Karnataka High Court
Chennaiah vs Ningaiah on 6 February, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.1996 OF 2013 (PAR)
C/W
REGULAR SECOND APPEAL NO.1997 OF 2013 (PAR)
BETWEEN:
1. CHENNAIAH
S/O BOMANNAIAH,
AGED ABOUT 61 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
2. TIPPAIAH
S/O BOMANNAIAH,
AGED ABOUT 56 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
3. NINGAIAH
S/O BOMANNAIAH,
AGED ABOUT 53 YEARS
OCCUPATION AGRICULTURE
R/O KURIBOMMAIAHNA HATTY,
2
HAMLET OF GIRIYAMMANAHALLY,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
4. BORAMMA
D/O LALAIAH @ BANGARAIAH,
AGED ABOUT 56 YEARS
OCCUPATION AGRICULTURE,
R/O UPPARAHATTY VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
5. KYASAMMA
D/O LALAIAH @ BANGARAIAH,
AGED ABOUT 51 YEARS,
OCCUPATION AGRICULTURE,
R/O UPPARAHATTY VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
...APPELLANTS (COMMON)
(BY SRI. H.ASHOK KUMAR, ADVOCATE)
AND:
1. NINGAIAH
S/O CHINNACHITTAIAH,
DIED ON 10.05.2014
VIDE ORDER DATED 12.11.2019
RESPONDENTS 2 AND 3 ARE
TREATED AS LEGAL HEIRS OF
DECEASED RESPONDENT NO.1
2. THIPPAIAH
S/O CHINNACHITTAIAH,
AGED ABOUT 60 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
3
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543
3. BOMMAIAH
S/O CHINNACHITTAIAH,
AGED ABOUT 50 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
4. CHANNAIAH
S/O KUNTA NINGAIAH,
AGED ABOUT 45 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
5. THIPPAIAH
S/O KUNTA NINGAIAH,
AGED ABOUT 43 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
6. BOMMAIAH
S/O KUNTA NINGAIAH,
AGED ABOUT 40 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
4
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
7. CHITTAIAH
S/O KUNTA NINGAIAH,
AGED ABOUT 38 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
8. CHITTAIAH
S/O BOMANNAIAH,
AGED ABOUT 56 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
9. SHARADAMMA
W/O SANNA BOMMAIAH,
AGED ABOUT 61 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
10. B.JAYANNA
S/O SANNA BOMMAIAH,
AGED ABOUT 40 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
5
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
11. B.THIPPESWAMY
S/O SANNA BOMMAIAH DIED
VIDE ORDER DATED 12.11.2019
RESPONDENT NOS.9, 10 AND 12
ARE TREATED AS LEGAL
REPRESENTATIVES OF DECEASED
RESPONDENT NO.11
12. B. REVANNA
SANNA BOMMAIAH,
AGED ABOUT 36 YEARS,
OCCUPATION AGRICULTURE,
R/O KURIBOMMAIAHNA HATTY,
HAMLET OF GIRIYAMMANAHALLY,
TALUK HOBLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 543.
...RESPONDENTS (COMMON)
IN RSA 1996/2013
(BY SRI. HARISH N.R., ADVOCATE FOR
SRI. B.M. SIDDAPPA, ADVOCATE FOR
RESPONDENT NOS.1 TO 3;
RESPONDENT NOS.4, 7, 8, 9 & 10 ARE SERVED;
VIDE ORDER DATED 20.03.2018 SERVICE OF NOTICE
IS ACCEPTED IN RESPECT OF RESPONDENT NOS.5,
6, 11 & 12;
VIDE ORDER DATED 12.11.2019, RESPONDENT NOS.2
& 3 ARE LEGAL REPRESENTATIVES OF DECEASED
RESPONDENT NO.11.)
