- 1 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100793 OF 2023 (PAR/POS-) BETWEEN: 1. SMT BHARATI W/O. PARUTAGOUDA PATIL, AGE. 41 YEARS, OCC. HOUSEHOLD, R/O. MUMMIGATTI, TQ: DIST:-DHARWAD – 580001. 2. SMT. SUMITRA W/O. PARAMESHWAR LAGAMMANAVAR, AGE. 39 YEARS, OCC. HOUSEHOLD, R/O. SHIRUR, TQ. NAVALAGUNDA, DIST-DHARWAD – 580008. 3. GEETA W/O. BASAVARAJ YADAL, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O. AMBADAGATTI, TQ: BAILAHONGALA, DIST: BELAGAVI – 590001. …APPELLANTS (BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE) AND: 1. SRI. GANGAPPA MAILARAGOUDA DESAIGOUDRA AGE. 66 YEARS, OCC. AGRICULTURE AND COOLIE, R/O. MUMMIGATTI, TQ AND DIST DHARWAD – 590001. 2. SMT. PARAVVA W/O. GANGAPPA DESAIGOUDAR AGE. 59 YEARS, OCC. HOUSEHOLD, R/O. MUMMIGATTI, TQ. DIST. DHARWAD – 590001. Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 3. SRI. BASAPPA MAILARAGOUDA DESAIGOUDRA (DEAD). 3a. SMT. CHINNAVVA W/O. BASAPPA DESAIGOUDRA, AGE. 66 YEARS, OCC. HOUSEHOLD, R/O. KURAHATTI PETE, BEHIND KONDAVADA BETAGERI, TQ AND DIST GADAG. 4. SRI. MALLIKARJUNAPPA MAILARAGOUDA DESAIGOUDRA, AGE. 56 YEARS, OCC. AGRICULTURE AND COOLIE, R/O. KURUHATTI PETE, BEHIND KONDAVADA BETAGERI, TQ: DIST: GADAG – 582102. 5. SRI. VIRUPAKSHAPPA CHANNAPPA BALLOLLI AGE. 68 YEARS, OCC. AGRICULTURE AND COOLIE, R/O. HOMBALA, TQ: DIST: GADAG – 582102. …RESPONDENTS (R1 & R2 – DISMISSED; R3 – HELD SUFFICIENT; R4 – SERVED UNREPRESENTD; SRI. C.S. SHETTAR, ADVOCATE FOR R5) ---- THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO,1. SET ASIDE THE JUDGMENT AND DECREE DATED 22.12.2021 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GADAG IN O.S.NO.293/2013 AND SET- ASIDE THE JUDGMENT AND DECREE DATED 03.03.2023 PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE GADAG IN R.A.NO.15/2022 AND DECREE THE SUIT OF THE PLAINTIFF. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 ORAL JUDGMENT This Regular Second Appeal is preferred by the plaintiffs, challenging the judgment and decree dated 03.03.2023 passed in RA No.15/2022 on the file of Principal Senior Civil Judge and JMFC, Gadag, (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 22.12.2021 in OS No.293/2013 on the file of Principal Civil Judge and JMFC, Gadag, (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case plaintiffs that, the plaintiffs are children of Gangappa (defendant Nos.1 and 2). It is stated that, the grandfather of the plaintiff – Mailaragouda had three children namely Gangappa (defendant No.1), Basappa (defendant No.3) and Mallikarjunappa (defendant No.4). It is further stated that, the suit schedule property was belong to the grandfather of the plaintiffs – Mailaragouda having purchased the same as per registered sale deed dated 06.05.1959. The plaintiffs came to know that, the defendant - 4 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 Nos.1, 3 and 4 have colluded with each other and had sold the suit schedule property in favour of defendant No.5 as per registered sale deed dated 02.08.2010 and therefore, it is contended by the plaintiffs that since, the suit schedule property is the ancestor property of the plaintiffs and therefore, the defendant Nos.1, 3 and 4 have no legal right to sell the suit schedule property in favour of the defendant No.5 and the said sale deed dated 02.08.2010 is not binding on the plaintiffs. Hence, the plaintiffs filed OS No.293/2013. 4. Upon service of notice, the defendant Nos.1 and 2 unrepresented and remained absent. The defendant No.3 died. Defendant No.4 was placed ex-parte. The only defendant who contested the matter was defendant No.5 who had purchased the suit schedule property as per registered sale deed dated 02.08.2010, has taken up a specific plea that, suit property is neither ancestral nor joint family property and defendant Nos.1, 3 and 4 have sold the property for family legal necessities and accordingly, sought for dismissal of the suit. 5. In order to establish their case the plaintiffs have examined two witnesses as PW1 and PW2 and got marked 02 - 5 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 documents as Ex.P1 and P2. The defendants have examined two witnesses as DW1 and DW2 and produced 05 documents and same were marked as Ex.D.1 to D5. 6. The Trial Court, after considering the material on record, held that the plaintiffs have no right in respect of the land bearing Sy.No.111/3 and further held that the plaintiffs are entitled for share in the house property. Feeling aggrieved by the same, the plaintiffs have preferred appeal in RA No.15/2022 before the First Appellate Court and the said appeal was contested by the defendant No.5. The First Appellate Court after considering the material on record, by judgment and decree dated 03.03.2023 dismissed the appeal, consequently, confirmed the judgment and decree in OS No.293/2013. Feeling aggrieved by the same, the plaintiffs have preferred this appeal. 7. I have heard Sri. Santosh B. Malligawad, learned counsel appearing for appellant and Sri. C. S. Shettar, learned counsel appearing for respondent No.5. 8. Sri. Santosh B. Malligawad, learned counsel appearing for appellant contended that the grandfather of the plaintiffs has purchased the suit schedule property and on the - 6 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 demise of grandfather, the property devolved to his children namely defendant Nos.1, 3 and 4 and therefore, as the suit property is ancestral property of the plaintiffs, the defendant Nos.1, 3 and 4 have no legal right to sell the property in favour of defendant No.5 and therefore, the sale deed executed by defendant Nos.1, 3 and 4, is not binding on the plaintiffs. In this regard, he refers to the judgment of this Court in RFA No.323/2009 disposed off on 04.12.2024 and argued that, the finding recorded by both the Courts below requires to be interfered with in this appeal. 