oppression and
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malice came to be dismissed by the Trial Court for extremely compelling reasons. The High Court has reversed the Order and Judgment of the Trial Court without even entering into the facts of the case and by merely laying down broad propositions of law that have nothing to do with the facts of this case. As such, the impugned Judgment of the High Court is without any foundation in facts or the applicable law and therefore deserves to be set aside and the Order and Judgment of the Trial Court dismissing the partition suit deserves to be upheld. (ii) The High Court failed to notice the elements of fraud from the very conduct of the plaintiffs and the content of their plaint. The second suit was simply an engine of fraud and the High Court failed to recognise it as such. The evidence before the High Court had clearly revealed that the plaintiffs had sued Narasimha Murthy on 06-01-1971 before the City Civil Court, Bangalore. The plaintiffs had sought a relief of partition of 6 items of property. The plaintiffs had not impleaded any purchasers of any of the 6 items of property on the date of filing of the suit. The cause of action, according to the plaintiffs was that Narasimha Murthy had told them in a Panchayat held in August, 1970 that he had exclusive title to the suit schedule properties and that the plaintiffs had none. (iii) It was only in 1974 that the plaintiffs impleaded 9 different individuals as defendants. Rudraiah was defendant No.4. The fact that the plaintiffs did implead the various purchasers of the suit schedule properties itself proves that the plaintiffs had full knowledge of the alienations of suit schedule property. That the purchase of Sy.No.55 and 62 was through a Registered Sale Deed, the plaintiffs are deemed in law
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to have had notice of the same and the further fact of their impleading Rudraiah in their first partition suit renders as complete, their knowledge about the said alienation through the Sale Deed dated 11-03-1970. (iv) The plaintiffs did pursue the said suit for the next 7 years. Upon the death of Narasimha Murthy, his only legal Representative, Smt.Kittamma had on 06-031974 sought dismissal of the suit on the ground that regrant Order being the cause for the filing of th e suit, the setting aside of the very regrant Order by the District Judge in 1973 had nullified the cause of action. The plaintiffs had negatived this argument on 05-04-1974 by stating on an affidavit that the regrant Order was not the basis for their partition suit and that the regrant Order did nothing more than lead back the parties to whatever rights they held in the suit property. (v) As such, as sworn by the plaintiffs themselves on an affidavit, their rights over the suit schedule lands, Sy.No.55 and 62 of Saneguruvanahalli included, were asked to be adjudicated in the first partition suit, O.S.No.3 of 1971. As such, it was the plaintiffs themselves who had sought the jurisdiction of the Civil Court to adjudicate their rights over the suit schedule properties. The plaintiffs pursued the suit for a full 7 years until it came to be dismissed due to their own non-prosecution. (vi) On 23-02-1978, the O.S.No.3 of 1971 was dismissed for a second time. That the regrant Order was set aside by the District Judge on 13-02-1973, once the partition suit came to be first dismissed on 19-011973, the plaintiffs should not have pursued it at all if they had expected to rely upon the subsequent
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regrant Order. Still, the plaintiffs had sought and were successful in reviving the suit by preferring an application that was allowed on 05-12-1974. Once the suit was so revived, the plaintiffs conducted the same by indulging the Court on 57 different dates (while prior to the setting aside of the Order of regrant, the Court had heard the matter on 12 occasions only) and on 23-02-1978, the suit was again dismissed for nonprosecution. (vii) As such, the dismissal by a competent Civil Court of a suit in which the plaintiffs had sought to adjudicate their rights over the suit schedule properties is a judicial Order that binds the parties to the suit. The plaintiffs were simply bound by the said judicial Order in any subsequent suit in which they would seek to establish in relation to the dismissed suit. (viii) The Trial Court has correctly ruled upon the legal impact of the proceedings in the first partition suit and has accordingly held that the second partition suit was not maintainable and barred under Order 9 Rule 9. The High Court has failed to find any fault in the reasoning assigned by the Trial Court. Yet, the High Court has improperly reversed the findings and conclusion of the Trial Court. (ix) Suffering a judicial Order dismissing a suit in which the plaintiffs had sought to resolve all rights concerning the suit schedule properties, the plaintiffs simply decided to invent a few lies in 1983 to assert their lost rights: (a) Lie No.1 That the plaintiffs have started noticing certain constructions in Sy.No.62; very suit schedule properties, the rights that they had professed in the
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(b) Lie No.2 That the plaintiffs are in possession of Sy.No.62 and 55 along with Smt.Kittamma. (x) Cleverly presenting the aforesaid lies, the plaintiffs filed a second suit against Rudraiah and his legal heirs in respect No.11. of Sy.No.55 Nos.1 and to 62 10 of were Saneguruvanahalli and Smt.Kittamma was arrayed as Defendant Defendant Rudraiah and his family members. The plaintiffs clearly knew that had they only disclosed the fact that in 1978, their previous partition suit against Rudraiah over the same schedule property had been dismissed, they simply stood no chance in any Court. Mindful of the peril from being truthful, the plaintiffs decided to fully suppress the very fact of filing O.S.No.3 of 1971. It is this second act in 1983 built on lies, suppression, oppression, fraud and malice that has been richly rewarded by the High Court despite a considered rejection by the Trial court. (xi) The High Court clearly had before it, the considered Order and judgment of the Trial Court wherein the evidence led by the plaintiffs themselves had proved that they were not at all in possession of Sy.No.55 or 62 since 1970. When a party states on affidavit and oath in 1983 that he is in possession of certain property only to be heard from his own mouth that he was never in possession of that property after 1970, such a statement qualifies as a lie. However, when such a lie is seen against the fact that the plaintiffs had carved out a second suit by wholly suppressing all information about their prior partition suit, the said lie satisfies every le gal test to constitute a blatant fraud upon the Court.
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(xii) Further, the Trial Court had correctly pointed out that the plaintiffs had simply lied when they alleged in their second partition suit that they had begun to notice some constructions. The Trial Court has correctly drawn upon the various permissions from statutory agencies, sanctioned plans, communication with Government agencies and the Spot Commissioners Report to hold that the huge and imposing constructions upon Sy.No.62 were already complete prior to the filing of the second suit on 2107-1983. Further, the Trial Court has relied upon the very admission of the plaintiffs during their evidence wherein they had stated that they knew that Rudraiah had built a bungalow, a cinema theatre and several industrial sheds prior to the filing of the second partition suit. (xiii)Accordingly, the Trial Court proceeded to dismiss the suit while observing that the plaintiffs had knowingly and intentionally lied to the Court about the state of affairs in Sy.No.62 of Saneguruvanahalli while instituting the suit. (xiv) As such, the High Court failed to note that the facts before the Court had clearly evidenced fraud far serious than what was dealt with by this Honble Court in the case of Chengalvaraya Naidu v. Jagannath [AIR 1994 SC 853 : 1994 (1) SCC 1]. As such, the High Court was under a legal duty to put an end to such engine of fraud by effectively dismissing the appeal. (xv) The High Court omitted to notice the decision cited to it: Chengalavaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs [AIR 1994 SC 853 : 1994 (1) SCC 1] wherein this Honble Court had ruled that:
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The High Court, in our view, fell into patent error. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants... A fraud is an act of deliber ate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. (xvi) Under the circumstances, the plaintiffs were not entitled to seek any relief from the Court due to their own fraud and deception. Their appeals were liable to be dismissed. Instead, the decreeing of the suit by the High Court is grossly erroneous and has had the effect of rewarding a party who chose to lie, suppress and to play fraud upon the Court itself.
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(Q) Mandatory injunction does not lie in respect of developments and construction made in Sy.No.62: (i) The High Court erred in holding that the
constructions made by Rudraiah in Sy.No.62 of Saneguruvanahalli were subject to the discretion of an executing Court in regard to mandatory injunction. (ii) For the purpose of finding whether a mandatory injunction would lie, the High Court has erroneously characterized the construction by Rudraiah in
Sy.No.62 as unlawful. While holding as such, the High Court has also contradicted the decision of a previous Division Bench with regard to whether the possession of Rudraiah in respect of Sy.No.62 was lawful. It has been erroneously said in the impugned Judgment that the observation made by the previous Division Bench was in a different context. The Honble High Court has failed to note that the context for the observation in the previous case was not in a different context at all, but was made precisely on the issue of whether the construction by Rudraiah was lawful. Possession of a person in a property cannot be lawful for one set of purposes and unlawful for another set of purposes. The precise issue before the High Court on the previous occasion was whether Rudraiah could have sought for a licence to construct and operate a cinema theatre when his possession was alleged by the plaintiffs to be unlawful. The High Court (Single Judge
