Karnataka High Court
Irappa S/O Shivappa Mudagil vs Prabhavati D/O Irappa Mudabagil on 28 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100459/2018 (FDP)
BETWEEN
1. IRAPPA S/O SHIVAPPA MUDABAGIL,
AGE: 49 YEARS,OCC: AGRICULTURE,
R/O: TIMMENAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. PARAVVA W/O IRAPPA MALAGI,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: HALLIYAL, TQ: HARIHAR,
DIST: DAVANAGERE-577601.
3. MAHADEVI W/O BASAVARAJAPPA MALAGI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: HALLIYAL, TQ: HARIHAR,
DIST: DAVANAGERE-577601.
4. AVINASH S/O BASAVARAJAPPA MALAGI,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: HALLIYAL, TQ: HARIHAR,
DIST: DAVANAGERE-577601.
...APPELLANTS
(BY SRI DINESH M.KULKARNI, ADV.)
AND
1. PRABHAVATI D/O IRAPPA MUDABAGIL,
AGE: 17 YEARS, OCC: AGRICULTURE,
MINOR REP BY GRAND MOTHER
SHANTAMMA W/O YAMANAPPA MULAGUNDA,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: GUDDADAHOSALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2
2. HANUMAGOUDA
S/O MAHADEVAPPA MUDABAGIL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: TIMMENAHALLI, TQ: RANEBENUUR,
DIST: HAVERI-581115.
3. HEMANAGOUDA
S/O MAHADEVAPPA MUDABAGIL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: TIMMENAHALLI, TQ: RANEBENUUR,
DIST: HAVERI-581115.
4. BASAVVA W/O HANUMAGOUDA MALAGI,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: HALLIYAL, TQ: HARIHAR,
DIST: DAVANAGERE-581115.
5. GADIGEVVA W/O HANUMAGOUDA MALAGI,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: HALLIYAL, TQ: HARIHAR,
DIST: DAVANAGERE-581115.
6. CHANNABASAVVA
W/O TIMMANAGOUDA UJJAPPALAVAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: KOKANUR, TQ: HARIHAR,
DIST: DAVANAGERE-581115.
... RESPONDENTS
(BY SRI M.H.PATIL, ADV.)
SRI HARSHAWARDHAN M.PATIL, ADV. FOR R.1)
(NOTICE TO RESPONDENT NO.3 : SERVED)
(NOTICE TO RESPONDENT NO.2, 4, 5 & 6 : HELD SUFFICIENT.)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 06.04.2018
PASSED IN R.A.NO.53/2017 BY THE II ADDITIONAL SENIOR
CIVIL JUDGE, RANEBENNUR IN MODIFYING THE ORDER DATED
18.09.2017 PASSED BY THE COURT OF PRL. CIVIL JUDGE
(JR.DN.) I ADDL. JMFC, RANEBENNUR IN F.D.P.NO.11/2009,
AND REMAND BACK TO TRIAL COURT TO PASS FRESH
PRELIMINARY DECREE, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
: JUDGMENT :
The captioned second appeal is filed by
defendant Nos.2, 3, 4 & 6 questioning the order
passed by the First Appellate Court in R.A.No.53/2017.
2. The present appellants/defendants contend
that appellant No.4/defendant No.6 has succeeded
pursuant to Will executed by Irawwa who was
defendant No.1 in the suit. It is contended that she
was allotted 2/16th share by the Trial Court and the
same is modified by the Trial Court awarding 5/12th
share. Appellant No.4/defendant No.6 contends that
she has bequeathed her legitimate share by way of
registered Will dated 31.01.2012. The FDP Court
having taken note of death of Irawwa, by order dated
18.09.2017 modified the decree passed in
R.A.No.2/2010 and enlarged the share of respondent
No.1/plaintiff No.1 in the FDP proceedings.
3. Against modification of preliminary decree,
the present appellants preferred an appeal in
R.A.No.53/2014. The Appellate Court has proceeded to
reject the claim of appellant No.4/defendant No.6 on
the ground that appellant No.4/defendant No.6 has
not made a claim before the FDP Court by producing
the registered Will. Therefore, the First Appellate Court
was of the view that claim of appellants cannot be
considered and therefore an adjudication is warranted
on the said document. Since Will was not produced by
appellant No.4/defendant No.6, it was well within the
jurisdiction of FDP Court to re-determine the share on
account of death of parties. If appellant
No.4/defendant No.6 asserts rights and title pursuant
to registered Will executed by Irawwa who has
bequeathed her legitimate share in the suit schedule
property, then it is incumbent on the part of appellant
No.4 to produce the registered Will and make a claim
based on the said Will. The claim of appellant No.4
needs adjudication as that would have a bearing on
quantification of share. If appellant No.4/defendant
No.6 succeeds in proving due execution of Will, then
the share of other family members would stay intact in
terms of decree passed in R.A.No.2/2010. If appellant
No.4/defendant No.6 fails to prove the due execution
of Will, then it goes without saying that the members
will be entitled for enlargement of shares. Therefore
the claim of appellant No.4/defendant No.6 has to be
decided by the FDP Court and not by an independent
suit, as there will be conflicting judgment in the event
appellant No.4/defendant No.6 is relegated to file
separate suit. However, all these eventualities would
arise only if the appellant No.4/defendant No.6 makes
a claim by producing original registered Will before
FDP Court, which is not done in the present case on
hand.
4. Therefore, I do not find any infirmities or
illegalities in the order passed by the Appellate Court
in R.A.No.53/2017. At paragraph No.13, the First
Appellate Court has recorded a finding that since the
document was not placed before FDP Court, the
Appellate Court cannot examine the registered Will in
an appeal.
5. Having perused the material on record, I
am of the view that the order passed by the Appellate
Court would not come in the way of appellant
No.4/defendant No.6 in filing the appropriate
application before the FDP Court. If such an
application is filed, the FDP Court is required to
proceed in accordance with law and decide the claims
before confirming the shares on account of death of
Irawwa who was arrayed as defendant No.1.
6. With these observations, the second appeal
is hereby disposed off.
Sd/-
JUDGE
EM
