p.s to hon’ble 1. raja ram s/o.mahadev phadake since...

IN THE HIGH COURT OF KARNATAKACIRCUIT BENCH AT DHARWAD

DATED THIS THE 23RD DAY OF NOVEMBER 2012

BEFORE

THE HON’BLE MR.JUSTICE B. MANOHAR

*R.S.A.* NO.230/2004 (PAR)

BETWEEN:

1. RAJA RAMS/O.MAHADEV PHADAKE SINCE DECEASED BY L.RS.

1(a) BHAGYASHREE,W/O.RAJARAMAGED ABOUT 60 YEARS.

1(b) SRI ATUL

S/O.RAJARAM @ BALACHANDRAAGED ABOUT 39 YEARS.

1(c) SRI SAILESHS/O.RAJARAM @ BALACHANDRAAGED BOUT 33 YEARS.

APPELLANT No.1(a) to 1(c) ARER/A KACHERI ROAD, NEARSBI JAMKHANDI.

1(d) SMT.MANASI

D/O.RAJARAM @ BALACHANDRAR/a.ERRADONA PARKBEHIND INCOME TAX LANEHOUSE No.61/22, BHARAT

*Corrected Vide

C.O. dt.11.02.13*

P.S to Hon’ble

ANVGJ

2

NIVAS COLONY, AKSHAR DEVBUNGALOW, PUNE,MAHARASHTRA.

2. SRI.MUKUNDS/O.MAHADEV PHADAKEMAJOR, C/O.AT LAXMI MEDICALSTORES, NEAR STATE BANK,JAMAKANDI, BAGALKOT DIST.

3. SRI.SUNILS/O.MAHADEV PHADAKEMAJOR, C/O.AT LAXMI MEDICALSTORES, NEAR STATE BANK,JAMAKANDI, BAGALKOT DIST. APPELLANTS

(By Smt. V VIDHYA IYER, ADV.)

AND

1. SMT.ASHA BI, W/O.ALLABAX PENDHERIMAJOR, OCC.HOUSEHOLD WORKR/A PENDHARI GALLI, JAMKHANDI

2. SMT.MUNITAJBIW/O.IMAMSAHEB PENDHERIMAJOR, HOUSEHOLD WORK

R/AT.PENDHARI GALLIJAMKHANDI.

3. SMT.ROSHANBIW/O.GULAB PENDHERIMAJOR, HOUSEHOLD WORK

R/AT.PENDHARI GALLIJAMKHANDI

3

4. SRI.CHANDSAHEBS/O.GULABSAHEB PENDHARIMAJOR, OCC.MOTOR BUSINESS


5. SRI.ABDULSAHEBS/O.GULABSAHEB PENDHARIMAJOR, OCC.MOTOR BUSINESS


6. SRI.MUSAS/O.GULABSAHEB PENDHARIMAJOR, OCC.MOTOR BUSINESS


7. SMT.JUBEDABIW/O.ABDULLA PENDHARIMAJOR, OCC.HOUSEHOLD WORK


8. SMT.JARINAW/O.MADARSAHEB SAYYADMAJOR, OCC.HOUSEHOLD WORK


9. SMT.TAIMURAW/O.MADARASAHEB SAYYADMAJOR, OCC.HOUSEHOLD WORK

R/AT.SUBASHNAGARNEAR MASJID, MIRAJDIST.SANGLI

4

10. SRI.ABDUL AZIZ SINCE DECEASED BY L.Rs.

10(a) SMT.GULSHAN BIW/O.LATE ABDUL AZEEZAGED ABOUT 78 YEARS.

10(b) SRI MOHAMMED HANIFS/O.ABDUL AZEEZ

AGED ABOUT 50 YEARS.