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Writ Petition No.8664 of 1988 Date of decision: 2001-1993) extensively delved into the very plaint in the Trial Court and the Spot Commissioners report to hold that the grouse of the plaintiffs could not have been and was not made with regard to lawful possession at all. As such, the earlier petition of the plaintiffs to the High Court alleging that Rudraiahs application for a licence to construct and operate a cinema theatre was illegal as his possession over Sy.No.62 itself was unlawful was rightly dismissed. On appeal to the Division Bench, the Division Bench upheld the Order of the Single Judge [Writ Appeal No.572 of 1993 Date of decision: 05-03-1997]. As such, in the impugned Judgment, the Division Bench failed to note the true scope of the prior Orders of the High Court. It is submitted with the greatest of respects that, if Rudraiahs possession over Sy.No.62 was lawful enough to apply for a cinema theatre licence and to construct and operate a cinema theatre building pursuant to that licence, it would be absurd to hold that what was lawful to construct when constructed and lawful to operate when operated could still be termed as unlawful by a later Civil Court. There is no scope for such characterization without contradicting the prior Division Bench
decision of the High Court. As such, the Trial Court
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had correctly concluded, by contextual reliance upon the previous High Court decisions that the relief of mandatory injunction did not lie at all in respect of Sy.No.62. In reversing the considered Order of the Trial Court, the Division Bench has committed a grave error. As, such, the impugned Judgment is liable to be set aside.
(R) The Decree by the High Court carries the inherent risk that suit properties might have been misrepresented as the persons in actual possession are mostly kept away from the suit. (i) The High Court failed to note that the decree drawn by it carries an inherent and a real risk that properties described in the suit may not even be in existence or might have been inaccurately identified. Even the possibility of misrepresentation altogether in respect of such property cannot be ruled out at all in view of the fact that the persons in actual possession of the suit properties have largely been excluded from the suit. (ii) The High Court failed to note that the impugned Judgment is not even accompanied by an underlying satisfaction that the properties described in the suit are accurately identified as persons in actual possession of nearly 90% of the suit properties are either not known to the plaintiffs themselves or despite knowledge, have not been made as parties to the suit. In so far as Sy.No.55 of Saneguruvanahalli is concerned, the plaintiffs had deliberately kept the
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purchasers away from the suit despite knowledge about those 84 purchasers. As such, the impugned Judgment is wholly liable to be set aside for its potential for great mischief. (S) Hundreds of unheard and unrepresented purchasers are subject to dispossession by reason of the impugned Judgment. (i) Further, the High Court completely lost sight of the fact that, of the six items comprising more than 10 acres of suit schedule property in the city of Bangalore, only Rudraiah is in possession of 1 item comprising 1.21 Acres in Saneguruvanahalli. Neither the plaintiffs nor the High Court has had any information on who is in actual possession of the balance suit schedule property. That this property is situated in the city of Bangalore and is expected to be in the possession of several hundred different purchasers, the decree of the Honble High Court has had the effect of first issuing a judicial decree to dispossess unknown but discoverable persons in actual and lawful possession of suit property and to then begin a discovery of who is in possession of such property and what might be his right over that property. Such an Order may only be termed as grossly illegal with the greatest of respects. (ii) The decision of the Division Bench is also wholly opposed to established law and is contrary to the decision of this Honble Court in Kanakarathanammal v. Loganatha Mudaliar [AIR 1965 SC 271 : 1964 (6) SCR 1] wherein it was held that: It is true that under O. 1 R. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the
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misjoinder or non-joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal (iii) Therefore, despite the adding of some of the
defendants, the suit continues to suffer from the defect of non-joinder of necessary parties. Even in respect of parties already on the record, several of them were added after the period of limitation. As it is too well established that parties who are in possession are not just proper, but are necessary parties without whom, no effective relief is possible, the non-joinder of such parties is fatal to the prosecution of the suit and the same was liable to be dismissed on that ground alone. (T) Bangalore Development Authority is a necessary party to the suit but has been deliberately kept out by the plaintiffs: Further, the High Court also erred in not noticing that the Bangalore Development Authority is a necessary party in respect of joint family properties that came to be acquired before or during the pendency of the partition suit by invoking the provisions of the Land Acquisition Act, 1894. The Trial Court was satisfied that some suit properties were Government lands by perusing the bare endorsements from Government agencies. There is no information whatsoever on who were the persons that had transacted with the Bangalore Development Authority and in respect of which suit schedule property. As such, the High Court committed a grave error in decreeing a partition suit that involved Government lands.
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(U) High Court has decreed to the private plaintiffs title and possession over Government land: Further, the High Court has indeed decreed the suit by declaring title and separate possession of Sy.No.12 and 108 of Saneguruvanahalli (Government lands) despite knowledge that neither can the plaintiffs disturb the title of Bangalore Development Authority that has become lands that the and land lawful further, already owner with in of the these full Government knowledge
Bangalore
Development Authority could not be dispossessed at all for the benefit of the plaintiffs. As such, the impugned Judgment and the decree drawn therefrom evidences a complete lack of application of judicial mind to the facts before the Honble Court. (V) Two conflicting and unfathomable decrees issued by the High Court for the same piece of Government land. (i) The High Court also committed a grave error in issuing two decrees for the same Government land. In respect of one suit property 2 (Sy.No.12 Acres and of 10 Saneguruvanahalli measuring
Guntas), the plaintiffs had sought two decrees the first decree for the entire stretch of the property (and the second decree for 15 Guntas already covered within the first decree). The strange theory of the plaintiffs was that although the Bangalore Development Authority did in fact acquire the entire stretch of property by issuing formal notification for such purpose and though the process of acquisition was complete and possession absolutely vested in the Government, there was a vacant piece of this
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Government land that was unused and the plaintiffs want an additional decree for this unused piece of Government land. (ii) The plaintiffs did not offer any explanation or document to even substantiate their strange theory that a part of the Government land was not under the control of the Government. As such, the impugned Judgment that has issued two decrees for the same piece of Government land denotes a complete lack of application of judicial mind. In terms of possession over land, two simultaneous decrees are physically impossible to execute and the High Court failed to note as much. Therefore, the impugned Judgment is wholly liable to set aside for a complete lack of application of judicial mind. (iii) Further, the High Court failed to note that once it had decreed the suit for separate and possession of 1/3 rd of the suit property, the Final Decree Court would have no option but to simply execute the same by dispossessing the Bangalore Development Authority and numerous allottees of sites by the Bangalore Development Authority and to put the plaintiffs in possession thereof. The law in this regard has been settled by this Honble Court in the case of Muthangi Ayyanna v. Muthangi Jaggarao [AIR 1977 SC 292 : 1977 (1) SCC 241] wherein it was held that: The contention is based on the well recognised proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. (iv) Since the decree passed by the Honble High Court has the effect of directing the ejectment of whoever is in possession of Government land and to put the
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plaintiffs in possession thereof, the Final Decree Court is simply bound to do as much in view of the decisive holding of this Honble Court in the case of Muthangi Ayyanna v. Muthangi Jaggarao [AIR 1977 SC 292 : 1977 (1) SCC 241]. With the greatest of respects to the Honble High Court, it is submitted that such an outcome would be grossly absurd and illegal. The impugned Judgment of the Honble High Court is therefore, wholly liable to be set aside. (X) Observation by the High Court that Rudraiah did not respect the law is without any basis in fact or law and is gravely injurious and prejudicial to all further
proceedings: (i) The High Court also fell into error when it observed that the heirs of Rudraiah had disrespected and disregarded the law. The said observation of the High Court is without any basis in law or fact. In fact, no specific finding has been given by the High Court to reach such a conclusion against Rudraiah. That such a conclusion has indeed been reached without even material to support the same and in the face of evidence to the contrary, the impugned Judgment is to the effect of punishing a litigant for no cause and for no fault. (ii) No less than 25 different proceedings over 15 years in various Courts were initiated by the plaintiffs in collusion with a rival cinema operator to allege that the construction and operation of a cinema theatre by Rudraiah in Sy.No.62 was illegal. The High Court failed to recognise that that the entire suit by Lakshminarasappa and Prahlada Rao was simply engineered by a rival operator. Of the more than 10
