Karnataka High Court
Mallappa S/O Hanumappa Kolakar vs Lakkawwa W/O Ramappa Kolakar on 23 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA.CROB No. 100004 of 2016
C/W RSA No. 100978 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
RSA CROSS OBJ NO. 100004 OF 2016 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 100978 OF 2015
IN RSA CROSS OBJ.NO.100004/2016
BETWEEN:
MALLAPPA S/O HANUMAPPA KOLAKAR,
AGED ABOUT 62 YEARS,
R/O: BADAGI, TQ: BILAGI,
DIST: BAGALKOT.
...CROSS OBJECTOR
(BY SRI. SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. SMT. LAKKAWWA W/O. RAMAPPA KOLAKAR,
AGED ABOUT 57 YEARS, OCC: HOUSEHOLD,
R/O: BUDIHAL (SG),
TQ: BILAGI, DIST: BAGALKOT.
2. SMT. TAYAWWA W/O SANGAPPA BARKER,
AGED ABOUT: 56 YEARS, OCC: HOUSEHOLD,
R/O: KARAGERI, TQ: BADAMI,
DIST: BAGALKOT.
Digitally signed
by ROHAN
HADIMANI T
ROHAN Location: HIGH
COURT OF
3. MALLAWWA W/O MUDAKAPPA KOLAKAR,
HADIMANI
T
KARNATAKA
DHARWAD AGED ABOUT: 53 YEARS, OCC: HOUSEHOLD,
Date:
2023.02.17
11:31:37 +0530
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RSA.CROB No. 100004 of 2016
C/W RSA No. 100978 of 2015
R/O: KHAJANDAKI, TQ: VIJAYAPURA,
DIST: VIJAYAPURA.
4. SMT. JANAWWA W/O MALLAPPA SHIVAPPAGOL,
AGED ABOUT: 51 YEARS, OCC: HOUSEHOLD,
R/O: MAMADAPUR, TQ: BILAGI,
DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R1 TO
R4)
THIS RSA.CROB. IN RSA.NO.100978/2015 IS FILED
UNDER ORDER 41 RULE 22 OF CPC., PRAYING TO ALLOW
THECROSS OBJECTIONS AND DISMISS THE REGULAR SECOND
APPEAL NO.1000978/2015 FILED BEFORE THIS HON'BLE
COURT BY THE RESPONDENTS UPHOLDING THE JUDGMENT
AND DECREE DATED 27.11.2015 PASSED BY THE LEARNED II
ADDITIONAL DISTRICT AND SESSIONS JUDGE BAGALKOT IN
RA.NO.51/2007 IN THE INTEREST OF JUSTICE AND EQUITY.
IN RSA.NO. 100978 OF 2015
BETWEEN:
1. SMT. LAKKAWWA W/O RAMAPPA KOLAKAR,
AGED ABOUT: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BUDIHAL (SG), TQ: BILAGI,
DIST: BAGALKOT - 587101.
2. SMT. TAYAWWA W/O SANGAPPA BARKER,
AGED ABOUT: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KARAGERI, TQ: BADAMI,
DIST: BAGALKOT - 587101.
3. SMT. MALLAWWA W/O MUDAKAPPA KOLAKAR,
AGED ABOUT: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KHAKANDAKI, TQ: VIJAYAPURA,
DIST: VIJAYAPAURA - 587101.
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RSA.CROB No. 100004 of 2016
C/W RSA No. 100978 of 2015
4. SMT. JANAWWA W/O MALLAPPA SHIVAPPAGOL,
AGED ABOUT: 51 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MAMADAPUR, TQ: BILAGI,
DIST: BAGALKOT - 587101.
...APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)
AND:
MALLAPPA CALLING HIMSELF AS SON OF
HANUMAPPA KOLAKAR,
AGED 62 YEARS,
R/O: BADAGI,C TQ: BILAGI,
DIST: BAGALKOT - 587101.
...RESPONDENT
(BY SRI. SANGRAM S.KULKARNI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASDE THE JUDGEMENT AND DECREE
DTD:27.11.2015 PASSED IN R.A.NO.51/2007 ON THE FILE OF
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT AND CONSEQUENTLY CONFIRM THE JUDGMENT
AND DECREE DTD:08.06.2007 IN O.S. NO.193/2005 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.), BILAGI.