10(c) SRI IQBALS/O.LATE ABDUL AZEEZ

ALL ARE R/A.PENDHARI GALLI

NEAR MASJID, JAMAKHANDIBAGALKOT DISTRICT

11. SRI.AMEER, S/O.CHANDSAB PENDHARIMAJOR, OCC.MOTOR BUSINESSR/AT.PENDHARI GALLI

JAMAKHANDI. RESPONDENTS

(By Sri M G NAGANURI, ADV. FOR R1-R3 R4 TO R9, R10(a) to (c) & R11 ARE SERVED)

RSA IS FILED U/S. 100 OF CPC AGAINST THE

JUDGEMENT & DECREE DATED 13.11.2003 PASSED IN

R.A.NO 117/1997 ON THE FILE OF THE PRL. CIVIL JUDGE

(SR.DN.), JAMKHANDI, DISMISSING THE APPEAL AND

CONFIRMING THE JUDGEMENT AND DECREE DATED

16.8.1997 PASSED IN O.S. NO 109/1982 ON THE FILE OF

THE I ADDL. MUNSIFF, JAMKHANDI.

5

THIS *RSA HAVING BEEN HEARD AND RESERVED

AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

J U D G M E N T

The appellants are defendants in O.S.No.109/1982.

Being aggrieved by the judgment and decree dated

13-11-2003 made in R.A.No.117/1997 passed by the

Principal Civil Judge (Sr.Dn.), Jamkhandi dismissing the

appeal and confirming the judgment and decree dated

16-08-1997 made in O.S.No.109/1982 passed by the

Additional Munsiff, Jamkhandi, decreeing the suit filed

by the plaintiffs, the appellants have filed this appeal.

2. For the purpose of convenience and better

understanding, the rank of the parties is referred to as in

the suit before the trial Court.

3. Respondents 1 and 2 in this appeal are the

plaintiffs. They filed a suit seeking for partition and

separate possession of their 1/4th share in the suit

*Corrected vide

C.o. dtd.11/2/13

P.S to Hon’ble

ANVGJ

6

schedule property by metes and bounds and also sought

for setting aside the sale deed executed by defendants 4

to 6 in favour of defendants 1 to 3 to the extent of

plaintiffs’ 1/4th share in the suit schedule property. The

plaintiffs have contended that CTS No.1535 two storied

building measuring 43.88 sq.mtrs. situated at

Jamkhandi is the suit schedule property. The plaintiffs 1

and 2 and defendants 4 to 6 are the sons and daughters

of Khatunbi wife of Chandsaheb Pendhari. She died on

18-2-1969. Khatunbi is the owner of the said property

and died intestate. The plaintiffs 1 and 2 and defendants

4 to 6 have jointly succeeded the suit schedule property

and continued to be in joint enjoyment of the said

property. As per the Mohammedan Law, the sons are

entitled for double portions of the shares to that of

daughters. In view of that, defendants 4 to 6 together

entitled for 3/4th share and plaintiffs together entitled for

1/4th share in the suit schedule property. The

defendants 1 to 3 were in possession of the suit schedule

7

property as tenants. The defendants 1 to 3 instigated

defendants 4 to 6 to alienate the suit schedule property

in their favour though the plaintiffs have right in respect

of their 1/4th share in the said property by inheritance.

Defendants 4 to 6 without the knowledge and consent of

the plaintiffs alienated the suit schedule property on

28-04-1972 in favour of defendants 1 to 3 for a paltry

sum of Rs.12,000/-. The plaintiffs are illiterate women

and they were not aware of the sale deed dated

28-04-1972 executed by defendants 4 to 6. Immediately,

after coming to know of the said sale deed, the plaintiffs

got issued a legal notice to defendants 1 to 3 on

15-5-1976 stating that they have got 1/4th share in the

suit schedule property and without their knowledge and

notice, alienation has been made by defendants 4 to 6

which is not binding on them. Defendants 1 to 3 issued

reply notice on 2-6-1976 denying the contentions of the

plaintiffs stating that defendants 4 to 6 are the absolute

owners of the property and they have alienated the

8

properties and plaintiffs have no right. In view of that

the plaintiffs filed a suit seeking for partition and

separate possession of their 1/4th share and also sought

for setting aside the sale deed to an extent of sale of

plaintiffs’ 1/4th share in favour of defendants 1 to 3.