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acres comprised in the suit property, the only interest that Lakshminarasappa and Prahlada Rao had was with respect to 1.21 acres in the possession of Rudraiah in Sy.No.62. Their interest extended to the making of frivolous allegations or trying to stop the operation of the cinema theatre. They had so obviously been disinterested in the balance suit property they did not know who was in possession or what was constructed therein or even why they had brought in certain individuals to represent those properties as defendants. Some of those defendants brought in disinterestedly to defend the other suit property had never been into those properties and many of them had not even an idea as to how those properties looked like. This strange and obsessive concern with one item of suit property alone ought to have been enough for the High Court to suspect and disregard the frivolous applications that were repeatedly filed by Lakshminarasappa and Prahlada Rao with respect to Sy.No.62 alone. (iii) Also, the High Court failed to note that more than a dozen or so Orders of various Courts had dismissed similar allegation of illegality against Rudraiah: Order and Judgment dated 07-12-1983 of the High Court in Writ Petition No.20052 of 1983, Order dated 30-041985 passed by the Secretary, Department of Home Affairs, Government of Karnataka, Order dated 30Aug-1986 passed by the City Civil Court, Bangalore in Original Suit No.2873 of 1983, Order dated 20-011993 passed by the High Court in Writ Petition No.8664 of 1988, Order of a Division Bench of the High Court dated 05-03-1997 in Writ Appeal No.572 of 1993 and Order dated 11-06-1997 passed by the High Court in Writ Petition No.9644 of 1997.
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(iv) Therefore, the unfounded observation of the High Court has the effect of dismissing the dozen or so considered Orders of various statutory authorities, Civil Courts and of the High Court itself. (v) Further, such unfounded observation that Rudraiah had disrespected and disregarded the law is bound to gravely prejudice him in any further proceeding taken under the impugned Judgment. The impugned Judgment acts as a punishment upon Rudraiah for no cause, no fault and is without any justification. As such, the Division Bench of the High Court has committed a grave, prejudicial, unfair and unjust error and the impugned Judgment is bound to be set aside. (vi) Also, the unfounded remark of the High Court that the heirs of Rudraiah had disrespected the law is contrary to the rule laid down by this Honble Court in State of Uttar Pradesh v. Mohammad Naim [AIR 1964 SC 703 : 1964(2) SCR 363] wherein it was held: It has been judicially recognised that in the matte r of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature
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(vii) The unfounded and unwarranted remark of the High Court with respect to Rudraiah is therefore liable to be set aside in view of the rule in State of Uttar Pradesh v. Mohammad Naim [AIR 1964 SC 703 : 1964(2) SCR 363] (Y) Order 9 Rule 9 clearly and wholly bars the second partition suit: (i) The High Court failed to note that, under the circumstances, a second suit for partition was barred in terms of Order 9 Rule 9 of the Civil Procedure Code, 1908. (ii) The High Court fell into error in reversing the extremely compelling and sound judgment of the Trial Court. (iii) Also, the High Court fell into error in reversing the Order of the Trial Court without finding any fault with its reasoning. (iv) The High Court has committed a grave error in holding that a regrant Order passed by the authority under the Karnataka Village Offices Abolition Act, 1961 cannot be defeated at the Civil Court and rendered nugatory. The High Court failed to note the extremely limited nature of the regrant Order and has also failed to note the powers of a Civil Court to address disputes that affect the civil rights or relations between persons. (v) The High Court has completely contradicted the following decisions that were cited and argued before it. decision of this Honble Court in State of Rajasthan v. Harpool Singh (Dead) by LRs [2000 (5) SCC 652 : 2000 (4) SCALE 336], wherein it was held:
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Even that apart in State of Tamil Nadu v. Ramalinga Samigal Madam [AIR 1986 SC 794 : 1985 (4) SCC 10], this Court, after adverting to Dhulabhai's case reported in [AIR 1965 SC 78 : 1968 (3) SCR 662], held that questions relating to disputed claims of parties for title to an immovable property could be decided only by the competent Civil Court and that in the absence of a machinery in the special enactment to determine disputes relating to title between two rival claimants, the jurisdiction of the Civil Court cannot be said to have been ousted. In Srinivasa v. State of Andhra Pradesh [AIR 1971 SC 71 : 1969 (3) SCC 71], this Honble Court had held: The general principle on which the jurisd iction of Civil Courts can successfully be excluded in respect of decisions by special Tribunals is well settled. The difficulty usually arises in its application to given cases. As observed by the Privy Council in Secretary of State v. Mask and Co. [1940 (67) I.A. 222] the exclusion of the jurisdiction of the Civil Courts must either be explicitly expressed or clearly implied. Further, even if the jurisdiction is so excluded the Civil Courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure (vii) As such, the High Court failed to note that there is simply no basis in law or statute for the proposition that a regrant order should always lead to some tangible benefit to the regrantees notwithstanding that a Civil Court may find otherwise. (viii) Therefore, the impugned Judgment is liable to be reversed as it is the result of a gross error in relation
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to the scope of a regrant Order made under the Karnataka Village Offices Abolition Act, 1961. (ix) The cause of action to the plaintiffs for the purpose of the suit against Rudraiah is not a recurring one at all. That Rudraiah is a stranger in relation to the plaintiffs, the cause of action arose on the date that Rudraiah was put in possession of the property duly purchased from Narasimha Murthy. The nonalienating coparceners cannot claim to treat an utter stranger to the property as a representative of the alienating coparcener and later command a partition from such a total stranger. Therefore, the nonalienating coparceners do not have any recurring cause of action against Rudraiah and the cause of action against the Rudraiah, in the manner they have stated, arose and was fully held up in the first partition suit itself. (x) Further, the High Court failed to note that the provisions of the Code of Civil Procedure, 1908 are mandatorily required to be adhered to when the language contained therein admits of no discretion to a Court. The language employed in Order 9 Rule 9 is that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. In the instant case, the cause of action in the first partition suit, Original Suit No.3 of 1971 and the second partition suit, Original Suit No.10311 of 1983 are exact copies of each other. (xi) The High Court has held that a second suit for partition is not barred by Order 9 Rule 9 of the Civil Procedure Code, 1908 at all. The High Court did not consider whether such a rule could have any application to a partition suit which also involves
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stranger-purchasers as defendants and against whom, the plaintiff-coparceners seek ejectment and recovery of possession. It is respectfully submitted that where stranger-purchasers are arrayed as defendants in a partition suit and the relief of ejectment is also sought therein, the bar contained in Order 9, Rule 9 is squarely applicable to such a suit. (Z) Order 9 Rule 9 of the Code of Civil Procedure, 1908 embodies protection against fraud and abuse of the process of Courts. (i) The High Court failed to examine the following anomalous consequences that could arise if it were to be held that a partition suit involving strangerpurchasers does not invite the bar of Order 9, Rule 9 of the Civil Procedure Code, 1908: (ii) In the course of prosecution in the first partition suit, if the plaintiff-coparcener were to realise that the evidence adduced in it is adverse to his interest and apprehends that the suit itself is likely to be dismissed by the Court, he may very well abstain from the proceeding and allow the suit to be dismissed for non-prosecution; Upon such non-prosecution, he could avoid the very proceeding and evidence in the first partition suit and gamble into litigation by filing a fresh, but second partition suit by seeking only such reliefs that do not expose the weakness in his case. A Court of law cannot interpret a provision of the Code to an extent permitting coparceners to defraud stranger purchasers of coparcenary property. (iii) Order 2, Rule 2 states that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If a plaintiff
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omits to make a claim that he was fully entitled to, by reason of Order 2, Rule 3, he is prevented from suing in respect of such omission. Assuming that a plaintiffcoparcener omits to seek certain reliefs against stranger-purchasers in the first partition suit, the bar contained in Order 2, Rule 3 could be cleverly overcome by getting the suit dismissed for nonprosecution and refilling a second suit by including whatever claims that would have been otherwise barred under Order 2, Rule 3; (iv) For the same reason as above, where a plaintiffcoparcener chooses to seek ejection only of a defendant-coparcener and recover possession and omits to sue for mesne profits, he could easily overcome the bar under Order 2, Rule 3 by getting the suit suit. (v) As such, the decision of the High Court that a second partition suit, in the circumstances of the case, was not barred at all is grossly erroneous and is liable to be set aside. (vi) Further, the notion that a second partition suit is not hit by Order 9 Rule 9 has been carried to the extreme by the High Court without even realising the extent of fraud that stranger purchasers would be subject to in such event. The notion that a second partition suit is not barred by Order 9 Rule 9 is sound only no long as the suit does not involve the rights of stranger purchasers. The Honble High Court therefore wholly erred in holding that Order 9 Rule 9 does not apply to the facts of the case. dismissed and instituting a fresh one by including all reliefs that he had omitted in the first
