Karnataka High Court
Narayanaswamy vs Smt Rathnamma on 1 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1810/2007 (PAR)
C/W.
R.S.A. NO.1911/2016 (DEC)
IN R.S.A. NO.1810/2007:
BETWEEN:
1. NARAYANASWAMY
S/O LATE NANJAPPA
AGED ABOUT 52 YEARS
2. VENKATESH
W/O GURULINGAYYA
AGED ABOUT 76 YEARS
ALL RESIDING AT KARANJIKATTE KELAGE
NEAR RAILWAY TRACK,
KADERIPURA ROAD, KOLAR-563101.
... APPELLANTS
(BY SRI B.C.RAJEEVA, ADVOCATE)
AND:
1 . SMT. RATHNAMMA
W/O LATE MUNIVENKATASWAMY
AGED ABOUT 53 YEARS
2 . SMT. ANASUYAMMA
D/O LATE MUNIVENKATASWAMY
2
AGED ABOUT 34 YEARS
3 . SMT. MANJULA
D/O LATE MUNIVENKATASWAMY
AGED ABOUT 33 YEARS
ALL ARE RESIDING AT
SRI RAJARAJESHWARI
TEMPLE ROAD, DEVASANDRA,
BANGALORE-560002.
... RESPONDENTS
(BY SRI R.BHADRINATH, ADVOCATE FOR R1 TO R3)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 05.03.2007 PASSED IN
RA.NO.180/2004 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-III, KOLAR, DISMISSING THE APPEAL
GILED AGAINST THE JUDGEMENT AND DECREE DATED
12.08.2004 PASSED IN OS.NO.345/2001 ON THE FILE OF THE
PRL.CIVIL JUDGE (JR.DN.) KOALR.
IN R.S.A. NO.1911/2016:
BETWEEN:
1 . SMT. KAMALAMMA
W/O NARAYANASWAMY,
AGED ABOUT 51 YEARS,
2 . MADHUSUDANA
S/O NARAYANASWAMY,
AGED ABOUT 25 YEARS,
3 . KUM. SUDHA
D/O NARAYANASWAMY,
AGED ABOUT 25 YEARS,
3
ALL ARE RESIDING AT
KARANJIKATTE KELEGE,
KADRIPURA ROAD,
KOLAR - 563 1031
4 . SRI VENKATESH
S/O LATE NANJAPPA,
AGED ABOUT 49 YEARS,
R/AT KARANJIKATTE KELEGE,
NEAR RAILWAY TRACK,
KADRIPURA ROAD,
KOLAR - 563 1031
... APPELLANTS
(BY SRI VIJAYAKUMAR R., ADVOCATE)
AND:
1 . SMT. RATHNAMMA
W/O LATE MUNIVENKATASWAMY,
AGED ABOUT 60 YEARS,
2 . SMT. ANUSUYAMMA
D/O LATE MUNIVENKATASWAMY,
AGED ABOUT 43 YEARS,
3 . SMT. MANJULA
D/O LATE MUNIVENKATASWAMY,
AGED ABOUT 41 YEARS,
ALL ARE RESIDENTS
OF KARANJIKATTE,
KOLAR CITY, KOLAR
NOW RESIDING NEAR
SREE RAJARAJESHWARI
TEMPLE ROAD, DEVASANDRA,
BENGALURU - 560 036.
4
4 . SMT. LAKSHMAMMA
W/O NARAYANASWAMY,
AGED ABOUT 55 YEARS,
5 . SRI MANJUNATH
S/O NARAYANASWAMY,
AGED ABOUT 29 YEARS,
6 . SRI NAVEEN
S/O NARAYANASWAMY,
AGED ABOUT 29 YEARS,
7 . SRI DHIVAKARA
S/O NARAYANASWAMY,
AGED ABOUT 26 YEARS,
ALL ARE RESIDING AT
KARANJIKATTE KELEGE,
KADRIPURA ROAD,
KOLAR - 5631031.
... RESPONDENTS
(BY SRI BHADRINATH R., ADVOCATE C/R1 TO R3
AND ALSO FOR R4 TO R7)
THIS R.S.A. IS FILED U/S 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 05.08.2016 PASSED IN R.A.
