Karnataka High Court
Smt. Gowramma vs Smt. Sharada on 23 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.1856 OF 2016 (DEC/INJ)
BETWEEN:
1. SMT GOWRAMMA
W/O MAHADEVAPPA
SINCE DEAD REPRESENTED BY HER
LEGAL REPRESENTATIVE APPELLANT NO.2
2. SRI DIWAKAR
S/O BEERABHARAPPA
AGED ABOUT YEARS
TIPPU NAGAR
NEAR MOUNTAIN VIEW SCHOOL
CHIKKAMAGALURU-577 101
... APPELLANTS
(BY SRI.VINAY SWAMY C, ADV.)
AND:
1. SMT SHARADA
W/O LATE C H MANJU
AGED 55 YEARS
2. SRI UMESH
S/O LATE C H MANJU
AGED ABOUT 35 YEARS
2
3. SRI GIRISH
S/O LATE C H MANJU
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT
NEIKAR STREET
CHIKKAMAGALURU CITY-577 101
4. SMT MAMATHA C H
W/O VENKATESH
AGED ABOUT 55 YEARS
DEEPTHI APARTMENT
1ST CROSS, KIRLOSKAR COMPANY
BASAVESHWARA NAGAR
BANGALROE-560 079
... RESPONDENTS
(BY SRI.M.B.CHANDRACHOODA, ADV.,)
THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
13.06.2016 PASSED IN R.A.NO.122/2015 ON THE FILE OF
PRL.SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, CHIKKAMAGALURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 1.10.2015 PASSED IN O.S.NO.36/2007 ON THE
FILE OF C/C I ADDITIONAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, CHIKKAMAGALURU.
THIS APPEAL COMING ON FOR ADMISISON THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
1. This is a second appeal by defendant Nos.1 (who is
since no more) and 2.
2. Smt.Sharada, wife of late Sri.C.H.Manju and her
three children instituted a suit seeking for a declaration
that they were the legal representatives of the deceased
Sri.C.H.Manju and that they were the owners of the suit
property. They also sought for possession and for a
consequential relief of permanent injunction. The suit
property was a house property measuring 35 ft x 35 ft.
3. The plaintiffs claim that Sri.C.H.Manju had purchased
the property on 17.11.2003 and on his death on
26.11.2006, they had succeeded to the suit property as
Sri.C.H.Manju had died intestate. It was stated that during
the lifetime of Sri.C.H.Manju, he had permitted defendant
No.1 - Smt.Gowramma to be in possession of the suit
property, since she was alone and there was nobody to
take care of her. It was stated that after the death of
Sri.C.H.Manju, Smt.Gowramma had got the Khata changed
in her name stating that she was the sole survivor and had
succeeded to the suit property of Sri.C.H.Manju. It was
stated that Smt.Gowramma was trying to alienate the suit
property and was thereby trying to deprive the rights of
the plaintiffs and as a consequence, they were constrained
to file a suit.
4. Smt.Gowramma entered appearance and contested
the suit. She stated that the suit was bad for non-joinder
of the necessary parties ie., for non impleading of one
Master Diwakar, who was stated to be the son adopted by
Smt.Gowramma and the deceased Sri.C.H.Manju. She,
however, did admit that the suit property had been
purchased by Sri.C.H.Manju on 17.11.2003 and she also
conceded that Sri.C.H.Manju had not executed any Will in
respect of the suit property.
5. She set up a plea that she was the legally wedded
wife of Sri.C.H.Manju and her marriage had been
solemnized with Sri.C.H.Manju in the year 1972 and they
had no children out of this wedlock and consequently, both
of them had decided to adopt Master Diwakar. It was
stated that her husband was the owner of a lorry and was
doing the business of supplying food materials. It was
stated that Sri.C.H.Manju was suffering from several
ailments and he had therefore, engaged plaintiff No.2 as
his driver. It was stated that even after the death of
Sri.C.H.Manju, plaintiff No.2 remained cordial with the
defendants and used to pay them some income out of the
lorry business.
6. However, things took a turn for the worse when
plaintiff No.2 took the original documents of the lorry
stating that the lorry was seized by the R.T.O., and he
thereafter failed to return both, the vehicle and the
documents. It was stated that the defendants thereafter
came to know the trick played by plaintiff No.2 only after
receiving the summons from the Court. It was alleged that
the plaintiffs had nothing to do with her husband
Sri.C.H.Manju and the property owned by him. She stated
that only she and her adopted son were the legal
representatives to succeed to the suit property of
Sri.C.H.Manju.
7. Pursuant to the written statement filed, the alleged
adopted son Master Diwakar was also impleaded.
8. The Trial Court, on consideration of the evidence
adduced before it, came to the conclusion that the
plaintiffs were the only legal representatives to succeed to
the suit property of Sri.C.H.Manju and it found that
defendant No.1 was not the legally wedded wife to succeed
to the suit property of Sri.C.H.Manju and she was only in
permissive possession of the suit property. The Trial Court
accordingly decreed the suit and directed possession to be
handed over to the plaintiffs.
9. Being aggrieved, Smt.Gowramma and her adopted
son preferred an appeal.
10. The Appellate Court on re-appreciation of the entire
evidence, found no reason to disagree with the findings
recorded by the Trial Court. The Appellate Court
accordingly dismissed the appeal.
11. It is as against these concurring judgments, the
present second appeal has been preferred.
12. During the pendency of this appeal, appellant No.1
ie., Smt.Gowramma also passed away on 20.06.2021. As
admitted by her, since she had no children and no other
legal representatives, the appeal insofar as appellant No.1
is concerned, actually stands abated. However, since she
stated that she had adopted Master Diwakar - appellant
No.2, for the purposes of this appeal, he is considered as
the legal representative of appellant No.1.
13. Both the Courts on appreciation of the evidence have
recorded a clear finding of fact that Smt.Gowramma was
not the legally wedded wife of Sri.C.H.Manju and she was
in permissive possession of the suit property.
Smt.Gowramma in her defence has also admitted that the
suit property had been purchased by Sri.C.H.Manju and
that he had not executed any Will. Thus, on the death of
Sri.C.H.Manju, by operation of law, the suit property would
devolve on to the plaintiffs only since it is found that
Smt.Gowramma was not the legally wedded wife of
Sri.C.H.Manju and consequently she would have no right
over the suit property.
14. As far as appellant No.2 is concerned, admittedly
there is no registered adoption deed evidencing the
adoption and the evidence adduced also did not persuade
both the Courts to come to the conclusion that defendant
No.2 was the adopted son. It is therefore, clear that
appellant No.2 would also have no right over the suit
property.
15. In the light of the above facts, there is clearly no
substantial question of law arising for consideration in this
second appeal and the second appeal is liable to be
dismissed.
16. However, having regard to the peculiar facts and
circumstances of the present case and in the light of the
plea taken by Smt.Gowramma that appellant No.2 had
been adopted, in my view, it would be just and proper to
grant two years time to the appellant No.2 to quit and
deliver the vacant possession to the plaintiffs. It is made
clear that the appellant No 2 shall not induct any third
party into the premises and shall not cause any
encumbrances on the suit property. This benefit of time is
being granted, having regard to the fact that appellant
No.2 is only 21 years and is said to be financially weak.
17. Subject to the benefit of time granted above, this
second appeal stands dismissed.
Sd/-
JUDGE
GH
