Karnataka High Court
Kamalawwa vs Goudappagouda on 21 February, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 21 S T DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUS TICE S.N. SA TYANARAYANA
R.S .A.NO.349/2004
C/W.
R.S .A.NO.348/2004
IN RSA NO.349/2004
BETWEEN:
KAMALAWWA
W/O NARAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, R/O NALAWADI,
TQ: NA VALGUND
SINCE DECEASED BY HER L.R.,
GURUNATHGOUDA
S/O NARAPPAGOUDA DODDAGOUDAR
AGE: 32 YEARS , OCC: AGRICULTU RE
R/O. NALAWADI, TQ : NA VALGUND,
DIST: DHARWAD.
... APPELLANT.
(BY SMT. P.G .NAIK, AD VOCATE.)
AND:
1. GOUDAPPAGOUDA
S/O. RANGANAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: AGRICULTURE
R/O. NALAWADI, TQ : NA VALAGUND
DIST: D IS TRICT
2
2. SRIPADAGOUDA
S/O. RANGANAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: POLICE CONS TABLE
(JAMADAR), R/O. HAVERI
3. HANUMANTAGOUDA
S/O. RANGANAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: PRIMARY SCHOOL
TEACHER A T ANTUR BENTU R,
TQ: GADAG
4. CHINNAPPAGOUDA
S/O. GOUDAPPAGOUDA DODDAGOUDAR
AGE: MAJOR,
R/O. NALAWADI
SINCE DECEASED BY HIS L.RS .
4(A) KAMALAWWA
W/O. CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. NALAWADI, TQ : NA VALAGUND
DIST: DHARWAD,
SINCE DECEASED, BY HER L.RS., R.4(B) TO (F)
4(B) PRAKASHGOUDA S/O CHINNAPPAGOUDA
AGE: MAJOR, OCC: POS TMAS TER
R/O. NALAWADI TQ: NAVALAGUND
DIST: DHARWAD
4(C) MANJUNATHGOUDA CHINNAPPAGOUDA
DODDAGOUDAR
AGE: MAJOR, OCC: POLICE CONS TABLE
RESERVE POLICE
R/O. POLICE HEAD QUARTERS, DHARWAD
4(D) SATISHGOUDA
S/O CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: S ERVICE,
HUBLI DHARWAD URBAN DEVELOPMENT
OFFICE, SWIMMING POOL COMPLEX, HUBLI
R/O. NALAWADI TQ: NAVALGUND
DIST: DHARWAD
3
4(E) VENKANGOUDA
S/O. CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: AGRICULTURE
R/O. NALAWADI, TQ : NA VALAGUND
DIST: DHARWAD.
4(F) VENKAWWA NINGAREDDY HEBSUR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. CHIKHANDIGOL, TQ: GADAG
... RESPONDENTS
[BY SRI S.G .HIREMATH , ADVOCA TE, FOR R.1 TO R.3,
R.4(B) TO (F);
R.4(B) TO (F) ARE TREA TED AS L.RS ., OF DECEASED
R.4(A).]
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAY ING TO SET AS IDE THE
JUDGMENT AND DECREE DATED 8.3.2004, PASSED IN
R.A.NO.106/1999, ON THE F ILE OF THE II ADDL.CIVIL
JUDGE (SR.DN.), DHARWAD, DISMISSING THE APPEAL
AND CONFIRMING TH E JUDGMENT AND DECREE
DATED 10.6.1999 PASSED IN O.S . NO.158/1989, ON
THE FILE OF THE CIVIL JUDGE (JR.DN.), NAVALGUND,
ETC.,.
IN RSA NO.348/2004
BETWEEN:
GURUNATHGOUDA
A/F. NARAPPAGOUDA DODDAGOUDAR
AGE: 32 YEARS , OCC: AGRICULTU RE,
R/O. NALAWADI, TQ : NA VALGUND
DIST: DHARWAD.
... APPELLANT.
(BY SMT. P G NAIK, AD VOCATE.)