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(AA) Suit is bad for non-inclusion of all the joint family properties; stranger-purchasers are gravely injured by such non-inclusion. No justification exists for such noninclusion: (i) Further, the High Court failed to note that there was no justification to not include the entire joint family property in the partition suit. The High Court failed to note that it is in the interest of stranger purchasers of coparcenary property that in any suit for partition instituted by non-alienating coparceners, the disposable and divisible wealth of the joint family is truthfully presented before the Court so that, the share of the vendor-coparcener the stranger is truthfully are ascertained before purchasers
informed that their purchase and possession through the vendor is in excess of the vendors share in the joint family property. It is to comply with this timehonoured rule of justice and equity that all properties are required to be brought into a common hotchpotch for the purpose of a partition suit. In the instant case, Lakshminarasappa and Prahlada Rao have claimed that they are entitled to 1/3rd share in the suit schedule properties. Should a Court proceed to decree the suit by declaring that each person is entitled to a 1/3rd share, a 1/3rd share in 11 Acres entitles Narasimha Murthy to less than 4 Acres. Yet, if only the principle that the very wealth of the joint family is to be presented for partition had been complied with and the properties included in the 1960 partition were also included in the instant suit, the suit schedule property would have nearly doubled. The 1960 Partition deed executed between Narasimha Murthy, Lakshminarasappa and Prahlada Rao
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comprised slightly more than 10 Acres excluding the dwelling units in the possession of the coparceners. The addition of that 10 Acres to the suit schedule would have given a true and acceptable picture of the wealth of the joint family in the second partition suit. Upon such addition, the suit schedule properties would have totaled to more than 20 Acres and a 1/3 rd share in such 20 Acres would have considerably advanced the cause of justice and equity to the purchasers from Narasimha Murthy by allotting to his share, close to 7 Acres of the joint family property. The High Court failed to notice so much. (ii) As such, the failure of the Court to direct the inclusion of property covered by the prior partition deed dated 11-08-1960 is detrimental to the validity of the impugned Judgment. Further, such failure is also contrary to the decision of this Honble Court in Kenchegowda v. Siddegowda [1994 (4) SCC 294 : JT 1994 (4) SC 125] wherein it was held: a suit for partial partition in the ab sence of the inclusion of other joint family propertieswas not warranted in law. (iii) As such, the impugned Judgment is liable to be set aside on the aforesaid ground. (BB) Plaintiffs are liable to pay ad-valorem Court fee. Suit ought to have been dismissed for failure thereof: (i) The High Court failed to note that persons who seek title and possession to properties from which they were previously dispossessed are required to pay advalorem court fee. It is well established judicially that in case of purchasers who take possession and establish uninterrupted and exclusive possession in
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consequence of such purchase, the plaintiff can claim no consequential relief without first seeking to set aside the alienation. For such purpose, the Court Fee has to be paid under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. Upon failure to so pay under Section 35 (1), the suit is liable to be rejected as an abuse of process. Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 says: Section 35(1) Partition: In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common by a plaintiff whose title to such property is denied or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share. (ii) The High Court failed to rely on the following authorities that were cited to it as well as the very deposition of the plaintiffs: In Malleshappa v. Koratagere Shivalingappa [ILR 2001 KAR 3988 : AIR 2001 KAR 384], the Karnataka High Court had held: If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is, therefore, liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed... In Sitbaran Jha Pandey v Lokenath Missir [AIR 1924 Patna 558 : 81 Ind Cas 1052], wherein it was held that:
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that a party seeking partition must ask for joint possession, if he is out of possession, as a condition precedent to a decree for partition. The causes of action are entirely different, and the one is not included in the other In this country we are governed by the Code which allows a plaintiff to unite in the same suit several causes of action against the defendant. But for this provision, the Court would have to tell the plaintiff who, being out of possession, is asking the Court to pass a decree for partition, that he must proceed by ejectment and establish his title, and then come for partition. The provision in the Code has, no doubt, simplified the procedure; but the substance remains the same, namely, that a person cannot be allowed, under a guise of a partition action, to bring an action of ejectment, unless he asks the Court to determine his title and to give him the appropriate relief as in an action of ejectment. In England, before the Judicature Act, a plaintiff had to bring two actions, one at law and the other in equity. Under the Judicature Act in England and under the Civil Procedure Code in India, he may bring one suit and unite several causes of action in that suit. The difference, as I have said, is in procedure, and not in the substantive rights of the parties. In my judgment, the present suit embraces two distinct causes of action, and, therefore, two subjects within the meaning of section 17 of the Court Fees Act. That being so, the plaintiffs must pay the fixed fee for partition in addition to the ad valorem fee as in a suit for possession. In Onkar Mal vs Ram Sarup [AIR 1954 Allahabad 722 : 1954 All LJ 416] wherein it was held:
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The prohibition against the reception of a document which is not properly stamped is contained in Sections 4 and 6, Court-fees Act. The result of this prohibition is that unless a plaint or a memorandum of appeal is properly stamped, no Court can proceed to dispose of the case on merits. To enable the Court to consider the appeal on merits the memorandum of appeal must be a document which is properly stamped. It follows, therefore, that the question whether a memorandum of appeal is properly stamped or not must be decided first before the appellant can claim a hearing on merits This clause was inserted with a view to make it clear that it was the bounden duty of Courts to decide all questions of court-fee as a preliminary question before entering into the merits of the case. The question of court-fee therefore, has to be decided on the basis of facts, as they stand at the time when the memorandum of appeal is filed in the Court It is obvious that the legislature could not have intended that on these points, the plea taken by the plaintiff must be accepted finally for purposes of working out the valuation to determine the court-fee payable because if that were so, the plaintiff in every case could make this clause ineffective by pleading in the plaint that he is in possession, or, by alleging that his claim to be a coparcener or co-owner is not denied (iii) On evidence before the Court below, the plaintiffs had admitted and revealed as under: P.W.2 : Prahlada Rao has stated as follows in para 28 of his deposition: It is true that after filing of this suit we filed revision petition challenging the issuance of NOC before the
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Home Commissioner. Both of us instructed our counsel at the time of drafting the plaint. We were aware that Sy.No.55 and 62 were in possession of defendants 1 to 10 (Witness volunteers that they were in unlawful possession). They have been in this type of unlawful possession right from 1970. Again, at para 29 of his deposition P.W.2 states: All the defendants are in unlawful possession of the property right from 1970. P.W.2 has further stated as follows at para 50 of his deposition: It is true that the Deputy Commissioner has imposed conversion fee of Rs.95 Lakhs in respect of Sy.No.55 of Saneguruvanahalli. Similarly, he has imposed a sum of Rs.36 Lakhs as conversion fee in respect of land in Sy.No.62 of Saneguruvanahalli. This conversion fee is levied on defendant No.1 Rudraiah. The further statement of P.W.2 in para 50 of his deposition reads as follows: It is true that prior to filing of this suit, 84 persons have built up structures in 84 individual sites. I have not made all the 84 persons found in Sy.No.55 as parties to this suit. And in para 51 of his deposition P.W.2 states: I do not know about your suggestion that many persons who were in possession of revenue sites in Sy.No.12, 108 and 112 got conversion by paying the charges to the concerned authorities. I do not know whether all these persons in Sy.No.12, 108 and 112 have put up constructions after obtaining the plan sanctioned from the competent authority. I cannot say about the market value of Sy.No.12, 108 and 112 as on the date of filing of this suit.
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We did not file any appeal against the registration of Khata by the Tahsildar on 26-12-1961 in favour of Sri.Narasimha Murthy pertaining to above referred 5 survey numbers. In the case of Tejpal Sarogi v. Mahadeo Lal [AIR (38) 1951 Patna 526], a Division Bench of the Patna High Court had observed and ruled that: So far as the stranger-alienees are concerned, it is clear that the petitioners do not accept them as coowners or co-sharers against whom the relief of partition can be claimed. Either the petitioners are claiming no adjudication against the stranger-alienees or they are claiming an adjudication to displace their title. As there can be no relief of partition against the strangers, the only relief claimed against them is the displacement of their title based on the transfers made in their favour. That would undoubtedly be an independent declaration of title not necessarily connected with the relief of partition. If no relief is claimed against the strangers, then they should not have been made parties to the litigation. It seems to me that so far as the stranger-defendants are concerned, the suit is, in substance, a suit for a declaration of title, and the learned Subordinate Judge rightly held that the suit was a suit for title in the guise of a partition suitThe suit which the petitioners had brought was really of a composite nature: so far as the co-owners were concerned, it was a suit for partition ; but so far as the strangers were concerned, the suit was really a suit for title At the risk of repetition, I must again observe that as against the strangers no partition could be claimed. I am of the opinion that the suit was a suit for which ad valorem Court-fees had to be paid.
