Karnataka High Court
Smt Savitha Devi W/O Ramachandra Gupta vs H N Premkumar Bharata Film Distributor on 5 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:6234
RSA No. 2464 of 2007
C/W RSA No. 5231 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
R
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.2464 OF 2007 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.5231 OF 2008
IN RSA NO.2464/2007:
BETWEEN:
SMT. T SAVITRIDEVI
W/O. RAMACHANDRA GUPTA,
AGE: 68 YEARS,
OCC: HOUSEHOLD WORK,
R/O: D.KONDAPURAM,
RAYADURGA MANDAL,
DIST: ANANTHPUR,
ANDHRA PRADESH - 531106.
...APPELLANT
(BY SRI.SATISH M.S., ADVOCATE)
AND:
1. H.N.PREMKUMAR,
BHARATA FILM DISTRIBUTOR,
BHARATHI R/O: NO.34, 3RD CROSS,
HM 3RD MAIN, R.M.V. II STAGE,
Digitally signed by BHARATHI H
M
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENGALURU-94.
BENCH
Date: 2024.06.19 12:35:07
+0530
2. THE COMMISSIONER,
CITY CORPORATION,
HOSPET, DIST: BALLARI - 583107.
3. SRI. V.RAKESH JAIN,
S/O. LATE VIJAYRAJ,
AGE: 35 YEARS, OCC: BUSINESS,
R/O.SHA PRAVEENKUMAR,
RAKESHKUMAR, D.NO.7,
WARD NO.12, OLD MEDAR ROAD,
HOSPET, DIST: BALLARI.
...RESPONDENTS
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NC: 2024:KHC-D:6234
RSA No. 2464 of 2007
C/W RSA No. 5231 of 2008
(BY SRI.GODE NAGARAJ, ADVOCATE FOR R2;
SRI. SHRIKANT T. PATIL, ADVOCATE FOR R3;
NOTICE TO R1 HELD SUFFICIENT.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 20.06.2007 PASSED IN
R.A.NO.105/2001 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN), &
JMFC., HOSPET, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 24.08.2001 PASSED IN
O.S.NO.66/1997 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN)
AND JMFC., HOSPET.
IN RSA NO.5231/2008:
BETWEEN:
SMT. T.SAVITHA DEVI
W/O. RAMACHANDRA GUPTA,
AGE: 68 YEARS,
OCC: HOUSEHOLD WORK,
R/O: D.KONDAPURAM,
RAYADURGA MANDAL, DIST: ANANTHPUR,
ANDHRA PRADESH - 531106.
...APPELLANT
(BY SRI.SATISH M.S., ADVOCATE)
AND:
1. H.N.PREMKUMAR,
BHARATA FILM DISTRIBUTOR,
R/O: NO.34, 3RD CROSS,
3RD MAIN, R.M.V. II STAGE,
BENGALURU - 94
2. IBRAHIM RAMANVALI,
S/O. LATE R. MEHABBOBSAAB
OCC: PROPRIETOR OF HOSPET SUPPLIES,
R/O. 11TH WARD, DAFEDAR LANE,
HOSPET.
3. R.KHAJA NIZAMUDDIN SHEIK
S/O. LATE R. MEHABBOBSAAB
OCC: PROPRIETOR OF HOSPET SUPPLIES,
R/O. 11TH WARD, DAFEDAR LANE, HOSPET.
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NC: 2024:KHC-D:6234
RSA No. 2464 of 2007
C/W RSA No. 5231 of 2008
4. SRI. V. RAKESH JAIN,
S/O. LATE VIJAYRAJ,
AGE: 35 YEARS, OCC: BUSINESS,
R/O.SHA PRAVEENKUMAR,
RAKESHKUMAR, D.NO.7,
WARD NO.12, OLD MEDAR ROAD,
HOSPET, DIST: BALLARI.
...RESPONDENTS
(BY SRI. SHRIKANT T. PATIL, ADVOCATE FOR R4;
R2 SERVED;
NOTICE TO R1 AND R3, ARE HELD SUFFICIENT.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 30.08.2008 PASSED IN
R.A.NO.40/2007 ON THE FILE OF THE PRL. DISTIRCT JUDGE,
BALLARY, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
AND DECREE DATED 20.06.2007 PASSED IN O.S.NO.122/2004 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) AND JMFC., HOSPET.