4
AND:
1. CHINNAPPAGOUDA
S/O. GOUDAPPAGOUDA DODDAGOUDAR
SINCE DECEASED BY HIS L.RS.,
1(A) KAMALAWWA
W/O. CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. NALAWADI, TQ : NA VALGUND
DIST: DHARWAD,
SINCE DECEASED BY HER L.RS.,
1(B) PRAKASHGOUDA S/O. CHINNAPPAGOUDA
AGE: MAJOR, OCC: POS TMAS TER,
R/O. NALAWADI, TQ : NA VALGUND
DIST: DHARWAD
1(C) MANJUNATHGOUDA
S/O. CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: POS TMAS TER,
R/O. POLICE HEAD QUARTERS, DHARWAD
1(D) DEVAKHEWWA W/O . NINGARADDI HEBSUR
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R /O . CH IKKAHANDIGOL, TQ: & DIS T: GADAG
1(E) SATISHGOUDA
S/O. CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: S ERVICE,
HUBLI DHARWWAD URBAN
DEVELOPMENT OFFICE
SWIMMING POOL COMPLEX
HUBLI
1(F) VENKANGOUDA
S/O. CHINNAPPAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O .NALAWADI, TQ : NA VALGUND,
DIST: DHARWAD
2. GOUDAPPAGOUDA
S/O. RANGANAGOUDA DODDAPPAGOUDAR
5
AGE: MAJOR, OCC: AGRICULTURE,
R/O. NALAWADI, TQ : NA VALGUND
DIST: DHARWAD
3. SRIPADAGOUDA
S/O RANGANAGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: POLICE CONS TABLE
(JAMADAR), R/O. HAVERI
4. HANUMANTAGOUDA
S/O. RANGANGOUDA DODDAGOUDAR
AGE: MAJOR, OCC: PRIMARY SCHOOL
TEACHER A T ANTUR BENTU R,
TQ: GADAG.
5. HANUMAPPA GOVINDAPPA MUDAREDDI
AGE: MAJOR, OCC: AGRICULTURE AND
ADVOCATE,
R/O. NALAWADI, TQ : NA VALGUND
DIST: DHARWAD.
... RESPONDENTS
(BY SRI S.G .HIREMATH , ADVOCA TE, FOR R.1(B) TO (F),
R. 2 TO R.4;
R.5 - NO TICE S ERVED;
R.1(B) TO (F) ARE TREA TED AS L.RS ., OF DECEASED
R.1(A).
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAY ING TO SET AS IDE THE
JUDGMENT AND DECREE DATED 8.3.2004, PASSED IN
R.A.NO.107/1999, ON THE F ILE OF THE II ADDL.CIVIL
JUDGE (SR.DN.), DHARWAD, DISMISSING THE APPEAL
AND CONFIRMING TH E JUDGMENT AND DECREE
DATED 10.6.1999, PASSED IN O.S.NO.190/1989, ON
THE FILE OF THE CIVIL JUDGE (JR.DN.), NAVALGUND,
ETC.,.
THESE APPEA LS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
6
JUDGMENT
These two appeals are by the widow and alleged adopted son of Narappagouda, who died issueless on 4.9.1982. The appeal in RSA No.348/2004 is in challenging the finding rendered in O.S.No.190/1989, on the file of Civil Judge (Jr.Dn.), Navalgund, which is confirmed in R.A.No.107/1999, on the file of II Addl. Civil Judge (Sr.Dn.), Dharwad. Whereas the appeal in RSA No.349/2004 is concerned, it is in challenging the judgment and decree passed in O.S.No.158/1989, on the file of Civil Judge (Jr.Dn.), Navalgund, which is confirmed in R.A.No.106/1999, on the file of II Addl. Civil Judge (Sr.Dn.), Dharwad.
2. The brief facts leading to these two appeals are that the appellant in both the appeals is one Gurunathgouda, who is said to be the adopted son of Narappagouda Doddagoudar, who 7 died issueless on 4.9.1982. The records would disclose that the suit in O.S.No.190/1989 was filed by Smt.Kamalavva along with her adopted son Gurunathgouda for the relief of partition and separate possession in suit schedule A, B and C properties in O.S.No.158/1989. Th e said suit was filed by her against her husband's brothers Goudappagouda, Sripadagouda, Hanamantgouda and Chinnappagouda. Actually this suit is subsequent suit. Earlier to this suit a suit in O.S.No.158/1989 was filed by Goudappagouda, Sripadgouda, Hanamantgouda and Chinnappagouda.
3. Out of that first three are sons of Ranganagouda and 4 t h plaintiff Chinnappagouda is the son of 1 s t plaintiff Goudappagouda and the suit is filed by them against their brother Narappagouda's wife Kamalavva and her adopted son Gurunathgouda for the relief of declaration, 8 permanent injunction in respect of the agricultural land bearing Block No.73, measuring 26 acres 30 guntas of Nalavadi village in Navalgund taluk, Dharwad district and in the alternative they also sought for possession.