4. In pursuance to the notice issued by the trial

Court, the defendants 1 to 3 entered appearance and

defendant No.1 filed written statement and defendants 2

and 3 adopted the same. The defendants 4 and 5 though

entered appearance through their counsel have not filed

any written statement. The 6th defendant remained

exparte. During the pendency of the suit, defendant No.4

expired and his legal representatives are brought on

record and they remained exparte.

5. The first defendant in his written statement denied

the entire allegations and assertions made in the plaint.

The defendants 1 to 3 have denied the relationship of the

plaintiffs as sisters of defendants 4 to 6 and the

9

daughters of Khatunbi. They also denied that Khatunbi

was the owner of the suit schedule property. The

plaintiffs have no right, title and interest over the suit

schedule property. The defendants 4 to 6 are the owners

in possession of the property and they have leased the

suit schedule property to them. Due to the financial

difficulties and in order to settle the dues of the Urban

Co-operative Bank, they had alienated the property for a

valuable consideration. Before purchasing the property,

they had verified the title deed of defendants 4 to 6. The

entries in City Survey Office show that defendants 4 to 6

are the owners of the property. The plaintiffs have not

made any attempt to get their names entered in the

records. A local enquiry made depicted that defendants

4 to 6 are the only owners of the property. Accordingly,

they purchased the suit property and they are the

bonafide purchasers of the property for a valuable

consideration. Hence, they are protected under Section

41 of the Transfer of Property Act. Even assuming that

10

the plaintiffs are the sisters of defendants 4 to 6, they are

not estopped from contending that they have any share

much less 1/4th share. They have not exercised their

rights and they have given implied consent to alienate

the property. Further the suit filed by the plaintiffs is

barred by limitation. The property was purchased on

28-4-1972 and the suit has been filed in the year 1982.

It was barred by limitation and sought for dismissal of

the suit.

6. On the basis of the pleadings of the parties, the

trial Court framed the following issues and additional

issues:

1) Do plaintiffs prove that they are thesisters of defendants 4 to 6?

2) Do they further prove that their motherKhatunabi was the exclusive owner of

the suit property and they have gottogether 1/4th share in the suit property?

3) Do they also prove that defendants 1 to 3malafidely made a common cause withdefendant 4 to 6 to dupe and deprive the

11

valuable rights of the plaintiffs over thesuit property?

4) Do they further prove that the sale-deedfor Rs.12,000/- executed by defendants4 to 6 in favour of defendant No.1 to 3 is

not according to the actual considerationof Rs.24,000/- and thereby thedefendants have committed fraud on theStamp Law?

5) Do defendants 1 to 3 prove that they arethe bonafide purchasers of the suitproperty after making reasonableenquiry?

6) Do they also prove that the plaintiffs havefiled this suit in collusion with defendant4 to 6?

7) Do they further prove that the suit is notmaintainable without the prayer of

declaration?

8) Whether the plaintiffs entitled for the suitclaim?

9) What order or decree?

Addl. Issues

1) Whether defendants prove thatplaintiffs are excluded from suitproperty more than 12 years back priorto the suit. Hence, the suit is barred bytime?

12

2) Whether defendants 1 to 3 provethat they have become the owner of thesuit property by Adverse possession?

7. The plaintiffs in order to prove their case examined

plaintiff No.1 as P.W.1 on behalf of both the plaintiffs and

examined 4 other witnesses as P.W.2 to P.W.5 and relied

upon Ex.P.1 to Ex.P.19. On behalf of the defendants the

first defendant got examined himself as D.W.1 and

examined 2 other witnesses as D.W.2 and D.W.3 and got

marked the documents as Ex.D1 to Ex.D15.

