Chamundi vs Smt Puttamma
2022 Latest Caselaw 4210 Kant

                             1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

            R.S.A. NO.2100 OF 2015 (PAR)

BETWEEN:

CHAMUNDI
S/O SHIVEGOWDA
AGED ABOUT 47 YEARS
R/AT BELAVADI VILLAGE
YELWALA HOBLI,
MYSORE-567201.
                                           ...APPELLANT
(BY SRI. K.N.PUTTEGOWDA, ADVOCATE)

AND:

1.     SMT. PUTTAMMA
       W/O MANJUGOWDA
       AGED ABOUT 69 YEARS
       R/AT HOSAKOTE VILLAGE
       YELAWALA HOBLI,
       MYSORE TALUK-567201.

2.     PAPANNA
       S/O SANNAHANUMANTHEGOWDA
       AGED ABOUT 72 YEARS

3.     SMT. SUNANDAMMA
       W/O PAPANNA
       AGED ABOUT 60 YEARS

       BOTH ARE RESIDENTS OF
       HOSAKOTE VILLAGE
       YELAWALA HOBLI
       MYSORE TALUK-567201.
                             2




4.    PUTTARAJU
      S/O ANDANEGOWDA
      AGED ABOUT 46 YEARS

5.    SMT. BHAGYA
      W/O KRISHNEGOWDA
      AGED ABOUT 40 YEARS

6.    SMT. ANASUYA
      D/O ANDANEGOWDA
      AGED ABOUT 38 YEARS

      R-4 TO R-6 R/AT
      HOOTAGALLI VILLAGE
      NEAR HALANJI KATTE
      KASABA HOBLI
      MYSORE TALUK-567201.

7.    GANGADHAR
      S/O PAPANNA
      AGED ABOUT 35 YEARS

8.    RAGHU
      S/O PAPANNA
      AGED ABOUT 30 YEARS

9.    SUNIL
      S/O PAPANNA
      AGED ABOUT 28 YEARS

10.   JAYANTHI
      D/O PAPANNA
      AGED ABOUT 26 YEARS
      RESPONDENTS 7 TO 10 ARE
      R/AT HOSAKOTE VILLAGE
      YELAWALA HOBLI
      MYSORE TALUK-567201.

11.   GOWDAIAH
      S/O LATE SHIVEGOWDA
      AGED ABOUT 46 YEARS
      R/AT BELAWADI VILLAGE
      YELAWALA HOBLI
                            3




     MYSORE TALUK-567201.
                                           ...RESPONDENTS

(BY SRI. P. NATARAJU, ADVOCATE FOR RESPONDENT NO.1;
SRI. T.S.MAHANTESH, ADVOCATE FOR RESPONDENT NO.3;
NOTICE SERVED ON RESPONDENT NO.2 AND UNREPRESENTED;
VIDE ORDER DATED 22.12.2015, SERVICE OF NOTICE TO
RESPONDENT NOs.4 TO 11 ARE DISPENSED WITH)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 02.07.2014 PASSED IN RA.NO.224/2012 ON
THE FILE OF THE III ADDL.SENIOR CIVIL JUDGE & CJM,
MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 16.08.2012 PASSED IN
OS.NO.66/2000 ON THE FILE OF THE II CIVIL JUDGE AND
J.M.F.C AT MYSORE.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the defendant No.12 in O.S.

No.66/2000 challenging the divergent finding recorded in

R.A. No.224/2012 on the file of the III Addl. Senior Civil

Judge & CJM, Mysore, (henceforth referred to as 'First

Appellate Court') by which it reversed the judgment and

decree passed in O.S. No.66/2000 on the file of II Civil

Judge and J.M.F.C., Mysore (henceforth referred to as

'Trial Court') and decreed the suit for partition and

separate possession of the plaintiff's 1/3rd share in the suit

schedule properties.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court. The appellant

was the defendant No.12, while the respondent No.1 was

the plaintiff and respondents No.2 to 11 were the

defendants No.2 to 11 before the Trial Court.

3. The suit in O.S. No.66/2000 was filed for

partition and separate possession of the suit properties

which were the land in Sy.No.186 of Rachegowdanahalli,

Sy.No.22 of Mallahalli, Sy.No.63/3 of Hemmanahalli,

Sy.No.194/1 of Yechegowdanahalli, Sy.No.194/2 of

Yechegowdanahalli and two house properties at Hosakote

village, all situate in Mysore taluk. It was claimed in the

suit that the plaintiff, defendant No.2 and mother of

defendants No.4 to 6 (Kamalamma) were the children of

defendant No.1. Defendant No.3 is the wife of defendant

No.2. It was claimed that all the suit properties were joint

family ancestral properties which were administered by

defendant No.1. The plaintiff alleged that defendant No.1

in collusion with defendant No.3 was attempting to create

documents in respect of the suit properties. The plaintiff

found that defendant No.1 in collusion with defendants

No.2 and 3 had purchased suit Items No.4 and 5 out of the

income of the joint family but in the name of defendant

No.3. The plaintiff suspecting the bonafides of the

defendants, issued a notice demanding partition and

separate possession of her share in the suit properties,

which was evasively replied by the defendants No.3 to 5.