4. The records would indicate that after service of notice on Kamalavva and Gurunathgouda, the suit in O.S.No.190/1989 is filed by them. In any event both the suits being pending on the file of Civil Judge (Jr.Dn.), Navalgund and the properties involved in both the suits are situated in Nalavadi village of Navalgund taluk, Dharwad district, they were tried together by framing common issues and suit of Goudappagouda and others for the relief of declaration and injunction and alternatively for possession of the suit schedule property bearing Block No.73 and also the house No.31 of ward No.2 of Nalavadi village was decreed. 9
5. While doing so, the trial Court dismissed the suit in O.S.No.190/1989 filed by Kamalavva and Gurunathgouda for the relief of partition, by judgment dated 10.6.1999. Against the said judgment two appeals are filed both by the said Gurunathgouda and Kamalavva, one in R.A.No.106/1999 challenging the judgment and decree in O.S.No.158/1989 in decreeing the suit of Goudappagouda and others and another appeal in R.A.No.107/1999 in dismissing their suit for partition. Admittedly both the appeals were on the file of II Addl. Civil Judge (Sr.Dn.), Dharwad, which came to be heard and disposed by common judgment dated 8.3.2004. As against the concurrent finding of both the Courts below in decreeing the suit of Goudappagouda and others and dismissing the suit filed by Kamalavva, these two appeals are filed.
10
6. RSA No.348/2004 is in challenging the concurrent finding rendered in O.S.No.190/1989 which was subject matter of R.A.No.107/1999. Whereas RSA No.349/2004 is concerned, is with reference to the judgment and decree in O.S.No.158/1989 and confirming the same in R.A.No.106/1999. In these two appeals the appellant has raised common substantial questions of law seeking admission of the same.
7. The case of the appellants in these two proceedings is that the propositus of the family of 1 s t appellant Kamalavva's husband Narappagouda is one Venkanagouda. The said Venkanagouda had two sons by name Goudappagouda and Narappagouda. Narappagouda is the husband of Kamalavva and 1 s t defendant in O.S.No.190/1989 Goudappagouda is none other than her brother-in-law i.e., her husband's brother. Whereas the said Goudappagouda died leaving his 11 son Ranganagouda. Ranganagouda also died leaving him surviving his three children namely Goudappagouda, Sripadgouda and Hanamantgouda who are defendants No.2 to 4 in O.S.No.190/1989 and plaintiffs No.1 to 3 in O.S.No.158/1989. The 4th plaintiff Chinnappagouda is paternal uncle of plaintiffs No.1 to 3 in O.S.No.158/1989, who are defendants in O.S.No.190/1989.
8. The records would also disclose that after the death of Narappagouda on 4.9.1982, his widow Smt.Kamalavva is said to have taken her nephew (sister's son) Gurunathgouda as her adopted son and with him she has initiated the suit for partition in O.S.No.190/1989. That suit is actually in counter blast to the suit in O.S.No.158/1989 filed by defendants No.1 to 4 in O.S.No.190/1989.
12
9. In O.S.No.158/1989 which is the first suit filed, the relief sought is in respect of agricultural land bearing Block No.73, measuring 26 guntas 30 guntas of Nalavadi village in Navalgund taluk, which was earlier the property of Narappagouda and also the house bearing No.31 situated in ward No.2 of Nalavadi, which was the exclusive house of Narappagouda in which the basis for filing of suit in O.S.No.158/1989 is the Will which was executed by Narappagouda during his lifetime on 17.7.1981 i.e., nearly one year two months prior to the date of his death.
10. The Will which is at Ex.P.17 would indicate that the same was duly attested and registered before the office of Sub-Registrar on 17.7.1981. Relying upon this document, they sought for the relief of declaration and permanent injunction and in the alternative for possession against Narappagouda's widow Kamalavva and 13 alleged adopted son Gurunathgouda. Admittedly the said suit for declaration is filed almost 7 years after the death of executor Narappagouda claiming title under the Will executed by him. Immediately after service of summons in the said suit the widow and her adopted son filed a suit in O.S.No.190/1989 seeking partition of all the properties in the family of Narappagouda, which are more fully described in schedule A item No.1 to 3 in O.S.No.190/1989.
