Karnataka High Court
Yallappa Mallappa Godekar vs Kallo Shesho Kulkarni on 15 November, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
RSA No.5901/2010
c/w RSA No.5885/2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
REGULAR SECOND APPEAL NO.5901/2010
C/W
REGULAR SECOND APPEAL NO.5885/2010 (DEC & INJ)
IN RSA NO.5901/2010:
BETWEEN:
1. SHRI. YALLAPPA MALLAPPA GODEKAR
SINCE DECEASED BY HIS LRs.,
1(a) SMT. YALLAWWA W/O YALLAPPA
GODEKAR, AGE: 75 YEARS
OCC: HOUSEHOLD WORK
R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
1(b) SHRI. RAMLING YALLAPPA GODEKAR
AGE: 57 YEARS, OCC: AGRI. &
PVT SERVICE, R/O BHADRAVATI-577 302
1(c) SHRI. ANNAPPA YALLAPPA GODEKAR
AGE: 40 YEARS, OCC: AGRICULTURE
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
1(d) SMT. KALLAWWA D/O YALLAPPA
GODEKAR, AGE: 36 YEARS
OCC: HOUSEHOLD WORK
2
RSA No.5901/2010
c/w RSA No.5885/2010
R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
1(e) SMT. SHAKUNTALA W/O YALLAPPA
DEVALATTI, AGE: 54 YEARS
OCC: AGRI. & HOUSEHOLD WORK
R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
1(f) SMT. SHARAWWA W/O NAGENDRA
KHOLMUSKAR, AGE:49 YEARS
OCC: AGRI. & HOUSEHOLD WORK
R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
1(g) SMT. JEEJAVVA W/O PEERAJI
KHANOJI, AGE: 47 YEARS
OCC: AGRI. & HOUSEHOLD WORK
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
1(h) SMT. PARVATHI W/O NAGENDRA
KHOLMUSKAR, AGE: 43 YEARS
OCC: AGRI. & HOUSEHOLD WORK
R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
THE APPELLANTS 1(a) to 1(h) ARE
REPRESENTED BY THEIR GP HOLDER
SMT. MAHADEVI W/O ANNAPPA GODEKAR
AGE:40 YEARS, OCC: AGRICULTURE &
HOUSEHOLD WORK, R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM ... APPELLANTS
(BY SHRI. B.S.KAMATE, ADVOCATE)
3
RSA No.5901/2010
c/w RSA No.5885/2010
AND:
1. SHRI. KALLO SHESHO KULKARNI
SINCE DECEASED BY HIS LRs.,
(AMENDED AS PER COURT ORDER DTD 28/03/18)
1(a) SHRI. VAMAN KALLO KULKARNI
SINCE DECEASED BY HIS LRs.,
1(a)(i) SMT. SAROJANI @ ANJANA
W/O VAMAN KULKARNI
AGE: 59 YEARS
OCC: HOUSEHOLD WORK
1(a)(ii) VINAY S/0 VAMAN KULKARNI
AGE: 31 YEARS
OCC: PVT SERVICE
1(a)(iii) SMT. PADMAJA
W/O SANJEEV DESHPANDE
AGE: 29 YEARS
OCC: HOUSEHOLD WORK
RESPONDENTS NO.1(a)(i) TO 1(a)(iii)
ARE R/O H.NO.26, ANAND MARG
VAZE-GALLI, VADAGAON, BELAGAVI
1(b) SHRI. MADHAV KALLO KULKARNI
AGE: 35 YEARS, OCC: SERVICE
R/O.10/C, RAILWAY QUARTERS
BELGAUM-590 001
1(c ) SMT. RINDABAI W/O KALLO KULKARNI
SINCE DECEASED BY HER LRs.,
RESPONDENTS NO.1(a), 1(b) AND 1(d) TO 1(g)
(AMENDED AS PER COURT ORDER DT. 13.12.2012)
1(d) SMT GANGA W/O HANAMANTACHARYA
KATTI, AGE:45 YEARS, OCC: HOUSEHOLD WORK
R/O 1073, ANANTSHAYAN GALLI
BELGAUM-590 001
4
RSA No.5901/2010
c/w RSA No.5885/2010
1(e) LAXMI W/O RAMACHANDRA POTDAR
AGE:40 YEARS, OCC: HOUSEHOLD WORK
R/O PATRAVALI CHAWL, MALAMADDI
DHARWAD-580 005
1(f) SUDHA W/O BHIMACHARYA KADKOL
AGE:38 YEARS, OCC: HOUSEHOLD WORK
R/O RAJENDRA NAGAR, HAVERI-581 110
1(g) SMT. RAMA W/O RAJENDRA BAGAL
AGE:36 YEARS, OCC: HOUSEHOLD WORK
