Karnataka High Court
Smt Mahalaxmi Lalithamma vs Mr Ramachandra on 19 August, 2017
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
REGULAR SECOND APPEAL NO.419 OF 2015
BETWEEN:
Smt. Mahalaxmi Lalithamma
W/o R.R. Padakannaya
Aged about 82 years
R/at Devipura
Durgaparameshwari Temple
Kinya Post
Mangalore Taluk
Dakshina Kannada - 575023
...Appellant
(By Sri. S. Rajendra, Advocate)
AND:
1. Mr. Ramachandra
S/o late Vyasaraya Bhat
Aged about 69 years
2. Smt. Veena
D/o late Vyasaraya Bhat
Aged about 67 years
3. Mr. Sadananda Bhat
S/o late Vyasaraya Bhat
Aged about 61 years
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4. Smt. Shamala
D/o late Vyasaraya Bhat
Aged about 57 years
5. Smt. Jayalaxmi
D/o late Vyasaraya Bhat
Aged about 53 years
6. Mr. Shridhar Bhat
S/o late Vyasaraya Bhat
Aged about 49 years
Respondents 1 to 6 above
Are R/at Devipura
Kinya Post, Talapady Village
Mangalore Taluk - 575 023
7. Smt. Pushpa
D/o late Gopalakrishna Bhat
Adult, Haleyangadi
Mangalore Taluk
Dakshina Kannada - 575 001
8. Mr. Krishna Kunikullaya
S/o Narayana Kunikullaya
Adult, Residing at Vishnumoorthy
Temple, near Kuttar,
Munnur Village
Mangalore Taluk
Dakshina Kannada - 575 017
9. Smt. Shankuthala
D/o late Leelavathi
Adult, Near Kuttar,
Munnur Village
Mangalore Taluk
Dakshina Kannada-575 017
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10. Mr. Suresh
S/o late Leelavathi
Adult, Vishnumoorthy Temple
Near Kuttar, Munnur Village
Mangalore Taluk
Dakshina Kannada - 575 017
...Respondents
This appeal is filed under Section 100 of CPC.,
against the judgment and decree dated 17.11.2014 passed
in R.A.No.186/2005 on the file of the 1st Additional Senior
Civil Judge, Mangalore, dismissing the appeal and
confirming the judgment and decree dated 17.10.2005
passed in O.S.No.728/2002 on the file of the 1st Additional
Civil Judge (Jr. Dvn.)., Mangaluru.
This appeal coming on for Admission, this day, the
court delivered the following:
JUDGMENT
This second appeal is by defendant No.1 in the suit challenging the concurrent judgments and decrees passed by the courts below, whereby the suit of the plaintiffs brought for the relief of partition and separate possession of their share in the suit schedule properties was decreed by the trial Court and it was confirmed by the 1st Appellate Court.
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2. Heard Sri S.Rajendra, learned counsel for the appellant and perused the judgments and decrees passed by the courts below.
3. Respondents No.1 to 6 (plaintiffs) filed a suit in OS.No.728/2002 against the appellant and respondents No.7 to 10 before the 1st Addl. Civil Judge (Jr.Dn.), Mangalore, D.K., for partition and separate possession of their share in the suit schedule properties. The trial Court decreed the said suit holding that the plaintiffs are entitled for 1/3rd share in the suit schedule properties. Being aggrieved by the same, appellant/1st defendant preferred R.A.No.186/2005, which came to be dismissed by the 1st Appellate Court. Challenging the concurrent findings of the courts below, the appellant/1st defendant has preferred this second appeal.
4. Sri S.Rajendra, learned counsel for the appellant submits that in view of dismissal of earlier suit in 5 O.S.NO.284/1987, the present suit is hit by the principles of res-judicata. The courts below without considering the same have erred in decreeing the present suit. He further submits that the earlier suit in O.S.No.284/1987 was also filed for partition and separate possession in the suit schedule properties and it was dismissed for default. The parties who claim share in the suit schedule properties could have filed miscellaneous petition for restoration of the suit and therefore, the present suit for partition is not maintainable. Learned counsel further submits that the judgments and decrees passed by the courts below are contrary to the material evidence on record and therefore, are not sustainable in law. He submits that there are substantial questions of law arise for consideration and therefore, he prays for admitting the appeal for consideration of said substantial questions of law.
