Karnataka High Court
Chandrashekharappa Sharanappa ... vs Sharanappa Fakirappa Patri on 25 January, 2022
Bench: S.Vishwajith Shetty
RFA 132/2007
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
REGULAR FIRST APPEAL No.132/2007 (PAR)
BETWEEN:
Chandrashekharappa Sharanappa Patri,
Age: 33 years, Occ: Agriculture,
R/o Mulagund, Now at Yalavatti,
Tq: Shirahatti, Dist: Gadag - 582 101. ..APPELLANT
(By Sri Santosh B.Mane, Adv. for Sri Venkatesh R.Bhagat &
Sri Vinith V.Bhagat, Advs.)
AND:
1. Sharanappa Fakirappa Patri,
Age: 60 years, Occ: Agriculture,
R/o Mulagund, Tq: Gadag - 582 101.
2. Smt. Neelavva,
D/o Sharanappa Patri,
Age: 30 years, Occ: Household work,
R/o Mulagund, Tq: Gadag - 582 101.
3. Smt. Girijavva,
D/o Sharanappa Patri,
Age: 27 years, Occ: Household work,
R/o Mulagund, Tq: Gadag - 582 101.
4. Smt. Laxmavva,
W/o Sharanappa Patri,
Age: 53 years, Occ: Household work,
R/o Mulagund, Now at Yalavatti,
Tq: Shirahatti, Dist: Gadag - 582 101. ..RESPONDENTS
(Respondents served and unrepresented)
RFA 132/2007
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This regular first appeal is filed under Section 96 CPC
against the judgment and decree dated 14.12.2006 passed in
O.S.No.108/1998 on the file of the Addl. Civil Judge (Sr.Dn.),
Gadag, dismissing the suit for partition and separate
possession.
This appeal coming on for Final Hearing, this day the
Court delivered the following:-
JUDGMENT
This Regular First Appeal is filed by plaintiff no.1
challenging the judgment and decree dated 14.12.2006
passed by the Addl. Civil Judge (Sr.Dn.), Gadag
(hereinafter referred to as 'the Trial Court, for brevity), in
O.S.No.108/1998.
2. For the sake of convenience, the parties to this
appeal are referred to by their rankings assigned to them
before the Trial Court.
3. Heard the learned Counsel for the appellants-
plaintiffs. Respondents/defendants and plaintiff no.2
though served in the matter, have remained
unrepresented.
RFA 132/2007
4. Brief facts of the case that would be relevant for
the purpose of disposal of this appeal are:
The plaintiffs had filed O.S.No.108/1998 before the
Trial Court against the defendants seeking the relief of
partition and separate possession by metes and bounds
along with mesne profits in respect of the suit schedule
properties and also to declare that the alleged Will dated
29.03.1986 was a forged document and not binding on
the plaintiffs.
According to the plaintiffs, one Basappa is the
propositus of the family of the plaintiffs and the
defendants. Basappa had four sons by name
Channabasappa, Basavanneppa, Fakirappa and
Mallappa. The joint family properties were in joint
possession of the four sons of Basappa. After the death of
Basappa, in the year 1953, there was a partition amongst
his four sons in respect of the joint family properties and
in the said partition, the suit schedule properties were
allotted to the share of Fakirappa, who is the father of
defendant no.1 herein. Defendant no.1 is the only son of
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Fakirappa and after the death of Fakirappa, defendant
no.1 had succeeded to the said properties. Plaintiff no.2 is
the wife of defendant no.1 and plaintiff no.1 is the son
born to them from their wedlock. Defendant no.1 allegedly
took one Smt. Basavannavva as his second wife and
defendants 2 & 3 are the daughters born to defendant
no.1 and Smt. Basavannavva. It is the further case of the
plaintiffs that defendant no.1 and Basavannavva in order
to grab the suit schedule properties have created a forged
Will of deceased Fakirappa in favour of defendants 2 & 3,
and therefore, the same is not binding on the plaintiffs.
Since defendant no.1 along with Basavannavva and her
children had refused to give the plaintiffs their share in
the suit schedule properties, the plaintiffs were
constrained to file the suit for partition claiming 2/3rd
share in the suit schedule properties.
Initially, the suit was filed only against defendant
no.1. Defendant no.1 after entering appearance in the suit
had filed his written statement contending that the suit
was bad for non-joinder of necessary parties. It was his
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further case that the suit schedule properties belonged to
his daughters Neelavva and Girijavva (defendants 2 & 3
herein) and in their absence, the suit cannot be proceeded
with. He had disputed the genealogical tree produced by
the plaintiffs and contended that Basavannavva was his
wife and from the said wedlock, he had three daughters
and one son. He had contended that the suit schedule
properties belonged to his father Fakirappa and since his
wife and children, more particularly his daughters
Neelavva and Girijavva had looked after Fakirappa during
his last days, Fakirappa with love and affection had
executed a Will in favour of his daughters Neelavva and
Girijavva on 29.03.1986 bequeathing the suit schedule
properties in their favour. It was also contended by him
that one Narayananayak Subbannanar of Mulagund had
obtained a money decree against Fakirappa, and
thereafter filed an execution case and brought the suit
schedule properties for sale. In the said proceedings, it
was contended that his daughters viz., Neelavva and
Girijavva were the owners of the property by virtue of the
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Will dated 29.03.1986 and the Executing Court had held
that the Will was proved. He also contended that his
daughters Neelavva and Girijavva had filed
O.S.No.156/1998 against him for a decree of permanent
injunction and the said suit was disposed of on the basis
of the compromise petition filed, wherein it has been
admitted that Neelavva and Girijavva were the owners of
the suit schedule properties by virtue of the alleged Will
dated 29.03.1986. Subsequently, the plaintiffs herein
have impleaded the daughters of defendant no.1 as
defendants 2 & 3.
