Rama Bhat vs Vijaya Kumar on 25 September, 2008

[Cites 5, Cited by 1]

Karnataka High Court

Rama Bhat vs Vijaya Kumar on 25 September, 2008

Bench: A.N.Venugopala Gowda

 

IN THE HIGH couar or KARNATAKA AT  " 

DATED nus THE 25*" DAY or-' SEP'fEM_BE§§:;-».2G:i):8  " T

we HOWBLE MR. 3usTIcE A.N. VE'Mf{3GQP.§.VD%  

REGULAR secom; :A§fPEAL"fi¢5_§'9§'5/2003'  

BETWEEN:     '

1. Rama Bhat,

Aged about 74V.yéa;?s, ' '

Since decaasedfiay £35",   A'

1(3) B. Sun 'd_ar'a;   _
Aged abeget 50 ye_ars',~ S  "

1(b) B.G§r%ja_, A'  "
 '_ Aged. aikjeug 48 years,

1A("c.)V '  ' §.ubr§naa<:§.Ya Bhat,
A ~.. Ag_ed a.bqL§t  V yea rs,

  B; 'J§jay_aE~a§§fs1iV
  % * ?'iv(*e)"'»$. Tshaéraéia
   'chiiciren of Rama Bhat,
 V-._Bee'd¥g'-3 House,
V!<edVil_a__';/iiiage,

 A  V %  Barxtkal Taluk,

S "2. Smt. Hennamma,

W/o Rama Bhat,

S/o Padmanéﬁihta~.3};-a'§';. Q» I   

BEFORE 



 

3. The defendants did not chaiienge

judgment and decree passed by the Trial Court" eitiiieirx 

filing the appeal or by preferring""'an§rA_

Plaintiffs alone preferred an ap:3eeAE'«V§Jnder Erection 

Order 41 Rule 1 C?C in the ﬂirstieppeliete.  first ' V

appeilate Court after peruﬂsirzd'  hearing the
arguments on'.b.iif:is.. eiVIovgedvV'tne'V'eppeai and has
passed the   plaintiffs are entitled to
4/15"' sherre'VA"i'nr'titer;plarint-in it sehedule properties and not
1/ 15"'  Triei Court and the decree

of the Triai'i€;ou.rtx'wes._Vt'h:is modiﬁed and leaving open the

 '_ remeiinivng puortion .of___the Triai Court's decree undisturbed.

 .osecond'«.-obpeai by the defendants is against the said

juu' d'gimer;t* end  eeree.

 Court while admitting the appeai, has

 "..jf§o:rrn':«.:iated for consideration, the following substantial

'  qeiestiions of law:

(i) Whether the appellate Court committed
error in not considering and adjudicating the
plea regarding iegel necm 'ty and family

/3-

 



 

I've.and"ohjeciziori.raisedV'"69v the learned counsel for plaintiffs,
luwhet-her;f't.i:ieV'ggilpellants without challenging the decree
  passed by  trial Court can also challenge the decree of
.""*.__Vt"l=_eLTrielvV_.AACourt in the second appeal, requires to be
   Section 96 CPC makes provision for appeal

':.V'f':'l;ielhg preferred from every original decrrﬁae. The appeal

minute. The aggellants gave ug their claim 
instead of ﬁghting ruins litigation amongst_'c.._X_V_

closest relatives." 1  __
(underlining is     
The prayer in this second appeal"reads'.4Aas_:foAliVows:vsf'.  V
"Set aside the judgment an>d;_d'er:r'eel'ofA.the«. " A
Principal District sudge,  Ma§1géio.re;soé~:ed..r 
25"' July 2003 in R.A.No.2'§;§2GQ;, msein the
learned District 3u':e'ge he's"_pertl7Q*allowed'Athe
appeal by modifying 'the  decree
of the CivilJttdgei"a'rid:f'3?4F§3s.._ét"'.Pii'ti:i1'r, D.K.,
dated M  _:Se;'1_tér11§erV,"'x'"V-£1988, in
 '    

10:. T'i_1oL:"g'vj!i«.VgVroonds"~h_evebeen raised in this appeal
n1emoran'dg_r£1-eon  both the Trial Court and

the ﬁrst--vappeliat:e Co'tirt.','- "view of the aforesaid statement

/_'.