11. In the said suit, the right of the 1 s t plaintiff to sue along with 2 n d plaintiff Kamalavva is based on the registered adoption deed Ex.P.1 which is admittedly executed subsequent to the death of Narappagouda and the same is in the discretion of Kamalavva as widow of Narappagouda. If the said adoption deed is seen in the background of Ex.P.17, Will deed, which is executed by Narappagouda during his lifetime, it 14 would indicate that he had no issues as on the date of executing the Will and that his wife who was married to him by name Kamalavva did not stay with him and deserted him and hence there was no scope for him to have any issues. According to him, he being the senior member of his joint family, he has become the absolute owner of all the properties referred to in the Will, which he has bequeathed in favour of his elder brother Goudappagouda's grandchildren through his first son Ranganagouda and also some portion to Goudappagouda's second son Chinnappagouda who is 4 t h plaintiff in O.S.No.158/1989.
12. There was an attempt by the widow and her adopted son Gurunathgouda to demonstrate that the Will was not executed by Narappagouda and the signature does not tally with each other on the document which is at Ex.P.17 and that the same was not executed by him under his own will 15 and volition for the reason that at the relevant time of executing the Will he was suffering from paralysis stroke and was not in a position to execute the Will with free mind and without being influenced by the defendants in O.S.No.190/1989. In the light of such a stand being taken, a specific issue was framed by the trial Court while considering both the suits in O.S.Nos.158 and 190 of 1989. The plaintiff Kamalavva in O.S.No.190/1989 was not able to demonstrate her plea with reference to issues framed in both the suites which are as under:
Issues in O.S.No.158/1989
1) Whether the plain tif f s prove
th at the def end ant deser ted
her husband late
Nar appagoud a?
2) Whether the plain tif f s prove
th at the late Narappagoud a
executed a Will dated
16
17.7.1981 to the exten t of ½ of
his proper ties in f avour of
plaintiff s 1 to 3 and other half
in f avour of plaintif f No.4?
3) Whether the plain tif f s are in
lawf ul possession of suit
proper ties?
4) Whether the plain tif f s are the absolute owners of the suit proper ties?
5) Whether the plain tif f s are
entitled f or the perpetual
injunction against def end an ts?
6) If issue No.3 is answered in
negative, then whe ther the
plaintiff s are entitled f or the
possession of the suit
proper ties on the basis of title
under the Will d ated
17.7.1981?
7) Whether the suit is properly
valued and the Cour t Fee paid
is suff icient?
17
8) What order or decree?
Issues in O.S.No.190/1989
1) Whether the plain tif f s prove
th at suit proper ties are joint
f amily proper ties?
2) Whether the def endan ts prove
th at there was a par tition in
1956 in L.C.No.37/1956 at
Civil Judge Cour t, Dhar wad
and amicably settled in
L.D.No.121/61?
3) Whether the suit is barred
U/O.2 R.2 CPC?
4) Whether the def endan ts 1 to 4
prove that the late
Nar appagoud a executed a Will
deed d ated 17.7.1981 to the
extent of his ½ share in f avour
of def end ants 2 to 4 and other
½ share to def endan t No.1?
5) Whether the def endan t No.5 is
a bona f ide purchaser f or
18
value withou t notice of
plaintiff s in terest?
6) What order or decree?
Additional issue No.1: Whether
the plaintiff is entitled f or
declar ation that he is the owner of the sou thern por tion of land bearing block No.73 measuring 12.0 acres?
Additional issue No.2: Whether the plaintiff is entitled f or the relief of injunction in respect of the above said land of 12.0 acres?
13. In the trial, the Will being established, the suit of the plaintiffs in O.S.No.158/1989 is decreed for the relief of declaration and possession by answering the issues with reference to their possession to the suit property in the negative. In the light of the said issue being answered in the negative, their right to seek possession from Kamalavva and Gurunathgouda 19 was also granted in the said decree. While answering these issues in favour of plaintiffs in O.S.No.158/1989, they were held against the plaintiffs in O.S.No.190/1989 and their suit for partition came to be dismissed which is confirmed in the appeals as stated supra.
14. Heard the learned counsel for the appellants and the respondents in these two appeals. Perused the judgment and decree of both the Courts below and also pleading, oral and documentary evidence, which are in lower Court records secured before this Court. On going through the same, this Court find that the common substantial questions of law sought to be raised in these two appeals, which are with reference to the circumstances under which the Will dated 17.7.1981 is executed and also the competence of Narappagouda in executing the said Will. While raising these two substantial 20 questions of law, there was an attempt to raise another two substantial questions of law, one is with reference to the inconsistency in the signature in Ex.P.17 and also with reference to the legal position in view of the adoption deed being created by Kamalavva subsequent to death of Narappagouda, which are as under:
SUBSTANT IAL QUEST IONS OF LAW
(i) Whether on the f acts and circumstances of the case the Cour ts below are justif ied in hold ing that the Will d ated 17.7.1981 was a genuine Will and the deceased Narappagoud a had executed the said Will when he was in sound and d isposing state of mind and that the plain tif f s have proved the due execution of the Will by Narappagouda ignoring all the suspicious circumstances?
