Karnataka High Court
Sri. Srinivasaiah vs K. Narasimhamurthy on 24 April, 2024
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NC: 2024:KHC:16927
RSA No. 1727 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1727 OF 2014 (PAR)
BETWEEN:
SRI. SRINIVASAIAH
S/O LATE KARIAIAH,
AGED ABOUT 62 YEARS,
R/AT KATTEMALAVADI VILLAGE,
HUNSUR TALUK, MYSURU DISTRICT.
...APPELLANT
(BY SMT. ANUSHA ASUNDI, ADVOCATE FOR
SRI. A. MADHUSUDHANA RAO, ADVOCATE)
AND:
1. K. NARASIMHAMURTHY
SINCE DEAD BY HIS LR'S
1(A) SMT. CHANDRAMMA
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
W/O LATE NARASIMHAMURTHY
KARNATAKA
AGED ABOUT 56 YEARS
1(B) SRI. ANAND
S/O LATE NARASIMHAMURTHY
AGED ABOUT 36 YEARS
1(C) SRI. DIVAKAR
S/O LATE NARASIMHAMURTHY
AGED ABOUT 34 YEARS
1(D) SRI. YOGESH
S/O LATE NARASIMHAMURTHY
AGED ABOUT 36 YEARS
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NC: 2024:KHC:16927
RSA No. 1727 of 2014
RESPONDENTS 1 TO 4 ARE ALL
R/AT KATTEMALAVADI VILLAGE AND POST
HUNSUR TALUK
MYSURU DISTRICT - 571 134
2. KESHAVAMURTHY
S/O DASAPPA,
AGED ABOUT 39 YEARS,
R/AT KATTEMALAVADI VILLAGE,
HUNSUR TALUK,
MYSURU DISTRICT - 571105
3. KESHAVAMURTHY
S/O PUTTAMMA,
AGED ABOUT 39 YEARS,
4. RAJMUDI
S/O PUTTAMMA,
AGED ABOUT 34 YEARS,
BOTH ARE RESIDING AT
CHANNASOGE VILLAGE,
HANAGODU HOBLI,
HUNSUR TALUK,
MYSURU DISTRICT - 571 105
5. LAXMAMMA
D/O SANNASWAMY,
AGED ABOUT 39 YEARS,
R/AT CHIKKADANAHALLI,
GOWDAGERE HOBLI,
HUNSUR TALUK,
MYSURU DISTTRICT - 571 105
6. SHARADAMMA
D/O SANNASWAMY,
AGED ABOUT 34 YERS,
R/AT ATTIGUPE VILLAGE,
HANAGOD HOBLI,
HUNSUR TALUK,
MYSURU DISTRICT - 571 105
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NC: 2024:KHC:16927
RSA No. 1727 of 2014
7. KALAMMA
D/O KARIAIAH,
SINCE DEAD BY HER LR'S
7(A) SRI ANADA
S/O LATE SANNAIAH
AGED ABOUT 30 YEARS
R/AT HANAGODU VILLAGE
HUNSUR TALUK
MYSURU DISTRICT
8. LAXMAMMA
D/O KARIYAIAH,
AGED ABOUT 44 YEARS,
R/AT CHITTIJYATHANAHALLI VILLAGE,
HUNSUR TALUK,
MYSURU DISTRICT - 571 105
...RESPONDENTS
(BY SRI. SYED AKBAR PASHA, ADVOCATE FOR
SRI. MAHANTESH S HOSMATH, ADVOCATE FOR R1(A-D)
SRI. KIRAN KUMAR, ADVOCATE FOR R8
V/O DATED 11.06.2015, R2- H/S AND
V/O DATED 02.07.2015 R3-R6 NOTICE D/W
R7(A) SERVED.
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DTD : 28.10.2014
PASSED IN R.A.NO.381/2014 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, HUNSUR, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DTD 14.2.2014 PASSED IN OS.NO.74/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE, HUNSUR.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:16927
RSA No. 1727 of 2014
JUDGMENT
This Regular second appeal is filed by the appellant challenging the judgment and decree dated 28.10.2014 passed in R.A.No.318/2014 by the Fast Tract Court, Hunsur.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the defendant No.1 and respondent No.1 is the plaintiff and other respondents are the other defendants.
3. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for partition and separate possession of his 1/7th share in the suit schedule properties. It is the case of the plaintiff, that Kariaiah had sons and daughters by name Dasappa, Puttamma, Sannaswamy, Kalamma, Srinivasaiah, Narasimhamurthy and Laxmamma. He died leaving behind above said -5- NC: 2024:KHC:16927 RSA No. 1727 of 2014 persons as his legal heirs. Dasappa is the 1st son of Kariayaiah, died leaving behind defendant No.2 as his legal heir, Puttamma, 2nd daughter died leaving behind defendant Nos.3 and 4 as her legal heirs, Sannaswamy, 3rd son died leaving behind defendant Nos.5 and 6 as his legal heirs. It is the case of the plaintiff, that suit schedule properties are the self-acquired properties of Kariaiah. The relationship between Kariaiah and Dasappa was not cordial. Dasappa was not living in the joint family and he filed a suit in O.S.No.3/92 for partition and separate possession, the said suit was decreed in part. Subsequently, Regular First Appeal was preferred in RFA No.304/1995 and the said appeal was allowed. During the life time of Kariaiah, defendant No.1 was managing the affairs of Kariaiah and suit schedule properties including the litigation. The plaintiff is the younger brother of defendant No.1 and had reposed good faith in him. Dasappa, subsequently after the death of the father i.e., Kariaiah, filed another suit in OS.No.31/99 for permanent injunction against the plaintiff and other defendants, which -6- NC: 2024:KHC:16927 RSA No. 1727 of 2014 came to be dismissed. Said Dasappa preferred an appeal and the same was dismissed. The plaintiff was a party in O.S.No.31/1999, but he had not participated in the said proceedings. It is contended that suit schedule properties are the self-acquired properties of Kariaiah, who died intestate. After his death, suit properties assumed the character of joint family property of the plaintiff and the defendants. The plaintiff requested the defendants to effect partition, but they refuse to effect the partition. Hence cause of action arose for the plaintiff to file the suit for partition and separate possession.
4. Defendant Nos.1, 3, 4, 7 and 8 have filed the written statement admitting the suit schedule properties are the self-acquired properties of late Kariaiah. It is contended that he had executed the Will dated 01.12.1994 bequeathing all his properties in favour of his sons and daughters. It is also admitted about the litigations in O.S.No.3/1992, R.A.No.304/1995 and O.S.No.31/1999. Further, it is contended that on the basis of the Will dated -7- NC: 2024:KHC:16927 RSA No. 1727 of 2014 01.12.1994, the respective parties are in possession of the respective properties and plaintiff is was well aware about the execution of the Will. It is contended that the suit is hit by principles of Res judicata. Hence, on these grounds, he prays to dismiss the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and defendants?
2. Whether the defendants 7 and 8 prove that Kariaiah has executed a Will dated 01.12.1994 bequeathing the suit schedule properties?
3. Whether the plaintiff is entitled for 1/7th share in the suit schedule properties?
4. Whether the description given in the plaint are correct in respect of item No.2 and 5?
5. What decree or order?
Additional Issue:
1. Whether suit is barred by resjudicata? -8-
NC: 2024:KHC:16927 RSA No. 1727 of 2014
6. Plaintiff in order to substantiate his case, examined himself as PW-1 and got marked 14 documents as Exs.P1 to P14. In rebuttal, the defendant examined himself as DW-1 and got marked 122 documents as Exs.D1 and D122. The trial Court on the assessment of oral and documentary evidence of the parties, answered issue Nos.1, 3, 4 and additional issue No.1 in the negative, issue No.2 in the affirmative, issue No.5 as per the final order. The suit of the plaintiff was dismissed with costs vide judgment dated 14.02.2014.
7. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.74/2010 preferred an appeal in R.A.No.381/2014 on the file of the Fast track Court, Hunsur.
8. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the judgment and decree passed by the trial Court is erroneous, illegal, perverse and not sustainable in law and called for interference of this Court?
2. What order or decree ?-9-
NC: 2024:KHC:16927 RSA No. 1727 of 2014
9. The First Appellate Court, on re-assessment of the oral and documentary evidence answered point No.1 in the affirmative, point No.2 as per the final order. The appeal was allowed. Judgment and decree passed by the trial Court was set aside and suit of the plaintiff was decreed and it is ordered and decreed that the plaintiff is entitle for 1/7th share in the suit schedule properties by metes and bounds.