 

14

appeal, and they accordingly decide tha_t;"'the'_~...'..:   %
appeal, so far as Marret is concerned, Shoﬂld be  2.  "

dismissed, but without costs." _.   __ 

12. Sri S.S.Sripathy, also 

Bench decision of this Court__'i--nz the-case 

KARNATAKA NEWS 9a1iiTERs_,lL'fro.,t.c,%»ANo' ~ vs.
SYNDICATE BANK AN[j"4--.c§"THi::i§.'.3_,' in ILR zoo:
KARNATAKA, 312., to coriteindv2*that,"thelfpower of the
appellate Co.u.rt.,.   CPC cannot be
exerciseci___i:o who has neither
preferred an  cross objection. In thesaid

decision, afterlinoticingi th'e._'c'eJtena of decisions of Hon'bie

V Supres{ne,.,CoLiV:t, scope of Order 41 Rule 22 was

 exe.rn'ined"l:ariﬁ"§he Principles were identiﬁed, out of which,

the 'i-hiportant reads as follows:

 Respondent even though he has not

appealed may support the decree on any other .. ground but if wants to modify it, he has to ﬁle " V "cross~objection to the decree which objections he couid have taken earlier by ﬁling an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could aiso be extended by the Court like in appeal." /.

I' 18 obvious objection to that sotution is that if nothintgf-«...l_l*~..v in the Act appiles to a lease coming unde';%...S,:5.,'\.*c. S.9(1)(g) does not apply either."

14. Sr? A.Keshava shat, ieamerf- 'co:§n'sei,'lfrellﬁzinjg upon the decision in the case SHARMA vs. STATE or AssAM; §.eo o*r1-:s_%r<s,Aln;ep:srtea* 'in AIR 1999 sc 3571 con;tendedl----~tn.et,'ﬁllnnl bean; cross abjection is optionai 'min the said decision, the ap;:e'ila_nts,f" a suit for damages against respondent$f4é5e'nda;nts.l--.. irnalicious prosecution where pecuniary loss and also damages forcnoneplecﬁnllazéfgloss was raised. It was held _._by the..%f§'+iVgh Cou%t"Vtna_t___ttiere was malice etc., on the part V'%. c.,f.Atitei_de'fendants and granted a decree for pecuniary losses',._yiA3i;it7'fd_lid grant any decree for non-pecuniary V iessee;"asv'----no'g5}oper evidence was adduced in that behalf. w"i:ens.appealed in the Hon'ble Supreme Court for damages '.'_s_eek:ing"A'a decree for non pecuniary loss, it was held that, T ._ifh'e"respondent/defendant, even though rigs not ﬁled any /_'.

23 the said decision, it has been held that the erstitied to support the decree of the Triai_--Ceti.r?t~'..'4 '= challenging any of the ﬁndings that-itizivioihti4-ha*v'e'~';aeeVnv_A' rendered by the Triai Court .::igainstV"i:.i,_n"§. V the decree passed by the Triai it isncttneceéfsary for a respondent in the appeai, _tc{ifiieV a"men*aorendurn of cross objectton challenging a perticuiari.ﬁn'd'ing':VV-that is rendered by the mat eunagariiistinimamathe ultimate decree itself is in wmade clear that a memorendu:n"'of .cress*4io"bj_ecti_ons is needed only if the respondent ciairns_.'a:ny>retiiLefwhich had been negatived to him hy the '4Ti*i.a|V' in addition to what he has . .'eEree'dy Etiee§1..g.ivenA decree under challenge. Thus it iiecieei toireupporting the decree passed by the 'trial Court, it___i3 nettnecessery for the respondent in the appeal Vjﬁieiivznemorandum of cross objection chailenging a it :."tzart.ict:|ar finding, but cross objection is needed if the reepondent claims any reiief which has been negatived to ' him. In the instant case, the suit had been decreed in part against the defendants I appeiiants. That dmree ought to K.