Defendant no.2 after entering appearance in the
present suit, had filed written statement adopting the
statement made by defendant no.1 and also contended
that she along with defendant no.3 were the absolute
owners of the suit schedule properties in view of the Will
executed by their grandfather Fakirappa and they are in
actual possession of the suit schedule properties and
accordingly, prayed to dismiss the suit. Defendant no.3
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filed a memo adopting the written statement of defendant
no.2.
On the basis of the rival pleadings, the Trial Court
framed the following issues and additional issue.
Issues
1) Whether the 1st plaintiff proves that he is the son
of 2nd plaintiff and defendant and whether the 2nd
plaintiff proves that she is the wife of defendant?
2) Whether the plaintiffs prove genealogy?
3) Whether the plaintiffs prove that suit properties
are their and defendants joint family properties
as pleaded in para no.4 of plaint?
4) Whether the plaintiff proves that the alleged Will
is created after the death of Fakirappa?
5) Whether the plaintiff proves that defendant is
addicted to bad vices?
6) Whether the defendant proves that one
Basavannevva is his wife?
7) Whether the suit is bad for non-joinder of
children of Basavannewwa?
RFA 132/2007
8) Whether the defendant proves that suit properties
are the properties of Neelawwa and Girijawwa?
9) Whether the defendant proves that Fakirappa has
executed a valid Will on 29.03.1986 bequeathing
suit properties in favour of Neelawwa and
Girijawwa as pleaded in para 6 of W.S.?
10) What is the effect of O.S.No.156/98 on the file
of 3rd Addl. Civil Judge (Jr.Dn.), Gadag?
11) What order/decree?
Addl. Issue
1) Whether defendants No.2 and 3 proves that they
are the absolute owners of the suit properties and
they are in possession as per the Will executed by
their grandfather Fakirappa?
To substantiate the case of the plaintiffs, plaintiff
no.1 examined himself as PW-1 and plaintiff no.2 got
examined herself as PW-2. In addition, they examined six
other witnesses as PWs-3 to 8 and got marked 14
documents as Exs.P-1 to P-14 and closed their evidence.
Defendants 1 & 2 were examined as DWs-1 & 2 and
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another witness was examined in support of the defence
as DW-3 and three documents were got marked as Exs.D-
1 to D-3. After completion of recording the evidence, the
Trial Court heard the arguments addressed on both sides
and vide the impugned judgment and decree having
answered Issue nos.1, 3, 4 & 6 in the affirmative and the
other issues and additional issue except Issue no.7 in the
negative, dismissed the suit. Being aggrieved by the
same, the plaintiffs are before this Court in this Regular
Appeal.
5. Learned counsel for the plaintiffs submits that
the Trial Court having held that plaintiffs had proved that
the suit schedule properties are the joint family properties
of the plaintiffs and defendants, had erred in dismissing
the suit on the ground that the decree in
O.S.No.156/1998 is a legal impediment to the case. He
submits that the plaintiffs are not parties to
O.S.No.108/1998, which is a collusive suit filed by
defendants no.1 to 3, wherein compromise has been
recorded between themselves. He submits that the said
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decree cannot come in the way of the plaintiffs seeking
partition in the joint family properties, when admittedly
the relationship between the parties is not in dispute. He
submits that the alleged Will is a fraudulent and created
document and even if it is presumed to be true, Fakirappa
had no right to execute the said Will, as the suit schedule
properties, which are the subject matter of the said Will,
are held to be the joint families properties. He submits
that the Trial Court having answered issue No.9 in the
negative and having held that the defendants had failed to
prove that Fakirappa had executed the alleged Will dated
29.03.1986 bequeathing the suit schedule properties in
favour of Neelavva and Girijavva, has erred in dismissing
the suit on the ground that the compromise decree in
O.S.No.156/1998 is a legal impediment to decide the
case. He therefore prays to allow the appeal.
6. I have carefully appreciated the arguments
addressed on behalf of the plaintiffs and also perused the
oral and documentary evidence available on record.
