Kamalabayi W/O Gurulingappa ... vs Shivappa S/O Basappa Kumbar
2021 Latest Caselaw 5798 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF DECEMBER, 2021

                         BEFORE

           THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                  RFA NO.200013/2020

BETWEEN:

1.     KAMALABAYI W/O GURULINGAPPA KUMBAR,
       AGE: 36 YEARS, OPP: HOUSE HOLD WORK,
       R/O: IVANAGI, TQ: BASAVAN BAGEWADI,
       DIST; VIJAYAPUR-586203.

2.     RENUKA W/O CHANAGUND KUMBAR,
       AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
       R/O: CHICKARUGI, TQ: SINDAGI,
       DIST: VIJAYAPUR-586101.
                                             ... APPELLANTS
(BY SRI.SANGANABASAVA.B.PATIL, ADVOCATE)
AND:

SHIVAPPA S/O BASAPPA KUMBAR,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: IVANAGI, TQ: BASAVAN BAGEWADI,
DIST: VIJAYAPUR-586203.
                                             ... RESPONDENT

(BY SRI. D.P.AMBEKAR, ADVOCATE)

      THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, PRAYING TO (A) ALLOW THIS APPEAL BY
SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.11.2019
PASSED BY THE SENIOR CIVIL JUDGE & JMFC, AT: BASAVANA
BAGEWADI, IN O.S.NO.84/2016, IN THE INTEREST OF JUSTICE
AND EQUITY. (B) SUCH FURTHER OR OTHER RELIEF'S BE
GRANTED TO WHICH THE APPELLANT WOULD BE FOUND
ENTITLED TO ON THE FACTS AND CIRCUMSTANCES OF THE
CASE.
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      THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

                              JUDGMENT

Present Regular First Appeal under Section 96 of CPC

is filed by the plaintiffs against the judgment and decree

dated 27.11.2019 passed in O.S.No.84/2016 on the file of

Senior Civil Judge and JMFC at Basavana Bagewadi ( for

short 'Trial Court').

2. Brief facts leading up to filing of the present appeal

are that the suit schedule properties bearing Sy.No.89

measuring 9 acres 2 guntas, Re-Survey No.88/1 measuring

4 acres 27 guntas situated at Ivanagi village originally

belonged to the maternal grandfather of the plaintiffs by

name Sayabanna. The plaintiffs' mother had 10 children

consisting of five daughters and fine sons. That the

maternal grandfather had an intention to giving the suit

properties to the children of his daughter that is the

plaintiffs and her siblings. That the defendant learning

about the same had played fraud on the maternal

grandfather and had got executed a Will on 29.07.1985 and

had obtained mutation in his name vide M.E.No.1814. That

the defendant was trying to alienate the suit schedule

properties and if he succeeds in alienating the suit

properties, plaintiffs, their mother and their siblings would

be put to irreparable loss and injury. The plaintiffs therefore

demanded their right over the suit properties, which was

denied by the defendant contending that the mutation in

respect of the suit properties was in his name and that he

was the owner of the said properties. Consequently,

plaintiffs were constrained to file the suit seeking the relief

of declaration of their ownership over the suit properties

with consequential relief of permanent injunction restraining

the defendant from alienating and transferring the schedule

properties.

3. On service of summons, the defendant appeared

and filed his written statement. It was contended that one

Sayabanna also known as Sabappa had a wife by name

Shivalingawwa and two daughters by name Siddawwa and

Lakkawwa. That the plaintiffs have never mentioned the

name of another daughter Lakkawwa in their plaint. That

on 29.07.1985, Sayabanna @ Sabappa had died leaving

behind his wife Shivalingawwa and the two daughters i.e.,

Siddawwa and Lakkawwa and all of them were alive at the

time of filing the suit and that when the said three persons

were alive, plaintiffs could not have acquired the right over

the suit properties. That the suit properties were the self

acquired properties of Sayabanna. That he had got his

daughter Lakkawwa married to a wealthy family while

another daughter Siddawwa was married to a poor family

namely the defendant herein. As the defendant who is the

husband of said Siddawwa was from a poor family, his

father-in-law the aforesaid Sayabanna had bequeathed the

suit properties in favour of the defendant by executing and

registering a Will dated 29.11.1978 in the presence of

witnesses. That even Shivalingappa and his another

daughter Lakkawwa had given consent to the said deed of

Will. That said Sabappa during his life time itself had given

Vardi/petition to the revenue authorities to mutate the name

of the defendant. On 29.07.1985 Sabappa died and

consequently name of the defendant came to be mutated.

