Doddamuniyappa (Dead) Through Lrs. vs Muniswamy

CIVIL APPEAL NO(s). 7141 OF 2008

DODDAMUNIYAPPA(DEAD) THROUGH LRS. ….Appellant(s)

VERSUS

MUNISWAMY & ORS. ….Respondent(s)

JUDGMENT

Rastogi, J.

1. The present appeal arises out of the suit filed at the

instance of respondent nos. 1 to 6 and respondent no. 10 for

declaration that the compromise dated 25 th March, 1976 entered

into between the appellant(defendant no. 1) on one hand and

respondent nos. 7, 8 and 9(original defendant nos. 2, 3 & 4) in

Execution Appeal No. 2 of 1974 did not bind the rights of the

plaintiffs and for permanent injunction which was acceded to by

the High Court in Regular First Appeal No. 611 of 1999 vide

judgment and decree dated 31st March, 2005.

2. The facts in brief culled out and relevant for the present Signature Not Verified Digitally signed by SATISH KUMAR YADAV Date: 2019.07.01 16:29:25 IST Reason:

purpose which manifest from the record that Shri Chikkanna

1 (since deceased) was the propositus of the joint family. He had

three sons, namely, Pillappa, Venkataramanappa and

Muniyappa (respondent nos. 7, 8 and 9). Respondent nos. 1 to 4

and respondent no. 10 are the sons of Pillappa (defendant no. 2)

and respondent nos. 5 and 6 are the sons of Shri

Venkataramanappa (defendant no. 3).

3. The above named propositus of the joint family Chikkanna

purchased the suit schedule property from his sister Thayamma.

The genealogy of the family of the respondents (plaintiffs) is as

under: ­

Chikkanna (Propositus)

Pillappa Venkataramanappa Muniyappa (Def. 2) (Def. 3) (Def. 4)

Govindaraja Venkatesha (Plff. 6) (Plff. 7)

Chikkanna Muniswamy Ramachandra Srinivasa Nagraja (Plff. No.1) (Plff. 2) (Plff. 3) (Plff. 4) (Plff. 5)

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4. It could be seen from the genealogy that respondent nos. 1

to 6 and respondent no. 10 are the grandsons of propositus

Chikkanna(deceased). The appeal has been preferred by

appellant (defendant no. 1) who is a purchaser of the subject

property involved in the suit. Respondent nos. 7 to 9(defendant

nos. 2 to 4), sons of late Chikkanna had jointly sold the suit

property in favour of one Muthappa under a sale deed dated 2 nd

December, 1950. It was stipulated in the sale deed that in the

event of the sale of the suit property by the above named

Muthappa, the suit property shall be reconveyance in favour of

respondent nos. 7 to 9 (defendant nos. 2 to 4) at the price offered

by the purchaser and on failure of the respondent nos. 7 to 9

(defendant nos. 2 to 4), the above named Muthappa would be free

to sell the suit property to any other purchaser. The property

was later purchased under the sale deed dated 30 th September,

1954 by one Muniswamy @ Annaiyappa from whom the appellant

purchased the suit property under the registered sale deed dated

29th January, 1962.

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5. Respondent nos. 7 to 9(defendant nos. 2 to 4), sons of

Chikkanna filed a suit on 27 th June, 1964 bearing no. O.S. No.

297 of 1964 against the appellant(defendant no. 1) including

other defendants seeking decree of reconveyance of the property

in terms of the clause of reconveyance against the appellant and

directing the defendants to execute reconveyance deed in their

favour in respect of the suit property which came to be dismissed

by the trial Court.

6. Being aggrieved by the judgment and decree of the trial

Court, respondent nos. 7 to 9(defendant nos. 2 to 4) filed Regular

Appeal No. 128 of 1967 which was allowed vide judgment and

decree dated 27th August, 1969 that came to be challenged by the

appellant(defendant no. 1) in a Regular Second Appeal No. 69 of

1970 which came to be dismissed and thus the decree became

final.

7. The matter thereafter proceeded for execution of the decree

in Execution No. 121 of 1972 and in sequel to the Order passed

in the execution petition, the reconveyance deed was executed by

the Court in favour of respondent nos. 7 to 9(defendant nos. 2 to

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4) and possession of the suit property was handed over to

respondent nos. 7 to 9(defendant nos. 2 to 4) by the Court under

delivery receipt dated 7th March, 1974(Exhibit P­6).