5. The case of the plaintiffs is, the suit schedule properties were belonged to one Dasu Bhat. The said 6 Dasu Bhat sold the suit schedule properties to his wife Mahalaxmiamma through the registered sale deed dated 18.01.1894. Subsequently, the said Mahalaxmiamma died leaving behind her daughter Parvathamma wife of Ramanna Bhat as sole survivor. The said Parvathamma settled the suit schedule properties in favour of her husband Ramanna Bhat by executing registered Settlement Deed dated 20.08.1931. In view of said settlement deed Ramanna Bhat acquired absolute right over the suit schedule properties. The said Ramanna Bhat died during the year 1949 leaving behind his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha. Since Ramanna Bhat died prior to Hindu Succession Act coming into force, the suit schedule properties devolved on his widow Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat. Hence, each one of them have got 1/3rd right in the suit schedule properties. Plaintiffs are 7 widow and children of Vyasaraya Bhat and they are entitled for 1/3rd share in the suit schedule properties. Vyasaraya Bhat died in the year 1985 leaving behind the plaintiffs as legal representatives. Parvathamma widow of Ramanna Bhat had 1/3rd right in the suit schedule properties, which was settled in favour of her daughter Lalitha who is 1st defendant by virtue of Settlement Deed dated 15.09.1960. Hence, 1st defendant has acquired 1/3rd share in the suit schedule properties. The 2nd defendant has inherited 1/3rd right of her father Gopalakrishna Bhat. The said Gopalakrishna Bhat died leaving behind the 2nd defendant as sole survivor. Kaveriamma, daughter of Ramanna Bhat has no right over the suit schedule properties, as Ramanna Bhat died prior to Hindu Succession Act coming into force. The said Kaveriamma had daughter by name Leelavathi and she predeceased Kaveriamma. Defendant No.3 is the husband and dfts. No.4 to 5 are the children of Leelavathi. They are only made as formal parties to the suit to decide 8 the matter in issue between the parties to the suit. The plaintiffs and defendants are in joint and constructive possession of suit schedule properties.
6. In view of strained relationship between the parties, the plaintiffs were not able to continue the joint possession of the suit schedule properties. Hence, the plaintiffs demanded for partition and separate possession of their legitimate share from the defendants. Since, the defendants have not complied the request of the plaintiffs, they have filed the suit for partition and separate possession of their share in the suit schedule properties.
7. The defendant No.1 has filed the written statement contending that there is no cause of action for the suit and it is liable to be dismissed. Plaintiffs have got no manner of right, title or possession over the suit properties and they are not entitled for partition and suit for partition is misconceived. Plaintiffs have been set up by 9 defendant No.2-Smt. Pushpa, who has earlier filed suit in O.S.No.284/1987 and ultimately, the said suit was dismissed. After 15 years of dismissal of the said suit, present suit is filed which is not maintainable. All the parties in the present suit and their predecessors are the parties to the previous suit. Hence, the present suit is barred by principles of res-judicata. The earlier suit in O.S.No.284/1987 was dismissed for default. Hence, no fresh cause of action arises to file the present suit. The plaintiffs being parties in the earlier suit could have continued the proceedings to decide the matter in issue between the parties to the earlier suit by transposing them as plaintiffs. The present suit is barred by law of Limitation. The partition claimed by plaintiffs is untenable and they are not entitled for 1/3rd share in the suit properties. It is denied that suit properties belong to Dasu Bhat and he sold the same in favour of his wife Mahalaxmiamma under registered sale deed dated 18.01.1894 and it is also denied 10 that Mahalaxmiamma died leaving behind her only daughter by name Parvathamma to succeed to the suit properties. It is also denied that Parvathamma has executed settlement deed in favour of her husband Ramanna Bhat as per registered settlement deed dated 20.08.1931. It is further denied that by virtue of said