The plaintiff, therefore, filed a suit for partition.

4. The suit was contested by defendant No.3, who

admitted the relationship with the plaintiff. She claimed

that some of the suit properties were ancestral, while

some were the self-acquisition of defendant No.3. She

claimed that the plaintiff is not entitled to any share as she

was married long back prior to the Hindu Succession

(Karnataka Amendment) Act, 1994. She claimed that the

suit against the defendant No.1 had abated, and therefore,

it abated against the other defendants also.

5. Defendants No.7 to 10 contested the suit,

where they claimed that Sy.No.186 was the self-

acquisition of their grandfather and that he had

bequeathed them to the defendants No.7 to 10 in terms of

a Will dated 08.02.2000. They also claimed that land

bearing Sy.No.22 was also bequeathed under the said Will.

6. Based on these rival contentions, the Trial

Court framed the following issues :

i. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties?

ii. Whether the plaintiff proves that the 1st defendant was the Kartha of the family?

iii. Whether the suit is bad for non-joinder of necessary and proper parties?

iv. Whether the plaintiff is entitled for partition and separate possession as prayed?

v. What order or decree?

Additional Issues :

i. Whether the defendants No.7 to 10 prove that the 1st defendant has executed a Will dated 08.02.2000 in their favour bequeathing the suit Items No.1 and 2 properties?

ii. Whether the defendants No.7 to 10 prove that the plaintiff has sold her share to Nanjamma?

7. The plaintiff was examined as PW1, who

marked documents as Exs.P-1 to P-13, while the

defendant No.7 was examined as D.W.1 and defendant

No.4 as D.W.2 and marked documents as Exs.D-1 to D-10.

8. The Trial Court held that the properties

mentioned in Exs.P-1 to P-4 which stood in the joint names

of defendants No.1 and 2 were presumably joint family

properties. It held that though the defendant No.4 claimed

that the defendant No.1 had executed a Will in his favour

on 15.12.1997 in respect of Sy.No.186 and though

defendants No.7 to 10 claimed that Items No.1 and 2 were

bequeathed to them by the defendant No.1 in terms of a

Will dated 08.02.2000, they failed to offer themselves for

cross-examination and they had failed to discharge the

burden of proving the Will as required under Section 68 of

the Indian Evidence Act, 1872. Therefore, the Trial Court

held that the suit Items No.1, 2, 4 and 5 were also the

joint family ancestral properties.

9. However, in so far as suit Items No.3, 6 and 7,

it held that the plaintiff had failed to prove that they were

acquired out of the joint family nucleus. After holding so,

the Trial Court applied the law declared by this Court in the

case of PUSHPALATHA vs. PADMA, ILR 2010 KAR

1108 and held that the plaintiff was born prior to 1956

and therefore was not entitled to any share in respect of

ancestral property. Hence, it dismissed the suit.

10. Being aggrieved by the aforesaid judgment and

decree, the plaintiff filed R.A. No. 224/2012 before the

First Appellate Court.

11. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed points for consideration and in terms of the

judgment and decree dated 02.07.2014 allowed the appeal

and decreed the suit on the ground that the age of the

plaintiff mentioned in the suit was not conclusive as in her

deposition, she claimed that she was then aged 45 years.

It held that even if she was born prior to 1956, her right to

claim as a co-parcener cannot be defeated. It also held

that the defendant No.7 and the defendant No.4 did not

prove the due execution of the Will under which they

claimed title to Items No.1 and 2. Therefore, it held that

the plaintiff is entitled to 1/3rd share in the suit properties

as the defendant No.1 had died intestate.

12. Being aggrieved by the aforesaid judgment and

decree, the defendant No.12 who purportedly purchased 1

acre 26 guntas out of 2 acres in Sy.No.194/1 and 34

guntas in Sy.No.194/2 under a sale deed dated

17.08.2009 from the defendant No.3, has filed the present

appeal.

13. The learned counsel for the defendant No.12

submitted that the defendant No.12 who had purchased

the above referred properties from the defendant No.3,

was assured by the defendant No.3, that the suit would be

effectively defended. The defendant No.12 trusted the

defendant No.3, who, however, did not participate in the

proceedings. He, further contended that even in the

appeal filed before the First Appellate Court the defendant

No.3 assured to defend the appeal and did not intimate

him about the outcome. When the plaintiff initiated final

decree proceedings in FDP No. 1/2015, against the

defendants, the defendant No.3 continued the assurance.