THESE APPEALS COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.2464/2007 is filed by the plaintiff challenging the judgment and decree dated 20.06.2007 passed in R.A.No.105/2001 by the Principal Civil Judge (Sr.Dn.) and J.M.F.C., Hospet and the judgment and decree dated 24.08.2001 passed in O.S.No.66/1997 by the Additional Civil Judge (Jr.Dn.) and JMFC, Hospet. This is the suit filed for declaration by the plaintiff to declare that the Will stated to have been executed by deceased Satyasusheelamma in favour of defendant No.1 is null and -4- NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 void. The Trial Court dismissed the suit, which is affirmed by the First Appellate Court. Therefore, the instant Regular Second Appeal is filed.
2. RSA No.5231/2008 is filed by the plaintiff (the plaintiff in O.S.No.66/97) challenging the judgment and decree dated 30.08.2008 passed in R.A.No.40/2007 by the Principal District Judge, Bellary and the judgment and decree dated 20.06.2007 passed in O.S.No.122/2004 by the Principal Civil Judge (Sr.Dn.) and J.M.F.C., Hospet filed for partition and separate possession. The Trial Court and the First Appellate Court has granted ½ share to the plaintiff. Therefore, the appellant by making claim of entire share in the property, this Regular Second Appeal is filed.
3. For the purpose of convenience, the ranking of the parties is referred to as per their status before the Trial Court since the plaintiff and defendant No.1 in both the suits are one and the same and are contesting parties. -5-
NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
4. The plaintiff by name Savitha Devi has filed suit in O.S.No.66/1997 claiming that she is the absolute owner of the suit property inherited from her father S.Venkobanna Setty. The said father married Seethamma who is first wife and in the wedlock between them, plaintiff was born. After demise of the first wife Seethamma, the father-S.Venkobanna Setty had married second wife by name Satyasusheelamma. Satyasusheelamma has no issues. Hence, the said Satyasusheelamma is second wife of S.Venkobanna Setty has become stepmother to the plaintiff. The said S.Venkobanna Setty has acquired the suit property by partition along with his brother and thus, the suit property has fallen to the share of S.Venkobanna Setty. Thus, the suit property has become self-acquired property of S.Venkobanna Setty. When this being the fact, the second wife Satyasusheelamma had executed an instrument called as Will in favour of defendant No.1, who is son of brother of Satyasusheelamma (nephew). It is submitted that Satyasusheelamma did not have any competency to execute the Will, and during lifetime of -6- NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Satyasusheelamma, she could enjoy the property, but did not have any competency to bequeath the suit property by virtue of Will. Therefore, after demise of Satyasusheelamma, the plaintiff has inherited the suit property and has become absolute owner. Thus, the plaintiff had filed the suit for declaration claiming ownership over the entire suit property.
5. The Trial Court has dismissed the suit on the reason that after demise of S.Venkobanna Setty, Satyasusheelamma has become owner of the suit property as she got inherited from her husband S.Venkobanna Setty and thus, it has become her absolute property as per sub-section (1) of Section 14 of the Hindu Succession Act, 1956 (for short, 'the H.S. Act') and accordingly, she has bequeathed the property as she was absolute owner. Further by assigning reason that the suit filed by the plaintiff is barred by limitation, though the plaintiff has knowledge regarding the alleged Will executed by Satyasusheelamma in the year 1991 itself, but has filed -7- NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 suit in the year 1997 after seven years, therefore, held that the suit is barred by limitations as per Article 58 of the Limitation Act, 1963 (for short 'the Act, 1963). This is challenged in R.A.No.105/2001 before the First Appellate Court, and the First Appellate Court has dismissed the appeal. Therefore, RSA No.2464/2007 is filed by the plaintiff.
6. During pendency of the appeal in R.A.No.105/2001, the plaintiff has filed one more suit in O.S.No.122/2004 for declaration, partition and separate possession claiming the entire share in the property on the ground that since the plaintiff and Satyasusheelamma are the only legal heirs of S.Venkobanna Setty and the plaintiff being a daughter is entitled ½ share and what Satyasusheelamma has got ½ share after her death, it was reverted to the plaintiff as per Sections 9 and 15 of the H.S. Act. Therefore, on these grounds, the plaintiff has filed suit for claiming entire share in the property, in the suit for partition.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
7. The Trial Court in O.S.No.122/2004 has decreed the suit in part by declaring that the plaintiff is entitled for ½ share in the suit property and accordingly decree of partition is granted along with the separate possession of ½ share in the suit property. Being aggrieved by only granting ½ share and not allotting remaining ½ share, the plaintiff has preferred R.A.No.40/2007 and the First Appellate Court has confirmed the said judgment and decree of the Trial Court. Being aggrieved by this, the plaintiff has preferred this RSA No.5231/2008.