settlement deed, Ramanna Bhat acquired absolute right over the suit properties. It is admitted that Ramanna Bhat was survived by his widow Parvathamma and his sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha. It is also admitted that after the death of Ramanna Bhat, properties belonging to him devolved upon his wife and children. It is denied that his wife has 1/3rd right in suit properties. It is denied that plaintiffs, being widow and children of Vyasaraya Bhat, are entitled for 1/3rd share in the suit properties. Plaintiffs are not entitled for any share in the suit properties nor they are in possession of the same. It is admitted that Parvathamma 11 has executed settlement deed dated 15.09.1960 and settled the suit properties in favour of this defendant. The properties which are settled by Parvathamma in favour of this defendant are in actual possession and enjoyment of this defendant. It is admitted that she is cultivating the same. Sy.No.221/6 measuring 66 cents; Sy.No.216/7 measuring 36 cents; Sy.No.221/5 measuring 13 cents and Sy.No.221/9 measuring 1 acre are in possession and enjoyment of plaintiffs since 1950, from the time of their father Vyasaraya Bhat and they are in possession of the said properties. In fact, those properties were leased to one Maru Moolya and Vysaraya Bhat was collecting rents till 1960 and Maru Moolya has surrendered the said properties in favour of Vyasaraya Batta and plaintiffs are in possession and enjoyment of the said properties. Plaintiffs have no right to claim any partition in the suit properties, since they are settled in favour of his mother Parvathamma by execution of a Settlement Deed dated 15.09.1960. It is 12 the attempt of defendant No.2 under whose instigation, plaintiffs have filed the second suit. There is no such property available for partition and already partition was effected in the joint family and by virtue of settlement deed, this defendant got absolute right over the suit properties. With this, she prayed for dismissal of the suit.
8. Defendant No.2 filed separate written statement admitting the various averments made in the plaint and also relationship between the parties as shown in the genealogy annexed to the plaint and admitted that plaintiffs and defendants are in joint and constructive possession of the suit property as on the date of filing of the suit. The defendant No.2 is entitled for 1/3rd share in the suit property and she is also willing for partition as claimed by the plaintiffs. Hence, 2nd defendant prayed for allotting 1/3rd share in the suit properties in her favour. 13
9. The trial Court based on the rival pleadings of the parties has framed the following issues, additional issues and recasted issue No.1, for its consideration "1. Whether the plaintiff proves that Ramanna Bhat become the absolute owner of the plaint schedule property as per the registered settlement deed dated 28.08.2003 i.e., executed by Parvathamma as averred in the plaint?
2. Whether the 1st defendant proves that he is in actual possession of the schedule property as per the settlement deed dated 15.09.1960 executed by Smt. Parvathamma as averred in Para 12 of the written statement?
3. Whether the plaintiff proves that they and defendants are in joint and constructive possession of the plaint schedule property? 14
4. Whether the plaintiffs are entitled for 1/3 share in the plaint schedule properties as prayed for?
5. Whether the 1st defendant proves that, no property available for partition and already partition had taken place as contended in Para 14 of plaint?
6. What relief the parties are entitled?
7. What Order or Decree?
Additional Issues
1. Whether the suit is hit by principles of res-
judicata?
2. Whether the suit is barred by law of limitation?
Recasted issue No.1 Whether the plaintiff proves that, Ramanna Bhat become the absolute owner of the plaint schedule property as per settlement deed dated 20.08.1931 i.e., executed by Parvathamma in 15 favour of Ramanna Bhat as averred in the plaint?"
10. Plaintiffs, in order to prove their case, have examined plaintiff No.4 - Sadananda Bhat as PW-1 and produced ten documents which were marked as Ex. P-1 to P-10. On behalf of the defendants, defendant No.1 Lalitha was examined as DW-1 and documents produced by defendant No.1 was marked as Ex.D-1.