33. Hence, the same eannet be reversed in second appeal. Second appeal under Section 100 CPC shall lie Ceurt frem every decree passed in appeal anti subordinate to the High Court,-'if "the fplllhyelves it substantial question of law. whet.V_ee.-ﬁt?beviieppealed V

-under Section 100 <:l§t'~:V.A_is in appeal. Here, it is not a case decree passed by the Trial or passed by the Trial .":j¢\3fV"rr§1od'iflcation of the decree of the#;"l"rl"a'E ahhdetrvee quantifying the share of as against 1/15"' share granted bgﬂthe 3?}-.elAA'€.'.idtart. Even if the decree passed by thej5firsAt.:ap.pellate 'E';euVrt is set aside, stili the decree passed which was net challenged by the the first appellate Court, shall remain undisturbed and is separable from the decree passed by A theffirst appellate Court. 8y setting aside the decree passed by the eppeliete Court and by dismissing the appeal ﬁled in the first eppeilatecourt by the plaintiffs, the decree passed by the Triet Ceurt in faveur of the \ /I 35 piaintiff is an after born son i.e., after e:L%:ér:uti'¢*~n._j' Ex.P1/D1 by the 3" defendant in fevour of"i3visfsi:ster;_the4 " 'V 2"" defendant. At the time, the faiths;-~off1'the.t3'<'?*'defehdaht; died, he was survived by th'e-._§ﬁrstV"soh Bhirris-'ﬁhoat :3i.e§, born to first wife Smt.Sarasmré'tVh'i:' ahd defendant born to second wife . Smttaxmi has only two daughters (1) "theA:'§'f§"Vdefendant and (2) Lalitha. succeeded to the estate had 1/3"' share in the of Subbahna Bhat (sr.), bumsms;smtarrat and Subbanna Bhat (oz), survmntg wife 55:i'nt.£;axr21iA'(..13"' wife) and her two daughters ""~A.H¢n'he:mma 'and man; have got right to share the 1/3"' Bhat (Sr.) in equal proportions. Hence, eat:th__4:one,.of: are entitled to 1/15"' share in the 1/3"' v"'~..«.._'_'s,hare "Fagin! by Subbanna Bhat (Sr.) in the famiiy ';5ro.p_e"rfties.

23. Sri A.Keshava Bhat, in fact, did not dispute the n quantification of shares. His contentioﬁ is that, the 2""

z 40 has committee an error in granting 4/'15"*' plaintiffs together. Since the 2"" pialrztiff riot-«ll even conceived by his mother, whleri«.vn'o_tio'oei':lpertitlilonvlf took place when Subbanna Blzet (Stine):'p.assed'l.:m§ey"

1960 or when the reIeese""vr«:lVeed was executed by defendant'::3..'_in favourtofugfendalnt"2 and he having been born 2 years vAA.'1:h*e_ireafter, is not entitled for Courts below have matter. only to the said extent,--A I Hence limited modiﬁcation of the and Decree is called for.

Subs';:aht.i.al quuestliorz of" law (ii) is accordingly answered. the foregoing re-asoos, the appeal is liable to and I pass the following:

9.8.1 .. (z§)--~ 1' Appeal is allowed in part;

--:"(ii) Judgment and Decree passed in R.A.23/2901 dated 25.7.2003 by the Principal District Judge, Dakshina Kannaoa, ﬁangalore, is hereby set aside. in 'ya

(iii) 41 modiﬁcation of the semi judgment-'--.._and decree, it is heid that the 1" pE«a'i~ntif~§'~~.;$ entitled to: 3,153' share in th§""ﬁi.eV§~§1tt. schedule properties and notte,V_i;€15§?:'~sheEe;d _ as ordered and de::reed« «¥3'_y"._the ﬁfe! :Ce's.~zrtv.; R.A.23/2001 filed same first :a~p_j)e§i}atxe::'(:g {L+t shail stand eitewed tethé said.'Ve'>{t;ent ofaiy) The judgment etn.d't'decree~.¢f"'the 'ffial Court stands' 'r'n.9diﬁehd"tefthee._§gxteht"th~et, the 15' plaintiff":-.-V:;er¢:a;{;=:¢; £cLtj3;f1.5?' share in the ptaint :...!~a..,'sg:hedu.I'e"'"';)ifc>ee'fties and the ~ of the judgment and in 0.5.23/1982 dated '1v6;§.;A19S-Sfremains undisturbed. A Iii ~t.hefaets and circumstances cf the case, the 'A are directed to bear their respective costs. Seth /.

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