8. This Court by clubbing both these Second Appeals has admitted both the appeals on 29.06.2012 and has framed following substantial questions of law:
"Whether the Courts below were justified in dismissing the suit for declaration that the Will dated 23.07.1990 is null and void, on the premise that it was beyond the period of limitation under Article 58, part-III of the schedule to the Limitation Act, 1963, since P.W.1 in cross-examination at para No.10, had admitted the execution of the Will by her step mother, six months prior to its execution?"-9-
NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
9. During the course of hearing the advocates for appellant/plaintiff and defendants in these appeals, furthermore following substantial questions of law arises for my consideration and accordingly, are framed as follows:
i) Whether, under the facts and circumstances involved in this case, both the First Appellate Court and the Trial Court are justified that, admittedly, when the plaintiff and Satyasusheelamma are the only legal heirs of S.Venkobanna Setty, after death of S.Venkobanna Setty, what is the right of Satyasusheelamma to bequeath the suit property in favour of defendant No.1 as S.Venkobanna Setty died intestate and what is effect of Section 14 of the Hindu Succession Act, 1956 bequeathing property by Satyasusheelamma in favour of defendant No.1?
ii) Whether, under the facts and circumstances involved in this case, both the First Appellate Court and the Trial Court are justified that, under the admitted facts that plaintiff and Satyasusheelamma are the only legal heirs of S.Venkobanna Setty and S.Venkobanna Setty died intestate and later upon after death of Satyasusheelamma, whether plaintiff is entitled entire share in the property by getting ½ share of Satyasusheelamma as per Sections 9 and 15 of the Hindu Succession Act along with right of Satyasusheelamma as per Section 14 of the Hindu Succession Act, 1956 thus, whether, the plaintiff is entitled for entire share in the suit property?
10. Heard arguments from both side counsels and perused the records.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
11. The learned counsel for the plaintiff submitted that Satyasusheelamma did not have any absolute right to bequeath the property in favour of defendant No.1 by virtue of Will. Therefore, bequeathing property entirely to defendant No.1 is illegal. Furthermore, the Will stated to have been executed by Satyasusheelamma is by playing fraud and thus, submitted Satyasusheelamma has not executed the Will in favour of defendant No.1. Further submitted that the plaintiff and Satyasusheelamma are the only legal heirs of S.Venkobanna Setty and thus, both are entitled ½ share in the suit property and subsequently after death of Satyasusheelamma, her ½ share devolved into plaintiff. Thus, the plaintiff has acquired entire property by virtue of Sections 9 and 15 of the H.S. Act. Further submitted that S.Venkobanna Setty died intestate and therefore, defendant No.1 has no evidence to prove that the suit property has given to Satyasusheelamma by S.Venkobanna Setty in lieu of maintenance. Thus, Satyasusheelamma has not been conferred rights as per
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Section 14 of the H.S. Act. Therefore, submitted the Trial Court and First Appellate Court in the case filed for suit of partition ought to have been granted entire share of the suit schedule property in favour of the plaintiff. Therefore, prays to modify the judgment and decree passed by the Trial Court and the First Appellate Court. Further submitted that the suit in O.S.No.66/1997 is not barred by limitation on the ground that the plaintiff had come to knowledge of the Will in the year 1996 that the Will is registered at Bengaluru and after obtaining all the particulars has filed the suit in the year 1997. Therefore, the suit is filed within three years as per Article 58 of the Act, 1963. Further submitted that the plaintiff is in possession of the property and in the year 1996, the defendant No.1 has started to disturb possession of the plaintiff over the suit property. Therefore, immediately filed suit. When defendant No.1 started to disturb the possession of the plaintiff in the year 1996, then the right to sue accrues and accordingly, filed the suit in the year 1997. Thus, the suit is well within the period of limitation.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Further submitted there is a fraud played by defendant No.1 in getting execution of Will by Satyasusheelamma and after disturbance by defendant No.1 of possession of plaintiff, the suit is filed. Therefore, as per Section 17 of the Act, 1963, the suit filed is well within the period of limitation. Therefore, on all these grounds, prays to allow the above two appeals and grant decree of entire share in the suit property to the plaintiff ousting defendant No.1.
12. The learned counsel for the appellate places reliance on the judgment of Hon'ble Supreme Court and this Court are as follows:
i) Kashibai W/o Lachiram and another
reported in (1995) 6 SCC 213.
ii) Pramila vs. Prasanna Kumari
reported in MANU/KA/1143/2023.
iii) Inbasegaran vs. S. Nararajan
reported in MANU/SC/0979/2014.
iv) D. Suryanarayana and another vs. I.
Suryakanthamma and another
reported in 2003 (2) ALT 759.
v) Sanagavarapu Venkata Subbaiah
Sarma vs. Karuthota Galib Saheb
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NC: 2024:KHC-D:6234
RSA No. 2464 of 2007
C/W RSA No. 5231 of 2008
and others reported in 1997 (4) ALT
274.
vi) S.P. Chengalvaraya Naidu (dead) by
LRs. vs. Jagannath (dead) by LRs
and others reported in (1994) I SCC
1.
vii) Daya Singh and another vs. Gurdev
Singh (dead) by LRs and others
reported in (2010) 2 SCC 194.
13. On the other hand, learned counsel for the respondents submitted that in the first suit in O.S.No.66/1997 the plaintiff has admitted execution of Will by Satyasusheelamma in favour of defendant No.1, and has only questioned competency of Satyasusheelamma for executing Will. Therefore, the plaintiff estopped in contending Will is not executed by Satyasusheelamma in subsequent suit in O.S.No.122/2004 and thus, it creates estoppel as per Section 115 of the Indian Evidence Act, 1872 on part of the plaintiff. Further submitted that in the first suit, the plaintiff has admitted execution of Will, but the second suit has made averments
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 regarding fraud is played in executing Will. When in the first suit, the plaintiff had admitted execution of Will and has not pleaded and questioned on fraud, then whatever averments made in the second suit regarding questioning execution of Will is barred as per Order II Rule 2 of CPC. Further submitted that Satyasusheelamma died in the year 1991 and before six months of death of Satyasusheelamma, the plaintiff knew the fact that Satyasusheelamma has executed Will in favour of defendant No.1, but the suit is filed in the year 1997. Therefore, the suit ought to have been filed questioning the Will as null and void within the limitation period of three years, but has not been filed. Thus, it is correctly held by the Trial Court and the First Appellate Court that the suit is barred by limitation. Further submitted that in course of cross-examination, the plaintiff had admitted that before six months of death of Satyasusheelamma, the plaintiff knew execution of alleged Will by Satyasusheelamma in favour of defendant No.1. During lifetime of Satyasusheelamma, the plaintiff came to knew
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 about execution of Will. But the suit is filed after seven year from the date of death of Satyasusheelamma. Hence, is barred by limitation, which is correctly held by the Trial Court and the First Appellate Court. Further submitted that the plaintiff knew all the facts that Satyasusheelamma has got changed by getting entry of her name in the Municipal records by virtue of the Will and the plaintiff has made inquiry regarding entry of name of Satyasusheelamma, but has not objected carrying name of Satyasusheelamma into Municipal records but filed suit in the year 1997. Thus the suit is barred by limitation. Hence, submitted all these aspects have been rightly considered by both the Trial Court and the First Appellate Court and in both suits and appeals which need no interference. Therefore, prays to dismiss the appeals.
14. The learned counsel for the respondents places reliance on the judgment of Hon'ble Supreme Court and this Court are as follows:
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
i) Gurbux Singh vs. Bhooralal reported in 1964 SCC OnLine SC 101 : (1964) 7 SCR 831 : AIR 1964 SC 1810.
ii) Prem Kishore and Others vs. Brahm
Prakash and Others reported in 2023
SCC OnLine SC 356.
iii) Life insurance Corporation of India vs. Sanjeev Builders Private Limited and another reported in 2022 LiveLaw (SC) 729.
