Mrs K Premalatha vs Mr K Gopal
2021 Latest Caselaw 5183 Kant

                               1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 1ST DAY OF DECEMBER, 2021

                          BEFORE

            THE HON'BLE MR.JUSTICE R. NATARAJ

     MISCELLANEOUS SECOND APPEAL NO.31 OF 2019 (RO)

BETWEEN:

MRS. K. PREMALATHA
AGED ABOUT 71 YEARS,
D/O KOGGA KHARVI,
W/O MR.M.KISHORE RAO
NO.53, 17TH MAIN, 5TH CROSS,
KURUBARAHALLI, J.C.NAGAR,
BANGALORE-560 086

NOW R/AT NO.25, SUBBANNA ROAD,
NEAR SAMBHRAM BOYS HOSTEL,
CHIKKABETTAHALLI,
VIDYARANYAPURA POST,
BENGALURU-560 097.
                                           ...APPELLANT
(BY SRI. B.M.SANTOSH, ADVOCATE)

AND:

1.      MR. K. GOPAL
        AGED ABOUT 68 YEARS,
        S/O KOGGA KHARVI
        RESIDING AT D.NO.III-263B OF
        HANGLUR VILLAGE,
        KUNDAPURA TALUK,
        UDUPI DISTRICT
        PIN-576 201

2.      MR. K.PRAKASH
        AGED ABOUT 64 YEARS,
        S/O KOGGA KHARVI,
                             2


     RESIDING AT HANGLUR VILLAGE,
     KODI ROAD, KUNDAPURA TALUK
     UDUPI DISTRICT
     PIN-576 201

3.   MRS.K.HEMAVATHI
     AGED ABOUT 56 YEARS,
     D/O KOGGA KHARVI,
     RESIDING AT 5/217,
     "KUNTHIPUTRA" CO-OPERATIVE HOUSING SOCIETY,
     SARDAR NAGAR, NO.1, SION,
     KOLIWADA, MUMBAI.

     NOW RESIDING AT
     C/O SADANAND PAI,
     MAHALSA BUILDING,
     BABUSWAMY CROSS,
     JUMADI KATTE ROAD,
     KUNIBETTU, DODDANAGUDDE,
     UDUPI DISTRICT
     PIN-576 102

4.   MRS.VINAYA
     AGED ABOUT 61 YEARS,
     W/O LATE SHANKAR

5.   MRS.SHRIDEVI
     AGED ABOUT 36 YEARS,
     D/O LATE SHANKAR

6.   MRS.DEEPA
     AGED ABOUT 33 YEARS,
     D/O LATE SHANKAR

     ALL ARE RESIDING AT NO.83/6,
     KANVERSINGH ROAD,
     KUNDAPURA, UDUPI DISTRICT
     PIN-576 201

7.   MRS. K.VASANTHI
     AGED ABOUT 59 YEARS,
     W/O JAGANATHA,
     BAREKATTE ROAD,
                               3


     BEHIND KUNDESHWAR TEMPLE,
     KUNDAPURA, UDUPI DISTRICT
     PIN-576 201
                                                ...RESPONDENTS

(SRI. V.SRINIVASAN AND CO., ADVOCATE FOR RESPONDENT
NOs.4 TO 6;
SRI. AJIT ANANDSHETTY, ADVOCATE FOR RESPONDENT NOs.1,
2, AND 7 (THROUGH VC);
NOTICE SERVED ON RESPONDENT NO.3 AND UNREPRESENTED)

      THIS MSA IS FILED UNDER ORDER XLIII RULE 1[u] READ
WITH SECTION 104 OF THE CPC., AGAINST THE JUDGMENT
AND DECREE DATED 18.12.2018 PASSED IN RA NO.15/2008 ON
THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPUR ALLOWING
THE APPEAL AND REVERSING THE JUDGMENT AND DECREE
DATED 24.01.2008 PASSED IN O.S. NO.168/2002 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE [JR.DN] KUNDAPURA FOR
PARTITION, THE APPELLATE COURT REMANDED BACK MATTER
TO TRIAL COURT TO GIVE PERMISSION TO THE PLAINTIFF TO
ADD NECESSARY PARTIES AND THEN TO PROCEED WITH THE
SUIT IN ACCORDANCE WITH THE LAW AND ETC.

     THIS MSA IS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal under Order XLIII Rule 1(u) of the Code

of Civil Procedure, 1908 (hereinafter referred to as 'CPC'

for short) is filed by the plaintiff in O.S. No.168/2002 on

the file of the Prl. Civil Judge (Jr.Dn.), Kundapura

(henceforth referred to as 'Trial Court' for short)

challenging the Judgment and Decree dated 18.12.2018

passed by Senior Civil Judge, Kundapura (henceforth

referred to as 'First Appellate Court' for short) in

R.A.No.15/2008 by which the First Appellate Court

reversed the decree of the Trial Court and remitted the

case for re-consideration.

2. The suit in O.S. No.168/2002 was filed for

partition and separation possession of the plaintiff's alleged

1/7th share in suit 'A' schedule property.

3. The plaintiff claimed that the suit A Schedule

properties were the self-acquisition of Koggappa @ Kogga

Kharvi, the father of plaintiff and defendants No.2 to 6 and

the husband of defendant No.1. He was in actual

possession and cultivation of suit 'A' schedule properties till

he died on 01.12.1995. He had also maintained huge

deposits in various Banks and financial institutions which

were detailed in suit 'B' schedule. It is stated that

Koggappa died intestate leaving behind plaintiff and

defendants as his legal heirs. The plaintiff claimed that in

the RTC of item No.1 of suit 'A' schedule property, the

name of defendant No.1 was mentioned on the basis of a

Will, no such document was executed and the entry was a

mistake. The plaintiff and defendants jointly inherited suit

'A' schedule property and hence she contended that she

was entitled to 1/7th share in the suit properties.

4. The defendant No.1 filed her written statement

admitting that suit 'A' schedule properties were self-

acquisition properties of Koggappa. It was also admitted

that Koggappa had deposits, as detailed in suit 'B'

schedule. She admitted that plaintiff is entitled to 1/7th

share in the suit 'B' schedule. However, in respect of suit

item No.1 of 'A' schedule properties, defendant No.1

claimed it in terms of a Will executed by Koggappa. She

claimed that she along with defendant No.2 were looking

after suit 'A' schedule properties and that there was no

income from the suit 'A' schedule properties. She claimed

that till the year 2000, she and defendant No.2 were living

in a rented housed and thereafter constructed a house

over a portion of Item No.1 of suit 'A' schedule properties

by raising loan from Kundapura Vyavasaya Seva Sahakari

Bank. They claimed that in the event of a partition, they

were entitled to seek allotment of the house in the suit

Item No.1 of 'A schedule to their share. The written

statement of defendant No.1 was adopted by defendants

No.2 and 3.

5. Based on these rival contentions, the Trial

Court framed the following Issues :

i. Whether the plaintiff proves that Kogga Kharvi died intestate leaving behind 'A' and 'B' schedule properties and therefore, she is entitled to 1/7th share in the same?

ii. Whether the 1st defendant proves that she has acquired right over the 'A' schedule properties by virtue of a Will executed by Kogga Kharvi?

iii. What is the income of the 'A' schedule properties? iv. Whether the plaintiff is entitled to profits? If so, at what rate?

v. Whether the 1st defendant proves that she has constructed a house over the portion of Item No.1 of 'A' schedule properties by spending `2,00,000/- and borrowing money from defendant No.2 and also raising loan from Kundapura Vyavasaya Seva Sahakari Bank?

vi. Whether the plaintiff is entitled to the reliefs claimed?

vii. What is the order?

6. The plaintiff was examined as PW1 who

marked documents as Exs.P-1 to P-9, while the defendant

No.2 was examined as D.W.1, who marked documents as

Exs.D-1 to D-30 and also examined a witness as D.W.2.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff is entitled to 1/7th

share in the suit 'A' schedule property. In so far as item

No.1 of suit 'A' schedule property is concerned, it held that

there was no evidence regarding the execution of the Will

by Kogga Kharvi in favour of defendant No.1. Therefore, it

held that Kogga Kharvi died intestate and that the plaintiff

and defendants succeeded to the suit 'A' and 'B' schedule

property. In so far as the contention of defendant No.1

that she and defendant No.2 had constructed a house in

item No.1 of 'A' schedule property, the Trial Court held

that it was probable that Kogga Kharvi had constructed a

house in item No.1. Hence, the suit was decreed and it

was declared that the plaintiff is entitled to 1/7th share in

the suit 'A' schedule property.

8. Being aggrieved by the aforesaid judgment and

decree, the defendants filed RA No.15/2008 before the

First Appellate Court. The First Appellate Court after

hearing the parties framed the following points for

consideration :

i. Whether the suit is bad for non-joinder of necessary parties and as such, the entire trial is vitiated under Order I Rule 9 (proviso) of the Code of Civil Procedure, 1908?

ii. Whether the defendant No.1 is entitled to adduce additional evidence?

iii. Whether the findings recorded by the Trial Court on the issues on merits framed by it, in the impugned judgment call for interference? iv. Whether the final result of the suit calls for interference?

v. What decree or order?