THESE RSA AND RSA.CROB COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA.No.100978/2015 is filed by the plaintiffs aggrieved by the judgment and order dated 27.11.2015 passed in R.A.No.51/2007 on the file of the II Additional District and Sessions Judge, Bagalkot (hereinafter referred -4- RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 to as the 'First Appellate Court'), in and by which the First Appellate Court while allowing the appeal filed by the defendant No.2 set aside the judgment and decree dated 08.06.2007 passed in O.S.No.193/2005 on the file of the Civil Judge (Sr.Dn.), Bilagi (hereinafter referred to as the 'Trial Court').
2. RSA.CROB.No.100004/2016 is filed by the defendant No.2 aggrieved by rejection of applications in I.A.Nos.3, 4, 8 and 9 filed under Order 41 Rule 27 of CPC for seeking production of additional documents and I.A.No.6 is filed to amend the written statement.
3. Brief facts of the case are that the above suit in O.S.No.193/2005 is filed by the plaintiffs being wife and children of one Ramappa Kolakar against the defendants for declaration that the plaintiffs are the exclusive owners in possession of the suit properties and to declare the mutation entries effected in the names of defendants are null and void and for consequential relief of permanent -5- RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 injunction against the defendants restraining them from causing obstructions and interruptions in the plaintiffs' enjoyment of the suit properties.
4. The suit properties are land in R.S.No.247/2B measuring 3 acres 25 guntas situated at Badagi Village and land in R.S.No.14/1B/1 measuring 1 acre 19 guntas situated at Gulabal Village. It is the case of the plaintiffs that one Sabanna Kolakar the original propositus had two sons namely Gaibanna and Hanamappa. Hanamappa the second son had two wives Tayawwa (Sr.) and Tayawwa (Jr.). Tayawwa (Sr.), (the first wife died issueless however, it is submitted that there was a child from first wife who also died). It is further contended that the said Tayawwa (Jr.) gave birth to a son namely Mallappa who is defendant No.2 in the proceedings. However, it is contended that the said Mallappa was born outside the marriage of Hanamappa and Tayawwa (Jr.). Tayawwa (Jr.) and the Hanamappa had discord in their matrimonial relationship and that their marriage was disolved. -6- RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 Hanamappa had adopted a son by name Ramappa in terms of registered deed of adoption dated 30.01.1964. The plaintiff No.1 is the wife of the said Ramappa and plaintiffs No.2 to 4 are the children of the said Ramappa. Defendant No.1 is Tayawwa (Jr.) the second wife of Hanamappa.
5. It is also contended that the plaintiffs had earlier filed a suit in O.S.No.119/1994 for declaration and injunction in respect of properties bearing R.S.No.126/2+3 and R.S.No.33/1A and a house property at Budihal against the same defendants and the purchaser of said house property from the defendants. It is stated that the said suit was decreed ex parte and a challenge to the said ex parte decree was launched by filing a suit in O.S.No.22/1999 by the defendants herein and the said suit also came to be dismissed. Thus, based on the above pleadings, plaintiffs sought for relief of declaration and injunction.
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6. The said suit is resisted by defendant No.2 denying the case of the plaintiffs and the description of the suit properties. The claim of the plaintiffs that Hanamappa was living separately after giving divorce to his second wife/defendant No.1 is also denied. The adoption of Ramappa by Hanamappa is also denied. The allegation of defendants No.1 and 2 not being the wife and son of Hanamappa is also denied. It is contended that upon the death of Hanamappa, defendant No.1 had filed a Varadhi before the Village Accountant to enter the names of the defendants in respect of the suit properties. Accordingly, RTS proceedings were initiated and the Tahashildar after holding enquiry had passed an order in favour of the defendants and the same has not been challenged by the plaintiffs on these and other grounds sought for dismissal of the suit. Trial court based on the pleadings framed the following issues:
"1. Whether plaintiffs prove that deceased defendant No.1 Tayawwa was second wife of Hanamappa and Hanamappa had divorced her?-8- RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015
2. Whether plaintiffs prove that they are the wife and daughters of Ramappa the adopted son of Hanamappa?
3. Whether plaintiffs prove that they succeeded to the suit properties of Hanamappa through the adopted son Ramappa?
4. Whether plaintiffs prove that defendant No.1 is divorced wife of Hanamappa and defendant No.2 was born to defendant No.1 due to she leading immoral life?