R/O MALAMADDI, DHARWAD-580 001
2. SMT. RINDABAI W/O KALLO KULKARNI
SINCE DECEASED BY HER LRs.,
RESPONDENTS NO.1(a), 1(b) AND 1(d) TO 1(g)
(AMENDED AS PER COURT ORDER DATED 01.03.2016)
3. SHRI. VAMAN KALLO KULKARNI
AGE:58 YEARS, OCC: SERVICE
R/O NO.2, VAZE-GALLI
MADHAVPUR-VADAGAON
BELGAUM-590 001
4. SHRI. MADHAV KALLO KULKARNI
AGE:54 YEARS, OCC: SERVICE
R/O RAILWAY QUARTERS
BELGAUM-590 001
5. SMT. SHAKUNTALA W/O KUSHO KULKARNI
SINCE DECEASED BY HER LRs.,
5(a) SHRI. VAMAN KALLO KULKARNI
AGE:58 YEARS, OCC: SERVICE
R/O 26, VAZE-GALLI, MADHAVPUR
VADAGAON, BELGAUM
5(b) SHRI. MADHAV KALLO KULKARNI
AGE:54 YEARS, OCC: SERVICE
R/O RAILWAY QUARTERS
BELAGAUM- 590 001
5
RSA No.5901/2010
c/w RSA No.5885/2010
5(c) SMT. RINDABAI W/O KALLO KULKARNI
SINCE DECEASED BY HER LRs.,
RESPONDENTS NO.1(a), 1(b) AND 1(d) TO 1(g)
(AMENDED AS PER COURT ORDER 01.03.2016)
5(d) SMT. GANGA W/O HANAMANTACHARYA
KATTI, AGE:45 YEARS
OCC: HOUSEHOLD WORK
R/O.1073, ANANTSHAYAN GALLI
BELGAUM-590 001
5(e) SMT. LAXMI W/O RAMACHANDRA
POTDAR, AGE:40 YEARS
OCC: HOUSEHOLD WORK
R/O PATRAVALI CHAWL, MALAMADDI
DHARWAD-580 001
5(f) SUDHA W/O BHIMACHARYA KADKOL
AGE:38 YEARS, OCC: HOUSEHOLD WORK
R/O RAJENDRA NAGAR
HAVERI-581 110
5(g) SMT. RAMA W/O RAJENDRA BAGAL
AGE:36 YEARS, OCC: HOUSEHOLD WORK
R/O MALAMADDI, DHARWAD-580 001
6. SHRI. GADIGEPPA GULAPPA
YAMAKANMARADI, AGE:85 YEARS
OCC: AGRICULTURE, R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
7. SMT. DEMAWWA D/O YALLAPPA GODEKAR
AGE:34 YEARS, OCC: HOUSEHOLD WORK
R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM ... RESPONDENTS
(BY SHRI S.S. YADRAMI, ADVOCATE FOR R-3, R-4, R-5(d-g);
NOTICE TO RESPONDENTS NO.1(a)(i), a(ii), a(iii),R-1(b),(e)
(f), (g), R5(a)(b) SERVED AND RESPONDENT NO.7 SERVED;
6
RSA No.5901/2010
c/w RSA No.5885/2010
RESPONDENT NO.6 APPEAL ABATED;
RESPONDENTS NO.1(a, b, d-g) ARE LRs., OF
DECEASED R-1(c) V.O.D.13.12.12;
RESPONDENTS NO.1(a-b, d-g) ARE LRs., OF
DECEASED R-2 AND R-5(c) V.O.D. 01.03.2016)
THIS RSA IS FILED UNDER SECTION 100 CPC, AGAINST
THE JUDGEMENT AND DECREE DATED: 17.07.2010 PASSED IN
R.A.NO.1012/2009 ON THE FILE OF VI-ADDL. DISTRICT JUDGE,
BELGAUM, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGEMENT DATED: 14.09.2009 AND THE DECREE PASSED IN
O.S.NO.01/2008 (OLD NO.4/1982) ON THE FILE OF CIVIL
JUDGE (SR.DN) KHANAPUR, DECREEING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
IN RSA NO.5885/2010:
BETWEEN:
1. SHRI. RAMLING YALLAPPA GODEKAR
AGE:57 YEARS, OCC: AGRI. &
PVT SERVICE, R/O BHADRAVATHI-577 302
2. SHRI. ANNAPPA YALLAPPA GODEKAR
AGE: 40 YEARS, OCC: AGRICULTURE
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELAGUM
3. SMT. YALLAWWA W/O YALLAPPA GODEKAR
AGE:75 YEARS, OCC: HOUSEHOLD WORK
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
4. SMT. SHAKUNTALA W/O YALLAPPA DEVALATTI
AGE: 54 YEARS, OCC: AGRI. &
HOUSEHOLD WORK, R/O GANDIGWAD
TAL: KHANAPUR-591 302
DIST: BELGAUM
5. SMT. SHARAWWA W/O NAGENDRA KHOLMUSKAR
AGE:49 YEARS, OCC: AGRI. & HOUSEHOLD WORK
