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KARNATAKA HIGH COURT
Anand Byrareddy, J.
D. Ramakrishna —Appellant
versus
D. Balakrishna & Ors. —Respondents
Regular First Appeal No.460 of 2009 connected with Regular First Appeal Nos.1219 and 1085 of 2009
Decided on 30.3.2015
(ii) Civil Procedure Code, 1908 — Order II, Rule 2 — Indian Evidence Act, 1872 — Section 115 — Right in immovable property worth more than 100 rupees can be conveyed or transferred only by a registered document. Mere admission will not transfer or convey title. (Para 8)
(iii) Transfer of Property Act, 1882 — Section 41 — Purchasers of dispute property D and V — It was claim of defendant-7 that they ostensible owners — And real owner was M/s S — In that it claimed that they purchased property in their individual names no doubt — But in fact acting as Directors of company — Which yet to be incorporated as on date of transaction — However sale deed does not mention same — Hence application of S. 41 of TP Act does not arise. (Para 8)
(iv) Specific Relief Act, 1963 — Section 31 — Relief of declaration — Exhibit D2 was void document — It for plaintiff to opt to seek relief either under S. 31 or 34 of SR Act — When plaintiff not party to transaction — He not precluded from seeking declaration of his title — Especially if there is dispute regarding title — He can sue for declaration under S. 34 of SR Act. (Para 8)
(v) Limitation Act, 1963 — Article 110 — Limitation — As regards finding of Trial Court that suit barred by limitation concerned — No pleading in written statement that that suit schedule proprieties joint family properties and plaintiff excluded from possession by ouster and plaintiff lost title by ouster and adverse possession — Defendants not admitted that suit schedule properties joint family properties — HELD — Seventh defendant-company cannot be member of joint family — Non-inclusion of property in partition deed will not amount to exclusion of plaintiff from possession by member of joint family — Thus finding of Judge that 12 years elapsed and suit barred by limitation — Contrary to law — Article 110 of Limitation Act not applicable. (Para 8)
Result: Appeals allowed.
Anand Byrareddy, J.—These appeals are decided by this common judgment as they are preferred challenging the same judgment.
2. The appeal in RFA No. 460 of 2009 is filed by the plaintiff. The appeals in RFA Nos. 1219 and 1085 of 2009 are filed by the defendants 2 and 6(b) respectively.
3. The parties are referred to by their rank before the Trial Court for the sake of convenience.
4. The suit was filed seeking the relief of declaration that the plaintiff and defendants 1 to 6 were the absolute owners of the suit schedule properties and for partition and separate possession of the same. The suit properties were the land bearing Sy. No. 73 of Yeshwanthpur Village, Bangalore North Taluk, measuring 6 acres and 1 gunta and land bearing Survey No. 70/1 of Yeshwanthpura Village, Bangalore North Taluk, measuring 1 acre.
The plaintiff claimed that he was entitled to
1/7th share in the suit schedule property. Defendants 1 to 5 were the brothers of the plaintiff and the defendant 6 was the mother of the plaintiff.
M/s. Fire Bricks and Potteries Private Limited was arrayed as defendant 7.
It was the plaintiff’s case that his father late V.L. Dhanram Modaliar and his father’s brother V.L. Venugopal Modaliar had purchased 12 acres and 2 guntas of land in land bearing Survey No. 73 of Yeshwanthpur Village, under a registered sale deed dated 3-2-1938.
It was claimed that V.L. Dhanram Modaliar and V.L. Venugopal Modaliar, along with their family members had promoted two companies, namely, M/s. Fire Bricks and Potteries Private Limited and M/s. Standard Tiles and Clay Works Limited. The shares in the said two companies were held jointly by V.L. Dhanram Modaliar and V.L. Venugopal Modaliar. Subsequently, by an arrangement between the two brothers, Mis. Fire Bricks and Potteries Private Limited (defendant 7) came to be owned by V.L. Dhanram Modaliar and his family members and M/s. Standard Tiles and Clay Works Limited came to be owned by V.L. Venugopal Modaliar and his family members.
M/s. Standard Tiles and Clay Works Limited, represented by its Managing Director V.L. Venugopal Modaliar, sold the property to defendant 7-Company, which was represented by V.L. Dhanram Modaliar, the plaintiff’s father, under a registered sale deed dated 14-4-1945. It was urged by the plaintiff that V.L. Venugopal Modaliar was entitled to only half share in Item No.1 of the suit schedule properties, namely, 6 acres and 1 gunta and hence, V.L. Venugopal Modaliar could not have transferred the entire extent of 12 acres 2 guntas to defendant 7. Therefore, the plaintiff claimed that he was entitled to partition and separate possession of 1/7th share in the suit schedule properties.
It was further urged by the plaintiff that his father V.L. Dhanram Modaliar was granted occupancy rights in respect of land bearing Sy. No. 70/1, Yeshwanthpura Village, Bangalore North Taluk, measuring 1 acre, Item No.2 of the suit schedule properties.
The defendants 1 and 3 to 7 had entered appearance on service of summons and had filed a common written statement. It was the case of the said defendants that both V.L. Dhanram Modaliar and V.L. Venugopal Modaliar acquired the property under a registered sale deed dated 3-2-1938 (Exhibit D1) for and on behalf of M/s. Standard Tiles and Clay Works Limited, though the said property was purchased in their individual names. This was on account of the fact that the aforesaid company was not incorporated as on the date of purchase. However, the land bearing Sy. No. 73 of Yeshwanthpura Village, Bangalore North Taluk, measuring 12 acres and 2 guntas had always been in the. possession and occupation of M/s. Standard Tiles and Clay Work Limited, since its incorporation till the property was sold to the defendant 7-company, under a registered sale deed dated 14-4-1945. It was evident from the revenue records thatfrom 14-4-1945, the defendant 7-company had been in possession and occupation of the land bearing Sy. No. 73.
It was stated that there wer
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