Karnataka High Court
Smt. Sheshamma vs Smt. Shivamma W/O Rachappa Shetkar on 30 July, 2024
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NC: 2024:KHC-K:5608
RSA No. 7057 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 7057 OF 2012 (DEC/INJ)
BETWEEN:
1. SMT. SHESHAMMA
SINCE DECEASED THROUGH LRS,
I) SIDRAMAPPA S/O BHIMRAO
AGED ABOUT 66 YEARS, OCC: PENSIONER.
II) NARENDRA KUMAR S/O SIDRAMAPPA
SINCE DECEASED THROUGH LR'S
A) SAVITRI @ SAVITHRAMMA
W/O LATE NARENDRA KUMAR,
Digitally signed
by RENUKA AGED ABOUT 44 YEARS.
Location: HIGH
COURT OF B) CHANDRA S/O LATE NARENDRA KUMAR
KARNATAKA AGED ABOUT 25 YEARS,
C) KUM. JYOTHI @ BHAGYA JYOTHI
D/O LATE NARENDRA KUMAR,
AGED ABOUT 23 YEARS.
D) ABHISHEK
S/O LATE NARENDRA KUMAR
AGED ABOUT 21 YEARS,
ALL ARE RESIDING AT H.NO. 10-1-113 (OLD)
11-2-47 (NEW) AND NO. 11-2-77 (RECENT)
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NC: 2024:KHC-K:5608
RSA No. 7057 of 2012
AT MANGALPET,
BIDAR
...APPELLANTS
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. SMT. SHIVAMMA W/O RACHAPPA SHETKAR
SINCE DECEASED THROUGH LRS.
A) BASAWARAJ S/O LATE RACHAPPA SHETKAR
AGED ABOUT 66 YEARS.
B) SHARDA W/O LATE MALLIKARJUN NAGURE
D/O LATE SHIVAMMA,
AGED ABOUT 50 YEARS.
C) SHASHIKALA D/O LATE RACHAPPA SHETKAR
W/O PRABHUAPPA,
AGED ABOUT 48 YEARS.
D) SURYAKANT S/O LATE RACHAPPA SHETKAR
AGED ABOUT 58 YEARS.
E) SUMITRA @ SHEELA D/O RACHAPPA SHETKAR
W/O SHIVANAND TADKAL,
AGE ABOUT 45 YEARS,
ALL ARE PRESENTLY RESIDING OF,
BEHIND GIRL'S HIGH SCHOOL,
BIDAR.
2. THE MUNICIPAL COMMISSIONER
CMC BIDAR
...RESPONDENTS
(BY SRI GOURISH S. KHASHAMPUR, ADVOCATE FOR R2;
R1 (A) TO (E) ARE SERVED)
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NC: 2024:KHC-K:5608
RSA No. 7057 of 2012
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE ABOVE SECOND APPEAL AND SET
ASIDE THE JUDGMENT AND DECREE R.A.NO.28/2006 PASSED
BY THE SENIOR CIVIL JUDGE AT BIDAR AND CONSEQUENTLY
CONFIRM THE JUDGMENT AND DECREE IN O.S.NO.233/1994
PASSED BY THE CIVIL JUDGE (JR.DIV) AT BIDAR DATED
27.2.2006.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH
HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
1. The defendant in O.S. No.233/1994 on the file of the Additional Civil Judge, Junior Division at Bidar is before this Court aggrieved by the divergent finding recorded in R.A. No.28/2006 on the file of Senior Civil Judge, Bidar. This appeal was admitted on 12.07.2002 to answer the following substantial question of law:-
"Whether the first appellate Court is justified in reversing the judgment and decree passed by the trial Court which is based on oral and documentary evidence."-4-
NC: 2024:KHC-K:5608 RSA No. 7057 of 2012
2. After hearing the learned counsel appearing for the appellant, this Court is of the view that one more substantial question of law is required and the same is framed as under:-
"Whether the first appellate Court is justified in holding that late Seshamma is not the legally wedded wife of late Shantappa and not entitled to any right in the suit schedule property." and "Whether the trial Court is justified in holding that the suit of the plaintiff is barred by limitation."
