Karnataka High Court
Irawwa W/O Mallappa Payannavar vs Shiddappa Basvantappa Ankalgi on 4 April, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04th DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
RSA NO.42 OF 2005 (DEC)
C/w.
RSA NO.43 OF 2005 [DEC]
IN RSA NO.42/2005
BETWEEN
SMT. IRAWWA W/O. MALLAPPA PAYANNAVAR,
AGE 56 YEARS, OCC: HOUSEHOLD WORK,
R/O. KARAGUPPI, TQ. HUKKERI,
BELGAUM, PIN - 5913039
... APPELLANT
(By SMT. HEMALEKHA K.S., ADV. )
AND
1 SHRI SHIDDAPPA BASAVANTAPPA ANKALGI,
AGE 66 YEARS, OCC: AGRIL,
R/O. KARAGUIPPI, TQ. HUKKERI,
DIST. BELGAUM, PIN 5913039
2 SMT. KALLAVVA W/O. ADIVEPPA ANKALGI,
AGE 61 YEARS, OCC: AGRIL,
R/O. KARAGUPPI, TQ. HUKKERI,
DIST. BELGAUM, PIN 5913039
3 SHRI BASAVARAJ ADIVEPPA ANKALGI,
AGE 49 YEARS, OCC: AGRIL,
R/O. KARAGUPPI, TQ. HUKKERI,
2
DIST. BELGAUM, PIN 5913039
... RESPONDENTS
(By SRI. SUNANDA P. PATIL, ADV. FOR R1 ;
SRI GIRISH A. YADAWAD, ADV. FOR R2 & R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.09.2004
PASSED IN R.A.NO.12/1998 ON THE FILE OF THE CIVIL
JUDGE (SR. DN.) HUKKERI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
24.01.1998 PASSED IN O.S.NO.376/1898 ON THE FILE OF
THE CIVIL JUDGE (JR. DN.), HUKKERI.
*****
IN RSA NO.43/2005
BETWEEN
1 SMT. IRAWWA W/O. MALLAPPA PAYANNAVAR,
AGE 56 YEARS, OCC: HOUSEHOLD WORK,
R/O. KARAGUPPI, TQ. HUKKERI,
BELGAUM, PIN - 5913039
2 SRI VIRUPAXI BASAVANTAPPA HATTARGI @ UPPINAVAR
AGE 61 YEARS,
R/O. KARAGUPPI, TQ. HUKKERI,
BELGAUM, PIN - 5913039
... APPELLANTS
(By SMT. HEMALEKHA K.S., ADV. )
AND
1 SHRI SHIDDAPPA BASAVANTAPPA ANKALGI,
AGE 66 YEARS, OCC: AGRIL,
R/O. KARAGUIPPI, TQ. HUKKERI,
3
DIST. BELGAUM, PIN 5913039
2 SHRI MALLAPPA W/O. ADIVEPPA ANKALGI,
AGE 55 YEARS, OCC: AGRIL,
R/O. KARAGUPPI, TQ. HUKKERI,
DIST. BELGAUM, PIN 5913039
3 SHRI BASAVARAJ ADIVEPPA ANKALGI,
AGE 49 YEARS, OCC: AGRIL,
R/O. KARAGUPPI, TQ. HUKKERI,
DIST. BELGAUM, PIN 5913039
... RESPONDENTS
(By SRI. SUNANDA P. PATIL, ADV. FOR R1 ;
SRI GIRISH A. YADAWAD, ADV. FOR R2 & R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.09.2004
PASSED IN R.A.NO.13/1998 ON THE FILE OF THE CIVIL
JUDGE (SR. DN.) HUKKERI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
24.01.1998 PASSED IN O.S.NO.401/1898 ON THE FILE OF
THE CIVIL JUDGE (JR. DN.), HUKKERI.