6
IN RSA 1997/2013
(BY SRI. HARISH N.R., ADVOCATE FOR
SRI. B.M. SIDDAPPA, ADVOCATE FOR
RESPONDENT NOS.1 TO 3;
RESPONDENT NOS.4, 8, 9 & 12 ARE SERVED;
VIDE ORDER DATED 11.07.2019 APPEAL AGAINST
RESPONDENT NO.11 IS DISMISSED AS ABATED;
VIDE ORDER DATED 11.07.2019, RESPONDENT
NOS.5 TO 7, 10 SERVICE OF NOTICE IS HELD
SUFFICIENT;
VIDE ORDER DATED 12.11.2019, RESPONDENT NOS.2
AND 3 ARE LEGAL REPRESENTATIVES OF DECEASED
RESPONDENT NOS.1 & 9 AND RESPONDENT NOS.10
AND 12 ARE LEGAL REPRESENTATIVES OF
DECEASED RESPONDENT NO.11)
IN RSA 1996/2013
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 21.10.2013 PASSED IN R.A.NO.8/2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 24.01.2013 PASSED IN
O.S.NO.145/2010 ON THE FILE OF THE CIVIL JUDGE &
JMFC, MOLAKALMURU.
IN RSA 1997/2013
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 21.10.2013 PASSED IN R.A.NO.11/2013
ON THE FILE OF THE SENIOR CIVIL JUDGE,
CHALLAKERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
24.01.2013 PASSED IN O.S.NO.145/2010 ON THE FILE OF
THE CIVIL JUDGE & JMFC, MOLAKALMURU.
7
THESE REGULAR SECOND APPEALS ARE COMING
ON FOR ADMISSION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the defendant Nos.1, 2, 8, 9 and 10 in OS No.145/2010 challenging the concurrent Judgment and Decree of the Courts below, decreeing the suit for partition and separate possession of the plaintiffs share in the suit properties.
2. In this order, the parties shall be referred to as they were arrayed before the Trial Court.
3. The suit filed in OS No.145/2010 was for partition and separate possession of the plaintiffs 1/5th share in the suit schedule properties. The genealogy of the plaintiff and the defendants is as below: 8
Yarri Channaiah (Dead) Gooru Obaiah Wife (dead) Chinna Bommannaiah Kuntaningaiah Bangaraiah Sanna Kurudu Chittaiah (Dead) (Dead) @ Lalaiah Bommaiah Bangaraiah (Dead) (Dead) (Dead) (Dead) Challakere Channamma Katamma Elebasamma Sharadamma Unmarried Boramma Wife (Dead) Wife 70 years Wife (Dead) Wife, 61 years (Dead) Wife (Dead) Def.No.11(a) Jayanna Thippaiah Revanna 40 years 38 years 36 years Defe. Defe. Defe.
No.11(b) No.11(c) No.11(d)
Borakka @ Boramma Kyasamma
50 years 51 years
Defe. No.9 Defe. No.10
Channaiah Thippaiah Bommaiah Chittaiah
45 years 43 years 40 years 38 years
Defe. No.1 Defe. No.2 Defe. No.3 Defe. No.4
Channaiah Chittaiah Thippaiah Ningaiah
61 years 56 years 40 years 38 years
Defe. No.5 Defe. No.6 Defe. No.7 Defe. No.8
Ningaiah Thippaiah Bommaiah
70 years 60 years 50 years
Plaintiff No.1 Plaintiff No.2 Plaintiff No.3
9
4. The plaintiffs claimed that the suit schedule properties were derived by their grand father Yarri Channaiah in terms of a partition deed dated 07.01.1963 that was duly registered. It is stated that due to certain differences between the members of the family, the plaintiffs and the defendants were living separately, but were jointly cultivating the suit properties. During March 2010, there were differences between the plaintiffs and the defendants over sharing of the food grains. When the plaintiffs demanded their legitimate share in the suit properties, the defendants refused to divide the suit properties. Hence, the plaintiffs sought for partition and separate possession of their shares in the suit properties.
5. The plaintiffs also contended that the defendants had created documents, such as, Will and sale deeds in respect of some of the properties behind 10 the back of the plaintiffs and therefore, contended that they are not bound by the said documents.