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(iv) As such, the High Court was clearly in error in not holding that the plaintiffs could not proceed against utter strangers in the guise of a partition suit by merely tendering the nominal Court fee of instead of tendering the market value of the suit property over which substantial improvements and developments have been made over the past decades. (CC) Suit was completely barred by estoppel with respect to Rudraiahs holding over Sy.No.62: (i) The High Court failed to hold that the plaintiffs were estopped from challenging the right of Rudraiah over Sy.No.62. (ii) The High Court failed to notice the sanctioned plans and the modified plan respectively for the construction of residential house and industrial sheds in respect of Sy.No.62. These sanctioned plans bear the dates 08-08-1976 and 22-11-1980 respectively. Further, the High Court also failed to notice that the District Magistrate had on 24-06-1982 issued a NoObjection-Certificate (N.O.C.) for construction of a cinema Theatre. Thereafter, a Building Plan was approved for construction of a cinema Theatre. The building was constructed prior to the filing of the second partition suit on 21-07-1983. A Commissioner was appointed by the Trial Court and Sy.No.62 was inspected by the Commissioner and his report was also on the record before the High Court. (iii) In the very words of the plaintiffs, these constructions as well as other constructions were watched by the plaintiffs. P.W.1, Lakshminarasappa has said so in his deposition. P.W.1 was withheld from further cross
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examination even after the Order of the Trial Court dated 22-10-1997. (iv) The High Court failed to notice the deposition of PW-2, Prahlada Rao during trial: Between the period 23-Feb-1978 and the filing of the present suit, defendant Rudraiah and members of his family have constructed a choultry, Industrial sheds and Residential house and the Theater at Sy.No.1. I do not know anything about other constructions. We were watching the constructions made by Rudraiah and his family members. (v) The evidence extracted above and the evidence referred to while dealing with the plea of Ouster and Limitation clearly lead to one reasonable conclusion only. That, the plaintiffs conducted themselves with respect to Sy.No.62 with no more concern than a disinterested passerby. That they have deposed during trial that they knew that Rudraiah was in possession since 1970 and that they saw him put up huge and multiple constructions in Sy.No.62 prior to filing of second partition suit clearly estopp them from challenging Rudraiahs possession, constructions and development in regard to Sy.No.62. (vi) The High Court has failed to even consider the following authorities that were cited before it in regard to the plea of estoppel: In Manibhai v. Hemraj [1990 (3) SCC 68 : 1990 (2) SCR 40], this Honble Court had upheld estoppel against the following conduct: Defendants 4 to 8 filed a joint written statement and took almost a similar stand as taken by defendant 1. These defendants further pleaded that they had purchased the suit house some time in the year 1954,
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with the knowledge of the plaintiffs 1 and 2 and defendant 9. After the purchase of the house the defendants demolished the old structure and constructed the whole house from foundation, at a cost of about Rs.25000. Plaintiffs 1 and 2 as also defendant 9 were in the full know of the fact of demolition of old house and new construction. They did not at any time, raise any objection or claim to the house and allowed the defendants to carry out the work. They did not at any time show or commit any act as to raise any doubt in the minds of defendants regarding their title to the house in suit. Thus defendants 4 to 8 in good faith and having full belief in their own title to the suit house, spent more than Rs. 25,000 on the house and the plaintiffs and defendant 9 allowed the defendants to carry out the work even though they had full knowledge of the said construction work and were thus now estopped from denying the title of the defendants to the suit house (vii) Further, the Division Bench has grossly erred in law in limiting the principle of estoppel merely to acts of representation and not to conduct. It was never even argued before the Courts below that the plaintiffs had somehow informed Rudraiah that they had no interest in Sy.No.62. Rather, the argument was that, the plaintiffs had passively watched Rudraiah do whatever he did with Sy.No.62 with no more concern than a disinterested passer-by until the constructions were complete and the cinema theatre was completely built in Sy.No.62. As such, the Division Bench has ruled contrarily to the law laid down by this Honble Court in the case of Manibhai v. Hemraj.
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(DD) The High Court erroneously held that the doctrine of estoppel is limited to express representation alone: (i) Similarly, the Division Bench failed to note that omission is as much an ingredient of the doctrine of estoppel confide or as much an as overt and express to representation and the fact that the plaintiffs did not make express representation Rudraiah is no basis to overlook the deposition of the plaintiffs themselves during trial that they were watching the constructions made by Rudraiah. (ii) The Division Bench has failed to note the special doctrines within the doctrine of estoppel such as the doctrine of estoppel by negligence and doctrine of estoppel by conduct as laid down by this Honble Court in B.L.Sreedhar v. K.M.Munireddy (Dead) [AIR 2003 SC 578 : 2003 (2) SCC 355] wherein it was held that: Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a
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rule of evidence and as a rule creating or defeating rights The common case of acquiescence is where a man, who has a charge or incumbrance upon certain property, stands by and allows another to advance money on it or to expend money upon it. Equity considers it to be the duty of such a person to be active and to state his adverse title, and that it would be dishonest in him to remain willfully passive in order to profit by the mistake which he might have prevented. (Ramsden v. Dyson L.R. 1 E & I, Ap. 129 (140) (1865). Lapse of time and delay are most material when the plaintiff, by his conduct may be regarded as waiving his rights, or where his conduct, though not amounting to a waiver, has placed the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards asserted (iii) Therefore, the deposition of the plaintiffs themselves during Trial when considered in the context of their conduct and omission establish that their claim against Rudraiah in respect of Sy.No.62 is barred by the doctrine of estoppel. The Division Bench grossly erred in limiting the principle of estoppel merely to acts of overt or express representation. The impugned Judgment is therefore, liable to be set aside.
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(EE) Judicial proceedings and Orders or decrees of Courts taken pursuant the passage of an Order of regrant are not dissolved or rendered void in the event that the Order of regrant is set aside. Judicial proceedings are terminated only in a manner known to procedural law. (i) In erroneously reversing the Orders of the Trial Court that had held Order 9 Rule 9 as a bar to the second partition suit, the High Court failed to correctly interpret the true scope of a regrant Order made under the Karnataka Village Offices Abolition Act, 1961. The High Court has erroneously held that the right to sue in respect of an erstwhile inam land is not begun at all until an Order of regrant is made under the Act. Further, the High Court has also held, erroneously, that once a regrant Order is made and proceedings are instituted in a Court of law, in the event that such a regrant Order is set aside on an appeal taken under the Act itself, the judicial proceedings instituted under the regrant Order that has been set aside lose their validity and that whatever proceedings were taken until then lose their force and are rendered void and nugatory. (ii) The reasoning of the Division Bench may only be termed as grossly illegal, with greatest of respects. The High Court has failed to note that if only a judicial proceeding such as a partition suit is initiated under a regrant Order and the same results in the passage of a decree and the rights of various parties are altered irreversibly thereafter, the mere fact that in an appeal against the regrant Order taken under the very Act, the regrant Order is set aside cannot have any effect whatsoever in so far as proceedings
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taken or done under the regrant Order that has just been set aside. (iii) The High Court failed to note that judicial proceedings and the validity of decrees or Orders are not contingent upon the continuance of an Order of regrant as an Order of regrant does nothing more than lead the parties back to wherever rights they held over the erstwhile inam lands. If persons who seek regrant have already parted with possession of erstwhile inam lands by alienating the property in favour of others, the receipt of a regrant Order merely validates their own prior alienation and nothing more. Once such a validation occurs, it cannot be inhibited should the regrant Order be set aside in view of the fundamental principle of law that the concept of property is nothing but a bundle of rights and when property is in possession of private hands, the rights over such property are perennially active and can never be deemed to be dormant. (iv) As such, the High Court failed to note that once a regrant Order is passed and judicial proceedings are initiated thereafter, those judicial proceedings are not in the least inhibited or invalidated should the regrant order be separately set aside. The impact of the reasoning by the Division Bench is to the effect that should a regrant Order lead to the filing of a partition suit that would, say, lead to a decree by the Trial Court and the same is confirmed by the High Court on appeal and further upheld by this Honble Court on appeal, upon the setting aside of the regrant Order in an appeal taken under the Act, the decree already passed by the Trial Court and confirmed by the High Court and upheld by this Honble Court would be of no consequence whatsoever and would be rendered