8. The trial Court after considering the arguments

addressed by the parties on appreciating the oral and

documentary evidence let in by the parties held issue

No.1 to 3 & 8 in the affirmative and issues 4 to 7 in the

negative. Consequently, by its judgment and decree

dated 16-08-1997 decreed the suit and declared that the

plaintiffs are entitled for 1/4th share in the suit schedule

property and they are entitled for partition and separate

13

possession in the suit schedule property by metes and

bounds. The defendants 1 to 3 who are the purchasers

of the property from defendants 4 to 6 are entitled for

3/4th share in the suit schedule property.

9. The defendants 1 to 3 being aggrieved by the

judgment and decree dated 16-08-1997 made in

O.S.No.109/1982 filed R.A.No.117/1997 on the file of the

Principal Civil Judge (Sr.Dn.) Jamkhandi, contending

that the judgment and decree passed by the trial Court is

contrary to law, facts and evidence on record. The trial

Court has not properly appreciated the oral and

documentary evidence adduced by the parties. The trial

Court misunderstood and misread article 59 of the

Limitation Act. Further, the trial Court has failed to

appreciate Section 41 of the Transfer of Property Act in

proper perspective. The sale transaction is of the year

1972 and the suit has been filed in the year 1982, hence

the suit filed by the plaintiffs is barred by limitation. The

14

plaintiffs ought to have filed the suit within a period of 3

years from the date of death of their mother. Though

their mother died in the year 1969, a legal notice was

issued to defendants 1 to 3 only in the year 1976 and the

suit has been filed in the year 1982. The suit filed by the

plaintiffs is barred by limitation. The trial Court ought to

have dismissed the suit on the said grounds and

considered the Limitation issue as a preliminary issue.

The entire approach made by the trial Court is contrary

to law and sought for setting aside the same.

10. The Lower Appellate court after considering the

arguments addressed by the parties framed the following

points for its consideration:

1. Whether the trial Court committed anyerror in appreciating the evidence brought onrecord both oral and documentary?

2. Whether the trial Court committed anyerror in granting the relief of declaration whenthe defendants 1 to 3 are the statutorytenants in respect of the suit scheduleproperty?

15

3. Whether the trial Court committed anyerror in relying on the documents produced bythe plaintiffs for establishing their

relationship with Khatunbi?

4. Whether the trial Court failed to discernthat the plaintiffs suit is barred by time andthat defendants 1 to 3 have perfected theirtitle by adverse possession & also they being

the owners of the property in pursuance to theRegistered Sale Deed dated 28.4.1972?

5. What Order?

11. The Lower Appellate Court on reappreciating the

oral and documentary evidence adduced by the parties,

held all the points against the appellants, consequently,

by its judgment and decree dated 13-11-2003 dismissed

the appeal confirming the judgment and decree passed

by the trial Court with a modification to the extent that

the plaintiffs shall pay the adequate court fee on their

share in the suit schedule property. It is held that the

plaintiffs are entitled for 1/4th share in the suit schedule

property and they are also entitled for partition and

separate possession of the suit schedule property by

16

metes and bounds. It is declared that the sale deed

dated 28-04-1972 is not binding on the plaintiffs to the

extent of their 1/4th share in the suit schedule property.

The appellants being aggrieved by the judgment and

decree passed by the Appellate Court filed this appeal.

12. Smt.V.Vidya, learned counsel appearing for the

appellants contended that the judgment and decree

passed by the courts below are contrary to law, highly

illegal and unjust. The courts below have committed

serious illegalities in holding that sale deed executed by

the defendants 4 to 6 does not bind the plaintiffs. While

ordering so, the courts below have not considered the

material records. The non-consideration of materials and

evidence on record resulted in miscarriage of justice.

Further, the courts below failed to appreciate the fact

that the appellants had purchased the property in the

year 1972 and prior to the purchase of the said property,

they were statutory tenants. The suit came to be filed in

17

the year 1982, though the plaintiffs were aware of the

purchase of the property by the defendants 1 to 3 much

earlier. Hence, the suit filed by the plaintiffs is barred by

limitation and the limitation prescribed is for a period of

3 years. After lapse of 10 years, the prayer for

declaration has been sought hence it is barred by

limitation. Further, the mother of the plaintiffs died on

28-2-1969. As per the Article 65 of the Limitation Act,

the limitation prescribed to file a suit is 12 years from the

date of death of a Hindu or Muslim Female. In the

instant case, the mother of the plaintiffs died on

28-2-1969 and the suit has been filed in the year 1982.