THESE APPEALS COMING ON FOR FINAL HEARING ON
14.03.2018, THE SAME HAVING BEEN HEARD AND
RESERVED THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
RSA No.42 of 2005 and RSA No.43 of 2005 arise from a common Judgment and Decree dated 28.09.2004 rendered by the learned Civil Judge (Sr. Dn.) Hukkeri in Respondents' R.A. No.12 of 1998 and R.A.No.13 of 1998, reversing the common Judgments and decrees dated 4 24.01.1998 passed by the learned Civil Judge (Jr. Dn.) Hukkeri who had decreed Appellants' suit for declaration and injunction in O.S. No.376 of 1989 and decreeing respondents' suit for injunction in O.S. No.401 of 1989.
2. Appellants' suit in O.S.No.376 of 1989 and Respondents' suit in O.S.No.401 of 1989 were clubbed and tried together by the Trial Court which had decreed the former and dismissed the later by a common Judgment and decree. Appellants had filed R.A.No.12/1998 aggrieved by decreeing of Respondents' O.S.No.401/1989. Respondents had filed R.A.No.13/1998 aggrieved by the decreeing of Appellants suit in O.S.No.376/1989. Since the original suits were clubbed together and also decided since the Regular Appeals were also clubbed toghert and decided, the present Second Appeals too are taken together for hearing and disposal by a common Judgment and decree as desired by the counsel on either side.
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I. Brief facts in these Regular Second Appeals :
(a) Genealogy :-
Parappa (died in 1938)
Gangavva (Wife)
(Plaintiff No.1 died during pendency of suit) Mallappa (Adopted son by Gangavva (1940 Adoption) Died in 1961 Irawwa (Wife) of Mallappa Plaintiff No.2 Adiveppa Siddappa (Claims on the basis (Def. No.1) of Will alleged to be executed by Mallappa in 1960) Kallawa (Wife) Defendant No.2 Basavaraj (Def.No.3) Mallappa (Def. No.4)
(b) One Sri. Parappa Payannavar the propositus died in or around 1938 leaving behind his widow Smt. 6 Gangavva who succeeded to the estate of the deceased i.e. the suit properties comprising of 1 acre 23 guntas of agricultural land, a house building and an open space all situate at Karaguppi village.
(c) Since the propositus Parappa died issueless, his widow Smt. Gangavva adopted one Mr. Mallappa S/o. Basavantappa Ankalgi in or around 1940. This adopted son Mallappa too died issueless on 03.05.1961 leaving behind his widow Smt. Iravva. It is averred in the plaint that Smt. Gangavva as mother and Smt. Iravva as widow succeeded to the estate of the said Mallappa.
(d) Adopted son Mallappa's brother Adiveppa had clandestinely got M.E.No.2580 certified in his name affecting the suit property by fabricating the Will of Mallappa, keeping Smt. Gangavva and Smt. Iravva in darkness. His another brother Siddappa too was hand in glow with Adiveppa to knock off the suit 7 properties from these two helpless widows and therefore, they filed O.S.No.47/1984 on 05.06.1984 for declaration and injunction, which later came to be renumbered as O.S.No.376/1989.
(e) After notice the Defendants namely Mallappa's brother Siddappa Ankalgi and Mallappa's sister-in- law namely Smt. Kallavva W/o Adiveppa, Basavaraj & Mallappa both sons of Adiveppa, entered appearance through their counsel and filed a Written Statement resisting the suit claim. They contended that : Defendant No.1 is the brother of aforesaid adopted son Mallappa, Defendant No.2 is widow of Mallappa's brother Adiveppa and Defendant Nos.3 & 4 are the sons of said Adiveppa.
(f) They further contended that Basavantappa Ankalgi had three sons namely, aforesaid Mallappa, Adiveppa and Siddappa who had constituted a joint Hindu family which was in the occupation of the suit 8 lands as protected tenants. Adopted son Mallappa had bequeathed the suit property to the eldest brother Adiveppa by a registered Will dated 15.09.1960. The said Adiveppa died in the year 1980 and Defendant Nos.2 to 4 have succeeded to the estate of Adiveppa as his legal representatives who continued in the possession of the suit properties.
