Karnataka High Court
Sri.Yallappa S/O Shivappa ... vs Smt.Avvakka @ Akkamma Claiming To Be on 21 June, 2019
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
CRP NO. 100030/2019
BETWEEN:
SRI.YALLAPPA S/O SHIVAPPA HELAKKANAVAR
AGE 57 YEARS, OCC: AGRICULTURE
R/O YALAVATTI TQ: SHIRAHATTI
DIST GADAG-582120
... PETITIONER
(By Sri HANUMANTHAREDDY SAHUKAR, ADV.)
AND
1. SMT.AVVAKKA @ AKKAMMA CLAIMING TO BE
W/O YALLAPPA HELAKKANNAVAR
AGE: 47 YEARS, OCC: HOME MAKER
R/O YALAVATTI TQ: SHIRAHATTI
DIST: GADAG-582120
2. SMT. SHARAVVA W/O DEVENDRAPPA
HELAKKANAVAR
AGE: 64 YEARS, OCC: HOME MAKER
R/O YALAVATTI TQ: SHIRAHATTI
DIST: GADAG-582120
3. SMT. SHIVALEELA W/O MANJUNATH
HELAKKANAVAR
2
AGE: 37 YEARS, OCC: HOME MAKER
R/O YALAVATTI TQ: SHIRAHATTI
DIST: GADAG-582120
4. SMT. SATYAVVA DO DEVENDRAPPA
HELAKKANAVAR
AGE: 35 YEARS, OCC: HOME MAKER
R/O YALAVATTI TQ: SHIRAHATTI
DIST GADAG-582120
5. SMT. SAVITRAVVA W/O HUCHAPPA @ HUVAPPA
KELEGAR
@ MUDAKAMMANAVAR AGE: 33 YEARS
OCC: HOME MAKER R/O YALAVATTI TQ:
SHIRAHATTI
DIST: GADAG-582120
6. SRI. UDACHAPPA S/O DEVENDRAPPA
HELAKKANAVAR
AGE: 31 YEARS, OCC: AGRICULTURE
R/O YALAVATTI TQ: SHIRAHATTI
DIST: GADAG-582120
7. SRI. GUNDAPPA S/O DEVENDRAPPA
HELAKKANAVAR
AGE: 29 YEARS, OCC: HOME MAKER
R/O YALAVATTI TQ: SHIRAHATTI
DIST: GADAG-582120.
... RESPONDENTS
(By Sri MALLIKARJUNSWAMY B. HIREMATH &
Sri. UMESH P. KAKKARKI, ADV. FOR C/R-1
SRI DEEPAK C. MAGANUR, ADV. FOR R2-7 )
CRP FILED UNDER SEC.115 OF CPC, AGAINST
THE ORDER DATED 09.01.2019 PASSED IN
O.S.NO.114/2017 ON THE FILE OF THE SENIOR CIVIL
3
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
LAXMESHWAR, ORDERING THAT THE SUIT OF
PLAINTIFF IS MAINTAINABLE.
THIS PETITION IS COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
ORDER
The defendant No.1 being aggrieved by the order dated 9.01.2019 passed on issue Nos.3 and additional issue in O.S.No.114/2017 by the Senior Civil Judge and JMFC at Laxmeshwar has filed this revision petition.
2. The brief facts of the case are as follows:-
Plaintiffs Respondent Nos.2 to 7 filed O.S.No.72/2014 on the file of the Senior Civil Judge and JMFC, Laxmeshwar, against defendant No.1 for partition and separate possession of the suit schedule land bearing RS.No.58/2 measuring 10 acres 35 guntas, RS.No.24/8 measuring 22 guntas and RS.No.7/2 measuring 16 acres 5 guntas situated at 4 Yalavatti village, Shirahatti taluk, Gadag District. The said suit came to be decreed in view of the compromise between the parties. The share value of the petitioner has been paid. Respondent No.1 claiming to be the wife of the petitioner filed O.S.No.3/2017 in the Court of the Senior Civil Judge, Laxmeshwar, against the petitioner and respondent No.2 to 7 for cancellation of decree dated 25/4/2014 passed in No.72/2014 is not binding on her. The petitioner and defendant Nos.2 to 7 filed the written statement denying the claim of respondent No.1 and they have specifically stated that respondent No.1 has no right to file a suit and hence, suit is not maintainable. The trial Court framed the issues. The trial Court treated issue No.3 and additional issue as preliminary issues heard on those issues and passed the order holding that the suit is maintainable. Revision petitioner being aggrieved by the impugned order has filed this revision petition. 5