Hence, the suit is barred by limitation. The courts below

have not considered the effect of Section 65 of the

Limitation Act. Further, the appellants are entitled to

protection under Section 41 of the Transfer of Property

Act since they are bonafide purchasers of the property for

a valuable consideration. She has relied upon the

judgment reported in II (2006) CLT 37(SC) (JAGAT RAM

18

v/s VARINDER PRAKASH). Hence sought for allowing the

appeal by setting aside judgment and decree passed by

the both the courts below.

13. On the other hand, Sri.M.G.Naganuri, learned

counsel appearing for the Respondents 1 to 3 argued in

support of the judgment and decree passed by the courts

below and contended that Khatunbi is the propositus of

the property and she has two daughters and three sons.

She died intestate. After her death, her children became

the co-owners of the suit schedule property and each one

of them are having definite share in the said property. As

per the Mohammedan Law, sons are entitled for double

share than the daughters. By operation of law, both the

plaintiffs are entitled for 1/4th share whereas defendants

4 to 6 together are entitled for 3/4th share. The

possession of defendants 4 to 6 is as co-owners and they

cannot alienate the shares of the plaintiffs, though the

mutation entries stand in their names. Further, the

19

appellants are fully aware of the fact that the

Respondents 1 and 2 are entitled for 1/4th share in the

property. The records clearly disclose that the mother of

the plaintiffs and defendants 4 to 6 has leased the

property in favour of the father of defendants 1 to 3. In

the sale deed dated 28-4-1972 it was averred that along

with defendants 4 to 6 their sisters are also the owners of

the suit schedule property. The defendants 1 to 3 are

fully aware of the said fact. No effort has been made to

obtain the consent of the plaintiffs. Hence it is not open

to the defendants 1 to 3 to contend that they are the

bonafide purchasers of the property. Hence, they are not

entitled for protection under Section 41 of the Transfer of

Property Act. Further, immediately after coming to know

of the execution of the sale deed, a legal notice was

issued to the appellants on 15-5-1976 stating that the

sale deed dated 28-4-1972 is not binding on the

plaintiffs. In the reply notice they have denied that the

plaintiffs are the sisters of the defendants 4 to 6 and

20

children of Khatunbi and contended Khatunbi is not the

owner of the property though they have taken the

property on lease from Khatunbi herself. The suit has

been filed in the year 1982 within a period of 12 years

from the date of their knowledge. Hence, the suit is not

barred by limitation. Article 65 covers the field. Articles

58 and 59 of the Limitation Act are not applicable to the

case on hand and sought for dismissal of the appeal.

14. I have carefully considered the arguments

addressed by the parties and perused the oral and

documentary evidence adduced by the parties.

15. The above appeal has been admitted on 24-8-2004

to consider the following substantial questions of law:

(i) Whether the courts below are justified inholding that the suit is in time in view ofthe provisions of the Limitation Act in thegiven circumstances?

(ii) Whether the courts below are justified ingiving a finding against the appellant inthe light of Section 41 of the Transfer ofProperty Act?

21

(iii) Whether the approach of the court belowis justified in law in the light of thebonafide nature of sale transaction of theappellants?

16. The records clearly disclose that the plaintiffs 1 and

2 and defendants 4 to 6 are the children of Khatunbi wife

of Chandsaheb Pendhari. She is the owner of CTS

No.1535, a two storied building at Jamkhandi town. The

said building was purchased by Khatunbi from Kadappa

Veerabhadrappa Manoji. Ex.D.1 discloses the said fact.