6. The defendant Nos.5 and 9 filed their written statement disputing the existence of a joint family but accepted that Yarri Channaiah was the original propositus. They also accepted that the suit properties fell to the share of Yarri Channaiah in terms of the partition deed dated 07.01.1963. They contended that the plaintiff is not entitled to any share in the suit properties. The family tree as extracted by the plaintiff was also not disputed. It is stated that after the partition in the year 1963, the sons of Yarri Channaiah had orally divided the suit properties in terms of which, Item No.1 of the suit properties fell to the share of the father of the plaintiffs and the remaining properties were divided equally amongst the sons of Yarri Channaiah. Further, they stated that pursuant to the oral partition, the properties were interse divided 11 amongst the sons of Yarri Channaiah and the fifth son namely Sri.Kurudu Bangaraiah was also allotted certain properties at such oral partition. It is stated that Kurudu Bangaraiah bequeathed his properties to the defendant No.5, in terms of a Will dated 27.08.1993 that was duly registered. Thus, the defendant No.5 claimed that he was in exclusive possession of the properties that fell to the share of the Kurudu Bangaraiah. He further stated that the father of the defendant Nos.1 to 4 had filed OS No.240/1999 against the defendant No.5, defendant Nos.9 and 10 for declaration and injunction in respect of the properties mentioned therein. The said suit was decreed in favour of the plaintiff and an appeal preferred therefrom by the defendant Nos.5, 9 and 10 therein in RA No.314/2002 was allowed and the suit filed in OS No.240/1999 was dismissed. This was contended by the defendant to establish that there was a prior oral partition amongst the sons of Yarri Channaiah.
12
7. The defendant No.11(d) filed a separate written statement seeking for a counter claim in respect of the suit properties and also to declare that the Wills set up by the defendant No.5 did not bind the legal representatives of the defendant No.11.
8. Based on the aforesaid contentions, the Trial Court framed the following issues.
"«ªÁzÁA±ÀUÀ¼ÀÄ
1. zÁªÁ D¹ÛUÀ¼ÀÄ ªÁ¢UÀ¼À ºÁUÀÆ ¥ÀæwªÁ¢UÀ¼À MlÄÖ PÀÄlÄA§zÀ ºÁUÀÆ dAn ¸Áé¢üãÀzÀ D¹ÛUÀ¼ÄÀ JA§ÄzÀ£ÀÄß ªÁ¢UÀ¼ÀÄ gÀÄdĪÁvÀÄ¥Àr¹gÀĪÀgÉÃ?
2. zÁªÁ D¹ÛUÀ¼À°è ªÁ¢UÀ½UÉ MlÄÖ 1/5£Éà ¨sÁUÁA±ÀzÀ ºÀPÀÄÌ EgÀÄvÀÛzÉ JA§ÄzÀ£ÄÀ ß ªÁ¢UÀ¼ÀÄ gÀÄdĪÁvÀÄ¥Àr¹gÀĪÀgÉÃ?
3. ªÁ¢UÀ¼ÀÄ F zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀðgÉÃ?
4. ªÀiÁqÀĪÀ DeÉÕ CxÀªÁ rQæ?13
ºÉZÀÄéªÀj «ªÁzÁA±À
1. ¥ÀæwªÁ¢ 11J ¬ÄAzÀ r gÀªÀgÄÀ vÀªÀÄä °TvÀ vÀPÀgÁj£À°è PÉÆÃjgÀĪÀ ¥ÀæPÁgÀ °TvÀ vÀPÀgÁj£À°è PÀAqÀ D¹ÛUÀ¼À°è 5£Éà 1 ¨sÁUÀ ºÉÆAzÀ®Ä ºÁUÀÆ D D¹ÛAiÀÄ£ÀÄß ¥ÀævÉåÃPÀ ¸Áé¢üãÀ ºÉÆAzÀ®Ä CºÀðgÉÃ?"