8. The appellant (defendant no. 1) filed Execution Appeal No. 2

of 1974 before the Principal Civil Judge, Bangalore. In Execution

Appeal, respondent no. 9(defendant no. 4) with the knowledge of

respondent nos. 7 and 8(defendant nos. 2 and 3) entered into a

compromise dated 25th March, 1976(Exhibit P­8) with the

appellant. The extract of the compromise (Exhibit P­8) entered

between the parties is quoted hereunder: ­

“ IN THE COURT OF PRINCIPAL CIVIL JUDGE BANGALORE DISRICT: BANGALORE Ex. Appeal No. 2/1974

Appellant: Doddamuniappa

­Vs­

Respondents: Pillappa and others

Under Order 23 Rule 3 of the Code of Civil Procedure read with Section 107 C.P.C., the appellant and respondents submit that they have compromised the matter as hereunder:

1. Item No. 1 of the suit schedule shall belong to the respondents and is in their possession of enjoyment.

2. Out of item No. 2 of the suit schedule on extent of land measuring thirty­five feet East to West, the measurement taken from the Eastern edge of Item no.

5 2 and twenty­six feet North South shall belong to the appellant as absolute owner thereof and the Respondents shall have no right whatsoever in the same. The rest of item No. 2, of plaint schedule property belongs to the respondents absolutely.

Parties have taken possession of their respective portions as indicated above.

The appellant and Respondents pray that the appeal may kindly be partly allowed in terms of the above compromise. Parties bear their own costs.

sd/­ sd/­ P.P. Subarao Doddamuniappa Advocate for Appellant Appellant (in Kannada)

sd/­ sd/­ M.R. Janardhanam Muniappa Advocate for Respondents Respondent (in Kannada)

Bangalore Dated: 25.03.1976

Execution submitted before me

sd/­ K.S. Dalvi Pri. Civil Judge, Bangalore District, Bangalore.”

9. The Execution Appeal in terms of the compromise was

decided and part premises in terms of the compromise was

handed over to the appellant, indisputedly, respondent nos. 1 to

6 and 10 (original plaintiffs) were neither parties to the said

compromise nor their consent was obtained. Having attained

6 majority, respondent nos. 1 to 6 and respondent no. 10 jointly

filed a suit bearing O.S. No. 5575 of 1980 arraying the

appellant(defendant no. 1) and respondent nos. 7 to 9(defendant

nos. 2 to 4) for declaration that the said compromise decree was

not binding on them and for permanent injunction contending

inter alia that the said compromise had been entered into

without their knowledge and consent of the respondent nos. 1 to

6 and respondent no. 10(plaintiffs), and respondent nos. 7 to

9(defendant nos. 2 to 4) having no right whatsoever to enter into

compromise and the said compromise had no legal sanctity

which was entered into between them without their consent and

knowledge and it did not bind them and, therefore, they were

entitled for their right in the suit property being a joint family

property.

10. The trial Court dismissed the suit vide judgment dated 19 th

June, 1999 holding that the plaintiff failed to establish that it

was the joint family property in the hands of respondent nos. 7 to

9(defendant nos. 2 to 4) and held that they were the joint owners

of the suit property.

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11. The judgment and decree of the trial Court dated 19 th June,

1999 came to be challenged by respondent nos. 1 to 6 in Regular

First Appeal No. 611 of 1999 before the High Court. The High

Court vide judgment and decree dated 31st March, 2005 allowed

the appeal, decreed the suit and held that the subject property

was joint family property in the hands of respondent nos. 7 to

9(defendant nos. 2 to 4) and the compromise would not bind the

plaintiffs(sons of defendant nos. 2 and 3) which is a subject

matter of appeal at the instance of the appellant(defendant no. 1)

in the original proceedings.

12. Learned counsel for the appellant, Mr. P.R. Ramasesh,

submits that when three sons of Chikkanna jointly sold the

property to Muthappa for a sum of Rs. 1000/­ it did not hold the

character of joint family property in the hands of the sons of

propositus Chikkanna and it could not have been treated as joint

family property and the plaintiffs (grand children of propositus

Chikkanna) were not even born in the year 1950 when the sale

was executed.