The learned counsel accused the defendant No.3 of

colluding with the plaintiff by not effectively representing

the case of defendant No.12. He, therefore, submitted

that an opportunity be granted to the defendant No.12 to

contest the suit on merits only in so far as suit Items No. 4

and 5 are concerned.

14. This was opposed by the learned counsel for

respondents, who submitted that the plaintiff had initiated

final decree proceedings and had already received her

share in the suit properties, and therefore, any disturbance

of the final decree would cause untold hardship to the

plaintiff.

15. It is seen from the records that the suit was

filed in the year 2000 and the defendant No.12 was

represented by an Advocate. The defendant No.12 did not

contest the suit and did not even enter the witness box.

In the appeal filed before the First Appellate Court, the

defendant No.12 was placed ex parte. This Regular

Second Appeal itself was belatedly filed on 21.12.2015 i.e.,

after delay of nearly 447 days. The defendant No.12

though filed an application for stay of final decree

proceedings, did not take any steps to move the appeal for

consideration of the application for stay. The defendant

No.12 remained a mute spectator to the proceedings in the

case and after the final decree Court had partitioned the

properties has approached this Court pleading for

sympathetical consideration.

16. Normally, this Court would not entertain a lazy

and negligent litigant who had slept over his rights. In the

case on hand, the defendant No.3 who had disposed off

the suit Items No.4 and 5 to defendant No.12 was bound

to take all necessary steps to safeguard the interest of

defendant No.12 as all documents and information relating

to said properties would be lying with her. The defendant

No.12 cannot on his own establish that the suit Items No.4

and 5 were the self-acquisition of the defendant No.3.

Nonetheless the fact that the defendant No.3 had not

participated in the proceedings before the Trial Court and

First Appellate Court gives an impression that she had

colluded with the plaintiff to deprive the rights of

defendant No.12. Thus, the contention urged by the

learned counsel for defendant No.12 that he was misled by

defendant No.3 seems probable. As the civil rights of

defendant No.12 would be affected by the decree of the

First Appellate Court, this Court in order to do justice

between the parties, considers it appropriate to grant an

opportunity to the defendant No.12 to contest the suit on

merits in so far as it relates to suit Items No.4 and 5.

However, the same cannot be without compensating the

plaintiff for the time, money and energy lost in the

process. This Court considers it appropriate to fix timeline

for the Trial Court to conclude the proceedings so that

defendant No.12 does not misuse the indulgence shown by

this Court. This Court is also conscious of the fact that the

final decree is already drawn in F.D.P. No.1/2015 and the

parties are already placed in possession of their respective

shares. Thus, the final decree drawn deserves to be kept

in abeyance until adjudication of the claim of the

defendant No.12. If the Trial Court concludes that the

plaintiff is entitled to her share in suit Items No.4 and 5,

then the final decree drawn in F.D.P. No.1/2015 shall not

be disturbed. However, if the Trial Court comes to the

conclusion that the plaintiff is not entitled to any share in

suit Items No.4 and 5, then the final decree drawn in

F.D.P. No.1/2015 would be revisited and reconsidered by

the final decree Court based on the preliminary decree that

may be passed in respect of suit Items No.4 and 5.

17. Hence, the following :

ORDER

i. The appeal is allowed.

ii. The impugned judgment and decree passed

by the First Appellate Court in R.A.

No.224/2012 in so far as suit Items No.4 and

5 are concerned is set aside and the case is

remitted to the Trial Court only in so far as

suit Items No.4 and 5 are concerned.

iii. In order to enable the Trial Court to consider

the same expeditiously, the defendant No.12

as well as the plaintiff are directed to appear

before the Trial Court on 04.04.2022.

iv. The defendant No.12 shall file his written

statement within 30 days from 04.04.2022

and the Trial Court may frame issues insofar

as suit Items No.4 and 5 is concerned and

record the evidence of the parties on a day-

to-day basis and dispose off the suit in

respect of suit Items No.4 and 5 by the end

of November 2022. This shall, however, be

subject to payment of a cost of Rs.50,000/-

payable by defendant No.12 to the plaintiff

on the next date of hearing before the Trial

Court.

v. As stated above, if the Trial Court holds that

the plaintiff is entitled to 1/3rd share in the

suit Items No.4 and 5, then the final decree

drawn in F.D.P. No.1/2015 and the

consequent execution proceedings shall

remain unaffected. However, if the Trial

Court disallows the claim of the plaintiff in

respect of suit Items No.4 and 5, then the

final decree drawn in F.D.P. No.1/2015 shall

be suitably modified.

vi. It is open for the parties to settle the dispute

amicably before the Trial Court in respect of

suit Items No.4 and 5. The decree in respect

of other suit items is confirmed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm