Supreme Court - Daily Orders
Irappa vs Chidanandappa on 24 January, 2019
Bench: Ashok Bhushan, K.M. Joseph
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4422 OF 2008
IRAPPA & ORS. Appellant(s)
VERSUS
CHIDANANDAPPA & ORS. Respondent(s)
O R D E R
This appeal is filed against the judgment of the High Court of Karnataka in R.F.A. No.488 of 2004, by which the learned Single Judge allowed the appeal filed by the defendants, in the suit, and dismissed the suit which has been decreed by the trial Court.
Appellants, who were the plaintiffs in the suit and respondents before the High Court, claimed that the land was their ancestral property and belonged to one Hanumanthappa s/o Basayya. The genealogy, on which the appellants claimed their right, is as follows:
Veerappa (Propositus) ↓ ↓ ↓ Basappa Basayya ↓ ↓ Nanajappa Hanumanthappa ↓ ↓ ↓ ↓ Signature Not Verified Digitally signed by Gangappa DEEPAK SINGH Date: 2019.01.29 11:39:39 IST Nagappa Kotravva (died unmarried and Reason: issueless) 1 The brief facts according to appellants is as follows. One Veerappa was propositus of the family. He had two sons, namely, Basappa and Basayya. Basappa had a son know as Nanajappa. Basayya had a son called Hanumanthappa. On the death of Basayya his son Hanumanthappa became owner of the property. Hanumanthappa had only one son called Gangappa. Hanumanthappa also died about 35 years ago. After his death, properties devolved to his only son Gangappa, who died untimely about 25 years ago. His mother predeceased him. Upon Gangappa's death his branch of the family came to an end. In other branch, under which the appellants claim, Basappa had a son by name Nanjappa and a daughter Kotravva. Kotravva was also given in marriage to one Nagappa and she died issueless. The appellants are the children of Nagappa. After the death of Gangappa, 4th plaintiff, Shivappa started cultivating the lands. The further case is that, on the death of Gangappa, the plaintiffs have succeeded to the suit properties being Class-II heirs in accordance with Hindu Succession Act and became the owners. There are other allegations with which we are not concerned having regard to the course we intend to adopt in this case.
2 Apparently, the respondents, who are defendants in the suit, on the other hand denied the title of the appellants. It is their case that Hanumanthappa s/o Basappa alias Basayya has expired and he has brothers called as Basappa, Bhimappa and a sister Basamma. Basamma is not alive. Hanumanthappa s/o Basappa alias Basayya has children named as (1) Channabasappa, (2) Gangamma, (3) Mahalingappa and (4) Gowramma. Channabasappa, Gangamma and Mahalingappa had expired. Among them Channabasappa had children named (1) Revakka, (2) Chennamma, (3) Rudramma, (4) Chidanandappa, (5) Chennaveereppa and (6) Kalaveerappa. Chennamma's husband is stated to be the 2 nd plaintiff. In short, the case appears to be that apart from Gangappa s/o Hanumanthappa there were other children. Thus on the death of Gangappa it is not, as if, the plaintiffs could claim any right as Clause-II heirs under the Hindu Succession Act.
On the side of plaintiffs, the first plaintiff was got examined as PW1. Besides PW2 and PW3 were also examined. Documents were marked as Ex.P1 to Ex.P23. On the side of defendants, first defendant was examined as DW1. DW2 and DW3 were also examined and the defendants got marked as Exs.D1 to D30.
3 On a consideration of evidence, trial Court found that plaintiffs have made out a case for decreeing the suit. Accordingly, it was declared that the plaintiffs were the absolute owners of the suit schedule property. It is ordered that they are in possession and cultivation of the suit properties and a permanent injunction is hereby passed restraining any person from interfering with peaceful possession and cultivation of the suit schedule properties by the plaintiffs.
In the impugned judgment, the High Court holds inter alia as follows:
"The defendants in evidence, have marked Ex.D14-Gift Deed executed by Hanumanthappa who is none other than the cousin brother of Nanjappa. The recitals of the deed discloses that Nagappa is their son-in-law and not a son. The deed further states that one Kotravva d/o Nanjappa was married to Nagappa. The issue born out of wedlock, predeceased Kotravva and Nagappa. Nagappa was totally devoted towards the welfare of Hanumanthappa. Therefore, he gets another lady married to Nagappa and donates all her properties to Nagappa with a hope that he will take care of her welfare and also attend to her obsequies after her demise. The reading of contents of Ex.D-14 in between lines disclose that Hanumanthappa and Nanjappa had no son by name Nagappa. Nagappa mentioned in the deed is only her son-in-law. Ex.D10 is a partition deed executed between Chennabasappa 4 and Mahalingappa claiming to be the sons of Hanumanthappa. Ex.D10 is produced by the plaintiff. The said documents clearly establish that Hanumanthappa had two sons and in the year 1980, they entered into partition. The contention that the suit property is not the subject matter of the partition deed is beside the point. The fact remains that by Ex.D10 it establishes that Hanumanthappa had two sons namely Chennabasappa and Mahalingappa. However, Hanumanthappa dies leaving behind sons and daughters. The plaintiffs cannot under any circumstances claim the right of inheritance to the property of Hanumanthappa. It is pertinent to note that under section 8 of the Hindu Succession Act, brothers’ sons and sisters’ son are also categorised as Class II heirs.” The High Court further notes the argument that Nagappa is the son of Nanjappa who is only a cousin of Hanumanthappa. Cousin and cousin’s children are not entitled to any inheritance under Section 8 of the Hindu Succession Act. It is stated that in that view of the matter, the plaintiffs are not entitled to claim the title to the property by inheritance. It is further found that there is no evidence produced by way of land revenue records to prove possession and cultivation by the plaintiffs. When the suit was instituted, the trial Court granted interim injunction which was later vacated. The plaintiffs were not found entitled to the relief of 5 declaration and injunction and the appeal is allowed with costs throughout and the suit is dismissed.
Heard learned counsel for the parties and perused the record.
Learned counsel for the appellants submits that the judgment of the High Court would reveal departure from the manner in which the Court contemplates an appeal filed under Section 96 of the Code of Civil Procedure should be dealt with. The appellate court is to consider appeal by re-apprising the evidence. In this case, as many as six witnesses were examined, out of which three were from the side of the plaintiffs and three were from the side of the defendants. Several documents were marked.
After hearing the learned counsel for the parties, we are of the view that in this case the High Court has not dealt with the appeal in the manner which is contemplated in law. The contentions of the parties and the evidence which has been adduced, be it, oral or documentary has not been discussed. In view of this, interest of justice requires that the impugned judgment be set-aside and the matter be remanded back to the High Court so that the appeal may be heard and decided afresh. Accordingly, we allow the appeal, set-aside the judgment 6 of the High Court and we request the High Court that the appeal be decided within a period of four months from the date of production of this order. Parties are directed to bear their own costs.
...................J. (ASHOK BHUSHAN) ...................J. (K.M. JOSEPH) New Delhi January 24, 2019 7 ITEM NO.109 COURT NO.13 SECTION IV-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s).4422/2008 IRAPPA & ORS. Appellant(s) VERSUS CHIDANANDAPPA & ORS. Respondent(s) Date : 24-01-2019 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE K.M. JOSEPH For Appellant(s) Mr. Rajesh Mahale, AOR Mr. Krutin R. Joshi, Adv.
For Respondent(s) Mr. S. N. Bhat, AOR Mr. Priyank Jain, Adv.
Mr. D.P. Chaturvedi, Adv.
Mr. Tarun Thakur, Adv.
UPON hearing the counsel the Court made the following O R D E R Appeal is allowed in terms of the signed order. Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR) COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file) 8