3. Heard the learned counsel for the petitioner and learned counsel for respondent Nos.2 to 7.
4. A short question which arises for consideration before this Court is as to "whether the findings recorded by the trial Court on issue No.3 and additional issue in O.S.No.114/2017 is sustainable in law?
5. The learned counsel for the petitioner -defendant No.1 vehemently submitted that the suit filed by respondent No.1-plaintiff is not maintainable in view of the provisions of Order XXIII Rule 3A of CPC and also bar under Section 314 of Mulla's Hindu Law operates against her and as such the suit is not at all maintainable. Learned counsel further submitted that the trial Court has made so many observations on the merits of the suit which are unwarranted, while deciding the preliminary issues.
6. Learned counsel has relied on the judgment in the case of Rajanna Vs. S.R.Venkateswamy and others 6 reported in (2014) 15 SCC 471 and also on the provision of Section 314 of Mulla's Hindu Law.
7. Per contra, the learned counsel for respondent No.1-plaintiff submitted that the bar under Order XXIII Rule 3A of CPC operates only against the parties to the compromise and not against the non party. The learned counsel firther submitted that bar under Section 314 of Mulla's Hindu Law is only for demanding partition and filing of suit for partition and separate possession by the wife during the life of her husband and that in the present suit, wife has not sought for any share in the suit properties by effecting partition.
8. On the basis of the pleading of the parties, the trial Court framed the issues and additional issue and it was also directed that issue No.3 and additional issue were ordered to be heard and disposed of as preliminary issues. Issue No.3 and additional issue reads as follows:-
7
"3. Whether the defendant No.2 to 6 prove that, suit of the plaintiff is hit by Order XXIII Rule 3A of CPC? Additional Issue
1. Whether the defendant No.1 proves that suit of the plaintiff is hit by Section 314 of Mulla's Hindu law?"
9. The trial Court after hearing both the parties, recorded the finding that the suit is maintainable and that the bar under Order XXIII Rule 3A of CPC and or bar under Section 314 of Mulla's Hindu Law does not come in the way of the plaintiff's suit.
10. The plaintiff-Avvakka @ Akkamma filed the said suit bearing O.S.No.114/2017 seeking relief of declaration to declare that the compromise decree passed in O.S.No.72/2014 dated 25/4/2016 is fraudulent and not binding on her. It is the case of the plaintiff that defendant No.1 is her husband and their marriage was solemnized about 21 years back as per the customs prevailed in their community in the presence of 8 the elders. They have no issues through their wedlock. She has alleged that all the defendants ill-treated her physically and mentally and she was thrown out from the house. She has further alleged that defendant No.2 is the wife of the brother of defendant No.1 and defendant Nos.3 to 7 are the sons and daughter. She has alleged that without her knowledge, defendant No.2 to 7 attempted to create an adoption deed in the name of defendant No.2 in order to grab the share of defendant No.1 in the suit properties. She has further stated that prior to filing of the suit, she had filed a suit bearing O.S.No.5/2014 against 1st defendant before the Civil Judge and JMFC, Laxmeshwar, and obtained a temporary injunction order from transferring the share of defendant No.1 in the name of defendant No.7.