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void and nugatory. Such a reasoning may only be termed as grossly absurd, with the greatest of respects to the Honble High Court. (v) The High Court may never have realised the
consequences of its reasoning in the impugned Judgment. (FF) With the greatest of respects, the reasoning of the High Court in regard to the legal impact upon setting aside of a regrant Order would lead to completely absurd consequences: (i) Further, to only demonstrate the practical
implications of the reasoning of the High Court, another Order and Judgment in a case wholly unrelated to these parties is also produced along with this petition [Writ Appeal No.2538 of 2009 decided on 22-11-2010]. Another Division Bench of the Honble Karnataka High Court has upheld setting aside of a regrant Order under the Karnataka Village Offices Abolition Act, 1961 a full 23 years after it was originally passed. In that case, a regrant Order was first passed in 1975 and 23 years after it was passed, certain individuals preferred an appeal to the District Judge on the ground that the regrant was made in favour of an undeserving person. Upon such appeal, the regrant Order that had stood for more than 23 years had been set aside. A Division Bench of the High Court has upheld such setting aside of the regrant Order (to repeat, the first regrant Order therefore stood on the record for 23 years). (ii) The issue to be noticed from this unrelated judgment is with regard to the fate of all the transactions and judicial proceedings initiated under the first regrant
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Order. That over a period of 23 years, numerous transactions may have been effected with regard to the regranted property, applying the reasoning given in the impugned Judgment, all transactions and judicial proceedings, Orders and decrees of Courts in those 23 years may have to be invalidated and parties whose positions have been irreversibly altered for any number of reasons in those 23 years may have to be taken back to whatever position they held immediately before the passage of the first regrant Order. Such reasoning may only be termed as grossly absurd, not to mention, illegal, with the greatest of respects. The nature of judicial proceedings that may have to be resorted to roll back parties to their original position is wholly unknown to the law of civil procedure or other laws governing the jurisdiction of Civil Courts in India. (iii) As such, the High Court grossly erred in holding that the setting aside of the regrant Order dated 20-061970 had the effect of dissolving the very first partition suit filed before the Bangalore City Civil Court in Original Suit No.3 of 1971. As such, the impugned Judgment is wholly unsustainable in law and is liable to be set aside. (FF) Partition suit wholly abates upon the death of the wife of Narasimha Murthy and does not survive against stranger-purchasers: (i) During the appellate proceedings in the High Court, the counsel for Rudraiah had submitted to the High Court that the suit had abated upon the death of Kittamma as the cause of action for the partition suit
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had effectively ended upon the death of the last survivor of the branch of Narasimha Murthy. (ii) Narasimha Murthy had expired on 19-03-1971. Upon his death, his only legal representative, Smt.Kittamma entered into the shoes of her husband and defended all proceedings against him. Smt.Kittamma too met with her death on 26-06-2005 and after having litigated and opposed the plaintiffs for more than 25 years. That is, Smt.Kittamma had expired during the pendency of appeal in the High Court preferred by the plaintiffs against the dismissal of the suit by the Trial Court. (iii) There was no decree that was passed in favour of partition at the time of Smt.Kittammas death. It was argued during appeal by the counsel for Rudraiah that the cause of action for the partition suit effectively abates upon the death of the last survivor of the defendant co-sharer. However, negativing the aforesaid argument, the High Court has committed a grave error in holding that, under the provisions of the Code of Civil Procedure, the stranger-purchasers of joint (iv) In family so, property the could become has the Legal Representatives of the deceased-vendor-coparcener. doing High Court erroneously interpreted the provisions of the Civil Code Procedure, 1908. If only the interpretation advanced by the High Court is held to be correct, it should even become possible for coparceners to sue utter strangers in a suit for partition on the theory that the stranger purchasers have intermeddled with the property of a deceased coparcener. Such a result would be impermissible and the High Court has failed to see as much. Hindu law does not support the institution of a partition suit solely against defendants who are
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complete stranger-purchasers. The question before the High Court was, assuming that a validly instituted partition suit is dismissed at trial and while on appeal, the last survivor of the branch of the only defendant-coparcener dies, should not the partition suit abate? (v) The High Court has answered in the negative. The High Court failed to see the very basic ingredients of a partition suit. The law governing partition suits in India does not recognize what are called as friendly partition suits. If coparceners A, B and C wish to amicably and mutually partition property amongst themselves, there would be no cause of action for them to invoke the jurisdiction of any Civil Court. They could simply partition the property amongst themselves and individually enjoy the properties allotted to their respective shares. The High Court failed to see that as a matter of law governing partition suits, coparceners were bound to be present both as plaintiffs and defendants in such a suit. And that a partition suit would not lie if coparcener plaintiffs were arrayed solely against defendantpurchasers who were complete strangers to the joint family. (vi) The High Court has failed to note that a suit for partition involves the giving of evidence on the mutual relationship between coparceners and the giving of further evidence upon the extent of disagreement between coparceners which has led to the filing of the suit. A Court of law that tries a partition suit is required to first settle the mutual conflicts between coparceners before adjudicating upon the rights of strangerpurchasers arrayed in the suit, if any.
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(vii) Where the Court is not presented with any conflict between the coparceners, no coparcener could be placed as a defendant except as a nominal defendant or what is commonly referred to as a proforma defendant. Even in a partition suit where coparceners are arrayed on both sides, should the sole surviving coparcener defendant die before the suit is decreed in favour of the plaintiff coparceners, the suit cannot be prosecuted any further as a partition suit and it abates there. (viii) On the facts before the High Court, on the date of Smt.Kittammas death, no partition decree had been passed by any Court. As such, the suit should have been dismissed as abated. (GG) Non-dismissal of the appeal has compromised the very efficacy of the appellate proceedings: (i) Further, the failure of the High Court to dismiss the suit before it has compromised the very efficacy of the appellate proceedings. The counsel for Rudraiah was not permitted to even refer to the arguments of Smt.Kittamma and the High Court did not even insist that anybody else should argue for Smt.Kittamma. Consequently, the very efficacy of the appellate proceedings has suffered completely as nobody was permitted to carry forward the arguments of Smt.Kittamma. (ii) The High Court has failed to note that Smt.Kittamma was not merely a vital, but the only link between the plaintiffs on one side and the dozens of stranger purchasers on the other side. With the argument of such a vital link having been suppressed during appeal, the impugned proceedings have lost their very
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purpose and legality. As such, the impugned Judgment is wholly unsustainable as it is an outcome of suppression of the most vital participant in this partition suit, Smt.Kittamma. (HH) The High Court wholly erred in passing a preliminary decree in a partition suit by merely declaring that plaintiffs have certain entitlements against unascertained and unheard defendants and that such defendants rights are to be determined after the passage of the decree against their interests. (i) The High Court erred when it directed the Final Decree Court to add new persons on its own motion under Order 1 Rule 10 of the Code of Civil Procedure, 1908 and to further entertain applications by the plaintiffs to bring into the Court, persons in actual possession of the suit properties notwithstanding the fact that the plaintiffs had deliberately elected to not include such purchasers into the suit. The High Court has therefore, unlawfully transferred the private burden of the plaintiffs to the Final Decree Court. It is as if the Final Decree Court is saddled with a duty to bring into the suit, those persons who were deliberately kept out by the plaintiffs until then. As such, under the circumstances, the High Court has imposed a wrongful legal duty upon the Final Decree Court to itself prosecute the partition suit for the benefit of the plaintiffs in the face of the plaintiffs election to not bring in those very persons despite several decades of opportunity to do so. As such, the reasoning of the High Court is perverse to the extent it has directed the Final Decree Court to
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implead newer persons under Order 1 Rule 10, whether on its own motion or on the application by the plaintiffs. (ii) Further, the impugned Judgment of the High Court holding that new persons may be added to a suit after the passage of a preliminary decree against their interests is made even without realizing the binding nature of a preliminary decree. The High Court failed to note the decision of this Honble Court in the case of Venkata Reddi v. Pothi Reddi [AIR 1963 SC 992] wherein it was decisively held that: It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when so far as, the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree... (iii) As such, the High Court has erred in the matter of recognising that the preliminary decree that it has indeed passed could not have been passed at all