That the plaintiffs had not sought for cancellation of the said

mutation entered in M.E.No1385 and 1814. That the

plaintiffs have no right over the suit properties. That

without making their siblings as parties to the suit, the suit

of the plaintiffs was not maintainable. That the suit was

also barred by limitation. Hence, sought for dismissal of the

suit with cost.

4. Based on the above pleadings, the Trial Court

framed issues:

1. Whether plaintiffs prove that, they are the absolute owners of suit properties?

2. Whether plaintiffs prove that, they are in peaceful possession and enjoyment of the suit properties?

3. Whether plaintiffs prove that alleged interference by the defendant in their peaceful possession and enjoyment of the suit properties?

4. Whether defendant proves that, suit properties are the ancestral properties of one Sayabanna @ Sabappa who died on 29.07.1985 leaving behind wife-

Shivalingawwa, daughter-Siddawwa and Lakkawwa as his Class-I legal heirs?

5. Whether defendant proves that, Sayabanna @ Sabappa bequeathed the suit properties in favour of defendant by executing Will on 29.11.1978?

6. Whether defendant proves that, he has become absolute owner and possessor of the suit properties by virtue of said Will?

7. Whether defendant proves that, suit of the plaintiffs is bad for non-joinder of necessary parties?

8. Whether Court fee paid by the plaintiffs is proper and correct?

9. Whether suit of the plaintiffs is barred by limitation?

10. Whether plaintiffs are entitled for reliefs claimed?

11. What order or decree?

5. Plaintiff No.1 examined herself as PW.1 and also

examined Channabasappa and Tippanna as PWs.2 and 3

respectively and exhibited five documents marked as Ex.P1

to P5. The defendant himself examined as DW.1 and one

Shivappa and Sharanappa have been examined as DWs.2

and 3 and exhibited 28 documents, marked as Ex.D1 to

D28.

6. Based on the material evidence and appreciating

the same, the Trial Court dismissed the suit of the plaintiffs.

Aggrieved by the same, the plaintiffs are before this Court.

7. The learned counsel for the appellants/plaintiffs

reiterating the grounds urged in the appeal memorandum

submitted that the maternal grandfather of the plaintiffs had

intention of giving the suit properties to the plaintiffs and

their siblings. That the defendant in order to grab the suit

properties knowing fully played fraud on the maternal

grandfather and created a bogus Will on 29.07.1985. That

the Trial Court has failed to appreciate the fact that the

grandfather was having love and affection towards these

plaintiffs and he had promised to give the suit properties to

the plaintiffs and had also stated before the elders of the

village and his family relatives. That merely on the basis of

the entry in the mutation, the Trial Court had come to the

conclusion that the defendant had proved the Will, which is

unreasonable and perverse.

