Siddalingayya vs. Neelakanth

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 10011 OF 2010

SIDDALINGAYYA

..APPELLANT(S)

VERSUS

NEELAKANTH & ORS.

..RESPONDENT(S)

J U D G M E N T

ARUN MISHRA, J.

1. Heard learned counsel for the parties.

$2.$ This appeal is preferred by the plaintiff, aggrieved by the judgment and decree passed by the High Court, in the Regular Second Appeal No.805 of 1998, on 28.08.2003. The plaintiff, namely Siddalingayya, filed a suit for declaration, that he was the owner in possession of the suit land, and further prayed for issuance of permanent injunction restraining the defendants from causing obstruction in the enjoyment of the suit land.

The plaintiff averred that he is the son of defendant No.2-Rudrayya. Defendant No.2 had another son, namely, Chandayya. wife of defendant No.2, i.e. mother of the plaintiff, died 50 years back, and no further marriage was performed by defendant No.2-Rudrayya. Defendant No.1-Rudravva was married to one Irappa Kovalli of Bijjaragi, Taluk Bijapur. However, sometime 40 years ago, Defendant No.1 had developed illicit relations with the defendant No.2-father of the plaintiff. There was divorce between Defendant No.1 and Irappa Kovalli, and Defendant No.1 started living with defendant No.2.

4. It is not in dispute that there had been a partition between the father and the son in the year 1968, and out of the suit land, half of the share in the property fell to the share of the plaintiff and remaining 1/2 share was allotted to the father-defendant No.2. Partition Deed dated 15.4.1968 was executed.

5. Plaintiff claims that defendant No.1 had, later on, sold his 1/2 share in favour of the plaintiff, for a sum of Rs.8,000/-, on 23.3.1972. Since then, plaintiff had become the sole owner of the suit land.

Subsequently, defendant No.2 sold the suit land to defendant No.1, his mistress, in the year 1985. Defendant No.1, in turn, on 14th September 1990, sold the land to defendant Nos.3 and 4. Plaintiff further pleaded that he came to know that on the basis of so called Wardi of plaintiff dated 25.2.1979, the defendant No.2 obtained mutation in his name. Plaintiff had never relinquished his right, title and interest in the land in favour of defendant No.2, nor had he handed over the possession to him. Mutation had been effected on the basis of fraud and a fabricated Wardi, which did not clothe defendant No.2 with any right, title and interest. Value of the land was worth more than Rs.20,000/-; thus, no relinquishment could take place by virtue of executing a Wardi, if any. Consideration was also not paid by the defendant No.1 to defendant No.2. It was stated in the document that Rs.30,000/- had been paid earlier, and only a sum of Rs.5,000/- was paid in presence of Registrar. Defendant No.1 thus had no right title or interest in the suit land on the basis of the document executed in the year 1985 in her

favour by defendant No.2. Consequently, Defendant No.1 could not have alienated the said property on 14.9.1990 to defendant nos.3 and 4. Plaintiff was the real owner in possession of the suit land. The defendant nos.3 and 4 tried to dispossess the plaintiff by virtue of the sale deeds executed in the year 1990. Thus, the suit came to be filed.

6. The defendant No.1 did not file any written statement, and defendant No.2 also remained ex-parte. Later on, defendant No.2 died and his Lrs. were brought on record as defendant nos. 2A and 2B; they too remained ex-parte.

7. Defendant nos. 3 and 4 in the written statement contended that there was a collusion between father and son i.e. between plaintiff and Defendant No.2. There was partition between the parties in the family of plaintiff and defendant No.2. Partition deed dated 15.4.1968 had been executed. Thereafter, a sale deed was executed on 23.3.1972 in favour of plaintiff in respect to half share in the suit property and the other land by defendant No.2. The sale deed dated