NO.139/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 07.06.2013 PASSED IN
O.S. NO.177/2007 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC, KOLAR.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel appearing for the appellants and the learned counsel for the respondents.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
3. The factual matrix of R.S.A No.1810/2007 is that a suit is filed by the plaintiffs seeking the relief of partition and separate position in respect of item Nos.1 and 2 of the suit schedule properties claiming that they are entitled for 1/3rd share each in all the suit schedule properties. It is contended in the plaint that plaintiff No.1 is the mother and plaintiff Nos.2 and 3 are her daughters through her husband late Munivenkataswami. It is contended that the late Munivenkataswami and the defendants are own brothers and they are the sons of late Nanjappa. The defendant No.3 is the mother of defendant Nos.1 and 2 and late Munivenkataswami. The suit schedule properties are all 6 ancestral and joint family properties consisting of themselves and the defendants. During the lifetime of Nanjappa, he was the Karta of the joint family and after his death, the elder son of the family that is late Munivenkataswami was managing the affairs of the joint family and enjoying the suit schedule properties jointly. Late Munivenkataswami was working in ITI and after his death, all the benefits of rents invested in construction of the house, digging well and installing pump set. It is contended that the husband of the first plaintiff Munivenkataswami died about 20 years back and after his death, they continued as members of the joint family. The joint family is owning the suit schedule lands and the family is having sufficient income, Out of the said income, the joint family constructed a residential house and there is no division or partition in the joint family and hence, the plaintiffs are entitled for 1/3rd share.
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4. When a demand was made for partition by the plaintiff the same was postponed by the defendant No.1, who is the Karta of the family and a Panchayat was convened by him, but all their efforts went in vain and hence, they filed the suit.
5. In pursuance of the suit summons, defendants No.1 and 2 have appeared through their Advocate and have filed written statement. They have admitted the relationship of the parties, but they have denied the contention with regard to that the plaintiffs are living in the joint family and the suit schedule properties are the joint family properties. It is contended that plaintiffs never lived with the defendants and denied all the allegations of convening of a Panchayat and demand of partition and that there is no cause of action for filing the suit. The defendants also denied the contention with regard to that the father of the plaintiffs Venkataswamappa gifted the Sy.No.109/2 measuring 23 gunths to her husband Venkataswamappa 8 and also Chowdamma, the mother of defendant Nos.1 and
2.
6. It is contended by the defendants that the husband of the first plaintiff left the village in the year 1968 to work as a Mason in Bangalore and at no point of time, he cultivated the agricultural lands and he was also working in ITI at Bangalore and started living separately ever since from 1968. In the year 1969, Munivenkataswami married the first plaintiff who was a resident of K.R.Puram. After the marriage, the said Munivenkataswami established his residence at K.R.Puram and lived there until his death in 1974 and he never lived at Karanjikatte.
7. It is contended that in the year 1971, the husband of the first plaintiff expressed his desire to completely severe his title with defendants, since he intended to construct a house at ITI and establish his residence permanently at K.R.Puram. In order to establish his own independent residence, he demanded a sum of 9 Rs.15,000/- from the father of the defendants. It is contended that they agreed to pay the said amount and in turn called upon Munivenkataswami to execute a document whereby he was required o clearly express his intention of complete severance in status. Accordingly, on receiving the amount, he executed an agreement styled as Hakku bidugade patra and hence, the plaintiffs cannot claim any right over the suit schedule properties.
8. It is contended that 1st item of the suit schedule was gifted to the mother of the defendants by her brother Chikkamuniswamappa through a registered gift deed in the year 1949. The mother of the defendants is still alive and hence, they cannot claim any share as the same is the absolute property of Chowdamma.
10. The trial having considered the pleadings of parties, framed the following issues:
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(i) Whether the plaintiffs prove that the husband of 1st plaintiff Munivenkataswami and
defendants are brothers and members of Hindu Undivided family and the suit properties are the joint family properties and all of them are in joint possession and enjoyment of the suit schedule properties?
(ii) Whether the plaintiffs prove that the 1st defendant is acting as Kartha of the joint family?
(iii) Whether the plaintiffs further prove that they have demanded for partition and separate possession of their share?
(iv) Whether the plaintiffs prove that the father of the 1st plaintiff gifted item No.1 of the suit properties to husband of 1st plaintiff?
(v) Whether the plaintiffs prove that they are entitled for partition and separate possession of the suit schedule property by metes and bounds as prayed for?
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(vi) Whether the defendants prove that the husband of 1st plaintiff had taken relationship 15,000/- in lieu of share of the properties of family and executed Hakku bidgade patra as contended in para 11 to 13 of the written statement?
(vii) Whether the defendants prove that the item No.1 property is the absolute property of mother of defendants as contended in para 15 of the written statements?
11. Plaintiff No.1 examined herself PW1 and got marked documents viz., Ex.P1 to Ex.P5 and defendant No.2 examined himself as DW1 and examined two more witnesses as DW2 and DW3 and got marked one document viz., Ex.D1. The trial court having taken note of both oral and documentary evidence, has come to the conclusion that the husband of the 1st plaintiff - Munivenkataswami and defendants are brothers and are the members of Hindu Undivided Family and answered the issue No.1 partially in the affirmative and partially in the negative and has come 12 to the conclusion that they are entitled for share only in respect of item No.2 of the property and not in respect of item No.1 of the property and also comes to the conclusion that the defendant No.1 is not the Karta of the joint family and answered issue No.3 in the affirmative hold that the plaintiffs have demanded partition and sought for separate possession, but plaintiffs have failed to prove that the father of the 1st plaintiff gifted item No.1 of the suit schedule property to husband of 1st plaintiff and answered Issue No.5 partially in the affirmative and partially in the negative regarding the share is concerned and answered issue No.6 in the negative regarding executing of the release deed and comes to the conclusion that item No.1 of the property is the absolute property of the mother of the defendants. Ultimately, the trial court decreed the suit partly in respect of item No.2, granting 1/4th share and rejected the claim in respect of item No.1. Being aggrieved by the judgment and decree of the trial court, both the 13 plaintiffs against declining the relief in respect of item No.1 filed an appeal in Regular Appeal No.148/2004 and defendants have also filed appeal in Regular Appeal No.180/2004.