8. On the other hand, learned counsel for the

respondent/defendant submitted that the suit itself in the

first place was not maintainable as the plaintiffs had no

semblance of right over the suit properties and there was no

cause of action. Admittedly, even according to the plaintiffs,

the suit properties originally belonged to their maternal

grandfather by name Sayabanna. That the said Sayabanna

had two daughters namely, Siddawwa and Lakkawwa and

said Siddawwa was married to the defendant. Thus, the

plaintiffs being the children of said Siddawwa and the

defendant, cannot claim to have any independent right over

the suit properties being entitled for confirmation of

declaratory relief and consequential relief of perpetual

injunction. He further submits that admittedly Siddawwa

and the defendant have had 10 children including the

plaintiffs. That the wife of Sayabanna namely,

Smt. Shivalingamma, who is the maternal grandmother of

the plaintiffs was alive and residing with Siddawwa. Despite

the same, the plaintiffs have not chosen to array their

mother and grandmother and other siblings as parties to the

suit. Thus he submits that the Will dated 29.11.1978 had

been executed by Sayabanna conveying the suit properties

in favour of defendant, who was his son-in-law with the

consent and knowledge of Shivalingamma as well as another

daughter Lakkawwa. The said Will was a registered

document and same has been produced as per Ex.D3. One

of the attesting witness of said Will namely, Sharanappa has

also been examined. In the circumstances, he submits that

dismissal of the suit filed by the plaintiffs by the Trial Court

was justified and did not warrant any interference.

9. On consideration of the aforesaid submissions

made by the learned counsel for the appellants/plaintiffs as

well as the respondent/defendant and on consideration of

the pleadings and the material evidence and deposition of

parties, the point that arises for consideration in this appeal

is:

Whether the plaintiffs have made out any case warranting interference with the judgment and decree passed by the Trial Court?

10. It is not in dispute that the suit properties

originally belonged to one Sayabanna. The said Sayabanna

had two daughters by name Siddwwa and Lakkawwa born to

his wife Shivalingawwa. That the said Sayabanna had

executed a registered Will dated 29.11.1978 bequeathing

the suit properties in favour of the defendant. The said Will

was executed with the knowledge and concurrence of his

wife Smt.Shivalingawwa and another daughter Lakkawwa.

Admittedly, Siddawwa and Shivalingawwa, the mother and

grandmother respectively of the plaintiffs were alive at the

time of filing of the suit. It is also admitted that there are

about eight siblings to the plaintiffs being the children of

Siddawwa and the defendant. There is no explanation of

any nature whatsoever offered by the plaintiffs for not

making their grandmother, mother and other siblings as

parties to the suit. The plaintiffs have also not made out the

reason and cause of action for filing the suit for declaration

and injunction.

11. There was no restriction or impediment for

Sayabanna @ Sabappa to bequeath the suit properties

during his life time. The plaintiffs could not have acquired

any share, right, title or interest in respect of the suit

properties. Therefore, the question of granting the relief of

declaration would not arise. Merely on the assertion that

the aforesaid Sayabanna, the grandfather of the plaintiffs

had love and affection towards the plaintiffs and that he had

intention of giving the suit properties to the plaintiffs and

their siblings, would not alone be sufficient for the plaintiffs

to claim relief of declaration of their purported ownership

over the suit properties and for the relief of injunction as

sought for.

12. On perusal of Ex.P1, the certified copy of RTC

extract of Survey No.89, Ex.P2, the certified copy of RTC

extract of Survey No.88/1, Ex.P3, the certified copy of

M.E.No.1514, Ex.P4, the certified copy of M.E.No.1385 and

Ex.P5, the certified copy of sale deed would establish that

these documents would not support the case of the

appellants/plaintiffs.

13. That apart, the Will executed and registered by

Sayabanna is in compliance with the provisions of Section

63 of the Indian Succession Act, 2005. The same has been

proved in terms of Section 68 of the Indian Evidence Act,

1872, thus the defendant being the sole legatee is the

absolute owner of the suit properties. The plaintiffs

therefore cannot have any grouse in the defendant obtaining

mutation of his name in the revenue records in respect of

the said properties.

14. The plaintiffs therefore have failed to establish

any of their share, right, title and interest over the suit

properties. In the circumstances, there is no illegality or

irregularity committed by the Trial Court in dismissing the

suit. Accordingly, following:

ORDER

The appeal filed by the plaintiffs in RFA

No.200013/2020 is hereby dismissed.

The judgment and decree passed by the

Trial Court in O.S.No.84/2016 on the file of the

Senior Civil Judge and JMFC at Basavana

Bagewadi is confirmed.

Sd/-

JUDGE

Srt