15. The plaintiff has filed the suit in O.S.No.66/1997 for declaration to declare the Will executed by Satyasusheelamma in favour of defendant No.1 is null and void. In the suit, the plaintiff has not pleaded any fraud played regarding execution of Will and has also not denied execution of the Will. But it is only contention of the plaintiff that Satyasusheelamma did not have competency to execute the Will. Disputing execution of Will is different from competency of testator to make the Will is different. The plaintiff has admitted execution of the Will in favour of defendant No.1. It is only grievance of
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 the plaintiff questioning capacity of Satyasusheelamma to execute the Will on the reason that Satyasusheelamma was not having any right, title, interest over the suit property. Hence, not competent to execute the Will. Therefore, when execution of Will is not disputed by the plaintiff, then there is no question on defendant No.1 to prove e+xecution of Will. What is crux in the matter is not regarding execution of Will, but, competency of executing Will in favour of defendant No.1. In subsequent suit in O.S.No.122/2004, the plaintiff has pleaded regarding fraud played regarding execution of Will and raised suspiciousness regarding the Will. But in subsequent suit in O.S.No.122/2004 the plaintiff is estopped as per Section 115 of the Indian Evidence Act, 1872 to raise contention regarding suspiciousness of the Will also as per Order II Rule 2 of CPC such contention cannot be permitted to raise in subsequent suit. Order II Rule 2 of CPC as follows:
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquished any portion of his claim in order to bring the suit within the jurisdiction of any Court.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
16. In earlier suit in O.S.No.66/1997 the plaintiff has admitted the execution of Will by Satyasusheelamma in favour of defendant No.1. In the said previous suit what the plaintiff has questioned is regarding competency of the execution of Will by Satyasusheelamma bequeathing the entire property to the defendant No.1. But in the second suit in O.S.No.122/2004 the plaintiff has questioned about the execution of Will. Both the suits are between the same parties and in respect of the same property. The plaintiff knew Satyasusheelamma has executed a Will in favour of defendant No.1 after six months from the date of execution of the Will during the lifetime of Satyasusheelamma. Therefore, the plaintiff
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 while filing the second suit in O.S.No.122/2004 had taken contention disputing the Will which pleadings/averments were omitted in the previous suit. Therefore, as per Order II Rule 2 of CPC the plaintiff cannot take pleading in subsequent suit, the pleadings of which were omitted in the first suit.
17. Order II Rule 2 CPC is based on the principle that the defendant should not be vexed twice for one and the same cause. Rule is directed against two evils, the splitting of claims and the splitting of remedies. It provides if a plaintiff omits any portion of the claim, which he is entitled to make or any of the remedies which he is entitled to claim in respect of the cause of action for his suit, he shall not thereafter sue for the portion claimed or for the remedy so omitted. This rule does not preclude a second suit based on a distinct and separate cause of action. In order to invoke the rule, two conditions must be satisfied, firstly, that the previous suit and the present suit must arise out of the same cause of action and secondly,
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 they must be between the same parties. The requirement of Order II Rule 2 CPC is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. If the cause of action enables a person to ask for a larger and wider relief than that which he limits his claim, he cannot afterwards seek to recover the balance by subsequent proceedings. To make this rule applicable, the defendant must satisfy three conditions;
(1) The previous and second suit must arise out of same cause of action;
(2) Both the suits must be between the same parties;
and, (3) The earlier suit must have been decided on merits.
18. If in earlier suit the plaintiff has omitted to sue in respect of or intentionally relinquished any portion of his claim, he will not subsequently be entitled to sue in respect of the portion of his claim so omitted or relinquished. Therefore, applying the test of this rule in the context of the present appeal, in previous suit the
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 plaintiff has not disputed the execution of Will. It is not the case of the plaintiff in previous suit that the Will is by playing fraud or by any evil conducive. But in subsequent suit the plaintiff has questioned the execution of Will on the ground of fraud, etc. Therefore, the plaintiff has intentionally omitted and relinquished to make averment about the Will that there was fraud played. Therefore, in the subsequent suit the plaintiff cannot put forth the claim which has been relinquished in previous suit, therefore applying this Rule the plaintiff cannot take pleadings/contentions regarding fraud played in the subsequent suit, which creates bar to the plaintiff to take such contention as averred in the subsequent suit.
19. Therefore, there is no question on the defendant No.1 to prove the execution of Will even in a subsequent suit when in the earlier suit the plaintiff had not questioned the execution of Will. Therefore, defendant No.1 was not put burden to prove execution of Will in the
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 first suit, therefore the same benefit continues to the defendant No.1 in the second suit also.
20. Questioning the competency of execution of Will is a different aspect. Questioning the Will on fraud played and the competency of execution of Will, two different aspects. Here, the burden is on the defendant No.1 to prove regarding the competency of Satyasusheelamma to execute the Will, but not proof of execution of Will. The competency of Satyasusheelamma to execute the Will is to be appreciated on the facts averred in the case.
21. Also when plaintiff has admitted execution of Will by Satyasusheelamma in favour of defendant No.1, then she cannot raise any doubtfulness regarding execution of Will in subsequent suit as it creates estoppel on the part of plaintiff raising suspiciousness regarding the Will as per Section 115 of the Indian Evidence Act, 1872 (for short 'the I.E. Act').