12. The First Appellate Court having considered the judgment and decree of the trial court and also the grounds urged in both the appeals, formulated the following points:
(i) Whether the plaintiff proves that the 1st item of the suit schedule property is the joint family property of the plaintiffs and defendants?
(ii) Whether the defendants prove that Munivenkataswamy got separated from the joint family and is not entitled for partition?
(iii) Whether the judgment and decree of the lower court is sustainable?
(iv) What order?14
13. The First Appellate Court having re-assessed both oral and documentary evidence, answered the point Nos.1 and 2 in the negative holding that the plaintiffs did not prove that the item No.1 of the suit schedule property is the joint family property of the plaintiffs and the defendants. It has also observed that the defendants have failed to prove that Munivenkataswami got separated from the joint family and is not entitled for partition. However, insofar as the findings on issue Nos.4 and 7, the appellate court comes to the conclusion that the same is not sustainable. Having considered the material on record dismissed the suit and confirmed the judgment of the trial court and both the appeals filed by the plaintiffs and defendants are dismissed. Being aggrieved by the judgment of the trial court as well as the First Appellate Court, the present second appeal is filed before this court.
14. The main contention in the second appeal is that admittedly, the plaintiffs themselves admitted that 15 Munivenkataswami was working in the ITI till his death in the year 1974. The hakku bidugade patra was executed and marked at Ex.D1 was produced before the court. It was the specific case of the defendants that Munivenkataswami was ousted from the family, but both the courts below have failed to consider the said fact. The 1st plaintiff also categorically admitted that she and her children were not in possession of the suit schedule properties. In the light of this submission and the plea of the defendants regarding ouster, the Courts below are not justified in decreeing the suit in respect of item No.1 of the suit schedule properties.
15. This court having considered the grounds urged in the appeal, while admitting the appeal, framed the following substantial question of law:
(i) Whether the courts below were right in not considering Article 110 of the Limitation Act and omitting to frame issue in respect of Article 110 of the Limitation Act?16
16. The factual matrix in R.S.A.No.1911/2016 is that the plaintiffs sought for the relief of declaration and permanent injunction. It is contended that the suit schedule properties originally belonged to the father of the 1st plaintiff by name Munivenkataswamappa. The defendants mother Chowdamma is the sister of Munivenkataswamappa. The said Chowdamma married Nanjappa and both of them are having three sons i.e., 1st plaintiff's husband Munivenkataswami and defendant Nos.1 and 2. Chikkamuniswamappa being the owner of the suit property, gifted it to the 1st plaintiff's husband Munivenkataswami through registered gift deed dated 18.05.1949 and put him in possession of the same and at that time, the Munivenkataswami was aged about five years and was a minor and he was represented by his mother Chowdamma. The said Chowdamma held the land for and on behalf of the minor till 1962 i.e., till he attained the age of majority. However, Munivenkataswami who was the 17 absolute owner of the suit schedule properties died on 17.01.1976 and Chowdamma died on 30.03.2007, but the RTC stands in the name of Chikka Munivenkatappa and in the RTC, his name is mentioned as the Dommanahalli Muniswami. Chowdamma did not disclose about the registered gift deed either to the 1st plaintiff's husband or the plaintiffs and the original Gift deed is still in the custody of the defendant No1.
17. The defendants contend that in the earlier partition suit, gift deed is only in the name of said Chowdamma and the plaintiffs obtained the certified copy of the same only on 28.03.2007 and on going through the same, it is confirmed that the gift deed is only in the name of the 1st plaintiff's husband and the plaintiffs were not aware of the same though they lived together and enjoyed the properties jointly and hence, filed a suit for partition in O.S.No.345/2001 by including the present suit property. Chowdamma and the defendants herein have contended in 18 the earlier suit that land is not a joint family property, but it is the separate property of Chowdamma as Chikkamuniswamappa had executed registered gift deed in the year 1949 only in favour of Chowdamma and the court believed the said contention and decreed the suit only in respect of item No.2 of the property. An appeal was filed against the rejection of item No.1 in R.A.No.148/2004 and the same was transferred to Fast Track Court-III, which was also dismissed with an observation that the land in Sy.No.109/2 measuring 23 guntas is not the ancestral properties of the plaintiffs and the defendants and the plaintiffs remedy, if any, is not in the said petition suit. It is further pleaded that defendants have nothing to do with the suit property as a registered gift deed is in favour of husband of 1st plaintiff and defendants denied the title of the plaintiffs, but are in joint possession of the suit land and the plaintiffs are entitled for exclusive possession of the 19 same, hence, sought for the relief of declaration based on the gift deed and for possession and permanent injunction.