10. The defendant No.1, aggrieved by the judgment and decree passed in R.A.No.381/2014, has filed this Regular second appeal.
11. Heard Smt. Anusha Asundi, learned counsel for defendant No.1 and learned counsel for the plaintiff.
12. Learned counsel for the defendant No.1 submits that prior to the filing of this suit by the plaintiff, Dasappa filed the suit in O.S.No.31/1999, wherein the present defendant No.1 has filed the written statement and has taken specific defence in the written statement
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 that the Kariaiah has executed the Will dated 01.12.1994. Further she submits that the courts below have recorded the finding in the suit in O.S.No.31/1999 that the plaintiff therein has not proved the execution of the Will as null and void, as it is hit by Section 52 of Transfer of Property Act, 1882. She submits that the suit filed by the plaintiff is barred by Limitation. She submits that the plaintiff has knowledge of execution of the Will by Kariaiah in favour of his sons and daughters. The plaintiff did not choose to challenge the Will and further judgment and decree passed in O.S.No.31/1999 is binding on the plaintiff. Hence, she submits that as on the date of filing of the suit in O.S.No.31/1999 the Will was in existence and the plaintiff did not appear in the said suit. Hence, suit is hit by constructive res judicata. Hence she submits that the First Appellate Court without considering the document produced by the plaintiff has decreed the suit of the plaintiff. The judgment and decree passed by the first Appellate Court is contrary to the records produced by the parties. In order to buttress her arguments she has placed
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 reliance on the judgment of the Hon'ble Apex Court in the case of KONDA LAKSHMANA BAPUJI VS. GOVERNMENT OF A.P AND OTHERS REPORTED IN (2002) 3 SCC 258. Hence, on these grounds, she prays to allow the appeal.
13. Per contra, learned counsel for the plaintiff submits that the defendants have failed to prove the execution of Will and he also submits that the defendants have not examined any attesting witness in the instant suit as required under Section 68 of the Indian Evidence Act, 1872. Hence, the First Appellate Court was justified in holding that defendant No.1 has failed to prove the execution of Will. He submits that admittedly, the suit schedule properties were the self acquired properties of Kariaiah and he died intestate. The suit schedule properties assume the character of joint family property. Hence, the plaintiff being a coparcener is entitled for share in the suit schedule properties. The First Appellate Court was justified in granting 1/7th share to the plaintiff. He submits that the judgment and decree passed by the First
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 Appellate Court is just and proper and does not call for any interference. He submits that the defendant has produced the Will and the said Will is marked. Mere marking of the document does not dispense its proof. Hence, on these grounds he prays to dismiss the appeal. In order to buttress his arguments he has placed reliance on the judgment of the Hon'ble Apex Court in the case of S.R.SRINIVASA AND OTHERS VS. S.PADMAVATHAMMA REPORTED IN (2010) 5 SCC 274.
14. This court vide order dated 22.07.2015, has admitted the appeal on the following substantial question of law :
"In view of the findings on issue Nos.1, 2
and 5 by the trial Court in O.S.No.74/2010 dated 14.02.2014 on the file of the Senior Civil Judge, Hunsur, whether the first Appellate Court was justified in holding that the execution of the Will- Ex.D1 has not been proved and established?