5. Whether defendant No.2 proves that defendants are the legal heirs of deceased Hanamappa, so has become absolute owner and in possession of suit properties as contended in para 7 of W/S?
6. Whether plaintiffs are entitled to the reliefs of declaration and injunction as sought for?
7. What order or decree?"
and recorded the evidence. Plaintiff No.1 examined as PW.1 and exhibited 16 documents marked as Exs.P.1 to P16. Defendant No.2 examined as DW.1 and exhibited 4 documents marked as Exs.D.1 to D4. Defendant No.1 Tayawwa (Jr.) passed away during the pendency of the suit. The Trial Court on appreciation of the evidence answered issues No.1 to 4 and 6 in an affirmative and issue No.5 in negative and consequently decreed the suit as prayed for.
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7. Aggrieved by the same, the defendant No.2 filed regular appeal before the First Appellate Court. In the said appeal, the defendant also filed applications in I.A.Nos.3, 4, 6, 7, 8 and 9 seeking production of additional documents and also for amendment of written statement. Considering the grounds urged in the appeal and also re- appreciating the evidence, the First Appellate Court framed following points for its consideration:
"1. Whether I.A.No.3, 4, 6, 7, 8 and 9 filed by defendant No.2 requires to be allowed as they are very much necessary for proper adjudication of the appeal as urged by counsel for defendant No.2?
2. Whether trial court erred in decreeing the suit of the plaintiffs when plaintiffs failed to prove that Hanamappa had divorced her second wife Tayawwa as alleged by counsel for defendant No.2?
3. Whether the trial court erred in decreeing the suit of the plaintiffs in as much as defendant No.2 was entitled to succeed to the property of deceased Hanamappa if not as the son of deceased Hanamappa at least as the son of deceased Tayawwa?
4. Whether the trial court erred in decreeing the suit of the plaintiffs when adoption deed marked as Ex.P16 was not valid in the eye of law in as much as the consent of Tayawwa to the said adoption was not obtained by Hanamappa?
5. Whether trial court was correct in placing reliance on Ex. P13 judgment passed in O.S.No.119/1994 in as
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much as it is binding on defendant No.2 as alleged by the plaintiffs?
6. If so, what order?"
8. Point Nos.2 to 5 were answered in the affirmative and point No.1 in the negative and consequently allowed the appeal setting aside the judgment and decree passed by the Trial Court. Aggrieved by the same, the plaintiffs are before this Court in RSA.No.100978/2015 and the defendant No.2 is before this Court in RSA.CROB.No.100004/2016.
9. This Court by order dated 24.02.2016 admitted RSA.No.100978/2015 to consider the following substantial questions of law:
"1) Whether the first appellate Court was right in framing a point for consideration with regard to the validity of the adoption of Ramappa by Hanumappa and by answering that point by holding that there was no valid adoption and on that premise, dismissing the suit filed by the appellant - plaintiffs. In other words, whether the first appellate Court was right in permitting the defendant to urge upon the validity of the adoption in the proceedings?
2) Whether the first appellate Court was right in ignoring the judgments and decrees between the parties in
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earlier proceedings and thereby, dismissing the suit filed by the appellant - plaintiffs?"
10. This Court by order dated 31.10.2022 admitted RSA.CROB.No.100004/2016 to consider the following substantial question of law:
"Whether the First Appellate Court is justified in rejecting I.A.Nos.3 and 4?"
11. Reiterating the grounds urged in the memorandum of appeal, Sri. Mallikarjunswamy B.Hiremath the learned counsel for the appellants submitted that the First Appellate Court grossly erred in accepting the contention of the defendant No.2 that the plaintiffs had failed to prove that there was divorce between Hanamappa and his second wife Tayawwa. He submits that the factum of divorce was emanating from the judgment passed in O.S.No.388/1955, the suit which was filed on behalf of Mallappa defendant No.2 herein against the Hanamappa which resulted in dismissal as produced at Ex.P.7. He submits that the said judgment and decree of dismissal was carried in an appeal in
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 R.A.No.127/1959 which also resulted in dismissal as per Ex.P.11, confirming the decree passed by the said Court in O.S.No.388/1955 as Ex.P.7.
