Karnataka High Court
Sharmila W/O Bhimasen Bharki vs Venkatarao Laxamanarao Nadagouda, on 8 October, 2020
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
Dated this the 8th day of October, 2020
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANAGOUDAR
M.S.A No.100112/2014 (OS)
Between
1. Smt.Sharmila, w/o Bhimasen Bharki
Aged about 44 years, Occ:Household Work
r/o Ranganath V Bharki, Near Rayara Mutt
Malamaddi, Dharwad.
2. Raghavendra, s/o Virupaksh Kulkarni
Aged about 53 years, Occ: Private
Accountant, r/o House No.6, Last
Cross, Hoysala Nagar, Sunkadakatte
Bangalore.
3. Ravi @ Ravindra, s/o Virupaksh
Kulkarni, Aged about 51 years
Occ: Morivator, Dept. of Forest
r/o Opp. Urban Bank, Brahmin
Beedhi, Akkialur, Tq: Hanagal
District Haveri.
4. Smt.Prabhavati, w/o Somashkar
Hebbar, Aged about 47 years,
Occ: Household, r/o Akkialur
Village, Taluk Hanagal
District Haveri. ...Appellants
(By Sri Mahesh Wadeyar & Sri Naveen Chatrad, Advocates)
2
And
Venkatarao Laxamanarao Nadagouda
Aged about 81 years, Occ: Agriculture
r/o Mundargi, District Gadag. ... Respondent
(By Sri S A Neelopant, Advocate)
This MSA is filed under Order 43 Rule 1(u) of CPC
against the judgment and decree dated 23.09.sed in RA
No.14/2011 on the file of the Senior Division Civil
Judge, Hangal, allowing the appeal and set aside the
judgment and decree dtd: 24.09.2011 passed in OS
No.170/2007 on the file of the Civil Judge and JMFC,
Hangal, decreeing the suit filed for declaration and
consequential relief of injunction.
This MSA coming on for final hearing, this day,
through video conference, the Court delivered the
following:
JUDGMENT
Plaintiffs are in appeal. They filed a suit in OS No.170/2007 seeking for the following reliefs:
1) Plaintiff No.1 to 3 may kindly declared as owner of the suit 1(a) property by virtue of will deed dated 5/5/2007 executed by deceased Smt.Sridevi w/o Venkatrao Nadagouda owner of plaintiff No.1 to 3 and consequently symbolic legal possession ordered to be made over to them.
2. Plaintiff No.4 please be declared that she is entitled to receive Rs.25,000/- (twenty five thousand only) from the 3 fixed deposit account No.41925 at Karnataka Vikas Grameen Bank branch at Akki Alur.
3. As per the direction of deceased testator Smt.Sridevi Nadagouda.
Plaintiff No.1 to 3 may kindly be appointed to administer and/o9r carryout the terms of will.
4. The lost of the present suit may kindly be awarded in favour of plaintiff.
5. Any other equitable remedies which Hon'ble Court deems fit may kindly be granted in favour of plaintiffs.
2. The Trial Court by judgment and decree dated 24.9.2011 decreed the suit declaring that the plaintiffs are owners of suit schedule 1(A) property and also that plaintiff No.4 was declared that she is entitled to Rs.25,000/- from the fixed deposit amount and also appointed plaintiffs No.1 to 3 as administrators to carry out the terms of will as directed by testator Smt.Sridevi Nadagouda.
3. Being aggrieved, defendant filed RA No.14/2011 on the file of the Senior Division Civil 4 Judge, Hangal. The 1st Appellate Court recorded a finding that the Trial Court has no pecuniary jurisdiction to try the suit as the value of the subject matter of the suit on the face on record is Rs.7,50,000/-. Accordingly, regular appeal filed by the defendant came to be allowed and the judgment and decree passed by the Trial Court was set aside and the matter was remanded with a direction to re-register the suit and to return the plaint forth with to the plaintiffs to present before proper Court. Taking exception to the same , the plaintiffs have filed this second appeal before this Court.
4. During the course of arguments, learned counsel for the appellants submitted that the plaintiffs are not pressing for prayer Nos.2 and 3 as prayed for in the suit. Hence, he submitted that the matter may be remitted to the 1st Appellate Court for reconsideration of the appeal insofar as it relates to decree passed by the 5 Trial Court declaring that the plaintiffs are the owners of suit schedule 1(A) property.
6. Learned counsel for the respondents submits that the judgment and decree passed by the 1st Appellate Court is perfectly legal and does not call for interference. He opposes the submission made by the learned counsel for the appellants and seeks for dismissal of the appeal.
7. I have considered the submissions made by the learned counsel for the parties and also perused the material on record.
8. The 1st Appellate Court recorded the finding that Trial Court did not have pecuniary jurisdiction to try the suit since the market value of the property is more than Rs.5 lakhs and held that the Trial Court has no pecuniary jurisdiction to try the suit and accordingly, allowed the appeal filed by the defendant. 6
9. The relief sought in the suit, in so far it relates to, appointing plaintiffs as administrators to carry out the terms of the will as directed by the testator exceeds the pecuniary jurisdiction of the trial court, since the subject matter involved in the will is Rs.7,50,000-/-. The finding recorded by the 1st Appellate Court does not suffer from any illegality or infirmity. However, in view of the submission made by the learned counsel for the appellants/plaintiffs that the plaintiffs will give up the claim in respect of prayer Nos.2 and 3 in the suit, the impugned judgment and decree passed by the 1st Appellate Court requires to be set aside to the extent that the Trial Court did not have pecuniary jurisdiction to try the suit insofar as it relates to prayer No.1 in the suit. Accordingly I pass the following:
ORDER
i) Appeal is allowed in part;7
ii) The impugned judgment and decree dated 23.9.2014 passed in RA No.14/2011 by the Senior Division Civil Judge, Hangal, is set aside insofar it relates to holding that the Trial Court did not have pecuniary jurisdiction to try prayer No.1 in the suit;
iii) The matter is remitted to the 1st Appellate Court to consider the regular appeal, in so far it relates to, declaring that the plaintiffs are the owners of suit schedule (1A) property and dispose of the same in accordance with law at the earliest.
iv) It is needless to say that the plaintiffs are at liberty to approach an appropriate Forum seeking for the relief sought for in prayer Nos.2 and 3 in OS No.170/2007 in accordance with law.
Sd/-
JUDGE Bkm