(ii) Whether on the f acts and in the circumstances of the case the 21 Cour ts below are justif ied in hold ing that Nar appagoud a had the competency and power to bequeath the entire suit schedule proper ties in f avour of def endan ts 1 to 4 when his wif e Kamalawwa was entitled to half share in the suit schedule proper ties?
(iii) Whether the Courts below are justif ied in coming to the conclusion th at the Will d ated 17.7.1981 was a genuine Will by ignoring the f act th at the signatures f ound on the Will and the ad mitted signatures of Nar appagoud a do not tally and this is apparent to the bare eye?
(iv) Whether the Courts below are justif ied in ignor ing the law that by vir tue of the adop tion of Gurunathagoud a by Smt.Kamalawwa, Gurunathgoud a would be entitled to half share in the suit schedule proper ties on the principle of relation back?
22
15. On going through the material available on record this Court find that all the four substantial questions of law raised are irrelevant in the fact situation for the reason that, the Will dated 17.7.1981 is executed and registered by Narappagouda. There is sufficient material to show that he was hale and healthy at the relevant point of time. Though there is reference to the said person having suffered paralysis stroke, it does not say the actual date when he suffered and what was his physical condition as on the date of Will dated 17.7.1981 and there is nothing brought on record by Kamalavva and her son Gurunathgouda to demonstrate that paralysis stroke suffered by Narappagouda has rendered him incompetent to take decision regarding execution of Will and also to take decision with reference to bequest of his property in sound disposable state of mind. In the absence of any material to doubt the circumstances and also his 23 mental status and the Will being a registered document, the trial Court has rightly considered the same. In that view of the matter, the first common substantial question of law which is sought to be raised does not stand to reason.
16. Similarly the 3 r d substantial question of law also does not stand to reason in as much as the averments itself indicating that the deceased Narappagouda having suffered paralysis stroke, was not in a position to maintain consistency in his handwriting while affixing his signature. Therefore it was accepted that there will not be consistency in all the signature affixed to the Will. In fact, there is nothing on record to demonstrate that the registering authority did not taken proper note of the same while registering the said document is neither raised nor proved by the Court below. Therefore that cannot be considered as a ground in this appeal, to doubt the 24 genuineness of the Will. In any event that cannot be raised at this stage.
17. So far as the competency is concerned, undoubtedly in the family of Venkanagouda, Narappagouda and his brother Goudappagouda were two brothers. The records would indicate that there is already a partition between them. Therefore when there is a partition in the family of Venkanagouda, and Narappagouda h aving taken his share in the property from the another surviving joint family member Goudappagouda, he has become the absolute owner of his share of the property which has fallen to his share in the partition. Therefore when he executed Will on 17.7.1981, he had not taken Gurunathagouda by adoption. When there is no adoption, when there is no one else in the family either as legal heir born to him in the wedlock or in the form of a son taken in adoption at the relevant time, the fact 25 that he was absolute owner of the property standing in his name cannot be doubted and therefore it is concluded that as he had absolute right to execute the Will at the relevant time.
18. Now coming to another question of law which is with reference to law governing adoption, admittedly as on the date when adoption was taken, Narappagouda had already died; even before his death, he had bequeathed all the properties in favour of his nephews. Therefore when he died, he did not have any estate for the benefit of his widow or to any other persons whom she can adopt, to take care of her in the old age. In that view of the matter, the adoption deed, which has come into force, will not take away the effect of testamentary document executed by Narappagouda during his lifetime.
19. Both the Courts below having rightly appreciated the same have decreed the suit of the 26 plaintiffs in O.S.No.158/1989 and dismissed the suit of plaintiffs in O.S.No.190/1989, which is subsequently confirmed in the regular appeal filed by Kamalavva, challenging the judgment in both the suits. Therefore as against the concurrent finding of both the Courts below this Court find no justifiable grounds are made out in these second appeals. Accordingly these two second appeals are dismissed.
Sd/-
JUDGE Mrk/-