Karnataka High Court
Beerappa S/O Lt Narayanaswamy vs Chikkanna S/O Sampanna on 24 January, 2013
Author: Subhash B.Adi
Bench: Subhash B. Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B. ADI
REGULAR FIRST APPEAL NO.686/2002
C/W
REGULAR FIRST APPEAL NO.810/2002
IN R.F.A.NO.686/2002
BETWEEN :
1 BEERAPPA S/O LATE NARAYANASWAMY
AGED ABOUT 65 YRS,
SINCE DEAD BY HIS Lrs:
1(a) SMT. PUTTA MALLAMMA
W/O LATE BEERAPPA
AGED ABOUT 65 YEARS
AMENDED
1(b) B.BHOJA RAJ VIDE
S/O LATE BEERAPPA ORDER
AGED ABOUT 50 YEARS DTD.
15.02.2008
1(c) B.SHASHI KUMAR
S/O LATE BEERAPPA
AGED ABOUT 48 YEARS
ALL ARE RESIDING AT
NO.340/10, II CROSS
V MAIN, VIJAYANAGAR
BANGALORE - 560 040.
2
2 RANGAMMA W/O LT NARAYANASWAMY
AGED ABOUT 75 YRS,
R/A # 20, SANJEEVAPPA LANE
KAVADI REVANASETTY PETE
AVENUE RD CROSS, B'LORE
3 RAJU, (REAL NAME NAGARAJU)
SINCE DEAD BY HIS LRS
3(a) GOWRAMMA W/O LATE NAGARAJU
AGED ABOUT 45 YEARS,
3(b) SOWMYA D/O LATE NAGARAJU
AGED ABOUT 20 YEARS,
3(c) SEEMANTH, (REAL NAME SUMANTH)
S/O LATE NAGARAJU
AGED ABOUT 15 YEARS,
3(d) SUJEETH S/O LATE NAGARAJU
AGED ABOUT 19 YEARS,
ALL ARE R/A # 20, SANJEEVAPPA LANE
KAVADI REVANSETTY PETE,
AVENUE RD CROSS, B'LORE
SINCE 3(c) IS MINOR IS REPRESENTED BY 3(a)
HIS MOTHER
4 UMASHANKAR S/O LATE NARAYANASWAMY
AGED ABOUT 42 YEARS,
R/A# 20, SANJEEVAPPA LANE
KAVADI REVANASETTY PETE
AVENUE RD CROSS, B'LORE
...APPELLANTS
(BY SRI. L SREEKANTA RAO, APPELLANTS)
3
AND :
1 CHIKKANNA S/O SAMPANNA
AGED ABOUT 58 YEARS, # 223, 7TH BLOCK
THYAGRAJ NAGAR, BANGALORE - 560 028
2 RAMAKRISHNA S/O LT NARAYANASWAMY
SINCE DEAD BY LRS
2(a) KAMALAMMA W/O LT RAMAKRISHNA
MAJOR,
2(b) PRAKASH ,MAJOR,
2(c) GURUPRASAD, MAJOR,
2(d) HANUMANTHA KUMAR, MAJOR,
2(e) VASUDEVA, MAJOR
2(b) TO (e) ARE THE SONS OF LATE RAMAKRISHNA
ALL ARE R/A # 15, SANJEEVAPPA LANE
KAVANE REVANA SETTY PETE,
AVENUE RD CROSS, BANGALORE - 560 002
3 GOPI S/O LT NARAYANASWAMY
MAJOR,
SINCE DEAD BY HIS LRs
3(a) CHIKKAMMA, W/O LATE GOPI AMENDED
MAJOR VIDE
ORDER
3(b) SHANTHI, D/O LATE GOPI DTD.
MAJOR 24.01.2007
3(c) HEMAVATHI, D/O LATE GOPI
MAJOR
4
ALL ARE R/O # 15, SANJEEVAPPA LANE
KAVANE REVANA SETTY PETE,
AVENUE RD CROSS,
BANGALORE - 560 002
...RESPONDENTS
(BY SRI.SUNIL S.RAO, FOR SRI.T SESHAGIRI RAO, ADV.,FOR R-1; SRI. M.S. VARADARAJAN, ADV. FOR R-3(a) TO (c); SERVICE OF NOTICE ON R-2(b) & (c) HELD SUFFICIENT;
R-2(a), (d) (c) SERVED) IN R.F.A. NO.810/2002 BETWEEN :
1 N GOPALAKRISHNA @ GOPI S/O LATE NARAYANASWAMAPPA 63 YEARS, SINCE DECEASED BY HIS Lrs 1(a) SMT.CHIKKAMMA W/O LATE N.GOPLAKRISHNA @ GOPI AMENDED AGED ABOUT 51 YEARS VIDE COURT 1(b) SHANTHA ORDER D/O LATE GOPALAKRISHNA @ GOPI DTD., AGED ABOUT 36 YEARS 24.01.2007 1(c) HEMAVATHI D/O LATE GOPALAKRISHNA @ GOPI AGED ABOUT 34 YEARS ALL ARE RESIDING AT NO.15 SANJEEVAPPA LANE AVENUE ROAD CROSS BANGALORE - 560 002. ...APPELLANTS ( BY SRI. M S VARADARAJAN, ADV.,) 5 AND :
1 CHIKKANNA S/O LATE SAMPANNA AGED ABOUT 58 YEARS R/O NO 223, 7TH BLOCK THYAGARAJANAGARA BANGALORE-560 028 2 BEERAPPA S/O LATE NARAYANASWAMAPPA 65 YEARS SINCE DECEASED BY HIS Lrs 2(a) PUTTAMALLAMMA W/O LATE N.BEERAPPA AGED ABOUT 67 YEARS 2(b) B.BHOJARAJU S/O LATE N.BEERAPPA AGED ABOUT 52 YEARS AMENDED VIDE COURT 2(c) B.SHASHIKUMAR ORDER S/O LATE N.BEERAPPA DTD.
AGED ABOUT 50 YEARS 27.03.2008
2(d) SMT.SUNANDAMMA
W/O GURUSWAMY
D/O LATE N.BEERAPPA
AGED ABOUT 49 YEARS
2(e) SMT. BHAGYA
W/O TULASIRAM
D/O LATE N. BEERAPPA
AGED ABOUT 47 YEARS
2(a) TO (c) ARE RESIDING AT
NO.340/10, 2ND CROSS, 5TH MAIN ROAD VIJAYANAGAR, BANGALORE - 560 040 6 3 RAMAKRISHNA SINCE DECEASED BY HIS LRS 3(a) KAMALAMMA W/O LATE RAMAKRISHNA AGED ABOUT 50 YEARS 3(b) PRAKASH S/O LATE RAMAKRISHNA MAJOR 3(c) GURUPRASAD S/O LATE RAMAKRISHNA MAJOR 3(d) HANUMANTHA KUMAR S/O LATE RAMAKRISHNA MAJOR 3(e) P VASUDEVA S/O LATE RAMAKRISHNA MAJOR RESPONDENTS NOS.3(a) TO (e) ARE RESIDING AT NO 15 SANJEEVAPPA LANE AVENUR ROAD CROSS BANGALORE-560 002 4 NAGARAJU SINCE DECEASED BY HIS LRS 4(a) GOWRAMMA W/O LATE NAGARAJU AGED ABOUT 45 YEARS 4(b) SOWMYA, AGED ABOUT 20 YEARS 7 4(c) SEEMANTH AGED ABOUT 19 YEARS 4(d) SUJEETH AGED ABOUT 15 YEARS 4(b) TO (d) ARE CHILDREN OF LATE NAGARAJU 4(d) IS REPRESENTED BY HIS MOTHER AS NATURAL GUARDIAN RESPONDENTS 4(a) TO (d) ARE R/O NO. 20, SANJEEVAPPA LANE AVENUE ROAD CROSS BANGALORE-2 5 UMASHANKAR S/O LATE NARAYANASWAMAPPA AGED ABOUT 42 YEARS R/O NO 20 SANJEEVAPPA LANE AVENUR ROAD CROSS BANGALORE - 560 002 6 RANGAMMA W/O LATE NARAYANASWAMAPPA MAJOR SINCE DECEASED BY HER Lrs 6(a) SMT. KANTHAMMA D/O LATE NARAYANASWAMAPPA W/O ASHWATH, AGED ABOUT 65 YEARS AMENDED RESIDING AT NO.733, VIDE 3RD STAGE, 3RD BLOCK COURT 9TH MAIN, BASAVESHWARANAGAR ORDER BANGALORE - 560 079. DTD 23.05.2011 8 6(b) SMT.KAMALAMMA D/O LATE NARAYANASWAMAPPA W/O APPAJAPPA AGED ABOUT 55 YEARS RESIDING AT NO.27/34 18TH MAIN, PADMANABHANAGAR AMENDED BANGALORE - 560 070 VIDE COURT 6(c) SMT. SUVARNAMMA ORDER D/O LATE NARAYANASWAMAPPA DTD.
W/O SHANKARAPPA 23.05.2011
AGED ABOUT 50 YEARS
RESIDING AT NO.39
CHOWLAGALLI CROSS
SUNKALPET MAIN ROAD
BANGALORE - 560 002. ...RESPONDENTS ( BY SRI. SUNIL S RAO FOR SRI. T SESHAGIRI RAO,A DV., FOR R1;
SRI.L.SRIKNATA RAO, ADV. FOR R-4(a) TO (d) & R-5; R-3(a) TO (e), R-2(a) TO (e) & R-6(a) TO (c) SERVED) R.F.A.NO.686/2002 IS FILED UNDER SECTION 96 READ WITH ORDER XVI R 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.3.2002 PASSED IN O.S.NO.2488/1981 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
R.F.A.NO.810/2002 IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.3.2002 PASSED IN O.S.NO.2488/1981 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALOE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THESE APPEALS ARE COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT These two appeals are against the judgment and decree in O.S. No.2488/1981 on the file of XXV Addl. City Civil and Sessions Judge, Bangalore, dated 16.03.2002. RFA No.686/2002 is filed by defendant Nos.1, 4, 5 and 6 and RFA No.810/2002 is by defendant No.3.
2. The suit is one for partition and separate possession of the suit schedule item Nos.1 and 2.
3. The plaintiff`s case is that, the suit schedule properties were the ancestral properties held by Kempamma. However, the plaintiff had filed a suit in O.S. No.422/1964 seeking partition and separate possession of suit schedule item No.1. However, the said suit was dismissed holding that, Kempamma is the absolute owner of suit schedule item No.1. as against which, R.A. No.13/1967 was filed by the plaintiff. However, in 1973, Kempamma died and R.A. was not pursued. By virtue of death of Kempamma, her two sons, namely, 10 Narayanaswamy, father of defendants 1 to 6 and Sampanna, father of plaintiff and defendant Nos.7 and 8 succeeded to the estate of the deceased Kempamma. As such, the suit schedule item Nos.1 and 2, are the properties of Kempamma and the plaintiff and defendants 7 and 8 are entitled to half share in the suit schedule properties.
4. The said suit was contested by defendants 1 to 6 inter alia contending that, the suit is not maintainable as the plaintiff had filed O.S. No.422/1964 for partition and separate possession. However, he had not included suit item No.2 in the said suit. In view of the provisions of Order 2 Rule 2 of the Civil Procedure Code, subsequent suit on the same cause of action, is not maintainable and also on the ground that, Kempamma had been declared as owner in respect of suit item No.2 in O.S. No.114/1980.
5. The trial Court framed the following issues:-
"1.Whether the suit properties are the joint properties or joint family properties?11
2.Whether the plaintiff is in joint possession of the suit properties?
3.Whether the suit schedule No.2 property was subject matter of suit O.S.422/64?
4.Whether Judgment and decree in O.S.422/64 in respect of S.No.1 suit schedule property of that suit is not binding on these defendants?
5.Whether the suit of plaintiff for partition of suit schedule property item No.2 as joint family property is barred by the judgment and Decree in O.S.422/64?
6.Whether defendant No.1 and 3 have acquired title to the suit properties by adverse possession?
7.Whether deceased Kempamma has gifted the suit schedule Item No.2 property in favour of defendant No.2 under the gift deeds dated 10.12.65 and 26.10.72?
8.Whether deceased Kempamma has bequeathed the suit schedule property Item No.1 by her registered Will deed? 12
9.Whether deceased Kempamma had entered into agreement of sale dated 23.07.1963 in favour of Narayana Swamy in respect of suit schedule property?
10.If so, whether the purchaser was put in possession in part performance of agreement of sale?
10.(a). Whether plaintiff and defendant No.7 and 9 are entitled for any share in the suit properties?
10.(b). If so, what are the shares of the parties and what are the properties liable for partition?
11.Whether the suit is properly valued?
12.For what relief the parties are entitled?"
The Trial Court decreed the suit of the plaintiff declaring that, the plaintiff and defendants 7 and 8 together are entitled for half share in the suit schedule properties and defendant Nos.1 to 6 are entitled for the remaining half share. Against the said judgment and decree, defendants 1, 4, 5 and 6 are in appeal - RFA No.686/2002 and defendant No.3 is in appeal - RFA No.810/2002.
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6. Learned counsel appearing for defendant Nos.1, 3 to 6 submitted that, in O.S. No.422/1964, Kempamma has been declared as owner in respect of item No.1 of the suit schedule properties. O.S. No.591/1954 was filed by Kempamma seeking declaration and possession and the said suit was decreed, declaring that she is the absolute owner of item No.2 of the suit schedule properties. Hence, in view of both the decrees, Kempamma became the owner of the suit schedule item Nos.1 and 2. Kempamma, during her life time, had executed the Will dated 25.05.1958 and the original of the said Will was produced in O.S. No.114/1980 filed by defendant No.2, wherein he had sought for declaration and possession in respect of item No.2 of the suit schedule properties. However, the said suit came to be dismissed in RFA No.696/1986 declaring the gift deed under which, defendant No.2 had claimed his title as null and void. In the same suit, defendants 1 to 6, the heirs of Narayanaswamy, who had produced the Will was considered and as such, suit item No.2, being bequeathed in favour of Narayanaswamy, the legal heirs of Narayanaswamy alone are entitled to succeed to the said property. 14
7. Learned counsel further submitted that, since the original Will was produced in O.S. No.114/1980 as such it was not available, it could not be produced before the trial Court in the present suit. Hence, submits that now an application is filed under Order 41 Rule 27 CPC., seeking permission to produce the certified copy of the Will and also other documents. This Court, by order dated 16.11.2012 has considered the said application and the documents and has observed that the burden is cast very heavily on the appellants - applicants to demonstrate before this Court that, inspite of their due diligence, and exercise of such diligence, they could not produce said documents before the trial Court. Further, this Court has observed that the judgment and decree passed in R.F.A. No.696/1986 dated 07.08.1993 can be looked into for the purpose of examining the rival contentions raised in the present appeal for the limited purpose of re-appreciating the material on record and accordingly, has ordered the same to be taken as additional evidence. However, in so far as other documents are concerned, this Court has observed as under:
" In so far as other documents are concerned, they 15 are not taken on record by way of additional evidence and this Court does not find any substantial cause, which is to be examined in the instant appeal to pronounce the judgment in the present appeals in RFA No.686/2002 c/w 810/2008, which has been appealed by unsuccessful defendants before this Court and reasons being more than one namely, it is for the plaintiff - first respondent to establish before this Court that there was partible estate which entitles him to seek for partition of alleged joint family property and in the event of said finding as recorded by trial Court being confirmed, then in such an event, this Court would consider as to whether these documents are required to be taken on record or examined and when such a situation would arise it will be examined and not otherwise. "
8. Relying on the said observations, the learned counsel for the appellants submits that, the Will executed by Kempamma being registered document and if that is proved, item No.2 of the suit schedule properties will exclusively fall to the branch of Narayanaswamy, father of defendants 1 to 6 and to prove the Will, the appellants require an opportunity. He also submitted that, the original 16 of the Will was produced in the other suit, as such it was not available with them and hence could not be produced before the Trial Court.
9. On the other hand, the learned counsel appearing for the plaintiff - respondent No.1 submitted that, the plaintiffs are not seeking reopening of the partition in respect of the property for which, the decree was passed in O.S. No,.422/1964. Suit is filed in view of the death of Kempamma in 1973 and Kempamma died intestate and her properties devolved on her two sons, namely, Narayanaswamy and Sampanna. Plaintiff, defendants 7 and 8, being the heirs of Kempamma have got half share in the suit schedule properties. He strongly opposed application under Order 41 Rule 27 CPC., and submitted that the said application filed at the appellate stage cannot be entertained without there being any satisfactory cause and the suit is of 1981 and defendants 1 to 6 were aware of the fact of the alleged Will as it was produced in O.S. No.114/1980. Thus, nothing precluded the defendants 1 to 6 to produce the said document before the trial Court. No reasons are assigned for not producing the said 17 document before the trail court. The order under 41 Rule 27 CPC., can be invoked only when a party proves that despite exercise of due diligence, the said document could not be produced before the trial court. However, there is no diligence on the part of the appellants in RFA No.686/2002 nor there is any justifiable cause for not producing the documents.
10. Having regard to the rival submissions made by the learned counsel appearing for the parties, the points that arise for consideration in this appeal are:
1. Whether the application under Order 41 Rule 27 CPC., requires to be considered?
2. Whether the judgement of the trial Court calls for interference?
11. Though earlier, the plaintiff had filed suit in O.S. No.422/1964, but that was a suit in respect of item No.1 of the suit schedule properties and other mortgaged properties. The plaintiff has not filed the suit for seeking partition of the very same properties. In 18 the said suit, suit schedule item No.1 was declared to be the exclusive property of Kempamma. In O.S. No.591/1954 filed by Kempamma, Kempamma was declared as the absolute owner of the suit schedule item No.2. By virtue of these two documents, Kempamma became the exclusive owner of suit schedule item Nos.1 and 2. It is not in dispute that, Kempamma died in 1973. Plaintiff, defendants 7 and 8 are the sons of Sampanna, (i.e., son of Kempamma) and defendants 1 to 6 are the children of Narayanaswamy, (who was another son of Kempamma). As such, after the death of Kempamma, in the absence of any testamentary document, Narayanaswamy and Sampanna will succeed to her estate and each of them get half share.
12. However, now in appeal - RFA No.686/2002, application is filed for production of additional documents including the registered Will stated to have been executed by Kempamma on 22.05.1958. It cannot be disputed that, Kempamma can dispose of her property by a testamentary document as she was declared to be the absolute owner of suit schedule item Nos. 1 and 2. However, mere 19 production of certified copy or the original of the Will stated to have been executed by Kempamma by itself, is not sufficient to prove that defendant Nos.1 to 6 succeeded under the Will. It requires to be proved in accordance with law. At the same time, the said document cannot be ignored only on the ground that, the same is produced at a later stage as it would affect the rights of the parties. When the suit is for partition and separate possession in respect of the properties of Kempamma, Kempamma`s last desire is also required to be considered. If she has disposed of her property by a testamentary document and testamentary document is proved, it will change the line of succession.
13. It is not disputed by the learned counsel appearing for defendants 1, 4 and 6 and also defendant No.3 that the Will is only in respect of suit schedule item No.2. Thus, in respect of suit schedule item No.1, there is no dispute. It is also not in dispute that, Kempamma died intestate in so far as suit schedule item No.1 is concerned. The normal rule of succession under Section 15 of the 20 Hindu Succession Act, Kempamma had only two sons. Hence, both the sons will get equal share in suit schedule item No.1. Hence, the appeals requires to be partly allowed and accordingly, I pass the following Order:-
Appeals are partly allowed. The judgment and decree passed by the learned XXV Addl. City Civil and Sessions Judge, Bangalore, in O.S. No.2488/1981 dated 16.03.2002, in so far as suit schedule item No.2 is concerned, is confirmed. The matter is remitted to the trial Court for consideration of the additional evidence and other evidence, if any, to be led by the parties in so far as suit schedule item No.1 is concerned.
I.A.No.4/2005 filed under Order 41 Rule 27 CPC., is allowed. The documents including the Will executed by Kempamma are taken on record.
Parties are permitted to lead additional evidence, if any. Since the suit is of 1981, it is appropriate to direct the trial Court to dispose of the suit as early as possible not later than six 21 months from the date of receipt of copy of this order.
Office is directed to transmit the records forthwith to the trial Court.
Parties are directed to appear before the trial Court on 01.03.2013.
Sd/-
JUDGE
SBAJ: RFA No.686/2002 C/w
05.02.2013 RFA No.810/2002
ORDER ON `BEING SPOKEN TO`
Though this matter is being moved for `being spoken to` inter alia contending that, the registered Will contains suit schedule Item No.1 also, however, both the counsels on behalf of the plaintiff and defendants submit that, though suit schedule item No.1 is included in the Will, the parties have agreed to partition the said property.
The order passed by this Court remanding the matter should be understood that, in so far as suit schedule item No.1 is concerned, parties have agreed to divide the property as ordered and that should 22 not be construed as either legatee is agreeing or not agreeing in the Will. The Will shall be decided on its merit without being influenced by the arrangement made by the parties in so far as suit schedule item No.1 is concerned.
Sd/-
JUDGE sma