11. Thereafter with a view to deprive the right of the plaintiff defendant Nos.2 to 7 got filed O.S.No.72/2014 against defendant No.1 while her suit was pending and said suit was filed stating that 9 defendant No.1 has not married the plaintiff and prayed to declare them as owners and in possession of entire properties. She has further alleged that defendant No.1 appeared in the said suit and compromise decree was passed within 10 days from the date of filing of the suit stating that defendant No.1 has received Rs.3,00,000/- in lieu of the half share in the suit properties and he has relinquished his right over the property in favour of the defendants and said decree was passed on 15/12/2015. She has further stated that she had filed Crl.Misc.P.No.67/2014 against defendant No.1 claiming maintenance in which the Court has granted maintenance of Rs.5,000/-p.m. by order dated 7/12/2015. But, he has not paid maintenance till today. Therefore, she alleged that defendant Nos.1 to 7 colluding with each other have obtained the compromise decree in O.S.No.72/14 only in order to cheat the plaintiff and deprive her right to recover the maintenance from the property of defendant No.1. The 10 defendants after appearing in the said suit filed written statement on the basis of which issue No.3 and additional issue stated above were framed.
12. The first contention of the petitioner- defendant No.1 is that the suit filed by the plaintiff is hit by Order XXII Rule 3A of CPC and therefore, issue No.3 ought to have been answered in the affirmative and the suit of plaintiff ought have been dismissed.
13. In this regard, learned counsel for the revision petitioner has relied on the judgment in the case of Rajanna Vs. S.R.Venkateswamy and others, the Hon'ble Supreme Court of India in the said case has held in para No.11 as follows:-
"11. It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and 11 signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order XXIII Rule 3, the agreement or compromise shall not be deemed to be lawful within meaning of the said rule if the same is void or voidable under Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order XXIII Rule 3A clearly 12 bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII Rule 3A of CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No.5326 of 2005 to challenge validity of the compromise decree, the Court before whom the suit came up rejected the plaint under Order VII Rule 11 CPC on the application made by the respondents holding that such a 13 suit was barred by the provisions of Order XXIII Rule 3A of the CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No.5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher Court."
14. Further, in the said case, the Hon'ble Supreme Court has referred to para No.17 in the judgment in the case of Pushpadevi Bhagat Vs. Rajinder Singh, reported in (2006) 5 SCC 566. It reads as follows:
"17. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded 14 the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. 15 For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code."
15. The Hon'ble Supreme Court has also referred para No.13 in the case of Banwari Lal Vs. Chando Devi, reported in (1993) 1 SCC 581 which reads as follows:
"13. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order XXIII, or an appeal under S. 96(1) of the Code, in which he can now question the validity 16 of the compromise in view of Order 43 Rule 1-A of of the Code."
16. Therefore, principles stated in the above cases is to the effect that the party who challenge the compromise decree can file a petition under Proviso to Order XXIII Rule 3A of CPC or appeal under Section 96(1) of CPC, in which he can now question the validity of the compromise.
17. In view of the Order XXIII rule 3-A of CPC it is held in the above cases that where one party alleges and denied by the other party that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment or satisfaction of any suit by lawful 17 agreement or any right signed by the parties the Court before whom such question is listed for deciding the same as provided under Order 23 Rule 3-A of CPC.
18. Therefore, it is crystal clear that separate suit by the parties to the suit or the compromise decree is prohibited and barred by provisions of Order 23 Rule 3-A of CPC and therefore, bar under Order 23 Rule 3-A of CPC operates against all parties to the compromise decree and it does not operate against third person who is not a party to the compromise decree. Therefore, in the present case, the contention of the defendants that suit of the plaintiff is hit by Order 23 Rule 3-A of CPC has no merit for the reasons that admittedly the plaintiff is not party in O.S.No.72/2014 nor she is a party to the compromise decree passed in the said suit on 15.12.2015. Therefore, the trial 18 Court answering the issue No.3 in the negative holding that suit of the plaintiff is not hit by the provision of Order 23 Rule 3-A of CPC does not call for interference by this Court.