11. The trial Court, after hearing the arguments advanced by the learned counsel for the parties and considering the oral and documentary evidences on record, has answered issues No.1,2,3 and 4 in the affirmative and issues No.5,6 and additional issues 1 and 2 in the negative and consequently decreed the suit holding that plaintiffs together are entitled for 1/3rd share in the suit properties. The regular appeal preferred by defendant No.1 in RA.No.186/2005 challenging the judgment and decree of the trial Court was dismissed by the first appellate Court. It 16 is challenging these concurrent judgments and decrees passed by the Courts below, the defendant No.1 has preferred this second appeal.
12. It is not in dispute that suit properties originally belong to one Dasu Bhat who sold the same in favour of his wife Mahalaxmiamma through a registered sale deed dated 18.01.1894. Subsequently, Mahalaxmiamma died leaving behind her daughter Parvathamma wife of Ramanna Bhat as a sole survivor and Parvathamma settled the suit properties in favour of her husband Ramanna Bhat by executing a registered settlement deed dated 20.08.1931 in his favour. In view of the settlement deed, Ramanna Bhat acquired absolute right over the suit properties and said Ramanna Bhat died during the year 1949 leaving behind his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha.17
13. It is the case of plaintiffs that since Ramanna Bhat died prior to Hindu Succession Act coming into force, suit properties devolved upon his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat. Plaintiffs being wife and children of Vyasaraya Bhat, are entitled for 1/3rd share in the suit properties.
14. It is the further case of the plaintiffs that Parvathamma widow of Ramanna Bhat, had executed settlement deed dated 15.09.1960 and settled her 1/3rd share in the suit property in favour of her daughter Lalitha who is defendant No.1 and defendant No.1has acquired 1/3rd share in the suit property. Defendant No.2 being the daughter of Gopalakrishna Bhat, is entitled for 1/3rd share.
15. It is the further case of the plaintiffs that Kaveriamma daughter of Ramanna Bhat does not get any right in the suit properties as Ramanna Bhat died prior to coming into force of Hindu Succession Act. Further 18 Kaveriamma had a daughter by name Leelavathi and she predeceased her mother Kaveriamma. Defendant No.3 is the husband of Leelavathi and defendant Nos.4 to 5 are the children of Leelavathi and they have no right over the suit properties.
16. Admittedly, defendant Nos.3 to 5 i.e., the husband and children of Leelavathi have not filed any written statement nor they have contested the matter, it is the grievance of the plaintiffs that despite demand of partition for allotment of 1/3rd share in the suit properties, the request was not complied by defendant Nos.1 and 2. Therefore, they have filed the suit for allotment of their legitimate share in the suit properties.
17. Plaintiff No.4 who was examined as PW-1 who has filed his affidavit evidence reiterating the plaint averments. PW-1 in his evidence has claimed that plaintiffs being the legal representatives of Vyasaraya Bhat, are 19 entitled for 1/3rd share in the suit properties. PW-1 has deposed that Parvathamma being the wife of Ramanna Bhat and her sons Vyasaraya Bhat and Gopalakrishna Bhat, has acquired 1/3rd share each in the suit properties. Parvathamma has settled her 1/3rd share in the suit properties in favour of her daughter Lalitha (defendant No.1) by executing a registered settlement deed dated 15.09.1960 in her favour which was produced and marked as Ex.P-7.
18. The trial Court, on going through the recitals of Ex.P-7, has opined that mother of defendant No.1 viz. Parvathamma has settled her 1/3rd share in the suit properties in favour of her daughter Lalitha.
19. PW-1 has further deposed that defendant No.2 being the daughter of Gopalakrishna Bhat is entitled for 1/3rd share of her father in the suit properties. The defendant No.1 who is contesting defendant, has filed his 20 affidavit evidence reiterating the averments made in her written statement and admitting the relationship between the parties to the suit. She has admitted that Ramanna Bhat died during the year 1949 leaving behind his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha. DW-1 has admitted that suit properties belonging to Ramanna Bhat devolved upon his wife and children. But DW-1 claimed that by virtue of settlement deed executed by her mother Parvathamma as per Ex. P-7, she has acquired absolute right over the suit properties.