(g) The Defendants also contended that, the adopted son Mallappa was not married and therefore did not leave any widow or heirs. After his death, M.E.No.2480 has been effected in the name of Adiveppa on the basis of the registered Will, after notice and with consent of Plaintiffs. After the death of Adiveppa M.E.No.2708 is certified in favour of Defendant Nos.2, 3 & 4. They also contended that in view of testamentary succession they had not sought for grant of occupancy by filing Form 7. 9
(h) In the meanwhile i.e. on 07.06.1984, the aforesaid Defendants had also filed a civil suit in O.S. No.102/1984 seeking injunctive relief in respect of the very same properties against aforesaid Smt.Iravva W/o. Mallappa and Sri Virupaxi Basavantappa Hattargi @ Uppinavar averring that the suit land originally belonged to aforesaid Parappa who "died in the year - prior to 1940"
leaving Gangavva as widow and without any issues.
Smt. Gangavva had adopted Mallappa Basavantappa Ankalgi on 26.09.1940 followed by registered Adoption Deed dated 04.10.1950.
(i) They also contended that by virtue of adoption, Mallappa became absolute owner of the suit lands.
Mallappa had a lot of love and affection for his brother Adiveppa and therefore by a registered Will dated 15.09.1960 he made a bequest in favour of Adiveppa who is the father of plaintiff Nos.2 and 3 in 10 this Suit. Mallappa died in the year 1961 and thus Adiveppa became the absolute owner of his property. Later, since all were residing together, Adiveppa gave half share in the suit property to his brother Siddappa, the plaintiff No.1. Accordingly, the mutation entries were certified.
(j) The widow Kallavva along with his sons, plaintiff Nos.2 and 3 succeeded to the estate of the deceased Adiveppa. Entries in the revenue records also got mutated in respect of the entire properties. Thus, all the plaintiffs started to enjoy the properties together by joint cultivation as owners. When this was the position, on 06.06.1984 the defendants i.e., the appellants in RSA No.42 of 2005 tried to interfere with the possession and enjoyment which eventually resulted into the institution of O.S. No.401 of 1989.
(k) After service of notice, the defendants in the said suit entered appearance through their counsel and 11 filed the written statement resisting the case of the plaintiffs alleging that on the death of propositus Parappa issueless in the year 1938, his widow Gangavva succeeded to the entire estate; in the year 1940, Gangavva adopted Mallappa, the brother of the plaintiff Siddappa and also late Adiveppa. Mallappa died in the year 1961 leaving behind the widow Smt.Iravva i.e., defendant No.1; Mallappa had never executed any Will in favour of anyone much less Adiveppa although he died issueless. Iravva also contended that suit is bad for non-joinder of necessary party namely Smt.Gangavva who had succeeded to the estate of the deceased Parappa in entirety. The said Gangavva has bequeathed all the suit properties to Defendant - Iravva by a Will dated 11.06.1984.
(l) Both the suits in OS No.376 of 1989 and OS No.401 of 1989 were clubbed together and a joint trial was 12 held. Iravva was examined as PW-1; Siddappa was examined as PW-2; Mallappa Yellappa Vaddagol was examined as PW-3; Maruti Badiger was examined as PW-4; A.N.Nadagouda was examined as PW-5 and A.V.Mutalik was examined as PW-6 in OS No.376 of 1989. The documents at Exs.P-1 to P-48 were marked in their evidence.
(m) Similarly, in OS No.401 of 1989, plaintiff Siddappa was examined as DW-1 and plaintiff Smt.Kallavva widow of Adiveppa was examined as DW-2. This apart, three more persons were examined as DW-3, DW-4 & DW-5 to prove Mallappa's will. The documents at Exs.D-1 to D-38 came to be marked. Some of these documents were also marked in the cross-examination of the plaintiffs side in OS No.376 of 1989.
(n) The trial court by its judgment and decree dated 24.01.1998 decreed the suit in OS No.376 of 1989 13 declaring the plaintiffs i.e., the appellants in RSA No.42 of 2005 to be the owners in possession of the suit properties and the suit in OS No.401 of 1989 was dismissed.