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except as a final adjudication of the rights of all persons affected by the very decree. That the High Court has clearly expressed in the impugned Judgment that the rights of purchasers in actual possession are to be determined afresh by the Final Decree Court, the impugned Order is therefore, contrary to the very provision of the Code of Civil Procedure, 1908 as decisively interpreted by this Honble Court in the case of Venkata Reddi v. Pothi Reddi and is therefore, wholly liable to be set aside. (II) Persons in actual possession of suit properties are not mere nominal parties to a suit that seeks their very ejectment. They are necessary parties and they cannot be added to the suit after passage of preliminary decree against their interests: (i) Further, the High Court also failed to notice that the addition of any person in a partition suit after the passage of a preliminary decree is wholly opposed to established law unless the person sought to be added is a purchaser of property subsequent to the passage of the preliminary decree or the person is a legal representative of a party who dies subsequent to the passage of the decree and the rights thereof were carved out in the preliminary decree itself. The law in this regard, as laid down in the case of Baman Chandra Acharya v. Balaram Achary [AIR 1966 Ori 160] and Neelakantha Pillai Ramachandran v. Ayyappan Pillai [AIR 1978 Ker 152] has been squarely contradicted by the impugned Judgment and is therefore liable to be set aside. It was decisively held by the Orissa High Court in the case of Baman Acharya (supra) in relation to a partition suit that:
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Section 97 was enacted for the first time in the present Code. Under the old Code, objections to a preliminary decree would be raised in appeal against final decree Consistent with the new provisions in Section 2(2) and Section 97, Order 20 Rule 18 (2) was newly introduced The aforesaid three provisions newly introduced for the first time in the present Code, bring into bold relief an important change that in a preliminary decree, certain rights are conclusively determined and unless the preliminary decree of a court is assailed in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree. In that limited sense the preliminary decree itself is a final decree so far as those rights are concerned. This position under the Old Code explains the conclusion reached in ILR 32 Cal 483. It was correctly decided under the law, as it then stood. The application for addition of parties was made before the decree was passed and by that time there was no other decree excepting the interlocutory order. The application was rightly allowed as it would not reopen any decree previously passed declaring the rights of the parties. Though ILR 32 Cal 483 was correctly decided under the law, as it then stood, the aforesaid distinction in the laws under Old and New Codes was not kept in view and the Calcutta decision was wrongly applied to cases, where preliminary decree had already been passed To sum up, even if other conditions under Order 1, Rule 10(2) are fulfilled, an application for addition of
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parties cannot be allowed after the preliminary decree is passed except in exceptional circumstances, such as, impletion of transferees subsequent to the preliminary decrees or death of parties whose rights were carved out in the preliminary decree (ii) Similarly, in the case of Neelakantha Pillai (supra), the Honble Kerala High Court has decisively held that: After having given our anxious consideration to all aspects of the matter, we are of opinion that in cases such as suits for redemption or partition where the passing of a preliminary decree is contemplated, the power conferred under Order 1, Rule 10, C. P. C. is to be regarded as circumscribed by the provisions contained in Section 2 (2) and Section 97 of the Code. As pointed out by the Supreme Court in Venkata Reddi v. Pothi Reddi (AIR 1963 SC 992), Section 97, C. P. C. clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the court passing it No party should be impleaded against his will if that would involve his being subjected to the terms of a preliminary decree which was passed without his being on the party array, particularly when there are pleas which the said party could have put forward in respect of the matters considered and settled by the preliminary decree. (iii) As such, the decision of the High Court to permit impleadment of fresh persons under Order 1 Rule 10 of the Code after the passage of the preliminary decree is wholly opposed to the provisions of the Code as decisively interpreted in the case of Baman Chandra Acharya v. Balaram Achary [AIR 1966 Ori 160] and Neelakantha Pillai Ramachandran v. Ayyappan Pillai
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[AIR 1978 Ker 152]. As such, the impugned Judgment is grossly erroneous and is liable to be wholly set aside. (JJ) A preliminary decree passed against an unsubstituted dead person in a suit is a complete nullity in the eyes of law: (i) Further, the High Court has also committed another grave error by passing a preliminary decree against a dead person without ensuring that the said dead person had been substituted by the proper legal representatives and that those legal representatives were duly heard in that regard. The fact that Smt.Kittamma expired on 26-06-2005 and that the High Court was duly made aware of the same, the High Court lacked jurisdiction to pass any decree against Smt.Kittamma, a dead person unless her legal representatives were brought into the record and heard in regard. In the final Order and Judgment dated 16-12-2011, the High Court has passed a preliminary decree upon Smt.Kittamma to the extent of 1/3rd of the suit schedule properties. That Narasimha Murthy, the husband of Smt.Kittamma had alienated much more than 1/3rd in the suit schedule properties, the preliminary decree is against Smt.Kittamma, a dead person. A Court of law does not possess any jurisdiction to pass a decree against a dead person unless such dead person is properly represented by her legal representatives and such legal representatives are properly identified and duly brought into the record and heard. That, even as of today, Smt.Kittamma is not even identified as a dead person in the decree drawn by the High Court and
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that she is not substituted by any legal representative at all, the impugned Judgment passed is without any jurisdiction. Further, whether the appeal had abated and who, if any, would be the legal representatives of Smt.Kittamma were unknown to all parties between 26-06-2005 and 16-11-2011, the date on which the High Court delivered its final judgment. As such, the impugned Judgment is in the nature of a preliminary decree against a dead person after purporting to hear that dead person. Such an Order is simply a nullity in terms of the decision of this Honble Court in the case of Perinadu village v. Bhargavi Amma (Dead) by LRs [2008 (8) SCC 321] wherein it was held that: Having regard to the wording in Rule 4, it is clear that when a respondent dies and an application to bring his legal representative on record is not made, abatement takes place on the expiry of the prescribed period of 90 days, by operation of law. Abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order. It occurs by operation of law (ii) The High Court failed to notice it had a duty to inform the parties on who were to constitute the legal representatives of Smt.Kittamma and to proceed with the cause only after the proper legal representatives were brought on record and heard in relation to the cause of Smt.Kittamma. That the High Court gave no notice whatsoever except in its final Order and judgment delivered six years after it learnt of the death of Smt.Kittamma, the error committed by the Court goes to the very root of its jurisdiction. A Court of law possesses no jurisdiction to bind the estate of a dead person by purporting to hear such dead person.
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(iii) As such, the impugned Judgment is wholly unsustainable as it purports to hear a dead person and has led to the passage of a preliminary decree against that dead person who was unsubstituted throughout the proceeding after 26-06-2005 and who continues to remain unsubstituted even as of today. Therefore, the impugned Judgment is liable to be set aside as being contrary to the decision of this Honble Court in Perinadu Village v. Bhargavi Amma (Dead) by LRs. [2008 (8) SCC 321]. (KK) Unspecified, indefinite, shifting and unknown body of individuals cannot act as legal representatives of a deceased defendant, Smt.Kittamma: (i) Unspecified, indefinite, shifting and unknown body of individuals cannot act as legal representatives of a deceased person in a suit and the High Court wholly failed to recognise as much: (ii) The High Court has committed a gross error of law in not specifying who would constitute the legal representatives of the deceased Smt.Kittamma except by holding that the alienees from Narasimha Murthy would be the legal representatives. The High Court wholly failed to note that of persons arrayed by the plaintiffs in the suit as the so-called alienees, many of them had no interest whatsoever in the property. They knew not even about the fact of purchase. They had never been to the property. And some did not even have any idea as to what the property looked like. The High Court has indeed termed all such persons as legal representatives of Smt.Kittamma. Further, that the High Court has also directed further impleadment of persons in actual possession of suit property after