7
RSA No.5901/2010
c/w RSA No.5885/2010
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
6. SMT. JEEJAVVA W/O PEERAJI KHANOJI
AGE: 47 YEARS, OCC: AGRI. & HOUSEHOLD WORK
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
7. SMT. KALLAWWA D/O YALLAPPA GODEKAR
AGE:36 YEARS, OCC: HOUSEHOLD WORK
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
8. SMT. PARVATHI D/O YALLAPPA GODEKAR
AGE: 43 YEARS, OCC: AGRI. & HOUSEHOLD WORK
R/O GANDIGWAD, TAL: KHANAPUR-591 302
DIST: BELGAUM
THE APPELLANTS 1 TO 8 ARE REPRESENTED
BY THEIR GPA HOLDER
SMT. MAHADEVI W/O ANNAPPA GODEKAR
AGE: 40 YEARS, OCC: AGRICULTURE &
HOUSEHOLD WORK
R/O GANDIGWAD, TAL: KHANAPUR
DIST: BELGAUM ... APPELLANTS
(BY SHRI B.S.KAMATE, ADVOCATE)
AND:
1. SHRI VAMAN KALLO KULKARNI
SINCE DECEASED BY HIS LRs.,
(AMENDED AS PER COURT ORDER
DATED: 28.03.2018)
1(a) SMT. SAROJANI @ ANJANA
W/O VAMAN KULKARNI
AGE: 59 YEARS
OCC: HOUSEHOLD WORK
8
RSA No.5901/2010
c/w RSA No.5885/2010
1(b) VINAY S/0 VAMAN KULKARNI
AGE: 31 YEARS
OCC: PVT SERVICE
1(c) SMT. PADMAJA
W/O SANJEEV DESHPANDE
AGE: 29 YEARS
OCC: HOUSEHOLD WORK
RESPONDENTS NO.1(a)(i) TO 1(a)(iii)
ARE R/O H.NO.26, ANAND MARG
VAZE-GALLI, VADAGAON, BELAGAVI
2. SHRI MADHAV KALLO KULKARNI
AGE: 35 YEARS, OCC: SERVICE
R/O 10/C, RAILWAY QUARTERS
BELGAUM-590 001
3. SMT RINDABAI W/O KALLO KULKARNI
SINCE DEAD BY HER LRs.,
(AMENDED VIDE COURT ORDER
DATED: 13.12.2012)
RESPONDENTS NO.1 & 2
WHO ARE ALREADY ON RECORD ... RESPONDENTS
(BY SHRI. S.S.YADRAMI, ADVOCATE FOR R-2;
RESPONDENTS NO.1 AND 2 ARE TREATED AS LRs.,OF
DECEASED R-3;
NOTICE TO RESPONDENTS NO.R-1 (a, b, c) ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED 17.07.2010
PASSED IN R.A.NO.1012/2009 ON THE FILE OF VI ADDL.
DISTRICT JUDGE, BELGAUM, AT BELGAUM, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT DATED 14.09.2009
AND THE DECREE PASSED IN O.S.NO.160/2008 ON THE FILE
OF CIVIL JUDGE (SR.DN) KHANAPUR, DECREEING THE SUIT
FILED FOR DECLARATION AND INJUNCTION.
9
RSA No.5901/2010
c/w RSA No.5885/2010
THESE RSAs, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11/07/2018, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THIS COURT PRONOUNCED THE
FOLLOWING:-
JUDGMENT
These two second appeals are directed against the Judgment and Decree dated 17.7.2010 passed in R.A.No.1012/2009 on the file of VI Additional District Judge, Belagavi, dismissing the appeal and confirming the judgment and decrees in O.S.No.1/2008 and O.S.No.160/2008 passed by the Trial Court.
2. Heard Shri B.S. Kamate, learned Advocate for appellants in both the appeals, Shri S.S.Yadrami, learned advocate for respondents No.3, 4, 5(d-g) in RSA No.5901/2010 and respondent No.2 in RSA No.5885/2010.
3. One Sheshappa was the propositus of plaintiffs in O.S.No.1/2008. He died in the year 1930. His wife, Kallavva @ Renuka Bai died in the year 10 RSA No.5901/2010 c/w RSA No.5885/2010 1955. He had three sons namely, Kallo, Kusho and Rama. Kusho died in the year 1953. Rama died as a bachelor.