The said property was leased in favour of the father of

defendants 1 to 3. Ex.P6 and Ex.P7 rent notes clearly

disclose that Khatunbi leased the property in favour of

father of defendants 1 to 3. Hence, Khatunbi is the

absolute owner of the said property. She died on

18-2-1969 leaving behind two daughters and three sons.

As per the Mohammedan Law, the plaintiffs are entitled

for 1/4th share and defendants 4 to 6 are entitled for

3/4th share. It was in the joint occupation of the

22

plaintiffs and defendants 4 to 6 and they became the co-

owners to the definite share in the said property. Hence

one co-owner cannot claim adverse possession against

another co-owner. Defendants 4 to 6 though they are the

owners of their 3/4th share, they alienated entire extent

of suit schedule property in favour of defendants 1 to 3

who were the tenants in possession of the suit schedule

property. In the sale deed dated 28-4-1972, a recital has

been made to the extent that apart from defendants 4 to

6 two of their sisters are also owners of the said property

and the sisters have no objection to alienate the property.

If there is any dispute, the defendants 4 to 6 will solve

the same. This recital clearly discloses that the plaintiffs

1 and 2 are the owners of the property. The defendants 1

to 3 have not taken the consent of plaintiffs who are the

owners in respect of 1/4th share in the suit schedule

property. On the other hand, the case of the defendants

1 to 3 is that Khatunbi is not the owner of the suit

schedule property and plaintiffs 1 and 2 are not the

23

sisters of defendants 4 to 6 and daughter of Khatunbi.

The voluminous documents have been produced before

the court to show that the plaintiffs are daughters of

Khatunbi. In support of their contentions, they

examined four witnesses and produced the documents at

Ex.P1 and Ex.P12 and Ex.P13(a) and (b) which are the

marriage extract and Nikha registration. The School

transfer certificate is also produced to show that the

plaintiffs are the daughters of Khatunbi. The defense of

the defendants 1 to 3 that before purchasing the

property, they had verified the records and found that

the names of defendants 4 to 6 have been entered in the

revenue records and they are the bonafide purchasers for

a valuable consideration and they are entitled for

protection under Section 41 of the Transfer of Property

Act cannot be accepted. The documents produced by the

plaintiffs clearly disclose that the defendants 1 to 3 were

fully aware of the fact that the plaintiffs are the owners in

respect of 1/4th share and Ex.P9 the sale deed dated

24

28-4-1972 discloses the said fact. The said sale deed

was prepared by the Advocate of defendants 1 to 3 and

they were fully aware of the contents of the said sale

deed. Hence, it is not open to them to contend that they

were not aware of the fact that the plaintiffs are the

owners in respect of 1/4th share. Hence, the appellants

are not entitled for any protection under Section 41 of

the Transfer of Property Act and they are not the

bonafide purchasers of the property.

17. With regard to the limitation is concerned, the main

contention urged before the courts below is that Articles

58 and 59 are applicable and suit ought to have been

filed within a period of 3 years. In the instant case, the

suit has been filed after 10 years and the suit is barred

by limitation. The court below considered the contention

raised by the appellants and found that the plaintiffs

have sought for partition and separate possession of their

1/4th share in the property and also sought for setting

25

aside the sale insofar as their 1/4th share is concerned

and they have not sought for setting aside the entire sale

deed. This court in a judgment reported in AIR 1991

KAR 273 in the case of SESHUMALLU M.SHAH v/s

SAYED ABDUL RASHID AND OTHERS has held that

article 65 of the Limitation Act is applicable and not

Article 58. I find that there is no infirmity or irregularity

in the said finding. Though the defendants 4 to 6

executed the sale deed on 28-4-1972, immediately after

coming to know of the same, the plaintiffs issued a legal

notice to the defendants 1 to 3 on 25-5-1976 and the suit

has been filed in the year 1982. Hence, the suit has

been filed within the limitation period of 12 years under

Article 65 of the Limitation Act.