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13. Learned counsel further submits that when a part of the

subject property was agreed to be returned back under the terms

of the compromise by the original plaintiff (sons of late

Chikkanna) in the earlier proceedings, it has not acquired the

character of coparcenary property or joint family property under

the Hindu Law and mere on compromise, the property cannot get

any better character than the ordinary property in the hands of

co­sharers.

14. According to the learned counsel, the compromise on which

the High Court later proceeded in treating to be a joint family

inherited property, the finding is factually incorrect and

manifestly erroneous and deserves to be interfered by this Court.

15. Learned counsel further submits that the trial Court, after

appraisal of the evidence on record, came to the conclusion that

the plaintiffs had failed to establish the subject property to be the

joint family property and the terms of compromise was binding

on the original plaintiffs, is the correct conclusion in law. At the

time of compromise, respondent nos. 7 to 9(defendant nos. 2 to

4) came into possession of the property and, therefore, the nature

9 of the property had not become coparcenary property. In the

circumstances, the finding which has been recorded by the High

Court that the subsequent compromise does not bind the

plaintiffs is based on a misconception of the principle of law as

applicable to Joint Hindu Family.

16. Per contra, Mr. S.N. Bhat, learned counsel for the

respondents, while supporting the finding recorded by the High

Court submits that the factual matrix of the matter is not in

dispute. The subject property was initially sold on 2 nd December,

1950 containing the clause of reconveyance requiring the

purchaser to reconvey the property in the event of sale and the

clause of reconveyance enured to the benefit of the family. After

the suit being finally decreed and possession was restored on 7 th

March, 1974, pursuant thereto, the property reassumed its

original character of joint family property in the hands of

respondent nos. 7 to 9(defendants nos. 2 to 4).

17. Learned counsel further submits that the property inherited

from the father by his sons becomes joint family property in the

hands of the sons as held by this Court in Smt. Dipo Vs.

10 Wassan Singh and Others 1983(3) SCC 376. There remain no

controversy on the issue that if the subject property stands

reassumed in its original character of joint family property on

restoration of possession in pursuance to the decree of the Court

dated 7th March, 1974, no compromise could have been arrived at

between the parties at the stage of execution appeal without the

consent of respondent nos. 1 to 6(plaintiffs) and such a

compromise would not bind the rights of the respondent nos. 1 to

6 herein and this has been rightly held by the High Court under

the impugned judgment.

18. Learned counsel further submits that mere filing of an

execution appeal in which the compromise was executed between

the parties on 25th March, 1976, would not take away the efficacy

of the reconveyance decree passed and the execution of decree

stood effected pursuant to which the possession was restored of

the subject property on 7th March, 1974 (Exhibit P­8). The High

Court has rightly held that in terms of the clause of

reconveyance, the decree and the sale deed executed thereafter in

execution decree was fully effected and the plaintiffs (respondent

nos. 1 to 6) had a right, title and interest in the subject property

11 which was defeated by the compromise to which respondent nos.

1 to 6 (plaintiffs) were not the parties. Thus, the said

compromise cannot bind their share of interest and submits that

in the given circumstances, the present appeal is without

substance and deserves to be dismissed.

19. We have heard learned counsel for the parties and with

their assistance perused the material available on record.

20. The indisputed facts which have come on record are that

the subject property was originally purchased by propositus of

the family, namely, Chikkanna. After the death of Chikkanna,

property devolved into his three sons (respondent nos. 7 to 9­

defendant nos. 2 to 4) who jointly sold the property on 2 nd

December, 1950 and the sale deed contained the clause of

reconveyance requiring the purchase to reconvey the property in

the event of sale. After the appellant (defendant no. 1) purchased

the subject property on 29th January, 1962, civil suit was

instituted for reconveyance by the sons of propositus Chikkanna

in the first instance which was dismissed by the trial Court. On

an appeal being preferred by respondent nos. 7 to 9(defendants

12 nos. 2 to 4), the First Appellate Court allowed the appeal vide

judgment and decree dated 27th August, 1969. The second

appeal being R.S.A. No. 69 of 1970 preferred by the present

appellant (defendant no. 1) before the High Court came to be

dismissed, thus, the decree became final. Respondent nos. 7 to

9(defendants nos. 2 to 4) put the decree to execution and a deed

of reconveyance was executed and possession of the subject

property was restored to respondent nos. 7 to 9(defendants nos.