RFA 132/2007
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7. The relationship of the plaintiffs with the 1st
defendant is not in dispute. The 1st defendant has
contended that, he also married one Basavannewwa and
from the said wedlock, he has got four children. The
plaintiffs have produced Ex.P8, which is the Survival
Certificate issued by the jurisdictional Village Accountant,
after the death of Fakirappa. A perusal of the said
document would go to show that the name of the 1st
defendant as well as the name of his two wives and their
children are shown as Successors to late Fakirappa.
8. The Trial Court on the basis of the oral and
documentary evidence available on record, has answered
issue Nos. 1 and 3 in the affirmative and has held that the
plaintiffs are the son and wife of the 1st defendant and
that the plaintiffs had proved that the suit schedule
properties are the joint family properties of the plaintiffs
and defendants. The Trial Court has recorded a finding
that the defendants had failed to prove that Fakirappa
had executed the Will dated 29.03.1986 bequeathing the
suit schedule properties in favour of Neelavva and
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Girijavva, as contended by them in their written
statement. The suit in O.S.No.156/1998 was an inter-se
suit filed between the defendants no.1 to 3 and in the said
suit, defendants no.2 and 3, who are the plaintiffs, had
sought for a decree of permanent injunction as against
defendant No.1. The said suit was filed on 18.04.1998.
Immediately thereafterwards, a compromise petition is
filed between the parties to the said suit and on the basis
of the said compromise petition, the suit was disposed of
on 09.06.1998, wherein the 1st defendant herein, who was
the defendant in the said suit had admitted execution of
the alleged Will dated 29.03.1986 and also had admitted
that, on the strength of the said Will executed by his
father Fakirappa, his daughters Neelavva and Girijavva
were the absolute owners of the suit schedule properties.
9. The Trial Court in the present suit has recorded a
finding that the suit schedule properties are the joint
family properties of the plaintiffs and defendants and also
has held that the defendants had failed to prove that
Fakirappa had executed a valid Will on 29.03.1986,
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bequeathing the suit schedule properties in favour of
Neelavva and Girijavva. Since the Trial Court had given a
finding that the suit schedule properties are the joint
family properties of the plaintiffs and the defendants, even
if Fakirappa had executed a Will, as alleged, on
29.03.1986, the same cannot be considered as a valid Will
for the simple reason that Fakirappa had no absolute title
over the suit schedule properties, to bequeath the same in
favour of Neelavva and Girijavva, when the Trial Court
had recorded a finding that the suit schedule properties
are the joint family properties of the plaintiffs and
defendants and that the defendants had failed to prove
that Fakirappa had executed a Will as contended by them
in their written statement, bequeathing the suit schedule
properties in favour of Neelavva and Girijavva.
10. The compromise decree passed in
O.S.No156/1998, wherein inter-se the defendants herein
have admitted the execution of the Will, cannot be an
impediment to consider the prayer of the plaintiffs in the
present suit, wherein they have sought for allotment of
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their share in the joint family properties. The Trial Court
has completely erred in holding that the compromise
decree passed in a suit for permanent injunction inter-se
between the defendants herein is an impediment to
consider the case of the plaintiffs on its merits.
11. Admittedly, the plaintiffs are not parties to the
said suit and therefore, the decree passed in the said suit
on the basis of a compromise petition cannot be binding
on the plaintiffs and therefore, the finding recorded by the
Trial Court on issue No.10 that the decree in
O.S.No.156/1998 is a legal impediment to decide the case
is highly illegal and the same cannot be sustained. It is
also necessary to take note of the fact that, the plaintiffs
by producing Ex.P8 - Survival Certificate, had admitted
that the late Fakirappa is survived by seven legal
representatives. The question whether the children born
to the 1st defendant from Smt.Basavannewwa are entitled
for any share in the suit schedule properties is required to
be considered by the Trial Court. The question whether
all the children of the 1st defendant born to
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Basavannewwa are necessary parties to the suit is also
required to be considered by Trial Court.
12. Though the Trial Court had framed issue No.7
with regard to non-joinder of all children of Smt.
Basavannewwa, the said issue has not been answered by
the Trial Court. The Trial Court is also required to
consider as to whether the wife of the 1st defendant is
entitled for any share in the suit schedule properties
during his life time.
13. Under the circumstances, I am of the view that
this is a fit case, wherein the judgment and decree passed
by the Trial Court is required to be set aside and the
matter has to be remanded to the Trial Court for fresh
disposal of the suit, in accordance with law, ignoring the
decree passed in O.S.No.156/1998. Accordingly, the
following order:
ORDER
The appeal is allowed.
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The judgment and decree dated 14.12.2006 passed
by the Addl. Civil Judge (Sr.Dn.), Gadag, in
O.S.No.108/1998 is set aside.
The matter is remitted to the Trial Court to decide
the suit afresh, after giving an opportunity to all the
parties to lead additional evidence, if any, and
thereafterwards decide the suit on its merits.
The parties are directed to appear before the trial
Court on 28.02.2022. Since the respondents are not
represented in this appeal, the Trial Court shall issue
notice to them, if necessary.
The Registry is directed to return the trial Court
records forthwith.
Sd/-
JUDGE
KK/gab