18. Smt.V.Vidya, advocate appearing for the appellants

contended that as per Article 65B of the Limitation Act,

where the suit is filed by a Hindu or Muslim entitled to

possession of immovable property on the death of Hindu

26

or Muslim female, the possession of the defendant shall

be deemed to become adverse only when the female dies.

In the instant case, Khatunbi died on 28-2-1969. The

plaintiffs ought to have filed a suit within a period of 12

years, from the date of death of the said Khatunbi. This

aspect of the matter has not been considered by the

courts below. She also relied upon the judgment

reported in II (2006) CLT 37 (SC) cited supra. On the

other hand, Sri.Naganuri, advocate appearing for

Respondents 1 to 3 contended that article 65B of the

Limitation Act is applicable only in the case of holder of

limited estate. After their death, it reverses back to the

original holder. In the instant case, Khatunbi is the

absolute owner of the suit schedule property and after

her death, by operation of law, the plaintiffs as well as

defendants 4 to 6 became the co-owners and each one of

them are having definite share in the property. Hence,

article 65B is not applicable to the facts of the present

case. He relied upon the commentary on Limitation Act,

27

1963 by Sanjeeva Rao, IX Edition. He also relied upon

the judgment reported in AIR 1991 KAR 273

(SESHUMULL M SHAH v/s SYED ABDUL RASHID AND

OTHERS) wherein this court examined articles 65 and 68

of the Limitation Act and held that the suit for

declaration that the plaintiffs are the owners of the

property and possession has been claimed as

consequence of declaration, which governs article 65 and

not article 68 of the Limitation Act. In the instant case,

the plaintiffs have sought for partition and possession of

the property and also declaration that the sale deed

dated 28-4-1972 is not binding on the plaintiffs insofar

as their 1/4th share is concerned. Hence, article 65 of

the Limitation Act is applicable and the suit has been

filed within the period of limitation.

19. Both the courts below on appreciating oral and

documentary evidence produced by the parties came to

the conclusion that Khatunbi is the owner of the suit

28

schedule property and after her death, plaintiffs as well

as defendants 4 to 6 became the co-owners and each one

of them are having a definite share in the suit schedule

property by operation of law. The defendants 4 to 6

without the consent of the plaintiffs alienated their 1/4th

share in favour of defendants 1 to 3. Ex.P9 clearly

discloses that the plaintiffs are the co-owners in respect

of the suit schedule property, which was alienated by

defendants 4 to 6 in favour of defendants 1 to 3. The

defendants 1 to 3 were fully aware of the said fact. Ex.P9

was prepared by the advocate of defendants 1 to 3. On

the instructions of the said advocate, it was written by

one Appaji Master. The recital in the sale deed clearly

discloses that apart from defendants 4 to 6, two of their

sisters are also the owners of the said property. The two

sisters are none other than the plaintiffs in the suit.

Without the consent of the plaintiffs, the defendants 1 to

3 purchased the entire property though the defendants 4

to 6 are the owners only in respect of 3/4th share in the

29

property. They cannot sell the entire property. The

evidence clearly discloses that the defendants 1 to 3 were

fully aware of the said fact. Hence, they cannot claim

that they are the bonafide purchasers of the property and

entitled to claim protection under Section 41 of the

Transfer of Property Act. The plaintiffs are lawful owners

of their 1/4th share and they cannot be denied their

property right. The judgment relied upon by the

appellants is not applicable to the facts of the present

case.

20. I find that there is no infirmity or irregularity in the

finding arrived at by the trial Court in decreeing the suit

and also declaring that the plaintiffs are entitled for 1/4th

share in the property. The finding arrived at by the court

below is on the basis of the evidence available on record.

The appellants have not made out a case to interfere with

the concurrent finding recorded by both the courts

below. The substantial questions of law framed in this

30

appeal are held against the appellants. Accordingly, the

appeal is dismissed.

Parties to bear their own costs.

Sd/- Judge

mpk/-*

2013-03-01T11:18:02+0530HARIHAR RAKESH S

p.s to hon’ble 1. raja ram s/o.mahadev phadake since...

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