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
22. Then coming to competency of Satyasusheelamma about execution of the Will is concerned, whether she is having absolute right or partial right to execute the Will is to be considered. Admitted facts are that the deceased S.Venkobanna Setty has only two legal heirs, the plaintiff and Satyasusheelamma. But S.Venkobanna Setty has married Satyasusheelamma as second wife after demise of the first wife Seetamma. This is pleaded by the plaintiff herself in the plaint in O.S.No.60/1997. Therefore, Satyasusheelamma has obtained the characteristic as a legally wedded wife of S.Venkobanna Setty. Admittedly, the suit property belongs to S.Venkobanna Setty as he has acquired in the partition between himself and his brother. Therefore, both the plaintiff and Satyasusheelamma have inherited the suit property being legal heirs.
23. It is the case of defendant No.1 that S.Venkobanna Setty has given suit property to the Satyasusheelamma in lieu of maintenance as
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Satyasusheelamma solemnized marriage as S.Venkobanna Setty's second wife. Therefore, it is argument canvassed by the counsel for the respondents that Satyasusheelamma has become absolute right as per Section 14 of the H.S. Act. Therefore, after death of S.Venkobanna Setty, Satyasusheelamma has inherited the suit property being wife of S.Venkobanna Setty. Thus, she has become absolute owner as per Section 14 of the H.S Act. Upon considering evidence on record, there is no evidence by the defendants that there is a testament by S.Venkobanna Setty bequeathing entire suit property to Satyasusheelamma. Admittedly, S.Venkobanna Setty died intestate. Therefore, the plaintiff being daughter and Satyasusheelamma being wife are equally inherited the suit property. As per Section 8 of the H.S. Act, the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being relatives specified in Class-I of the Schedule. Therefore as per the Schedule, the plaintiff being daughter and Satyasusheelamma being legally wedded wife are equally inherited the suit property.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Section 9 of the H.S. Act stipulates regarding order of succession among heirs in the Schedule. Among the heirs specified in the Schedule, those in class-1 shall take simultaneously and to the exclusion of all other legal heirs; and have preferred to those in the second entry and then, to those in the third entry and so on in the succession.
24. Therefore, as per Sections 8 and 9 of the H.S. Act, the plaintiff and Satyasusheelamma being class-1 legal heirs are simultaneously entitled ½ share equally in the suit property.
25. It is submitted by the learned counsel for the appellate/ plaintiff that after demise of Satyasusheelamma as per Section 15 of the H.S. Act, then, what the ½ share entitled by Satyasusheelamma is reverted to the plaintiff. Section 15 of the H.S. Act reads as follows:
"15. General rules of succession in the case of female Hindus.―(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 husband;
(b) secondly, upon the heirs of the
husband;
(c) thirdly, upon the mother and father;
(d fourthly, upon the heirs of the
father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub- section (1),―
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
26. Therefore, applying Section 15 of the H.S Act it is submitted that defendant No.1 is not coming within class-1 legal heirs as per Schedule. Therefore, after
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 demise of Satyasusheelamma, her ½ share devolves upon the plaintiff. Therefore, it is an endeavour of forceful submission of the learned counsel for the appellate/plaintiff that the plaintiff is already entitled ½ share being class-1 legal heir of S.Venkobanna Setty and further ½ share entitled by Satyasusheelamma devolves to the plaintiff. Thus, the plaintiff has become absolute owner in respect of the entire suit property. Therefore, with these facts and law, the plaintiff has filed second suit in O.S.No.122/2004.