20. The Courts below, on perusal of Ex. P-7, have held that DW-1 has acquired 1/3rd right over the suit properties by virtue of settlement deed executed by her mother Parvathamma. It was the contention of defendant No.1 that plaintiffs are in separate possession and enjoyment of Sy.No.221/6 measuring 66 cents; Sy.No.216/7 measuring 36 cents; Sy.No.221/5 measuring 21 13 cents and Sy.No.221/9 measuring 1 acre and said properties were in possession of the plaintiffs since the time of their father Vyasaraya Bhat. Since there is severance of status in the joint family, the question of partition do not arise at all as claimed by the plaintiffs. Defendant No.1 in order to prove the said contention, has not produced any documents.
21. It is the next contention of defendant No.1 that earlier defendant No.2 has filed a suit in O.S.No.284/1987 for partition and separate possession of his share in the suit property and the said suit was dismissed for default. The copy of the order sheet of the said suit was produced and marked as Ex.D-1. The Courts below, on going through the said order sheets, have held that the suit was dismissed for default. Admittedly, earlier suit filed in O.S.No.284/1987 was dismissed for default and it was not adjudicated and it was not disposed off on merits. Rights of the parties were not adjudicated in that suit. Therefore, 22 there is no merit in the contention of the appellant- defendant No.1 that the present suit is hit by the principles of res-judicata, as rightly held by the Courts below.
22. Regarding contention of defendant No.1 that present suit is barred by law of Limitation, the Courts below have held that there is no severance of status in the joint family and there is no such partition effected as claimed by the plaintiffs. Therefore, question of present suit barred by limitation does not arise. Oral and documentary evidence have clearly established that there was no partition effected in joint family of the plaintiffs and defendant Nos.1 and 2 after the death of Ramanna Bhat. Ramanna Bhat was survived by his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat. Before coming into force of Hindu Succession Act, properties left by Ramanna Bhat which was acquired by him under Ex.P- 6 devolved upon Parvathamma, Vyasaraya Bhat and Gopalakrishna Bhat. Thus, plaintiffs being wife and 23 children of Vyasaraya Bhat, are entitled for 1/3rd share in the suit properties. Defendant No.2 Ramanna Bhat being the sole surviving legal heir of Gopalakrishna Bhat is entitled for 1/3rd share in the suit properties. 1/3rd share acquired by Parvathamma wife of Ramanna Bhat was settled in favour of her daughter Lalitha as per registered settlement deed at Ex. P-7. Thus, defendant No.1 is entitled for 1/3rd share in the suit properties which she has acquired. As claimed by plaintiffs, defendant Nos.3 to 5 who are formal parties have not filed written statement nor have they contested the suit.
23. The trial Court, considering the above aspect of the matter, was justified in holding that plaintiffs have proved that Ramanna Bhat has become the absolute owner of the suit property as per registered settlement deed dated 20.08.1931 executed by his wife Parvathamma in his favour. It has held that defendant No.1 has proved that he is in actual possession of the schedule property as per the 24 settlement deed dated 15.09.1960 at Ex.P-7 executed by Parvathamma in her favour. It has also held that plaintiffs have proved that plaintiffs and defendants are in joint and constructive possession of suit property and has held that plaintiffs are entitled for 1/3rd share and has rightly held that suit is not hit by the principles of res-judicata and it is not barred by limitation. The first appellate Court, after re- appreciating the entire oral and documentary evidence on record, dismissed the appeal and confirmed the judgment and decree passed by the Courts below.
24. I have carefully gone through the judgment and decree passed by the Courts below and I do not find any illegality or infirmity warranting inference. Apart from that, there is absolutely no substantial question of law which arises for consideration. Hence, the following order.
Appeal is dismissed as devoid of merits.
25In view of the dismissal of the appeal, I.A.No.1/2015 for stay does not survive for consideration. Hence, it is rejected.
Sd/-
JUDGE PB/MDS