9. The First Appellate Court held that the plaintiff

herself marked Ex.P-7 which is a testament of Kogga

Kharvi dated 10.06.1994 which indicates that Kogga

Kharvi had bequeathed item No.1 of 'A' schedule

properties, which was to take effect after his death and

after the death of his second wife Smt. Manji Hengsu. In

terms of this Will, he gave away portions of suit item No.1

of 'A' schedule property into three parts namely 'A', 'B' and

'C'. 'A' schedule was devised to Satisha, 'B' schedule to his

daughter Baby and 'C' schedule to Prakasha. Though the

plaintiff claimed that Ex.P7 was marked for a limited

purpose to show that the entry in the RTC of Item No.1 of

plaint 'A' schedule was entered by mistake in the name of

defendant No.1 as there was no Will executed in her

favour. The First Appellate Court held that

nothwithstanding what was contended by plaintiff, since

Ex.P7 was marked and since the plaintiff herself admitted

that Kogga Kharvi had executed a Will, which incidentally

referred to a Will dated 31.05.1988 executed by Kogga

Kharvi bequeathing his estate to his second wife and to her

children, the First Appellate Court held that Kogga Kharvi

being the absolute owner could have dealt with the suit

properties in the manner he desired. The First Appellate

Court held that the suit was not filed against the second

wife, her son and daughter who were necessary parties to

the suit. The First Appellate Court repulsed the contention

of the plaintiff that there was no pleading by any of the

defendants regarding non-joinder of necessary parties and

therefore, no issue arose. In view of the same, the First

Appellate Court held that the impugned Judgment and

Decree of the Trial Court was not sustainable and

therefore, allowed the appeal and set aside the Judgment

and Decree dated 24.01.2008 and remitted the case back

to the Trial Court to add second wife of Kogga Kharvi

namely, Smt. Manji Hengsu, her son and daughter as

defendants in the suit and thereafter to proceed with the

suit in accordance with law.

10. Being aggrieved by the aforesaid Judgment

and Decree of the First Appellate Court, the plaintiff has

filed this Miscellaneous Second Appeal.

11. The learned counsel appearing for the

plaintiff/appellant submitted that the defendant No.1

claimed that Kogga Kharvi had executed a Will

bequeathing item No.1 of 'A schedule that the plaintiff

marked a copy of Will dated 10.06.1994 executed by

Kogga Kharvi to show that Kogga Kharvi had not executed

any testament in favour of defendant No.1 in respect of

item No.1 of 'A' schedule. He also submitted that when

the defendants did not raise any issue regarding non-

joinder of necessary parties, the First Appellate Court could

not have gone over board to direct the plaintiff to implead

the second wife of Kogga Kharvi, her son and daughter as

per the Will dated 31.05.1988 which was incidentally

referred in Will dated 10.06.1994 marked as Ex.P7. Even

otherwise, he submitted that the First Appellate Court

went beyond the record to hold that Kogga Kharvi could

have disposed of the properties to any person

whomsoever.

12. The learned counsel appearing for the

respondents / defendants submitted that Ex.P7 did not

relate to all the properties in question but Ex.P7 did bear a

reference to a Will dated 31.05.1988 executed by Kogga

Kharvi in favour of his second wife and her children. He,

therefore, submitted that the First Appellate Court in order

to fully adjudicate the dispute between the parties and

having regard to the purpose of Order I Rule 10(2) of

C.P.C. was justified in setting aside the decree of the Trial

Court. He submitted that in the facts and circumstances of

this case, the First Appellate Court could not have remitted

the case to the Trial Court for a limited purpose as other

interested persons were yet to be heard in the matter.

13. I have considered the submissions made by

learned counsel for the parties.

14. It is not in dispute between the parties that

suit 'A' schedule properties were the self-acquisition of

Kogga Kharvi. In the ordinary course, the plaintiff and the

defendants No.2 to 6 and the husband of defendant No.1

being the successors of Kogga Kharvi were entitled to an

undivided share in the suit properties. However, the

plaintiff marked a document dated 10.06.1994 which was

purportedly a Will executed by Kogga Kharvi in respect of

item No.1 of 'A' schedule reserving life interest in favour of

his wife, Manji Hengsu and after her death to the two

children from his second wife, namely, Baby and Satisha,

and Prakasha who was the son from his first wife. The

Trial Court had not bestowed its attention to the Will at

Ex.P-7. If the land in question was the self-acquisition of

Kogga Kharvi then the Trial Court could not have ignored

the admitted Will executed by Kogga Kharvi in favour of

his second wife and her son and daughter in respect of

item No.1 of 'A' schedule. The plaintiff by marking Ex.P7

had dug her own grave by showing to the Court that there

was someone else who was interested in the suit

properties but who was not arrayed as a party. In addition,

Ex.P7 carried a reference to another Will of Kogga Kharvi

dated 31.05.1988 in terms of which he bequeathed his

estate to his second wife and to her children. Thus, the

First Appellate Court rightly considered the need to array

them as parties in the suit in view of the stipulation under

Order I Rule 10(2) of CPC.

15. In that view of the matter, the First Appellate

Court was thoroughly justified in allowing the appeal and

setting aside the Judgment and Decree of the Trial Court

and directing a re-trial after arraying the second wife, son

and daughter of Kogga Kharvi. There is no merit in this

appeal and the same is dismissed.

Sd/-

JUDGE hnm