4. At the time of Kusho's death, he and his brother Kallo constituted a joint family. After death of Kusho, all the properties devolved upon Kallo as the sole surviving co-parcener.
5. Kusho's widow Shakuntala was given some properties for her maintenance. Defendants No.2 and 3, Yellappa and Gadigeppa, respectively, exploited the ignorance of Shakuntala and created certain documents, such as, power of attorney and Sale Deed purporting to transfer, half-share of Shakuntala in some of the properties.
6. Kallo and his family members filed O.S.No.1/2008 seeking declaration that they are the 11 RSA No.5901/2010 c/w RSA No.5885/2010 exclusive owners of Schedule 'A' & 'B' properties or in the alternative for partition and separate possession of their half share in all the suit properties. Shakuntala (defendant No.1) and Gadigeppa filed a common written statement resisting the suit. Defendant No.2, Yellappa adopted the said written statement.
7. It was contended on behalf of the defendant No.1 that on the death of her husband, Shakuntala inherited her husband's interest in the property. She acquired half share in the joint family property, which enlarged into her absolute estate upon Hindu Succession Act, 1956 coming into force. She has been in possession of the properties after getting her name entered in the Mutation Register in 1964. Shakuntala died on 26.7.1993.
8. Initially, suit was decreed, rejecting the prayer for exclusive ownership and injunction. But, 12 RSA No.5901/2010 c/w RSA No.5885/2010 the alternative prayer that the plaintiffs are entitled for half share was granted.
9. Plaintiffs challenged the Judgment of the Trial Court in RFA No.548/1988. The said appeal was transferred to the Court of Additional District Judge, Belgaum and re-numbered as RA No.293/1995. The appeal was allowed and matter was remitted after framing two additional issues for fresh disposal in accordance with the observations made therein.
10. In the meanwhile, O.S.No.78/2004 was filed by legal heirs of Yellappa against legal heirs of Kallo for declaration. It was contended in the suit that Shakuntala was taken care by Yellappa and she had executed a Will dated 7.11.1989 in favour of Yellappa bequeathing her properties in his favour. The said suit was initially re-numbered as O.S.No.358/2005 and later as O.S.No.160/2008.
13RSA No.5901/2010 c/w RSA No.5885/2010
11. Trial Court by common Judgment dated 14.9.2009 decreed O.S.No.1/2008 and dismissed O.S.No.160/2008. The learned Trial Judge by the common Judgment, rejected the prayer for exclusive ownership of suit properties. However, the alternative prayer for half-share was granted. It was also held that defendant No.1-Shakuntala was entitled for one half share.
12. Legal Representatives of Yellappa challenged the Judgment and decree in O.S.No.1/2008 and O.S.No.160/2008 by filing only one appeal in R.A.No.1012/2009. The First Appellate Court by the impugned judgment has dismissed the said appeal. The Legal heirs of Yellappa have filed these two appeals against the Legal Representatives of Kallo.
14RSA No.5901/2010 c/w RSA No.5885/2010
13. Shri Kamate, learned advocate for the appellants urged following contentions:
• that the Courts below erred in holding that defendant No.2 (LRs of Yellappa) had failed to prove that Smt.Shakuntala had executed the Will dated 7.11.1989 in favour of Yellappa; and • that the Courts below had committed an error in deciding the effect of death of Legatee during the life time of the Testator by applying only Section 93 of the Indian Succession Act, 1925, and without considering Section 105 of the said Act.
14. Shri S.S.Yadrami, learned advocate for the respondents argued in support of the impugned judgment passed by the First Appellate Court. 15 RSA No.5901/2010 c/w RSA No.5885/2010
15. Though, Shri Kamate strenuously pleaded that the question of law with regard to non- consideration of Section 105 of the Indian Succession Act goes to the root of the matter and affects valuable rights of the parties, this Court cannot loose sight of the fact that O.S.No.160/2008 has been dismissed by the Trial Court and it has attained finality as the said decree has not been challenged before the First Appellate Court.
16. The First Appellate Court has framed a point for it's consideration with regard to maintainability of the appeal. It has recorded a finding that no appeal was filed challenging the decree in O.S.No.160/2008. Further, all parties in O.S.No.1/2008 were not impleaded in the appeal.
17. The entire claim of legal representatives of Yellappa in O.S.No.160/2008 hinges upon the Will 16 RSA No.5901/2010 c/w RSA No.5885/2010 dated 7.11.1989. The Trial Court having dismissed the said suits and the dismissal having attained finality, no substantial question of law arises for consideration in these appeals.
18. Resultantly, these appeals must fail and they are accordingly dismissed.
No costs.
Sd/-
JUDGE cp*