12. Learned counsel for the appellants referring to the contents of paragraph Nos.4, 5 and 6 of the judgment passed in R.A.No.127/1959 produced at Ex.P.11 submits that the Court therein has given categorical finding with regard to the character of Tayawwa (Jr.) and her relationship with Hanamappa. He also drew attention of this Court to a reference in the said Ex.P.11 to a paper publication taken in Samyuktha Karnataka daily newspaper dated 16.11.1946 wherein Hanamappa had apparently given a public notice about he having given divorce to the said Tayawwa. Learned counsel for the appellants submits that there is a clear reference with regard to Hanamappa having given divorce to the said Tayawwa. He submits in the light of availability of the said material evidence on record, the First Appellate Court ought not to have given findings contrary to the same. As
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 regards the findings of the First Appellate Court on the adoption is concerned, the learned counsel submits that the issues with regard to validity or otherwise of the adoption has been incidentally gone into and considered in the earlier suit in O.S.No.119/1994 produced at Ex.P.13. In that view of the matter, he submits that the said findings would operate as a res judicata which the First Appellate Court has failed to consider. With regard to validity of the adoption requiring consent under Section 7 of the Hindu Adoption and Maintenance Act, 1956 (for short, 'the Act'), learned counsel submits that since the plaintiffs had established that Hanamappa and Tayawwa were divorced, there was no need or necessity to obtain any consent and the same cannot be a ground for holding the adoption invalid. He also refers to Section 16 of the Act to say that the deed of adoption being a registered document, presumption of its validity shall be drawn. Hence, he submits the substantial question of law need to be answered in favour of the appellants.
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015
13. Per contra, Sri. Sangram S.Kulkarni, learned counsel for the respondent/cross-objector objecting the allowing of the appeal submits that the present appeal does not give rise any substantial question of law. He submits at the outset, the plaintiffs approached the Court with unclean hands by suppressing the material fact. He submits that the Hanamappa and Tayawwa remained husband and wife inasmuch as the divorce proceedings which were initiated by Hanamappa resulted in dismissal and the plaintiffs despite being aware of this fact deliberately suppressed the same from the Trail Court. Had the plaintiffs produced the said material evidence, the outcome of the suit would have been different. He submits that even the defendant did not have the material evidence at the relevant point of time therefore they were constrained to file application under Order 41 Rule 27 of CPC seeking production of the said material evidence. Though the First Appellate Court has declined to accept the said additional evidence on the premise that the
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 appeal could be disposed of even without the said documents, he submits that for the effective adjudication of the lis between the parties, the First Appellate Court ought to have allowed the said application. Lest, he submits that the matter would be questioned for want of evidence. Alternatively, he submits that even on the material evidence relied upon by the Trial court it is seen that the plaintiffs have not proved the validity of adoption as the same is glaringly contrary to Section 7 and 10 of the Act. He submits that in the absence of pleading and proof of there being a divorce between the Hanamappa and Tayawwa (Jr.), requirement of obtaining consent under Section 7 of the Act cannot be exempted. He further submits a bare perusal of adoption deed at Ex.P.16 would reveal the age of husband of plaintiff No.1 being 21 years while the age of Hanamappa being 65 years which is contrary to Section 10 of the Act. Unless the plaintiffs plead and prove the customs prevailing exempting the said restriction the adoption cannot be accepted. He
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 submits that there is no whisper in the plaint with regard to any such customs prevalent or in the adoption deed. He submits in the light of the aforesaid circumstances, the Trial Court was not justified in upholding the adoption and the First Appellate Court was also not justified in rejecting the applications for production of additional documents.
14. Heard learned counsel for the parties. Perused the records.
15. Though the substantial questions of law framed by this Court by order dated 24.02.2016 and dated 31.10.2022 as noted above, do refer to the validity of the adoption and the material evidence of the same having been incidentally considered in the previous proceedings, it is seen that no specific issues have been framed by the Trial Court and the First Appellate Court in this regard. In other words, the question with regard to validity of adoption and right of the husband and father of the plaintiffs being adoptive son in respect of the suit
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 properties ought to have been determined by framing specific issues.