3. The facts necessary for adjudication of the present appeal can be summarised as under:-
One Shantappa was the propositus. He died in the year 1972. He had a wife by name Sangamma. The plaintiff Shivamma is her daughter. Shivamma filed a suit for declaration and possession. Shivamma claims that after the death of Shantappa the suit schedule property devolved upon her mother Sangamma and -5- NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 after the death of Sangamma the plaintiff inherited the suit schedule property. The plaintiff also claims that the defendant Seshamma had relationship with her father and on account of that relationship the plaintiff allowed the defendant to occupy the property as a licencee. The plaintiff contends that the defendant on becoming the councillor of Municipality in 1980, using her position as the Councillor got the property name changed in her name without the consent of the plaintiff, as such, the plaintiff was constrained to file a suit for declaration and possession.
4. The defendant resisted the suit on the premise that she is the legally wedded wife of late Sangappa and it is also her contention that the Sangappa has given the property to her.
5. The trial Court has dismissed the suit on the premise that the suit is barred by limitation.
6. It is also relevant to note that during the pendency of the suit, the defendant died. The plaintiff -6- NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 impleaded two brothers of the defendant on the premise that those two brothers occupied the suit property after the demise of the defendant.
7. The plaintiff filed an appeal against the dismissal of the suit. The first appellate Court reversed the judgment of the trial Court. The first appellate Court held that the original defendant not established her status as the legally wedded wife of late Shantappa. However, gave a finding that the plaintiff has treated Seshamma as the second wife of her father. However, the first appellate Court has concluded that the suit is in time as the suit is for possession based on title. Accordingly, the suit is decreed.
8. The present appellants have come on record as the legal representative of deceased Sheshamma the original defendant are before this Court in the second appeal.
9. It is relevant to note that the present appellants tried to make it claim before the trial Court -7- NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 based on a document which is styled as Will as well as the Gift Deed in favour of the present appellants executed by Seshamma, the sister of the said appellants. The first appellate Court has noted that the said document is not a registered document and said document is styled as a gift deed cannot be looked into and has not accepted the claim of the present appellants based on the said gift deed dated 31.10.1991.
10. Learned counsel appearing for the appellants would contend that the suit of the plaintiff is barred by limitation as the possession of the defendant is very much recognised even during the lifetime of plaintiff's father Shantappa who died in 1972. Thus, he would contend that even before 1972 the appellant's sister Seshamma was in possession of the suit schedule property and the suit for possession filed in the year 1994 is barred by limitation. It is also his contention that the first appellate Court could not have given a finding that the document dated 31.10.1991 is a gift -8- NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 deed. He would submit that though there is a recital in the document which would indicate that the document is a Gift Deed, the further recital in the document would also indicate that the document is a Will executed by Seshamma and one of the attesting witnesses is examined to prove the execution of the Will and hardly there is any evidence in the cross examination of the attesting witnesses to disbelieve the Will. He would also contend that the first appellant Court has recognised the status of the original defendant as the second wife of late Shantappa. That being the possession Seshamma the second wife would inherit the property of late Shantappa and she is competent to execute the Will in respect of the said property.
11. Sri Ravi B Patil, learned counsel for the appellants also submits that in the absence of any specific issue relating to the proof of the Will first appellate Court could not have gone into the pleading that the document dated 31.10.1992 is not a Gift Deed. -9-