27. Section 14 of the H.S. Act reads as follows:
"14. Property of a female Hindu to be her absolute property.―(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.―In this sub-section, "property"
includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
28. Here Satyasusheelamma has got property and possessed by her by inheritance. Though, it is the contention of defendant No.1 that S.Venkobanna Setty has given suit property in lieu of maintenance to Satyasusheelamma. For this to prove there is no document. At the same time, the plaintiff is silent on this aspect. S.Venkobanna Setty has solemnized marriage with Satyasusheelamma and thus, Satyasusheelamma is second wife of S.Venkobanna Setty. This probabilizes the fact though without any documentary evidence in this regard, the suit property might have been given for maintenance, but, it is only one of the probability, but not a conclusive proof. Then Satyasusheelamma has acquired suit property by way of inheritance. At the same time, the plaintiff has also acquired the suit property by inheritance by virtue of being class-1 legal heir of S.Venkobanna Setty. Therefore, when Satyasusheelamma has acquired
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 property by inheritance as per Section 14 of the H.S. Act, she has become full owner of the suit property to the extent of ½ share what Satyasusheelamma is entitled. Therefore, to the extent of ½ share in the suit property, Satyasusheelamma has become absolute and full owner of the suit property, but not to the entire extent of suit property. When the other natural legal heirs are also entitled suit property by way of inheritance, then the other natural legal heirs cannot deprive the right of other natural legal heirs. Therefore, in this regard, the inheritance of property to Satyasusheelamma is only to the ½ extent, and to this ½ extent, she has become full and absolute owner as per Section 14 of the H.S.Act, but not to the entire extent of suit property. Therefore, upon reading of Sections 14 and 15 of the H.S. Act above discussed, if Satyasusheelamma died intestate, then the plaintiff would have inherited the property of Satyasusheelamma also. But Satyasusheelamma had executed testament of Will in favour of defendant No.1. Therefore, when Satyasusheelamma has become absolute and full owner as
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 per Section 14 of the H.S. Act to the ½ extent of property, then she has every right to bequeath property as per her wish and will and accordingly has bequeathed the suit property in favour of defendant No.1, which is valid only to the ½ extent, but not full extent of the suit schedule property. Therefore, though Satyasusheelamma had executed Will in favour of defendant No.1 to the entire extent, but as discussed above as per Section 14 of the H.S. Act, Satyasusheelamma has right only to the ½ extent of bequeathing property, but not full extent. Therefore, bequeathing of the suit schedule property to defendant No.1, is valid only to the ½ extent of the property. Without considering this aspect, Satyasusheelamma had executed Will and as per Section 14 of the H.S Act, as she has become full owner and accordingly, the bequeath of the property in favour of defendant No.1 is valid to the ½ extent only, and this ½ extent of property shall not be devolved upon plaintiff.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008
29. Therefore, the observations and findings made by the Trial Court and the First Appellate Court in O.S.No.122/2004 and R.A.No.42/2007 is found to be correct and rightly came to the conclusion that the plaintiff is entitled ½ share in the suit schedule property.
30. Then considering the question of limitation as canvassed by the counsel by the appellant/plaintiff and findings given by the Trial Court and the First Appellate Court in O.S.No.66/1997 and R.A.No.105/2001, the plaintiff has admitted in the evidence that she came to know regarding execution of Will after six months of the execution of Will, when Satyasusheelamma was alive in the year 1991. After demise of S.Venkobanna Setty, Satyasusheelamma has got entered her name in the Municipal record and at that time, the plaintiff has inquired with the authorities and came to know that the Will was executed. Upon considering evidence on record, this is brought that all these exercises were made during 1990- 91 period and at that time, the plaintiff came to know
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Satyasusheelamma has executed Will in favour of defendant No.1, but the suit is filed in the year 1997.
31. Article 58 of the Limitation Act, 1963 reads as follows:
Sl. Description of Period of Time from which No. suit limitation period begins to run
58. To obtain any Three years When the right to sue first other declaration accrues
32. Therefore, when Will is to be questioned as in the present case that ought to have been questioned by filing suit within a period of three years, when for first time right to sue accrues. In the present case, right to sue accrued to plaintiff soon after death of Satyasusheelamma. It is revealed from the evidence on record that the plaintiff came to know regarding execution of Will after six months of execution and during lifetime of Satyasusheelamma. Till lifetime of Satyasusheelamma, the Will cannot be enforced and its enforceability comes after death of Satyasusheelamma. Therefore, from the date of death of Satyasusheelamma within a period of three years, the
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 plaintiff ought to have filed suit, but not filed. Also plaintiff knew the fact that, Satyasusheelamma has got entered her name in the suit property after demise of S.Venkobanna Setty and on all its preponderance of probabilities it is proved that the plaintiff was not in possession over the suit property as she was married and started to live along with her husband in Andhra Pradesh. Therefore, there is no question of disturbance of possession over the suit property.
33. In this regard, learned counsel for the plaintiff submitted that Section 17 of the Limitation Act, 1963 is applicable to save limitations on the part of the plaintiff, but submitted that after obtaining necessary particulars regarding Will as it is registered in the Sub-Registrar Office; therefore, after obtaining particulars and necessary documents from the Sub-Registrar Office, hence, the suit filed is well within the period of limitation. He further argued that fraud is played in executing the Will by Sathya Satyasusheelamma and therefore submitted Section 17 of
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 the Limitation Act is applicable. Section 17 of Limitation Act reads as follows:
"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake;
or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
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NC: 2024:KHC-D:6234
RSA No. 2464 of 2007
C/W RSA No. 5231 of 2008
(ii) in the case of mistake, has been
purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."
