Karnataka High Court
Vasanna S/O Ramachandrao Alias ... vs Ashok S/O Ramachandra Rao Alias ... on 16 March, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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RFA No. 100128 of 2022
C/W RFA No. 100043 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF MARCH 2023
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO.100128 OF 2022 (DEC/PAR)
C/W REGULAR FIRST APPEAL NO.100043 OF 2022
IN RFA NO.100128 OF 2022 (DEC/PAR)
BETWEEN:
VASANNA
S/O. RAMACHANDRAO
@ RAMACHANDRAPPA ARER,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: C/O. PRAKASH HADAPAD,
KUMBAR ONI, NEAR LODHI GALLI,
NARAGUND-582207,
TQ. NARAGUND, DIST. GADAG.
Digitally signed
...APPELLANT
by
VIJAYALAKSHMI
M KANKUPPI
(BY SRI. C.S SHETTAR, ADVOCATE)
Location: high
court karnataka
Dharwad bench
AND:
1. ASHOK
S/O. RAMACHANDRARAO
@ RAMACHANDRAPPA ARER,
AGE: 56 YEARS, OCC: PVT. WORK,
R/O: 7TH CROSS, BHOSIS CHAWL,
BEHIND CANARA BANK,
MARATHA COLONY,
TQ. / DIST: DHARWAD-580001.
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RFA No. 100128 of 2022
C/W RFA No. 100043 of 2022
2. SHIVAJI
S/O. RAMACHANDRARAO
@ RAMACHANDRAPPA ARER,
AGE: 58 YEARS,
OCC: AUTO DRIVER,
R/O: #30/B, GUTTUR COLONY,
POST GUTTUR-577601,
TQ: HARIHAR, DIST: DAVANAGERE.
...RESPONDENTS
(BY SRI.SHIVANAND MALASHETTI, ADVOCATE FOR
RESPONDENTS.)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 13.03.2020 PASSED IN
O.S.NO.63/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG, DECREEING
THE SUIT FILED FOR PARTITION AND DECLARATION.
IN RFA NO. 100043 OF 2022
BETWEEN:
VASANNA
S/O. RAMACHANDRAO,
@ RAMACHANDRAPPA ARER,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: C/O. PRAKASH HADAPAD,
KUMBAR ONI, NEAR LODHI GALLI,
NARAGUND-582207,
TQ. NARAGUND, DIST. GADAG.
...APPELLANT
(BY SRI. C.S SHETTAR, ADVOCATE)
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RFA No. 100128 of 2022
C/W RFA No. 100043 of 2022
AND:
1. ASHOK
S/O. RAMACHANDRARAO
@ RAMACHANDRAPPA ARER,
AGE: 56 YEARS, OCC: PVT. WORK,
R/O: 7TH CROSS, BHOSIS CHAWL,
BEHIND CANARA BANK,
MARATHA COLONY,
TQ. / DIST: DHARWAD-580001.
2. SHIVAJI
S/O. RAMACHANDRARAO
@ RAMACHANDRAPPA ARER,
AGE: 58 YEARS, OCC: AUTO DRIVER,
R/O: #30/B, GUTTUR COLONY,
POST GUTTUR-577601,
TQ: HARIHAR, DIST: DAVANAGERE.
...RESPONDENTS
(BY SRI.SHIVANAND MALASHETTI, ADVOCATE FOR
RESPONDENTS)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 13.03.2020 PASSED IN
O.S.NO.63/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG, DECREEING
THE SUIT FILED FOR PARTITION AND DECARATION.
THESE APPEALS ARE ADMITTED AND POSTED FOR HEARING AND
COMING ON FOR ORDERS A/W I.As, THIS DAY,
H.T. NARENDRA PRASAD, J., DELIVERED THE FOLLOWING:
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RFA No. 100128 of 2022
C/W RFA No. 100043 of 2022
JUDGMENT
RFA No.100128/2022 and RFA No.100043/2022, both, are filed by the defendant under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 13.03.2020 passed by the learned Principal Senior Civil Judge and CJM, Gadag in O.S. No.63/2018 whereby the suit filed by the plaintiffs is decreed and the counter claim made by the defendant is rejected.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
3. Brief facts of the case are that, one Ramachandrarao @ Ramachandrapa is the propositus. He died on 17.07.2009. His wife Rukminibai pre-deceased him on 05.10.2008 leaving behind the plaintiffs and the defendant. The further case of the plaintiffs is that, the suit schedule properties are ancestral properties. There was no partition among the family members. It was in the possession of the defendant. Since the plaintiffs have legitimate share in the properties, they have demanded their share on 04.08.2015. Since the defendant has denied share -5- RFA No. 100128 of 2022 C/W RFA No. 100043 of 2022 of the plaintiffs, they have filed a suit for partition and also for declaration that the alleged Will executed by the deceased Rukminibai dated 08.08.2008 is not binding on the share of the plaintiffs.