18. The defendants appeared and filed the statement of objections admitting the 1st plaintiff's father viz., Chikkamuniswamappa was the owner of the suit land and that the defendants mother Chowdamma is his sister and that Chowdamma married Nanjappa and Nanjappa had three sons i.e., the husband of the 1st plaintiff and defendant Nos.1 and 2. The defendants also reiterated that 1st plaintiff's husband left the KeeluKote village in the year 1968 and he started residing separately and he stayed along with his family till 1974 of his death. In the said suit also, it is reiterated that he had executed the document of Hakku bidugade patra relinquishing his right and he had severed from the family for more than 30 years and hence, they are not entitled for any relief of declaration and possession.
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19. It is also contended that the plaintiff No.1 has clearly admitted in O.S.No.345/2001 that the present suit property belongs to Chowdamma and that the defendants are in possession and enjoyment of the property along with Chowdamma for the last 40 years. The defendant Nos.1 and 2 also partitioned the property in the year 1989 through Panchayat. The defendant No.1 constructed residential house in the suit schedule property and is residing in the said house. The defendant Nos.1 and 2 are enjoying the suit schedule properties. The defendant No.1 is enjoying 11 ½ guntas towards the western side including the residential house and defendant No.2 is enjoying 11 ½ guntas towards eastern side even during the lifetime of their mother. After dismissal of O.S.No.345/2001, Chowdamma executed a registered Will dated 29.10.2004 in favour of the defendants, which came into force on her death on 23.02.2007 and the alleged gift deed claimed by the plaintiffs is not acted upon in favour of husband of 1st 21 plaintiff and the defendants are enjoying the said property openly, adversely including the plaintiffs. The plaintiffs are estopped from contending that they are the owners in possession as alleged, when the 1st plaintiff has clearly admitted with regard to the execution of the gift deed by her father in favour of the mother of the defendants and now the plaintiffs are estopped from contending that they are not aware of the gift deed. The suit is barred by principles of res judicata and law of limitation and the defendants are in adverse possession for more than the stipulated period and the judgment in R.A.No.148/2004 and R.A.No.180/2004 are questioned in R.S.A. No.1810/2007, which is pending for consideration. The defendant No.2 also filed a written statement regarding amendment of the plaint to amend the name of the Chikkamuniswamappa as Muni Venkatappa and prayed to treat the previous written statement as its part and parcel.
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20. The trial court having considered the pleadings of the parties that is the plaintiffs and defendants from the following issues:
(i) Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
(ii) Whether the plaintiffs prove that they are in possession of suit schedule property as on the date of suit?
(iii) Whether the plaintiffs prove the alleged act of interference by the defendants?
(iv) Whether the defendants prove that value of eth suit property more than 18 Lakhs as such this court has no jurisdiction to try the suit?
(v) Whether the defendants further prove that the court fee paid is in sufficient?
(vi) Whether the defendants prove that
Munivenkataswamy has executed
relinquishment deed?
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(vii) Whether the defendants prove that suit of the plaintiff is barred by principles of resjudicata?
(viii) Whether the defendants prove that the suit of the plaintiff is barred by time?
(ix) Whether the plaintiffs are entitled for the relief sought for?
(x) What order or decree?
21. The trial court allowed the parties to lead evidence and 1st plaintiff examined herself as PW1 and got marked documents viz., Ex.P1 to Ex.P6 and examined another witness as PW2 who has not tendered for cross-
examination. The defendant No.2 has examined himself as DW1 and got marked documents viz., Ex.D1 and Ex.D2 and examined 3 other witnesses as DW2 to DW4 and closed the same. In the cross-examination, Ex.D1 is confronted and the same is the deposition of PW1 in the previous suit in O.S.No.345/2001 and the same was marked. In the 24 evidence of DW1, Ex.D1 and Ex.D2 are also marked. Ex.D1 and Ex.D2 marked subsequently through DW1 was got re- numbered as Ex.D2 and Ex.D3 before the trial court while passing the order dated 19.11.2013. Thus Ex.D1 to Ex.D3 are available documents from the side of the defendants. The trial court has answered issue No.1 as affirmative in coming to the conclusion that the plaintiffs are the absolute owners and issue Nos.2 to 8 are also held in the negative and partly decreed the suit holding that the plaintiffs are the absolute owners of the suit schedule properties, but further held that they are not entitled for the relief of possession or permanent injunction.
22. Being aggrieved by the said judgment, the plaintiffs have preferred R.A.No.139/2013 contending that when the plaintiffs are owners as held, the trial court committed an error in not granting the relief. Similarly, the defendants have preferred R.A.No.158/2013 alleging that the refusal to grant further relief is correct, but the trial 25 court ought not to have declared the plaintiffs as owners of the property, but ought to have dismissed the suit out rightly, instead of decreeing the suit in part. The First Appellate Court in R.A.No.139/2013 and R.A.No.158/2013 having considered the grounds urged in both the appeals, formulated the points for consideration as mentioned below:
(i) Whether the findings on the issues No.1 & 9 given by the Trial Court are against the pleadings, oral and documentary evidence placed on record?
(ii) Whether the Trial Court has erred in holding that Ex.P1 relied upon by the plaintiffs is a valid document under law? If not what is the effect of Section 8 of Hindu Succession Act?
(iii) Whether the Trial Court has erred in not considering the plea of limitation and respondent-judicata raised by the defendants as alleged?26
(iv) Whether the appellate court can mould the relief in first appeal?
(v) Whether the plaintiffs in
O.S.NO.177/2007 are entitled for
dismissal of the suit as prayed for?
(vi) Whether the defendants in
O.s.No.177/2007 are entitled for
dismissal of the suit in total as prayed
for?
(vii) Whether the judgment and decree of the Trial Court needs interference?
(viii) To what relief and decree the parties are entitled for?
23. The First Appellate Court on re-appreciation of both oral and documentary evidence answered points for consideration Nos.1, 2 to 4 to 7 in the affirmative and comes to the conclusion that the findings on issue Nos.1 and 9 given by the trial court are against the pleadings, both oral and documentary evidence. The trial court has 27 erred in holding that Ex.P1 relied upon by the plaintiffs is a valid document under law and also with regard to the effect of Section 8 of the Hindu Succession Act and answered point No.3 in the negative and arrived at the conclusion that the trial court has erred in not considering the plea of limitation and res-judicata raised by the defendants as alleged and comes to the conclusion that the appellate court can mould the relief in the first appeal and the plaintiffs are entitled for a decree as claimed in O.S.No.177/2007 and the judgment and decree of the trial court requires interference. Being aggrieved by the judgment and decree of the First Appellate Court, the present second appeal is filed by the defendants 1A to 1G before the trial court and respondent Nos.1E to 1G before the First Appellate Court.
24. The main contention in this appeal is that the judgment and decree of the First Appellate Court is illegal and contrary to the well-established principles of law and 28 the First Appellate Court has committed a grave error in converting the suit, which is one for declaration of title to a suit for partition, which the plaintiffs themselves did not ask for and invoking Order VII Rule 7 of Code of Civil Procedure, 1908 is erroneous. The First Appellate Court also did not appreciate the appeal filed by the plaintiffs in its proper perspective. The First Appellate Court ought to have held that Article 58 of the Limitation Act attracts and as such, the findings given by it is erroneous.
25. This court having heard the appellants and the respective counsel and also taking into note of the fact that the other appeal is also pending, admitted the appeal and while admitting the appeal framed the following substantial questions of law:
(i) Whether the First Appellate Court committed an error in invoking Order 7 Rule & of CPC in the absence of any prayer 29 for partition in a suit for declaration which was sought?
(ii) Whether both the courts fail to consider Section 11 of CPC since already issue with regard to the item No.1 is subject matter of original suit has already been decided by the court in O.S.No.345/2001 and also in the appeal R.A.No.148/2004?
26. The learned counsel for the appellants in R.S.A.No.1810/2007 would vehemently contend that when the suit was already filed in O.S.No.345/2001 and a decree is passed in respect of item No.2 and rejected the claim in respect of item No.1, which is also the subject matter of subsequent suit in O.S.No.177/2007 ought not to have granted the relief in respect of the suit schedule property. In respect of item No.2 of the suit schedule property, it is contended that already Munivenkataswami has severed the relationship from the family by executing the document of release deed by receiving an amount of Rs.15,000/-. The 30 husband of the 1st plaintiff also died in the year 1974. The plaintiffs cannot maintain a suit as he was ousted 30 years ago and the same is admitted in the cross-examination of PW1. The trial court ought to have taken note of this fact and framed issues with regard to invoking Article 110 of the Limitation Act, when the members were excluded for more than 12 years, trial court ought not to have considered the same.
27. The appellant in R.S.A.No.1911/2016 also vehemently contend that the gift deed is in favour of Chowdamma who is the mother of 1st plaintiff's husband and also the father of the defendant Nos.1 and 2 and the same is also executed by Muniswamappa in the year 1949. The approach of the trial court in holding that the gift deed is executed in favour of the husband of the 1st plaintiff is erroneous and the trial court though declared that the plaintiff's husband is the absolute owner, but did not grant the relief. The counsel also would vehemently contend that 31 a release deed was executed in the year 1972 itself and in para 8 of the plaint in O.S.No.345/2001, it is admitted that the gift deed is in favour of Chowdamma executed by Munivenkatappa. The admission given in the earlier suit that the same is in favour of Chowdamma takes away the case and the Trial Court ought not to have invoked Order 7 Rule 7 of CPC as Section 11 of CPC is applicable and subsequent suit is barred by principles of res judicata.