16. Even though there is a considerable force in the submission being made by the learned counsel for the appellants that in terms of explanation 4 to Section 11 of the CPC the finding in the earlier suit in O.S.No.119/1994 as per Ex.P.13 would operate as res judicata and that the First Appellate Court was required to take the said finding in O.S.No.119/1994 as the same has determined right of adoptive son, this Court is of the view that since no legally acceptable material evidence with regard to marital status of Hanamappa and Tayawwa (Jr.) was produced, which would impact on the validity of the adoption and the right of the adoptive son, a specific issue and the findings thereon on the basis of legal evidence is inevitable. Such a crucial aspect of the matter cannot left for mere assumptions and inferences based on the observation and finding given in the judgment passed in R.A.No.127/1959 at Ex.P.11 or the statement in the Deed of Adoption that
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 Hanamappa and Tayawwa (Jr.) were staying separately. The marital status of Hanamappa and Tayawwa (Jr.) becomes germane even for an incidental finding with regard to right of adoptive son namely Ramappa.
17. Admittedly, the petition filed by Hanamappa seeking dissolution of his marriage with Tayawwa was pending consideration as seen from the contents of Deed of Adoption. No material evidence was produced either by the plaintiffs or by the defendants before the Trial Court with regard to status of the said pending proceedings. It is only by way of an application by the defendants under Order 41 Rule 27 of CPC that the order of dismissal of the said petition was sought to be brought on record before the First Appellate Court. The Trial Court had no benefit of the said material evidence while the First Appellate Court declined to accept the same. The First Appellate Court ought to have taken the said material evidence on record and ought to have determined if the marriage between the Hanamappa and Tayawwa was indeed subsisting or
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 dissolved instead of merely giving findings on the validity of the adoption deed referring to Section 7 and 10 of the Act. The factual aspect of the matter namely the marital status of Hanamappa and Tayawwa goes to the root of the matter and evidence in this regard not having been taken on record, this Court is of the considered view that the First Appellate Court erred in not allowing the said applications and thereafter taking additional evidence and then adjudicating the matter. In absence of said material evidence, the First Appellate Court ought not to have adjudicated the issues of controversies.
18. Applications in I.A.Nos.3 and 8 have been filed by the respondent/cross objector seeking production of following documents as additional evidence:
i) Certified copy of the judgment passed in O.S.No.226/1953.
ii) Certified copy of records in Civil Suit No.12/1965.
iii) Certified copy of records in O.S.No.335/1965
iv) Certified copy of records in O.S.No.226/1953.
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015
19. It is contended by the respondent/cross objector that the said material evidence were not available during the trial before the Trial Court and when he sought to produce the same before the First Appellate Court, it declined to accept the same.
20. For the aforesaid reasons and analysis this Court is of the view that the aforesaid additional evidence is necessary for effective adjudication and disposal of the lis between the parties more particularly with regard to the validity of adoption. Accordingly, applications in I.A.Nos.3 and 8 are allowed.
21. In view of allowing of the said applications, the appeal and cross-objection are allowed. Consequently, the matter is remanded back to the First Appellate Court who shall after framing issue on the validity of adoption and affording sufficient opportunities to the parties to lead additional evidence and rebuttal evidence on the points as
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015 noted above subject to all exceptions, shall dispose of the matter in accordance with law.
22. Considering the long pendency of the matter between the parties, the First Appellate Court shall endeavor to dispose of the appeal by itself without further remand to the Trial Court as the First Appellate Court is having jurisdiction and authority to decide on facts of the matter within an outer limit of six months from the date of receipt of certified copy of this order.
23. All contentions to be urged are left open.
24. It is made clear that no opinion is expressed or finding is given on the merits of the case in this order except remanding the matter back to the First Appellate Court to adjudicate on the point noted above. The First Appellate Court will dispose of the mater without being influenced by the order of dismissal of the appeal.
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RSA.CROB No. 100004 of 2016 C/W RSA No. 100978 of 2015
25. Pending I.A.'s, if any, does not survive for consideration.
Sd/-
JUDGE RH List No.: 1 Sl No.: 8