(o) However, defendants in OS No.376 of 1989 preferred RA No.12 of 1998; the said defendants who were the plaintiffs in OS No.401 of 1989 also preferred RA No.13 of 1998. The lower appellate court vide common judgment and decree dated 28.09.2004 allowed RA No.12 of 1998 and thereby dismissed OS No.376 of 1989 and further allowed RA No.13 of 1998 by decreeing OS No.401 of 1989.
(p) Being aggrieved, the plaintiffs in OS No.376 of 1989 have preferred RSA No.42 of 2005 and the defendants in OS No.401 of 1989 have preferred RSA No.43 of 2005 challenging the common judgment and decree of lower appellate court.
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(q) This Court had taken up both these appeals together on 22.07.2005 for admission and that the appeals were admitted on the following substantial question of law:
"Whether the finding of the 1st Appellate Court reversing the judgment and Decree passed by the Trial Court by holding that the husband of plaintiff No.1 died prior to coming into force of Hindu Women's Right to Property Act, 1937 is perverse or arbitrary, being contrary to the material on record and the fact that the averments made in the plaint that he died in 1938 is not specifically denied in the written statement?."
II. The learned counsel for the appellants in both these appeals submitted that the trial court has specifically entered a finding that the propositus Parappa died in the year 1938 after the enactment of the Hindu Women's Right to Property Act, 1937 and consequently, his widow Smt.Gangavva succeeded to the estate of the deceased since he had no issues. The first appellate court 15 had absolutely no justification whatsoever for varying this finding by holding that the propositus Parappa died in the year 1938 in view of the following important material:
(i) The plaintiffs in OS No.376 of 1989 have specifically pleaded that propositus Parappa died in the year 1938. The defendants in OS No.376 of 1989 had filed a common Written Statement wherein they never denied the plaint averments that propositus Parappa died in the year 1938.
Absence of denial of plaint averments amounts to admission;
(ii) The plaintiffs in OS No.401 of 1989 have specifically asserted in their plaint that propositus Parappa "died in the year before 1940". This virtually amounts to admitting the plaint averment that Parappa died in the year 1938;
(iii) PW-3 in OS No.376 of 1989 namely Sri.Mallappa Yellappa Vaddagol has specifically stated in his examination-in-chief on 05.10.1995 that Parappa died about 40 years back. This approximates to 1955. He 16 has not been cross-examined as to the year of death.
III. The learned counsel for the appellants takes this Court through page 8 of the lower appellate court Judgment, which reads:
"Undisputed facts which reveals (sic!) from the pleadings of the parties are that husband of plaintiff No.1 in OS No.376 of 1989 by name Parappa died during the year 1936 which be evidenced on going through the evidence of PW-1 who in her cross examination deposed at page No.6 as under:
'It may be true that Parappa died about 60 years back'. I have carefully gone through both the plaints wherein the date of death of Parappa is not clearly mentioned; but it is only mentioned that Parappa died in the year 1936...."
3. The counsel for the appellants submits that this finding of the first appellate court is prima facie perverse if not false inasmuch as para 3 of plaint in OS No.376 of 1989 specifically states that Parappa died in the year 1938 17 i.e., after the coming into force of the Hindu Women's Right to Property Act, 1937. She also points out that this plaint assertion is not denied by the defendants in their Written Statement at all. The counsel further points out that the defendants in their suit in OS No.401 of 1989 have specifically stated that Parappa "died in the year before 1940". The counsel argues that no mind reasonably trained in law in the arm chair of first appellate court could have entered the finding as has been done by the first appellate court. There is a lot of force in the argument of this counsel.