28. The respondent in both the second appeals and plaintiffs in O.S.No.345/2001 and O.S.No.177/2007 would vehemently contend that in both the suits the courts below have rightly decreed the suit in respect of item No.2 in the earlier suit O.S.No.345/2001. He would also vehemently contend that in the earlier suit, though declined to grant the relief in respect of item No.1 but by that time, they have suppressed the very gift of the year 1949 and subsequent to the dismissal of the suit and appeal only, they came to know about the gift deed in favour of the 32 husband of the 1st plaintiff and in the earlier suit and appeal, the same was not brought to the notice of both the courts and hence, invoking of Section 11 of CPC does not arise and the finding given is in respect of the very same item of the property by considering all the material on record, then the provision of Section 11 of CPC attracts, but the very document of the gift deed of the year 1949 was suppressed. In the present suit, the same is marked as Ex.P1 and it clearly discloses that the gift deed was in favour of the husband of the 1st plaintiff. The husband of the 1st plaintiff died in the year 1976 and Chowdamma died in the year 2007 and immediately, the present suit in O.S.No.177/2007 is filed on 02.04.2007. A relief is also sought for declaration to declare that item No.1 of the suit schedule property belongs to the plaintiffs as absolute owners consequent upon the gift deed executed in the year 1949.
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29. The counsel in support of his argument relies upon a decision of the Hon'ble Apex Court in 'RAVINDER KUMAR SHARMA V. STATE OF ASSAM & ORS.', AIR 1999 SC 3571 and brought to the notice of this court paragraph Nos.22 and 23 with regard to non-filing of any cross-appeal and filing of the cross-objection, after 1976 amendment is purely optional and not mandatory. The filing of the cross-objection against the adverse finding was not obligatory. There is no res judicata. The counsel also in his argument vehemently contends that there is no dispute with regard to the relationship between the parties. The 1st plaintiff's husband and also the defendant Nos.1 and 2 are of the children of Chowdamma. It is also contended that the gift deed is in favour of only two persons by Chowdamma that is also subsequent to the disposal of the earlier suit and she was not having any absolute right to execute any gift deed and the property vests with the plaintiff since the gift deed is in favour of 1st plaintiff's husband and the First 34 Appellate Court has rightly invoked Order 7 Rule 7 of CPC and granted the decree and it does not require any interference.
30. Having heard the learned counsel appearing for the appellant and also learned counsel appearing for the respondent, this court has to analyze the material available on record taking into consideration the substantial to question of law framed by this court.
31. Now this court would like to consider the substantial question of law framed in R.S.A.No.1810/2007 i.e., whether the courts below were right in not considering Article 110 of the Limitation Act and omitting to frame the issue in respect of Article 110 of the Limitation Act. The main contention in this appeal is that plaintiffs themselves have admitted that Munivenkataswami was working in the ITI till his death in 1974. The document of Ex.D1 viz., the Haaku bidugade patra was also produced before the trial 35 court and it was the specific case of the defendants that Munivenkataswami was ousted from the family. In the light of these facts and specific contentions of the defendants regarding ouster, both the courts below have ignored the said plea and have not framed any issue with regard to the ouster and ought to have invoked Article 110 of the Limitation Act. Having perused this ground and also the substantial question of law, it is not in dispute that the 1st plaintiff's husband, defendant Nos.1 and 2 and also defendant No.3 all of them belong to the Hindu joint family. The 1st plaintiff's husband and defendant Nos.1 and 2 are the children of defendant No.3. It is also not in dispute that Nanjappa, who is the propositus of the family passed away long back. It is also important to note that both the courts have taken note of the fact with regard to severance is concerned and though the document of Hakku bidugade patra is marked as Ex.D1, but it is not registered and as such, the same is not admissible in the eye of law and also 36 to prove the fact that an amount of Rs.15,000/- was paid, nothing is placed on record, as such, concurrent finding was given to that effect. The trial court granted the relief only in respect of item No.2 and comes to the conclusion that item No.1 is the absolute property of the defendant No.3, since it is the contention that the gift was made exclusively in favour of Chowdamma. Though the plaintiffs contend that gift deed was executed in favour of the 1st plaintiff's husband and Chowdamma, but nothing is placed on record before the trial court except producing the document of Ex.P1, the genealogy tree, mutation extract, 2 RTCs, Ex.P5, the sale deed. The defendants have also not placed the document of gift deed and only relied upon Ex.D1 -Haaku bidugade patra and the same has not been considered and hence, the same is not a registered document. When there is no severance in the family, the question of ouster does not arise. Though there was a pleading of ouster and issue was not framed with regard to the ouster is concerned. 