19. The second contention urged on behalf of the revision petitioner is that the suit of the plaintiff is barred under Section 314 of Mulla's Hindu Law. Section 314 of Mulla's Hindu Law reads as follows:
314.Wife.- A wif e cannot herself de mand a par tition, but it a par titio n does takes place between her husb and and his sons, she is entitled (except in Southern India) to rece ive a share equal to th at of a son and to hold and enjoy th at share sep arately even f rom her husband. A cl aim by the wif e dur ing the lif e time of her husband in the share wh ich he h as as a coparcener in his coparcenary is pre mature. 19
20. The above Section is the out come of the pronouncements of the Courts as stated in the section itself. Therefore, even pronouncements are to the effect that the wife cannot by herself seek a share. Where a suit is filed for partition she is entitled to receive a share equal to that of son and to hold that share separately even from her husband. If partition takes place between her husband and others, she is entitled to receive a share equal to that of son and to hold that share separately even from her husband. Further it is held that a claim by the wife during life time of the husband in the share which he as a coparcener in his coparcenary is premature. In the present case there is no contention by the defendant No.1 that the property in question is a coparcener property and he is a coparcener in respect of the said property and therefore, a claim if any made by 20 the wife for share in the suit property is premature.
21. Admittedly, in the present suit the plaintiff has not sought for partition and separate possession of her share in the property of her husband. On the other hand her suit is for declaration that compromise decree passed in O.S.No.72/2014 on 25.04.2014 among the defendant Nos. 1,2 and 7 is illegal, fraudulent and not binding on her.
22. The learned counsel for the revision petitioner submitted that by filing the said suit virtually the wife is claiming right or share in the property of defendant No.1 and therefore, it is barred by Section 314 of Mulla's Hindu Law. The facts in the case goes to show that the plaintiff herein had filed suit against defendant No.1 for declaration that she is his wife and for other reliefs which has been decreed and it is also 21 admitted that the appeal filed by the defendant No.1 was dismissed and now the matter is pending before the High Court in Regular Second Appeal. On the other hand defendant Nos.2 to 7 have no locus standi to deny the status of the plaintiff as wife of defendant No.1. However, in the compromise decree passed in O.S.No.72/2014 it is stated by the defendant in that suit, namely defendant No.1 in the present suit has no wife or children and therefore, he has relinquished his share in favour of the plaintiffs in the said suit, who are defendant Nos.2 to 7 in the present suit, by receiving the sum of Rs.3,00,000/-. Therefore, the plaintiff herein is aggrieved by the compromise decree wherein it is stated that defendant No.1 herein has no wife or children. Under such circumstances, the plaintiff herein cannot be prevented from filing the suit for declaration in 22 respect of the said decree, on the ground that she cannot file a suit against her husband in respect of the property, in view of bar under Section 314 of Mulla Hindu Law.
23. It is also pertinent to observe that the suit in which the compromise decree was passed was filed during the pendency of the suit, filed by the plaintiff herein. It is also not disputed that the said suit was filed on 15.04.2014 and the compromise decree was passed on 25.04.2014 within a period of 10 days. When these are the facts, it cannot be held that the plaintiff herein is not aggrieved by the said compromise decree and she cannot maintain the suit as is filed by her.
24. As rightly submitted by the revision petitioner some of the observations made by the trial Court in deciding the preliminary issues are 23 unwarranted and the observations made by the trial Court stating that defendant Nos. 1 to 7 have colluded with the each other and that defendant Nos. 1 to 7 are jointly and severally liable to pay maintenance etc., to plaintiffs are unnecessary. The trial Court should not consider the same in deciding the suit. Under these circumstances, this Court holds that the impugned order does not suffer from any illegality and is sustainable in law.
25. Trial Court has properly recorded findings on issue No.3 and additional issue in the suit. Therefore, point for consideration are answered accordingly. The Civil Revision Petition being devoid of merits is liable to be dismissed. Accordingly, it is dismissed.
26. The observations made by the trial Court and also observation made by this Court 24 in the body of the order shall not come in the way of the trial Court for disposal of the suit on merits.
Sd/-
JUDGE Vmb/vb