NC: 2024:KHC-K:5608 RSA No. 7057 of 2012
12. The respondent is served and not represented.
13. This Court has considered the contentions raised at the bar and perused the records.
14. Shantappa was the propositus. This fact is not in dispute. Sangamma was his wife, again is not dispute and the plaintiff is the daughter of Sangamma. The question is whether Seshamma is the second wife. The Hindu Marriage Act came into force in 1955. After coming into force the said Act 1955, the second marriage is prohibited when the first marriage is subsisting. From the pleadings, it is not clear whether Seshamma married Shantappa before the commencement of Hindu Marriage Act, 1955. In the absence of any such evidence, this Court cannot give a finding that Seshamma married Shantappa before the commencement of the Hindu Marriage Act, 1955. Seshamma herself has not claimed that she married Shantappa before the commencement of the Hindu
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NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 Marriage Act, 1955. This Court cannot hold that the marriage has taken place before 1955 and Shantamma has acquired share in the property of late Shantappa. It is also relevant to note that after the death of Shantappa, Seshamma did not make a claim as a successor to Shantappa and to record her name in the property records along with Shantappa's daughter Shivamma. The attempt to enter the name of Seshamma was first made in 1980. This being the position, this Court is of the view that Sangamma is the wife of Shantappa and Seshamma could not have married Shantappa and Shantappa's first marriage with Sangamma was subsisting. This being the position, Sangamma would inherit the property along with her daughter Shivamma who is the plaintiff and after the death of Sangamma the entire property of Shantappa devolved upon Shivamma the plaintiff.
15. Admittedly, the defendant is in possession of the property. Even if it is held that she was in possession of the property prior to 1972 pursuant to
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NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 permission granted by Shantappa, the possession of defendant becomes is only a permissive possession. The defendant has not raised the defence of adverse possession. The permissive possession does not take away the right of the lawful owner. The lawful owner is entitled to sue for possession based on title against the person who is in permissive possession. Such a suit cannot be dismissed unless the person in permissive possession takes up a defence of adverse possession and establishes the plea of adverse possession. As long as such a defence is not raised as long as plea of adverse possession is not proved, the suit for possession based on title cannot be dismissed.
16. The plaintiff is the owner of the property. Thus, the suit of the plaintiff cannot be said to be barred by limitation and finding of the trial Court that the suit of the plaintiff is barred by limitation is clearly contrary to the mandate of Article 65 of the Limitation Act. The first appellate Court has rightly held that the suit of the plaintiff is in time.
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NC: 2024:KHC-K:5608 RSA No. 7057 of 2012
17. As far as the finding of the first appellate Court relating to alleged gift deed and alleged Will dated 31.10.1991 is concerned, the first appellate Court has treated the said document as invalid gift deed and has concluded that for want of registration the said document cannot be construed as a valid gift deed. Learned counsel Sri. Ravi Patil urged before this Court that the recitals in the said document dated 31.10.1991 would also disclose the fact the said document is a Will and one of the attesting witnesses is examined to prove the execution of the Will. What is required to be noticed is whether Seshamma had any right over the property. Even if the execution of Will is proved in accordance with law, the factual position is Seshamma was not the owner of the property. When Seshamma was not the owner of the property, she could not have bequeathed the property in favour of the present appellants.
18. Though, learned counsel Ravi B. Patel would urge that the first appellate Court has given finding that the Seshamma is the second wife of late Shantappa that
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NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 the finding of the first appellate Court does not come to the aid of the appellants to hold that Seshamma has acquired the right over the property. The finding of the first appellate Court that Seshamma is the second wife of Shantappa has to be understood only as the recognition granted by the plaintiff to treat Seshamma as the second wife of Shantappa. That does not mean that the 2nd marriage is valid in the absence of his specific plea that the marriage has taken place before commencement of the Hindu Marriage Act, 1955, the finding of the first appellate Court that Seshamma is the second wife cannot be stretched to hold that second marriage is a valid marriage. Admittedly, the first marriage was subsisting between Shantappa and Sangamma and there is no dissolution of marriage and it is not the case of the defendant Seshamma that she married Shantappa after the demise of Sangamma. This being the position though the finding is given to the effect that the Seshamma is the second wife, the finding
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NC: 2024:KHC-K:5608 RSA No. 7057 of 2012 cannot be interpreted to say the second marriage is a valid marriage.
19. For the aforementioned reasons, the substantial questions of law framed above answered against the appellants and in favour of the respondent.
Accordingly, the appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 60 CT:PK