37 However, in detail discussed with regard to the ouster is concerned in its judgment and the very contention that both the courts below ought to have invoked the Article 110 of the Limitation Act does not arise since, no material is placed on record regarding ouster is concerned and the same is with regard to the proving of factual aspects of ouster in view of defence taken in the written statement. No doubt, the 1st plaintiff's husband is working in the ITI and he was staying in Bangalore and merely working in Bangalore and staying at Bangalore cannot be a ground of ouster and the same has been considered by the trial court as well as the first appellate court. Hence, the very contention of the appellant in the appeal that both the courts below ought to have invoked Article 110 of the Limitation Act cannot be accepted and the trial court rightly granted the relief in favour of the plaintiff in respect of item No.2 on the basis of material available on record in coming to the conclusion that there exists a joint family. The First 38 Appellate Court also re-appreciated the material available on record and rightly dismissed the suit of the appellants and in the absence of the gift deed of the 1949, confirmed the judgment of the trial court in respect of item No.1 is concerned. Hence, I do not find any substance in the contention of the appellant counsel in invoking Article 110 of the Limitation Act when joint family is in existence and no severance of family status and nothing is placed on record for exclusion of joint family members and Article 110 of the Limitation Act also does not attract having considered the factual aspects of the case. Hence, I answer the substantial question of law that the trial court has not committed any error in not framing any issue invoking Article 110 of the Limitation Act.
32. Having considered the substantial question of law framed in this second appeal and the same is with regard to the moulding of the relief by invoking Order 7 Rule 7 of CPC and also whether both the courts below failed 39 to consider Section 11 of CPC, and the issue with regard to item No.1 which is the subject matter of original suit has already been decided by the court in O.S.No.345/2001 and also in the appeal in R.A.No.148/2004. Having considered this fact into consideration and also on perusal of the judgment of the Trial Court in O.S.No.177/2007, the gift deed of the year 1949 was not produced in the earlier suit in O.S.No.345/2001 and also the same was not urged by filing additional document before the appellate court and in the absence of gift deed of the year 1949, the earlier suit and the appeal was decided and when such being the case, the question of invoking the provisions of Section 11 of CPC does not arise. Having perused the provision of Section 11 of CPC It is very clear that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in 40 a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court, then Section 11 of CPC attracts and in the present case on hand, no such res judicata applies, as the said issue was not decided earlier and though a claim in respect of the said item of the property was made in the earlier suit, but the very document of Ex.P1 produced in this case is not marked as exhibit and recital of the said document is also not considered and discussed, the same has attained finality. The case of the plaintiff is also very clear that he came to know about the said document and only after the death of Chowdamma, they obtained the document Ex.P1 and then filed the present suit. It is also important to note that in the present suit, they have sought for the relief of declaration based on the gift deed as they are the absolute owners since, gift is also in favour of the 1st plaintiff's husband. Both the courts have taken note of the fact that there is 41 documentary evidence and though there was an admission on the part of the PW1 in earlier suit with regard to the gift deed in favour of Chowdamma, the court has to take note of the documentary evidence as well as oral evidence and documentary evidence prevails over the oral evidence. The mistaken fact of the admission on the part of PW1 cannot be a ground to reject the same and when the documentary evidence reveals that the gift deed is in favour of the husband of 1st plaintiff and not in favour of Chowdamma and the same is also discussed in the suit itself and answered point No.1 in the affirmative, but committed an error in granting the relief. However, the First Appellate Court re-assessed both the oral and documentary evidence available on record and particularly, answered the point for consideration as point No.2 whether the Trial Court has erred in holding that Ex.P1 relied upon by the plaintiff is a valid document under law and also discussed in detail that when the dispute was made that the same is not acted 42 upon and taken note of the delivery of possession and jointly examined by the family members and rightly comes to the conclusion that if the gift is not accepted, question of delivering possession and continuing in the possession by family members does not arise and rightly answered point No.2 in the affirmative.
33. Having perused the material on record when no finding is given with regard to the earlier gift deed is concerned, only an admission finding is given but documentary evidence is against the finding of the earlier judgment and the same is taken note of by the appellate court and hence, question of res judicata does not arise.