15. Perused the records and considered the submissions of learned counsel for the parties.
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NC: 2024:KHC:16927 RSA No. 1727 of 2014
16. Substantial question of law: The plaintiff in order to substantiate his case, examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and got marked documents, Exs.P1 to P5 are the RTC extracts pertaining to the land bearing Sy.Nos.204/1, 263/2, 344/2, 4/2 and 5/2. Ex.P6 is the death certificate of Kariaiah. Ex.P7 is the certified copy of judgment passed in R.A.No.157/2009, wherein Dasappa filed a suit in O.S.No.31/1999 against defendant No.1, plaintiff herein filed the suit for the relief of declaration that the Will duly registered on 01.12.1994 is null and void as the same amounts to lis pendency in view of Section 52 of the Transfer of Property Act, 1882 and for permanent injunction. The said suit was dismissed by the trial Court and Dasappa preferred an appeal in R.A.No.157/2009. Ex.P8 is the certified copy of the judgment passed in R.A.No.304/1995 which discloses that Kariaiah i.e., father of the plaintiff filed a suit for partition and separate possession in O.S.No.3/1992 , the said suit was decreed
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 by the trial Court vide judgment dated 20.02.1995. The said appeal was allowed by the first Appellate Court and set aside the judgment and decree passed in O.S.No.3/1992. Ex.P10 is the copy of endorsement issued by Panchayath authorities stating that no documents are available in respect of khata No.385/412. Ex.P12 is the receipt for having paid the electricity charges and panchayath tax. Ex.P13 is tax paid receipt in respect of khata No.511/547 on 29.04.2010. Ex.P14 is the loan confirmation letter dated 13.03.2013. He admits that in the course of cross examination, his brother Dasappa, during his life time, has filed a suit in O.S.No.3/1992 and also the said suit was decreed in favour of Dasappa and in the appeal said judgment was set aside and suit was dismissed. It is denied that the father of the plaintiff executed the Will and father died during the pendency of the suit. It is mentioned in the proceedings pending before the High Court that the father executed the Will as per Ex.P8. It is mentioned that Venkatesh Murthy and Vittal Murthy and plaintiff No.1 are the sons and he has
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 engaged Sri. Nataraja, learned counsel to appear on his behalf and he denies that during the pendency of the proceedings before the High Court his father executed the Will. He pleads ignorance about the filing of the suit in O.S.No.3/1992. In the said case he was arrayed as defendant and he pleads ignorance about the appeal was dismissed. On perusal of the evidence of the plaintiff, it is clear that prior to the filing of this suit, Dasappa filed a suit for partition and separate possession in O.S.No.3/1992 and also O.S.No.31/1999. Further the plaintiff had a knowledge about the execution of the Will. The plaintiff has not chosen to challenge the execution of the Will executed by Kariaiah.
17. In rebuttal, the defendant No.1 was examined as DW.1 and produced the certified copy of the Will executed by Kariaiah and on the basis of Will, the revenue records were changed in the name of defendant No.1. Further, the defendant has also produced the copy of judgment passed in O.S.No.31/1999, in the judgment
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 passed in O.S.No.31/1999 the Court has framed the issues in regard to the Will executed by Kariaiah in favour of defendant No.1 which reads as under:
" Issue No.1: Whether plaintiff proves that during pendency of O.S.No.3/92 whatever the Will executed by Kariaiah who is a father of plaintiff and defendant No.1 in favour of defendants is amounts to lis pendence and it is null and void?
Issue No.2: Whether plaintiff proves that the defendants have created Will during the pendency of O.S.No.3/1992 and during in force of temporary injunction for not to alienate ?
Issue No.5: Whether defendants prove that after preferring appeal deceased Kariaiah has executed a Will so it does not amount to lis pendency?"
Issue No.1 was answered in negative, issue No.2 and 5 were answered in affirmative. The trial Court while disposing of the suit in O.S.No.31/1999 has upheld the Will executed by Kariaiah in favour of the defendants and further held that the Dasappa had not proved the execution of Will is null and void and miserably failed to
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 prove in O.S.No.3/1992 that whatever the Will executed by Kariaiah, who is the father of the plaintiff and defendant No.1, in favour of defendants is amounts to lis pendency. The said suit was dismissed vide judgment dated 26.08.2004. Against the judgment and decree in O.S.No.31/1999, Dasappa preferred an appeal in R.A.No.157/2009, the said appeal was dismissed vide judgment dated 23.03.2010. The said Will executed by Kariaiah was upheld. The plaintiff was a party to the suit in O.S.No.31/1999 and the judgment and decree passed in O.S.No.31/1999 is binding on the plaintiff. The trial Court considering the judgments passed in O.S.Nos.31/99 and 3/92 has rightly dismissed the suit. The First Appellate Court without considering the judgments passed in O.S.No.31/99 allowed the appeal and set aside the judgment and decree passed by the trial Court. The Civil Court has already recorded a finding, upholding the Will, hence question of examining the attesting witnesses in the instant suit would not arise. The said aspect was not considered by the First Appellate Court. Hence the First
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NC: 2024:KHC:16927 RSA No. 1727 of 2014 Appellate Court has committed an error in passing the impugned judgment. Hence, in view of the above judgment, I answer the substantial question in the negative.
18. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
Judgment and decree passed by the First Appellate Court is set aside.
Judgment and decree passed by the trial Court is restored.
No order as to the costs.
Sd/-
JUDGE sks