4. The counsel for the respondents per contra contends that the version of PW-1 Iravva emerging from her cross-examination done on 24.08.1996 itself shows that Parappa died 60 years back, thereby meaning he died in the year 1936. It is a settled legal position that the deposition of an illiterate rural lady cannot be read as the statutory instrument. PW-1 is admittedly an illiterate. 18 She has put thumb impression to the pleadings and to the Vakalat. In her cross-examination she has stated "It may be true that Parappa died about 60 years back". Therefore, much importance cannot be attached since the event is too old to admit accuracy of the year of happening. Therefore, I hold that the first appellate court had no justification whatsoever to interfere with the finding recorded by the trial court that Parappa died in the year 1938 i.e., after the enactment of Hindu Women's Right to Property Act, 1937.
5. By virtue of the provisions of 1937 Act, Smt. Gangavva succeeded to the estate of deceased Parappa as his widow and sole legal representative since there were no children. When she succeeded to the said estate absolutely or otherwise, her estate i.e. interest in the suit property got enlarged by operation of Section 14 of the Hindu Succession Act, 1956 which enacts doctrine of enlargement of estate. Thus, Gangavva became absolute 19 and unlimited owner of the suit property contends the counsel for the Appellant.
6. The counsel for the Appellants next contended that Smt. Gangavva had bequeathed all the suit property in favour of Smt. Iravva the widow of Mallappa vide testament dated 11.06.1984; the first Appellate Court grossly erred in holding that this Will has not been proved though the scribe and one attesting witness have been examined. The first Appellate Court held that the suspicious circumstance namely over- participation of the legatee in the preparation of the Will has not been explained away. Since this is a pure question of fact which the Trial Court rightly or wrongly has answered in a particular way, I do not want to disturb the finding that the due execution of Gangavva's Will has not been proved. It is more so because Gangavva died on 15.06.1984 i.e. four days after executing the Will which fact generates reasonable doubt as to the sound disposition of mind and body of the testatrix. 20
7. The learned counsel for the appellant contends and in my opinion rightly that irrespective of Gangavva's Will the appellant Iravva being Gangavva's daughter-in- law will succeed to the state of deceased Gangavva since she happened to be the sole legal representative, her husband Mallappa having predeceased the said Gangavva. Thus, Gangavva will become absolute owner of the suit properties, contends the counsel for the appellant.
8. The counsel for the respondents, per contra contends that Smt. Gangavva had adopted Mallappa by a registered deed of adoption executed subsequently in the year 1950. The adoption dates back to the death of propositus Parappa and thus by virtue of the Doctrine of Relation Back, Mallappa would succeed to the estate of said Parappa as his adopted son and thus Mallappa had disposable interest in the suit property and further that he has accordingly executed and registered a Will dated 15.07.1960 bequeathing all the property upon his brother 21 Adiveppa who having died, his widow and children have succeeded to the suit property.
Further, interest of Smt.Gangavva which she takes by way of succession opening on the death of her husband Bharappa as his widow under the provisions of Section 3 of 1937 Act is subject to the doctrine of "Relation Back" as held by the Apex court in the case of Shripad Gajanan Suthankar Vs. Dattaram Kashinath Suthankar and others, AIR 1974 SC 878, of which paragraph 9 reads as under:
"9. The plaintiff, as the adopted son, for secular and spiritual purposes continues the line of the adoptive father and when the widow adopts, the doctrine of 'relation-back' makes sonship retroactive from the moment of death of the late husband. The new entrant is deemed to have been born on the date of death of the adoptive father. Supposing there was an undivided family in existence when the adoptive father died, how far can the legal fiction of anterior sonship disrupt the doings 22 between notional birth and actual adoption? Mulla sums up the result of the rulings thus :
(p. 496)."
"If, therefore, there was a
coparcenary in existence when the
adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in the family properties as if they were still joint."
Thus, Gangavva would succeed to the estate of the deceased husband Parappa jointly with the adopted son Mallappa and therefore, she had half share in the suit lands.
238A. The counsel for respondents further submits that it is a registered Will more than 30 years old and it comes from a proper custody and therefore, it should be presumed to be genuine by virtue of Section 90 of Evidence Act as held by this Court in the case of Sidharood Swamy Math Case reported in KLJ 1985 (1) 331 She points out that this presumption has not been rebutted by the Appellants. I find a lot of force in the submission as to the genuiness of the Will of Mallappa and thus, I am not inclined to disturb the finding of the lower Appellate Court that Mallappa's Will is genuine and valid.