34. Now coming to the aspect of execution of document of Ex.D3 i.e., the Will dated 29.10.2004 made by Chowdamma in favour of defendant Nos.1 and 2 and also examining the witnesses as DW2 to DW4 in order to prove the Will, the First Appellate Court has also taken note of the 43 said fact into consideration to come to the conclusion that there is an execution of the Will. The First Appellate Court has also taken note the application of the principles of res judicata in para 33 and comes to the conclusion that the Trial Court has not committed any error in answering issue No.7. Once the court comes to the conclusion that Ex.P1 is valid under law, the suit property becomes personal property of the husband of the 1st plaintiff, and then the court has to look into the Class 1 heirs of the husband of 1st plaintiff. On his death, Class-I heir are entitled to succeed to the property under Section 8 of Hindu Succession Act. Hence, Chowdamma who is the mother of 1st plaintiff's husband and also the 1st plaintiff being the wife and plaintiff Nos.2 and 3 being the children would equally succeed to the interest of Munivenkataswami in respect of the suit schedule property. Though counsel appearing for the appellant would contend that the gift deed is in favour of the husband of the 1st plaintiff and also in favour of the 44 Chowdamma but on reading of Ex.P1, it discloses that the same is exclusively in favour of husband of the 1st plaintiff and not in the name of Chowdamma. It has also emerged in the evidence that the husband of the 1st plaintiff died leaving behind the mother, wife and two children and hence, all of them are entitled for 1/4th undivided interest of the deceased, consequent upon Class-I heirs under Section 8 of Hindu Succession Act, mother Chowdamma is also entitled to 1/4th share. The said Chowdamma also executed a Will in favour of her two sons in terms of Ex.D3. It is also emerged that the plaintiff being in litigation with Chowdamma, their exclusion from the succession under Ex.D3 is natural. It is also important to note that Ex.D3 is a registered document and the attestors are also examined. The First Appellate Court has also rightly come to the conclusion that the said Ex.D3 is not surrounded by suspicious circumstances and circumstances warranted her to execute the Will. The court has to take note of the fact 45 that she has got only 1/4th undivided interest over the suit property by virtue of Hindu Succession Act and hence, Ex.D3 could only be affected to the extent of right possessed by Chowdamma. It is also important to note that Chowdamma could not have bequeathed the entire suit property and she did not possess transferable interest in entirety. It is also important to note that Section 8 of the Transfer Of Property Act stipulates that one cannot transfer what he does not possess. The same is also considered by the First Appellate Court while re-assessing both oral and documentary evidence. In view of execution of the Will in favour of defendant Nos.1 and 2, they are entitled to 1/4th share of Chowdamma and not more than that and hence, defendant Nos.1 and 2 would be entitled to ½ share in 1/4th share of Chowdamma, which comes to 1/8th share each. It is also emerged in the evidence that defendant No.1 died and his legal representatives were brought on record and they would get 1/8th share of defendant No.1 under Section 46 8 of Hindu Succession Act consequent upon Will has been accepted by this court. The plaintiffs each are entitled to 2/8th share and defendant Nos.1 and 2 are together entitled to 1/8th share and defendant No.2 is entitled for 1/8th share in the suit schedule property and same is also taken note of by the appellate court.
35. No doubt, the suit is filed for the relief of declaration and the very contention of the appellant counsel that the appellate court ought not to have invoked Order 7 Rule 7 of CPC, cannot be accepted as the suit is for relief of declaration. Having considered the document of Will executed by the mother in terms of Ex.D3 in favour of defendant Nos.1 and 2, their interest also has to be protected. The fact that husband of the 1st plaintiff pre- deceased leaving behind his mother, wife and two children is not in dispute and hence, the First Appellate Court rightly invoked Order 7 Rule 7 of CPC and modified the judgment of the trial court. The very contention that in a suit for 47 declaration, the appellate court ought not to have converted the same as partition suit, cannot be accepted and the trial court also while apportioning the share of the parties has also taken note of the same and has rightly come to the conclusion that plaintiffs are entitled for partition and separate possession of their 6/8th share, and defendants shall be entitled for their 2/8th share together or 1/8th share separately and even apportionment is also done in accordance with law. When such being the case, I do not find any force in the contention of the appellant counsel that the 1st plaintiff's husband get ½ share and mother gets ½ the share in total extent of 23 guntas of the property cannot be accepted. This court also accepted the reasoning of the first appellate court that Chowdamma only gets 1/4th share in terms of Section 8 of Hindu Succession Act and having considered the recital made in document Ex.P1 it is clear that the same is gifted in favour of husband of the 1st plaintiff in his individual capacity and not gifted the 48 property in favour of both the husband of 1st plaintiff and Chowdamma and hence, I do not find any error committed by the First Appellate Court on re-appreciation of both oral and documentary evidence, rightly invoked Order 7 Rule 7 of CPC and also rightly comes to the conclusion that the principles of res judicata does not operate to decide the subsequent suit. Having considered the peculiar facts and circumstances of the case, since, the earlier item No.1 of the suit schedule property was the subject matter in the earlier suit, the reasoning given by the first appellate court is correct and not erroneous. Accordingly, I answer the substantial questions of law. In view of the discussions made above, I pass the following:
ORDER
(i) R.S.A. NO.1810/2007 and R.S.A. NO.1911/2016 are dismissed.
Sd/-
JUDGE Ss