23.3.1972 was a sham and nominal document, and it was never intended to be acted upon. The plaintiff gave Wardi to revenue authorities on the basis of that name of defendant No.2 had been entered in the mutation register. The defendant No.2 came in possession by virtue of the said partition cum family arrangement as mentioned in Wardi. It was stated in the Wardi that plaintiff had given up his right in favour of defendant No.2. It was, in fact, a document evincing the partition-cum-family arrangement, by which the plaintiff was bound. Defendant No.2 had been put in the actual possession of the land; plaintiff has signed the sale deeds executed in favour of defendant Nos. 3 and 4 as attesting witness, and had identified the executant before the sub Registrar. Thus, plaintiff was bound by the sale deeds dated 14.9.1990, which were executed for a consideration of Rs.35,000/-. Alternative plea was taken that defendant nos.3 and 4 were bonafide purchasers for value without notice.

8. Trial court decreed the suit in part, declaring

that plaintiff was the owner of the joint half share in the suit land, and was entitled to partition and separate possession of his half share, and that defendant Nos.3 and 4 were entitled to 1/4th share each out of the remaining ½ of the suit land. The relief sought by the plaintiff to declare him exclusive owner, and for permanent injunction, was rejected. Appeal was preferred by the defendant 3 and 4 before the first appellate court. The first appellate court, vide judgment and decree dated 21.08.1998, in Regular appeal No.91 of 1994, affirmed the judgment and decree passed by the trial court. However, the High Court, by the impugned judgment and decree, has dismissed the suit of the plaintiff in toto. The High Court has held that the view taken by the trial court, as well as affirmed by the first appellate court, was perverse. Though the High Court found that relinquishment reflected in mutation entry (P8) based on wardi was invalid, as relinquishment could have been made by way of a registered document. The explanation given by the plaintiff that he was not aware of the nature of the transaction in the

form of sale deeds, was not relied upon. The High Court has held that merely because the guardian of the 4th defendant had not been examined could not have been a valid reason to draw an adverse inference against defendant Nos.3 and 4, that they were not bonafide purchasers. Since, both the purchases were simultaneously made from the same vendor, defendant Nos.3 and 4 were entitled to protection under Section 41 of the Transfer of Property Act, which reads as under:

"41. Transfer by ostensible owner – Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."

9. Reliance has been placed by the High Court on the decision of this court in Syed Abdul Khader vs. Rami Reddy & Ors. AIR 1979 SC 553. Aggrieved by the decision of the High Court, the appeal has been preferred by the plaintiff before this Court.

10. Mr. Basava Prabhu Patil, learned senior counsel appearing on behalf of the appellant, urged that no plea of ostensible ownership had been taken; and the fact remains that defendant Nos. 3 and 4 were aware of the factum of partition executed in the year 1968; they have also admitted the deed of 1972, and they were aware of these registered documents. Thus, the plea of purchase from ostensible owner was not available. There could not have been relinquishment by virtue of executing Wardi and Mutation Entry (P8) was based thereupon. The property was worth of more than Rs.20,000/- and the right, title and interest, if any, could have been relinquished only by executing a registered document.

11. Mr. Girish A. Murthy, learned counsel appearing for the respondent, contended that no case for interference was made out in view of the conduct of the plaintiff. He was a signatory to the sale deeds executed in favour of defendant Nos.3 and 4, and did not question it for five years. He was well aware of the contents of the sale deeds. He had permitted the name of his father to be mutated in the year 1978.

Though initially, the name of plaintiff had been mutated, but on the basis of Wardi, that was in the form of family arrangement, property was allotted to father i.e. defendant No.2. He had, in turn, sold to defendant No.1 and defendant No.1 further sold it to defendant Nos. 3 and 4. The plaintiff had signed later sale deeds as an attesting witness. Thus, plaintiff was estopped by his conduct to question the validity of the sale deeds. The High Court had rightly found the ostensible ownership of defendant No.2; thus, no case for interference was made out in the appeal.