9. The finding as to the genuiness of the Mallappa's Will takes us to the other contention of the Appellants as to the extent of Mallappa's disposable interest in the suit property. The counsel for the Appellants submits that assuming that the doctrine of Relation Back makes Mallappa the son of deceased propositus Parappa, still Mallappa would inherit the estate 24 i.e. the suit property along with Parappa's widow Smt. Gangavva and thus, Mallappa had only ½ share in the suit property and therefore he could not have disposed of entire property to the exclusion of Gangavva through his registered Will. There is a lot of force in this submission. The logical and legal consequence of this would be that Adiveppa's widow and children would get only ½ share in the suit property to the exclusion of Defendant No.1 Siddappa and accordingly I hold.
10. The contention of the learned counsel for the Respondent No.1 Siddappa that their father Basavantappa Ankalgi was cultivating the suit lands and that all his three sons were assisting him in such cultivation and therefore they were 'Protected Tenants' and consequently all the three brothers including Mallappa the husband of Plaintiff Iravva should be taken to have inherited the suit lands does not make sense since none of them admittedly had filed Form 7 claiming occupancy under Section 48-A of the Karnataka Land Reforms Act, 1961 nor Form 7A 25 That apart the entries in the revenue records have been mutated in the name of Defendant Nos.2, 3 & 4 namely the widow and children of Mallappa on the basis of his registered Will dated 15.09.1960. Therefore, the contention of the counsel for the first Respondent that the tenancy is proved by the entries in the revenue records does not come to her aid.
11. In O.S.No.376/1989 the Plaintiff's side has amended the prayer column by claiming a decree for possession of the suit property by way of alternative relief. On the basis of registered Will dated 15.09.1960 of Mallappa S/o. Basavantappa Ankalgi i.e. the adopted son of propositus Parappa and Gangavva, the Defendant Nos.2, 3 & 4 namely Smt. Kallavva W/o. Adiveppa Ankalgi, Basavaraj S/o. Adiveppa Ankalgi and Sri Mallappa S/o. Adiveppa Ankalgi have been found to be in the exclusive possession and enjoyment of the suit property as is evidenced by the mutation of revenue 26 entries standing jointly in their names since decades. There is no reason to upset the finding of the first Appellate Court as to the same. There is absolutely no material to hold that Defendant No.1 Shiddappa S/o. Basavantappa Ankalgi has anything to do with the suit property.
12. Apart from the above, no other contention is advanced by the counsel on either side. Wherefore, in the light of what has been discussed above I make the following:
ORDER The Appeal in RSA No.42/2005 and the Appeal in RSA No.43/2005 are partly allowed. The suit in O.S.No.401/1989 is dismissed. The suit in O.S.No.376/1989 is decreed in part to the following effect:
(i) The Plaintiff Smt. Iravva W/o. Mallappa Payannavar in O.S.No.376/1989 is declared to be the owner of ½ (one half) share in the suit property And That the other ½ (one 27 half) share being retained jointly by Defendant No.2 Smt. Kallavva W/o. Adiveppa Ankalgi, the Defendant No.3 Basavaraj S/o. Adiveppa Ankalgi and Defendant No.4 Sri Mallappa S/o.
Adiveppa Ankalgi.
(ii) The said Plaintiff Smt. Iravva W/o. Mallappa Payannavar being the owner of ½ (one half) share in the suit property shall be entitled to joint possession and enjoyment of the suit property with the aforesaid Defendant No.2 Smt. Kallavva W/o. Adiveppa Ankalgi, the Defendant No.3 Basavaraj S/o. Adiveppa Ankalgi and Defendant No.4 Sri Mallappa S/o. Adiveppa Ankalgi and further the said Defendants are hereby injuncted to admit the above plaintiff to the joint possession and enjoyment of the suit property.
Sd/-
JUDGE *Svh/-