9. Per contra, Sri. C. S. Shettar, learned counsel appearing for respondent No.5 supported the impugned judgment and decree passed by both the Courts below and argued that, as the defendant Nos.1, 3 and 4 collectively sold the property in favor of defendant No.5 for legal necessity and therefore, the finding recorded by both the Courts below requires to be confirmed. 10. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the original papers. In order to understand the relationship - 7 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 between the parties, it is relevant to extract the genealogy of the parties which reads as under; Mailaragouda (Dead) Gangappa Basappa Mallikarjunappa Deft. No.1 Deft. No.3 Deft.No.4 Paravva- Deft. No.2 Bharati Suma Geeta Pltf. No.1 Pltf. No.2 Pltf. No.3 11. It is not in dispute that, Mailaragouda - grandfather of the plaintiffs had purchased the suit schedule land as per registered sale deed dated 06.05.1959. The said Mailaragouda died leaving behind three children namely defendant Nos.1, 3 and 4. It is not in dispute that the suit schedule property is the ancestral property of children of Mailaragouda. However, all the brothers including the father of the plaintiffs have sold the suit schedule land in favour of defendant No.5 by registered sale deed dated 02.08.2010 (Ex.D1). I have carefully examined the recitals in the registered sale deed dated 02.08.2010 where the vendors (defendant Nos.1, 3 and 4) have an unequivocally words stated that, they are in need of money for the family - 8 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 necessity and therefore, intends to sell the suit schedule property in favour of defendant No.5. 12. Taking into account the fact that, the defendant Nos.1, 3 and 4 have collectively sold the property in favour of defendant No.5, I do not accept the submission made by the learned counsel appearing for the appellant that the sale deed in favour of defendant No.5 is to be held invalid. Interestingly, the suit filed by the plaintiffs is collusive suit as the defendant Nos.1, 3 and 4 were placed ex-parte and they have not contested the matter before the Trial Court and also before the First Appellate Court. The father and uncle of the plaintiffs were placed ex-parte as they remained absent. 13. In that view of the matter, taking into account the declaration of law made by the Hon’ble Supreme Court in the case of Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others1, at paragraph Nos.10 to 13 has held as under: “10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited 1 AIR 1971 SC 1028 - 9 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistance must be considered. Legal necessity does not mean actual compulsion:it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. 11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being - 10 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession. 12. Kunja Behari husband of Sarala had died in 1937 after a protracted illness there is no reliable evidence that he left any property except the residential house, built on a part of the land which Sarala had inherited from her father. Sarala had two sons who were then minors and two daughters who were yet to be married. There were five members in the family to be fed and clothed, and the marriage expenses of two daughters had to be met. The case that Tulsi the eldest son obtained gainful employment shortly after his father's death and before the sale deed was executed was rightly disbelieved by the Trial Court. The story that Gobinda had taken to hawking vegetables has also been rightly disbelieved by the Trial Court. Sarala had to meet several obligations : she had to pay the annual rent accruing due in respect of the land in dispute and also to pay municipal taxes: she had to feed and clothe herself and her children and, to perform the marriage of her daughter Radha. She had no other property and she had no income. The recitals in the deed about the - 11 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 existence of pressure upon the estate are, therefore, amply corroborated by the circumstances. 13. Mr. Purshottam Chatterjee appearing on behalf of the plaintiffs contended that there was evidence only of the debts amounting to Rupees 75/-, Rs. 25/- as rent for the land payable to the head-lessor and Rs.50/- expenditure incurred for the marriage of the daughter Mangala. Counsel relied upon the recitals made in a plaint filed in a suit for recovery of rent by the landlord against Sarala after the sale deed in which the rent for the years 1941, 1942 and 1943 was claimed. Counsel also relied upon the evidence that in the community to which Sarala belonged, the marriage of a daughter only costs Rs.50/-. That evidence, in our judgment, is wholly unreliable. In any event apart from the obligation to pay rent and to meet the expenses of marriage of her daughter Mangala various other obligations had to be met. The argument that Sarala belonged to a community in which the male members used to be employed as "household servants" and that Tulsi and Gobinda were so employed is also not supported by any reliable evidence. In our judgment, the High Court ignored the strong inference which arose out of these Circumstances and especially out of the participation by Gobinda in the execution of the agreement of sale and the sale deed.” - 12 - NC: 2025:KHC-D:3034 RSA No. 100793 of 2023 14. As the land in question sold by the defendant Nos.1, 3 and 4 for family necessity, the finding recorded by both the Courts below requires to be confirmed and plaintiffs have not approached the Court with clean hands and suit is nothing but a collusive suit between the plaintiffs and defendant Nos.1, 3 and 4 and father of the plaintiffs though signatory to the deed is remained absent and therefore, no interference is called for in this appeal. 15. Perusal of the finding recorded by both the Courts below would indicate that, there is no perversity in the judgment and decree passed by the Courts below. Accordingly, appeal is dismissed at the stage of admission. Sd/- (E.S.INDIRESH) JUDGE SMM CT:ANB List No.: 1 Sl No.: 17