9. On behalf of the plaintiffs, PWs.1 to 4 were examined and they marked Exs.P1 to P15. While for the defendants, defendant No.1 was examined as DW1 and two other witnesses were examined as DWs.2 and 3 and they marked Exs.D1 to D3. The Trial Court based on the aforesaid rival contentions, oral and documentary evidence passed judgment and decree dated 24.01.2013 declaring that the plaintiffs were entitled to 1/5th share in the suit schedule properties and the counter claim of the defendant Nos.11(a) to (d) was dismissed and the defendant Nos.11(a) to (d) were declared as entitled to 1/5th share in the suit schedule properties. 14
10. The defendant Nos.1, 2, 8, 9 and 10 filed RA No.8/2013 challenging the judgment and decree of the Trial Court. The First Appellate Court summoned the record of the Trial Court, perused the judgment and decree of the Trial Court and also framed points for consideration and after regurgitating the evidence on record, dismissed the appeal in terms of the judgment dated 21.10.2013. The aforesaid defendant Nos.1, 2, 8, 9 and 10 feeling aggrieved by the aforesaid concurrent finding of fact by the Courts below, have filed this Regular Second Appeal.
11. Heard the counsel for the appellants and the respondents, perused the records of the Courts below, judgments and decrees of the Courts below and also the appeal memo and the grounds urged therein.
12. The facts which are not in dispute are that the plaintiffs are the grand sons of Yarri Channaiah, while, the defendant Nos.1 and 2 are the grand sons of 15 Yarri Channaiah through his third son Kunta Ningaiah. The defendant No.8 is the grand son of Yarri Channaiah from his second son Bommannaiah. The defendant Nos.9 and 10 are the grand daughters from the fourth son Bangaraiah. The sixth son of Yarri Channaiah died a bachelor and therefore, the family as it stood comprised of Yarri Channaiah and his five sons. The properties in question were undisputedly ancestral properties which Yarri Channaiah derived at a partition between him and his brothers (Ex.P4).
13. The prime contention that the defendants have urged to negate the claim of the plaintiffs are that
(a) there was a prior partition between the sons of Yarri Channaiah (b) that the sixth son of Yarri Channaiah had executed a sale deed (Ex.D1) in terms of which the properties which fell to his share was bequeathed to defendant No.5 and therefore, the defendant No.5 had 16 become the owner of the share of the sixth son Kurudu Bangaraiah.
14. In order to prove execution of the Will, the defendants relied upon Ex.P6 which is stated to be the deposition of one of the attesting witness to the Will in an earlier suit in O.S.No.240/1999 between the defendant Nos.1 and 10 as against defendant Nos.1, 2, 3, 4 and their sisters. The plaintiffs in the present suit were not parties in O.S.No.240/1999. There was no issue regarding the execution of the Will in that suit. Therefore, the insistence upon the defendants that the evidence that was led by the attesting witnesses in that suit would be relevant for the purpose of establishing the valid execution of the Will in this suit cannot be accepted. The deposition in a previous proceedings is relevant as is contained in Section 157 of the Evidence Act and is extracted as below:
Section 157: Former statements of witness may be proved to corroborate later testimony 17 as to same fact.- In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
15. Former statements of witness can be used to corroborate the later testimony, as is contained in Section 157 of the Indian Evidence Act and such former statement can be used to impeach the credit of witness."
16. Unless and until there is a finding regarding the valid execution of the Will in the previous suit, a mere production of evidence of an attesting witness in that suit would not satisfy the requirement of proving the Will in the manner provided under Section 68 of the Indian Evidence Act.
17. In the absence of any proof regarding Will and in the absence of any proof regarding alleged oral 18 partition, the Courts below were justified in decreeing the suit for partition and there is no perversity in the findings arrived at by the Courts below. No substantial question of law arises for consideration in this appeal and therefore, RSA No.1996/2013 stands dismissed.
18. In view of the dismissal of RSA No.1996/2013, the findings of the Courts below regarding the counter claim of the defendant No.11 is also liable to be upheld and thus, the RSA No.1997/2013 is liable to be rejected.
In view of dismissal of the appeals, I.A.No.1/2013 does not survive for consideration.
Sd/-
JUDGE GH