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the passage of the preliminary decree, even unknown persons are deemed by the Court itself to constitute the legal representatives of Smt.Kittamma. With the greatest of respects, it is submitted that such a theory evolved by the Honble High Court whereby unspecified, indefinite, shifting and unknown body of individuals are made to act as legal representatives of a deceased person in a suit Court is wholly absurd and is liable to be set aside. (iii) Further, the High Court has proceeded on the flawed premise that who is the legal representative of a deceased person is a matter that could wait for the pronouncement of a judgment on the merits of the matter. Time and again, the decisions of this Honble Court have stressed on the need to adjudicate upon the issue of who is a legal representative before entering into the merits of the matter. The decision of the High Court that the unspecified, indefinite, shifting and unknown persons in possession of suit property are themselves to be treated as the legal representatives of Smt.Kittamma has come in as a complete shock in the final judgment delivered 6 years after the knowledge of death by the Court. (LL) The definition of a legal representative in Section 2(11) of the Code uses the word intermeddler and not purchase. Equating purchase with intermeddle is not legally permissible unless the purchasers are first heard and purchasers have not been heard at all by the High Court: Further, the reasoning by the High Court that purchasers of lands from Narasimha Murthy are also
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intermeddlers in that property has the effect of equating purchase with intermeddling. Such reasoning is improper and is liable to be set aside. The definition of a legal representative in Section 2 (11) of the Code merely speaks of an intermeddler and the High Court simply failed to note that in respect of Rudraiah, he had purchased property through a deed that that had purported to absolutely transfer whatever right the transferor, Narasimha Murthy held in that property. The High Court failed to note that a purchase could not be called as intermeddle unless the Court took a giant leap and enquiry into the merit of the matter. Here is a case where Rudraiah had asked the Court in 2006 to close the case against him as Smt.Kittamma was dead and there was nobody to represent her. Six years later, in 2011, the High Court has thoroughly shocked Rudraiah by informing him in its final judgment that the Court has theorised that unspecified, indefinite and shifting body of purchasers shall act as Smt.Kittammas legal representatives. This much is a proceeding squarely termed in the Jaladi Suguna decision as a nullity in the eyes of law. Further, the fact that the decision is made only in the final judgment is tantamount to the High Court declaring that who is a legal representative of a deceased person need not even be known to anybody or to the Court until a final judgment is delivered on the merits. Further, even the original purchasers of suit properties are not fully brought into the suit and persons who are in actual possession of the suit have been deliberately kept out by the plaintiffs. As such, the said determination is grossly without jurisdiction and the impugned Judgment is wholly liable to be set aside for the said
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reason in terms of the decision of this Honble Court in Jaladi Suguna. (MM) Violation of Section 16(3) of the Hindu Marriage Act, 1955 upon the representation of the estate of plaintiff Prahlada Rao by his two wives and seven children born thereof: On the issue of the Honble High Court allowing two wives and seven children born between them to represent the estate of a deceased coparcener in a partition suit, it is submitted that this aspect was not noticed in time by Rudraiah. However, being a substantial question of law on a subject of general public importance, this issue is being brought forth for the incidental consideration of this Honble Court.
6. GROUNDS FOR INTERIM RELIEF:(i) It is respectfully submitted that, between 1950 and 1103-1970, Rudraiah was in possession of Sy.No.62 of Saneguruvanahalli as a tenant under Narasimha Murthy. And this much is evident from the record of the case and the deposition of the plaintiffs themselves. Further, between 11-03-1970 and to the present date, Rudraiah interrupted has been in peaceful, of continuous Sy.No.62 and of possession
Saneguruvanahalli. This much, is admitted by the plaintiffs themselves, is fully established by the record, fully confirmed by the trial court and not even appealed or forming part of appeal to the High Court. In his 62 nd year of possession over Sy.No.62, for the first time ever, Rudraiah faces a real and immediate threat of dispossession by reason of the impugned Judgment. As
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such, it is fundamentally necessary to achieve the ends of justice that the operation of the impugned Judgment be completely stayed during the course of the pendency of the Special Leave Petitions; (ii) That in view of the fact that the Hon'ble High Court has held that all suit properties shall be subject to the threat of issue of mandatory injunction by the Final Decree Court, constructions, improvements and developments effected by Rudraiah in his own right in Sy.No.62 for himself and for his family are now under grave threat to its existence and continuation; (iii) Further, hundreds of unsuspecting and unaware families as well as the Government are likely to be impleaded into the proceeding at the Final Decree Court and the threat of multiple rounds of litigation involving Rudraiah even after four decades of litigation over property that has witnessed six decades of continuous, peaceful and interrupted is fully opposed to the principle of finality to litigation and is grossly unjust; (iv) That the petitioners possess a strong case on merits and most humbly submit that they are fully likely to prevail on the merits before this Hon'ble Court. (v) That there could be no loss or inconvenience to the respondents should the impugned Judgment be stayed; but the petitioners are subject to grave and irreparable loss, injury and hardship that cannot be redressed in monetary terms. Further, the balance of convenience is fully in favour of the petitioners.
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(vi) Therefore, in the interest of justice, an ad-interim exparte stay may kindly be granted against the operation of the impugned Judgment and final common Order dated 16-12-2011 in RFA No.271 and RFA No.275 of 1998 passed by the Hon'ble Division Bench of the High Court of Karnataka at Bangalore. 7. MAIN PRAYER:It is most respectfully prayed that this Honble Court may graciously be pleased to:(a) grant Special Leave to Appeal against the impugned Judgment and Final Common Order dated 16-122011 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; (b) pass any other or further Order(s) as may be deemed fit and proper in the facts and
circumstances of the case. 8. INTERIM RELIEF:It is most respectfully prayed that this Honble Court may graciously be pleased to:(a) grant ad-interim ex-parte stay against the operation of 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;
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(b) pass any other or further Order(s) as may be deemed fit and proper in the facts and circumstances of the case. AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY DRAWN BY:SHEKHAR G DEVASA ADVOCATE DRAWN ON:13/07/2012 FILED ON: 01/08/2012 FILED BY: (ADARSH UPADHYAY) Advocate for the Petitioners
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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) Nos. OF 2012 IN THE MATTER OF:Sri. B.Rudraiah(D) by his LRs & Ors. Etc. , Versus S.K.Lakshminarasappa (D) by LRs. & Ors.,Etc CERTIFICATE Certified that the Special Leave Petition is confined only to the pleadings before the Court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/annexure attached to the Special Leave Petition are necessary to answer the question of law released in the petition or to make out grounds urged in the Special Leave Petition for consideration of this Honble Court. This certificate is given on the basis of the instructions given by the Petitioners/person authorized by the Petitioners whose affidavit is filed in support of the Special Leave Petition. DRAWN BY:FILED BY: MR. SHEKHAR. G. DEVASA, ADVOCATE (ADARSH UPADHYAY) DRAWN ON:13/07/2012 Advocate for the Petitioners FILED ON:01/08/2012 ...Respondents Petitioners
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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) Nos. OF 2012 IN THE MATTER OF:Sri. B.Rudraiah(D) by his LRs & Ors. Etc. , Versus S.K.Lakshminarasappa (D) by LRs. & Ors.,Etc ...Respondents Petitioners
AFFIDAVIT I, K.V. Chandrashkehar, Aged about 49 years, S/o, Sri. R.Veeranna, (S/o. Late B. Rudraiah), residing at No.296, Kamakshipalya, Magadi Main Road, Bangalore-560079, do hereby solemnly affirm and declare as under:1. That I am the Petitioner No.1 in the above matter as such I am fully conversant with the facts and circumstances of the case and I am competent to swear this affidavit for myself and also on behalf of my sisters for Smt.K.V.radhamma, Smt. K.V.Yashodamma and Smt. K.V.Premakumari, the fellow Petitioners as I have been instructed by them in this behalf. 2. That the Synopsis and List of Dates Page No.B to , SLP Page No. to and Interlocutory Applications have been drawn by my Advocate under my Instructions. I have read and understood the contents of the same and I say that the same are true and correct to my knowledge and belief and I believe the same to be true. 3. That the Annexure are true copies of the respective originals. DEPONENT VERIFICATION: I, the above name deponent do hereby verify that the contents of Para-1 to Para-3 of above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed there from. Solemnly affirmed on this 28th day of July, 2012 at Bangalore. DEPONENT

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Regular First Appeal No.271 of 1998 dated 16-12-

Proforma Respondent No.2 Respondent No.9

Proforma Respondent No.3 Respondent No.10

18. Sri T.Manju

Proforma Respondent No.23 Respondent No.26

Contesting Respondent No.1(a)

Contesting Respondent No.1(d)

Contesting Respondent No.1(e)

Contesting Respondent No.1(f)

Contesting Respondent No.1(g)

Contesting Respondent No.1(h)

Contesting Respondent No.1(i)

Proforma Respondent No.2

Proforma Respondent No.4

Proforma Resplendent No.5

Proforma Respondent No.6

Proforma Respondent No.12

Proforma Respondent No.13

Proforma Respondent No.14

Proforma Respondent No.15

Proforma Respondent No.16

Proforma Respondent No.18 Proforma Respondent No.19 Proforma Respondent No.20

Proforma Respondent No.21

Proforma Respondent No.21 Proforma Respondent No.22 Proforma Respondent No.23

decision of the High Court. As such, the Trial Court

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