12. Firstly, we take up the plea of ostensible ownership. The plea of ostensible ownership had not been raised in the written statement; even if it had been raised in so many words, the plea could still not be said to be available to the defendant Nos. 3 and 4. This is so, particularly, when they have not shown their ignorance to the transactions that had taken place in 1968 and 1972, and have admitted the execution of the registered partition deed between the plaintiff and defendant No.2 way back in the year

1968. In the registered partition deed, half of the share had been allotted to the plaintiff; there had been mutation as well, and later on execution of another deed had been admitted of the year 1972 in favour of the plaintiff by defendant No.2 to the extent of his share. Once there was an admission to these two transactions and defendant Nos. 3 and 4 or their guardian were aware of the transaction, they were aware of the defect in title of defendant Nos.1 and 2. As such, plea of ostensible ownership of defendant No.2 or that of defendant No.1 was not at all available to them. They had also taken the plea that Wardi had been executed in the form of family settlement; once there had been registered partition deed, executed in the year 1968, obviously relinquishment could only have been made by a registered document and not by Wardi on a plain paper. The Wardi had not been placed on record. Mutation entry was placed on record. When the defendant Nos. 3 and 4 or their guardian were aware of the factual situation, being neighbouring cultivators, and it is apparent from their written statement that they were aware of all these facts, as also of the transactions that had taken place in the inter se the plaintiff, defendant No.2 and Chandrayya, plea of purchase from ostensible owner in good faith was not available. In fact, what was the effect of the documents which had been executed inter se the plaintiff and defendant No.2, that was required to be taken into consideration. The defendant No.3 and 4 could not be said to be bonafide purchasers in good faith at all. Once there was no valid relinquishment made by the plaintiff of his share in favour of his father merely mutation entry made on the basis of Wardi even if it was submitted on a plain paper would not confer the title and was ineffective to relinquish right, title and interest of the plaintiff in favour of defendant No.2. Consequently, after partition, father would not have any right to alienate the share of his son to defendant No.1 and defendant No.1 would not become the owner on the basis of the deed executed in her favour in the year 1985 by defendant No.2 and thus she could not have conferred the right, title and

interest to defendant Nos.3 and 4 in the year 1990. By the fact that plaintiff was attesting witness to sale deeds, no rights accrued to Defendant Nos.3 and 4. Since plaintiff has not signed the sale deeds as executants, no estoppel is created. Parties were aware of the facts and defect in title.

13. In view of the aforesaid, it is apparent that the High Court had erred in law in modifying the judgment and decree passed by the trial court, and affirmed by the first appellate court. As a matter of fact, it was for the plaintiff to prefer an appeal against the partial decree that had been passed by the trial court as father defendant No.2 had executed a deed in his favour in the year 1972, execution of that was not denied by the defendant No.3 and 4. Be that as it may. Since no appeal was preferred by the plaintiff as against the judgment and decree of trial court decreeing the suit in part, we refrain from discussing the issue any further. We set aside the judgment and decree passed by the High Court and restore that of the trial court in the matter.

14. The appeal is allowed to the aforesaid extent. The parties are left to bear their own costs.

................J. (ARUN MISHRA)

................J. (MOHAN M. SHANTANAGOUDAR)

NEW DELHI; OCTOBER 24, 2017

ITEM NO.102 COURT NO.10 SECTION IV-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 10011/2010

SIDDALINGAYYA Appellant(s)

VERSUS

NEELAKANTH & ORS. Respondent(s)

Date : 24-10-2017 This appeal was called on for hearing today. CORAM :

HON'BLE MR. JUSTICE ARUN MISHRA

HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR

• For Appellant(s) Mr. Basava Prabhu S. Patil, Sr. Adv. Mr. Geet Ranjan Ahuja, Adv. Mr. Chinmay Deshpande, Adv. Mrs. Rachita Herimath, Adv. Mr. V. N. Raghupathy, AOR For Respondent(s) Mr. Girish A. Murthy, Adv.
• Mr. Vaijayanthi Girish, AOR

UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order. Pending application, if any shall stand disposed of. (NEELAM GULATI) (TAPAN KUMAR CHAKRABORTY)

(SIGNED ORDER IS PLACED ON THE FILE)

COURT MASTER (SH) BRANCH OFFICER