4. On service of summons, the defendant has appeared through counsel and filed written statement contending that the suit schedule properties were purchased by their mother Rukiminbai on 28.05.1965 for a sum of Rs.1,500/- by selling her streedhan property and she is the absolute owner of the suit schedule property and in turn his mother-Rukminibai executed a Will on 08.08.2008 in favour of the defendant. Therefore, the suit schedule property is the absolute property of the defendant and the plaintiffs have no share in the suit schedule property. He further contended that, the suit filed by the plaintiffs is not maintainable for non-inclusion of other family properties. The defendant has also filed counter claim to declare that, he is the owner of the suit schedule property on the basis of the Will executed by his mother.
-6-RFA No. 100128 of 2022 C/W RFA No. 100043 of 2022
5. On the basis of the pleadings of the parties, the trial Court framed the following issues:
ISSUES 1 Whether the plaintiff proves that, the schedule properties are the ancestral and joint family properties of the plaintiffs and defendant? 2 Whether the plaintiffs prove that the Will dated 08.08.2008 executed by Rukmavva @ Rukmini W/o Ramchandrarao in favour of defendant is a created one and not binding on their share?
[ 3 Whether the defendant proves that, the description of the suit properties is not proper?
4 Whether the defendant proves that, the value of the property is less than 5 lakh and this Court has not pecuniary jurisdiction?
5 Whether the defendant proves that, suit schedule properties is the self acquired property of Rukmini Bai?
6 Whether the defendant proves that, the Rukmavva executed the Will when she was having sound and disposing state of mind?
7 Whether the defendant proves that, Court fee and suit valuation paid by the plaintiffs is not proper? 8 Whether the defendant proves that, the said Rukminibai executed the Will without any force, coercion, undo influence?
9 Whether the plaintiffs are entitled for relief as sought in the suit?
10 What order or decree?
-7-RFA No. 100128 of 2022 C/W RFA No. 100043 of 2022
6. To prove the case, plaintiff No.2 examined himself as PW.1 and got marked Exs.P-1 to P-12. On behalf of the defendant, the defendant examined himself as DW.1 but did not produce any documents.
7. On appreciation of the oral and documentary evidence on record, the trial Court answered Issue Nos.1, 2 and 9 in the affirmative and issue Nos.3 to 8 in the negative and decreed the suit of the plaintiffs by declaring that the Will executed by Rukminibai in favour of the defendant is null and void and not binding on the share of the plaintiffs and rejected the counter claim made by the defendant. Being aggrieved by the same, the defendant has filed these appeals.
8. Sri. C.S. Shettar, learned counsel appearing for the appellant/defendant has contended that, the suit item No.1 was purchased by his mother under a registered sale deed dated 28.05.1965 for a sum of Rs.1,500/- by selling her streedhan property and therefore she is the absolute owner of the property and she has executed a Will dated 8.08.2008 in favour of the defendant. He further contended -8- RFA No. 100128 of 2022 C/W RFA No. 100043 of 2022 that after the death of his mother, the Will dated 08.08.2008 has been registered on 27.8.2009 and without giving an opportunity to produce the document, the trial Court has erred in holding that the defendant has failed to prove that his mother has executed a Will in his favour. He further contended that, when the matter was posted on 17.02.2020, the defendant was examined as DW.1 and for further chief- examination of DW.1, the matter had been adjourned to 27.2.2020. On that day, the defendant prayed some time to produce the records. Hence, the Court after imposing cost of Rs.200/-, adjourned the matter to 06.03.2020. On 06.03.2020, the defendant was unable to secure the Will and other documents, therefore, on that day, he was not present. Therefore, the trial Court was not justified in closing the evidence of DW.1. He contended that, other joint family properties have not been included in the suit schedule properties. The counsel further contended that, in this appeal the defendant has filed an application seeking production of documents and that he has got a good case on merits and if this Court grants one more opportunity, the defendant, -9- RFA No. 100128 of 2022 C/W RFA No. 100043 of 2022 without taking any further time, will assist the Court in early disposal of the suit. Hence, he sought to allow the appeals.