2 to 4) on 7th March, 1974 and on execution of a decree, it

assumed the character of a joint family property in the hands of

respondent nos. 7 to 9(defendants nos. 2 to 4).

21. It is at the stage of Execution Appeal No. 2 of 1974 preferred

at the instance of the appellant (defendant no. 1), the

compromise was executed between the parties on 25 th March,

1976 and part of the possession of the subject property was

restored to the appellant(defendant no. 1).

22. After the restoration of possession of the subject property on

7th March, 1974, the title of the property reassumed its original

character of joint family property in the hands of respondent nos.

13 7 to 9 (defendants nos. 2 to 4) and has created the right of

inheritance of respondent nos. 1 to 6 in the joint family property

and indisputedly, they were neither consulted nor made parties

to the said compromise.

23. It is well settled and held by this Court in Smt. Dipo Vs.

Wassan Singh and Others (supra) that the property inherited

from the father by his sons becomes joint family property in the

hands of the sons. The relevant portion is as under:­

2. “………..Property inherited from paternal ancestors is, of course, “ancestral property” as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mulla's Principles of Hindu Law (15th Edn.), it is stated at p. 289:

“. . . if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. . . .

***

A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons' sons and sons' sons' sons, but as regards

14 other relations he holds it, and is entitled to hold it, as his absolute property.”

Again at p. 291, it is stated:

“The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession.”

24. Indisputedly, respondent nos. 1 to 6 (original plaintiffs) were

not parties to the compromise dated 25th March, 1976 and the

subject property at that time was joint family property and the

compromise entered into between the parties would not bind the

rights of respondent nos. 1 to 6(grandsons of propositus

Chikkanna).

25. It is an admitted fact on record that the property was

purchased by Chikkanna from his sister Thayamma and

respondent nos. 7 to 9(defendants nos. 2 to 4) have inherited the

property after death of propositus Chikkanna. Respondent nos.

1 to 6 are children of respondent nos. 7 and 8(defendants nos. 2

15 and 3), it would be an ancestral property in their hands and

indisputedly respondent nos. 1 to 6 are neither parties to the

proceedings nor consented when the compromise decree was

executed in Execution Appeal No. 2 of 1974 (Exhibit P­8) dated

7th March, 1974 and admittedly the same would not be binding

upon their share over the property.

26. It goes without saying that the compromise would bind the

share of respondent nos. 7 to 9(defendants nos. 2 to 4) as they

are party to the compromise which was entered into Execution

Appeal No. 2 of 1974 and has been rightly recorded by the High

Court under its impugned judgment. We find no error in a

finding of fact which calls for any further interference of this

Court.

27. We find substance on the submission of learned counsel for

the respondents that after the decree of the suit was put in

execution a deed reconveyancing the subject property to

respondent nos. 7 to 9 (defendants nos. 2 to 4) was executed and

were put in possession on 7th March, 1974, mere filing of an

Execution Appeal would not take away the efficacy of the

16 reconveyance decree already passed and the execution stands

effected and the right, title and interest in the subject property

could not be defeated by the compromise to which respondent

nos. 1 to 6 (plaintiffs) were not parties and as such, the said

compromise would not bind the share of respondent nos. 1 to 6.

28. The submission of learned counsel for the appellant(s) that

respondent nos. 1 to 6 failed to establish the existence of the

property in the hands of any member in the joint family property

or give rise to any presumption that the property is coparcenary

property is misplaced for the reason that the factual matrix of

which a detailed reference has been made indicates that the

property in the hands of respondent nos. 7 to 9(defendants nos. 2

to 4) of a joint family and confers on the property the character of

coparcenary property in the hands of respondent nos. 1 to 6.

29. Consequently, in our considered view, the appeal is without

substance and accordingly dismissed. No costs.

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30. Pending applications, if any, also stand disposed of.

..…………………………J. (A.M. KHANWILKAR)

.………………………….J. (AJAY RASTOGI)

NEW DELHI JULY 01, 2019

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