34. As discussed above, the plaintiff cannot take defence of playing fraud in subsequent suit as he has omitted to take such plea in the previous suit, therefore Section 17 of the Limitation Act is not applicable. Though the plaintiff has taken fraud is played in the second suit proceedings, but as per Order II Rule 2 CPC as discussed above, the plaintiff is not entitled to take such contention
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 in the second subsequent proceedings, therefore, the defendant No.1 cannot be burdened to prove that he has not played fraud while executing the Will by Satyasusheelamma.
35. Where there is limitation prescribed to prefer the suit/petition and on the ground of fraud played are impersonation or mistake, etc., the plaintiff could not file suit within the limitation period, then as per Section 17 of the Limitation Act the period of limitation shall not begin to run until plaintiff has discovered the fraud or the mistake or could, with reasonable diligence have discovered it or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. Therefore, in order to attract Section 17 of the Limitation Act the plaintiff must prove that there is a fraud played, hence, he was precluded to file a suit within the period of limitation and the fraud is discovered later on. But in the present case as discussed above the plaintiff first of all has
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 not taken plea of fraud is played while executing the Will by Susheelamma and hence there is no question on the part of the plaintiff to prove that fraud is played. Where in a suit a plea is taken regarding fraud is played of a transaction and the plaintiff establishes fraud regarding the transaction, then he can take benefit of Section 17 of the Limitation Act, otherwise, he cannot take the benefit of Section 17 of the Limitation Act.
36. In the present case, Section 17 of the Act, 1963 is not applicable for the reason that in O.S.No.66/1997 there is no pleading or it is not the case of the plaintiff that fraud is played. Section 17 of the Act, 1963 applicable when there is fraud played, and till discovery of the said fraud, limitation cannot begin. After discovery of fraud or mistake or upon concealment from that date onwards limitation period starts, otherwise not. But in the present case, though the plaintiff has pleaded fraud is played by stating Will is not executed by Satyasusheelamma that is in subsequent suit in O.S.No.122/2004 and as discussed
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 above the plaintiff cannot take benefit of it, for the reason that the plaintiff has not pleaded these averments in the first suit in O.S.No.60/1997 where as in the first suit, the plaintiff had admitted execution of Will and there is no averments of fraud played in execution of Will in the first suit. Therefore, Section 17 of the Act, 1963 is not applicable in the present case.
37. It is submitted by the learned counsel for the appellant/plaintiff that when the right of possession of the plaintiff is infringed by defendant No.1, then right to sue accrues cannot be accepted for the reason that there is no evidence to prove that the plaintiff is in possession over the suit property after death of Satyasusheelamma, but the suit is filed in the year 1997. In the evidence, the plaintiff has admitted that she came to know execution of Will by Satyasusheelamma after six months from its execution during lifetime of Satyasusheelamma. When this being the fact proved, the suit filed in the year 1997 is barred by limitation as per Article 58 of the Act, 1963.
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 This is rightly considered by the Trial Court and the First Appellate Court in O.S.No.60/1997 and R.A.No.105/2001.
38. Accordingly, for the above stated reasons, the substantial question of law framed on 29.06.2010 is answered in the affirmative holding that the Trial Court and the First Appellate Court are justified in dismissing the suit. Accordingly, substantial questions of law framed today are answered in the negative.
39. Therefore, the appeals lack merit and are liable to be dismissed. Accordingly, I proceed to pass the following:
ORDER
(i) RSA No.2464/2007 is dismissed. The judgment and decree dated 20.06.2007 passed by the Principal Civil Judge (Sr.Dn.) and J.M.F.C., Hospet, in R.A.No.105/2001 and the judgment and decree dated 24.08.2001 passed by the
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NC: 2024:KHC-D:6234 RSA No. 2464 of 2007 C/W RSA No. 5231 of 2008 Additional Civil Judge (Jr.Dn.) and JMFC, Hospet, in O.S.No.66/1997, are confirmed.
(ii) RSA No.5231/2008 is dismissed. The judgment and decree dated 30.08.2008 passed by the Principal District Judge, Bellary, in R.A.No.40/2007 and the judgment and decree dated 20.06.2007 passed by the Principal Civil Judge (Sr.Dn.) and JMFC, Hospet, in O.S.No.122/2004, are confirmed.
(iii) No order as to costs.
Sd/-
JUDGE SSP CT:ANB/List No.: 1 Sl No.: 25