9. Per contra, Sri. Shivanand Malashetti, learned counsel for the respondents/plaintiffs has contended that there was no Will executed by their mother in favour of the defendant on 08.08.2008. The defendant has created the same to deny the right of the plaintiffs. He further contended that, after the death of their mother, the Will was registered i.e. on 27.08.2009. The counsel further contended that, in spite of the Court granting sufficient opportunities, the defendant has not produced the Will, hence, the trial Court, has rightly closed the evidence of the defendant and on the basis of the evidence available on record, has held that the Will dated 08.08.2008 is not binding on the plaintiffs. He further contended that, the suit schedule properties are the joint family properties and the plaintiffs and the defendant are entitled to equal share in the suit schedule properties and therefore, the trial Court has rightly decreed the suit. Hence, he prayed to dismiss the appeals.
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RFA No. 100128 of 2022C/W RFA No. 100043 of 2022
10. Heard the learned counsel for the parties. Perused the impugned judgment and decree and the order sheet of the trial Court.
11. The point that arises for our consideration is:
i) Whether the judgment and decree passed by the trial Court is perverse and capricious in the facts and circumstances of the case?
ii) Whether the trial Court was justified in holding that the Will dated 08.08.2008 executed by Rukminibai in favour of the defendant is a created one without giving an opportunity to the defendant to prove his case?
12. The relationship between the parties is not in dispute. One Ramachandrarao @ Ramachandrapa is the propositus. He died on 17.07.2009. His wife Rukminibai predeceased him on 05.10.2008 leaving behind the plaintiffs and the defendant. The case of the plaintiff is that, the suit schedule properties are the joint family properties. The plaintiffs and the defendant have 1/3rd share in the suit schedule properties. The case of the defendant is that, suit item No.1 is purchased by his mother under a registered sale deed dated 28.05.1965 for Rs.1,500/- by selling her
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RFA No. 100128 of 2022C/W RFA No. 100043 of 2022 streedhan property and it is her absolute property and she has executed a Will on 08.08.2008 in favour of defendant No.1. When the matter was posted on 17.02.2020 for evidence of the defendant, he has been examined in part by the defendant's counsel as DW.1 and the matter has been adjourned to 27.02.2020 for further examination-in-chief. On that day, the counsel for the defendant was present and prayed time. On request, for production of Will and other original documents, by imposing cost of Rs.200/- the matter was adjourned to 06.03.2020. On 06.03.2020 neither the counsel for DW-1 nor the defendant was present. The specific case of the defendant is that, he was not able to secure the records to produce before the Court. The trial Court has closed the evidence of defendant No.1 on 16.03.2020 and posted the matter for further arguments on 12.03.2020. The appellant/defendant has filed an application before this Court and he has produced the Will dated 08.08.2008 and other documents. Since the specific case of the defendant is that his mother has executed a Will in his favor and she has purchased item No.1 property by selling
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RFA No. 100128 of 2022C/W RFA No. 100043 of 2022 her streedhan property and he has not lead evidence to prove his contention and also the trial Court has not given opportunity for the defendant's counsel to make his submission, under these circumstances, we are of the opinion that to give one more opportunity to the parties, the matter requires to be remitted back to the trial Court by imposing some costs on the appellant/defendant. Accordingly, we pass the following order:
The appeals are allowed. The judgment and decree dated 13.03.2020 passed by the learned Principal Senior Civil Judge and CJM, Gadag in O.S. No.63/2018, is set aside. The matter is remitted back to the trial Court to reconsider the case of the parties afresh and in accordance with law after giving an opportunity to the parties to adduce evidence and to produce necessary documents.
All the contentions of the parties are left open. The parties are directed to co-operate for early disposal of the suit. The appellant/defendant is directed to pay costs of Rs.15,000/- to each of the plaintiffs on or before 19.04.2023.
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RFA No. 100128 of 2022C/W RFA No. 100043 of 2022 The parties are directed to appear before the trial Court on 19.04.2023. without any further notice. However, it is made clear that, if costs is not paid on or before 20.03.2023, the decree passed by the trial Court stands restored automatically. It is made clear that this Court has not given any finding on the merits of the case.
In view of disposal of the appeal, interim applications will not survive for consideration. The Office is directed to return the certified copies along with I.As. to the appellant.
Sd/-
JUDGE Sd/-
JUDGE kmv