Shri M P Subramani Naidu vs T Narasimha Reddy
2023 Latest Caselaw 437 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6th DAY OF JANUARY, 2023

                         BEFORE

   THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

        REGULAR SECOND APPEAL NO. 1554/2012

BETWEEN:

SHRI.M.P.SUBRAMANI NAIDU
S/O. PAPI NAIDU
AGED 60 YEARS
R/A. NO.1022, 6TH CROSS
ASHOK NAGAR, BANASHANKARI 2ND STAGE
2ND BLOCK, BANGALORE - 560 050.

SINCE DEAD BY LRS

1(a)   SMT.NAGABHUSHANAMMA
       W/O LATE M.P.SUBRAMANYAM NAIDU
       AGED 49 YEARS

 (b)   UMA
       D/O LATE M.P.SUBRAMANYAM NAIDU
       AGED 29 YEARS

 (c)   SUMA
       D/O LATE M.P.SUBRAMANYAM NAIDU
       AGED 27 YEARS

 (d)   NARASIMA
       S/O LATE M.P.SUBRAMANYAM NAIDU
       AGED 25 YEARS

       ALL ARE RESIDING AT
       NO.1022, 6TH CROSS
       ASHOK NAGAR, BANASHANKARI 2ND STAGE
       2ND BLOCK, BANGALORE - 50.

[BY SRI.C.M.NAGABHUSHANA, ADVOCATE
FOR A1(a) AND 1(d)
SRI. B.RAMESH, ADVOCATE
FOR APPELLANT NO.1(b) AND 1(c)]
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(CAUSE-TITLE AMENDED AS PER ORDER DATED 11.12.2012)

                                       ... APPELLANTS
AND:

1.     T.NARASIMHA REDDY
       S/O MUNISHAMI ALIAS THIMMA REDDY
       AGED ABOUT 36 YEARS
       R/AT IGGALARU VILLAGE
       ATTIBELE HOBLI
       ANEKAL TALUK - 562 106
       BANGALORE DISTRICT

2.     SHRI T.GOPALA REDDY
       S/O MUNISHAMI ALIAS THIMMA REDDY
       AGED ABOUT 36 YEARS
       R/AT IGGALURU VILLAGE
       ATTIBELE HOBLI
       ANEKAL TALUK - 562 106
       BANGALORE DISTRICT

3.     SMT. MUNIYAMMA
       W/O LATE NANJUNDA REDDY
       AGED ABOUT 71 YEARS

4.     BALAKRISHNA
       S/O LATE NANJUNDA REDDY
       AGED ABOUT 31 YEARS

RESPONDENTS NO.3 & 4 ARE RESIDING AT
CHUCHUGARANAHALLI
HOSUR TALUK
DHARMAPURI DISTRICT - 591 111

5.     SMT. GOWRAMMA
       W/O MUNIREDDY
       AGED ABOUT 46 YEARS
       PARAKANAHALLI
       DENKANIKOTE
       DHARMAPURI DISTRICT
       TAMIL NADU - 591 111

6.     SMT. NEELAMMA
       W/O KATE RAJANNA REDDY
       AGED ABOUT 36 YEARS
       R/AT DOMMASANDRA
                         3



     SARJAPURA HOBLI
     ANEKAL TALUK - 562 106

7.   SMT.NAGRATHAMMA
     D/O LATE NANJUNDA REDDY
     AGED ABOUT 34 YEARS
     R/AT GOPASANDRA
     SARJAPURA HOBLI
     ANEKAL TALUK - 562 106

8.   SMT. SAVITHRAMMA
     D/O LATE NANJUNDA REDDY
     AGED ABOUT 32 YEARS
     R/AT CHUCHUGARANAHALLI
     HOSUR TALUK
     DHARMAPURI DISTRICT
     TAMIL NADU - 591 111

9.   SMT. ASWATHAMMA
     D/O LATE NANJUNDA REDDY
     MAJOR
     R/AT DODDASANDRA
     SARJAPURA HOBLI
     ANEKAL TALUK - 562 106
                                       ... RESPONDENTS

(BY H.N.SHASHIDHARA, SENIOR COUNSEL FOR
G.A.VISHWANATH REDDY, ADVOCATE FOR R1)
R3-R7 AND R9 SERVED
V/O DATED 16.09.2013 SERVICE TO R8 HELD SUFFICIENT

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND
DECREE DATED 27.10.2009 PASSED IN R.A. NO.175/2008 ON
THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE, ACCEPTING THE
COMPROMISE MEMO AND MODIFYING THE JUDGMENT AND
DECREE DATED 10.07.2008 PASSED IN O.S.NO.1690/2006
(OLD NO.287/1996) ON THE FILE OF THE CIVIL JUDGE (SR.
DN.) & JMFC, ANEKAL.

     THIS APPEAL IS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 16TH DECEMBER, 2022 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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                          JUDGMENT

The decree passed based on a joint memo, in an

appeal under Section 96 of Code of Civil Procedure, 1908,

(for short 'the Code') is under challenge in this Regular

Second Appeal.

2. The son filed a suit against his father, uncle,

(father's brother), his own brother and the fourth

defendant, the purchaser of the property from the

plaintiff's uncle.

3. The suit was filed challenging the relinquishment

of property in favour of the plaintiff's uncle by the

plaintiff's father and the alienation by the plaintiff's uncle

in favour of the fourth defendant

4. Trial Court decreed the suit. The relinquishment

of share by the plaintiff's father in favour of the plaintiff's

uncle and alienation by plaintiff's uncle in favour of fourth

defendant are held to be not binding on the plaintiff's

share. As a result, suit is decreed for partition and

separate possession of plaintiff's 1/6th share.

5. The wife and the children of the second defendant

(plaintiff's uncle) who died during the pendency of the suit,

laid a challenge to the said judgment and decree in R.A.

No.175/2008 on the file of Principal District Judge,

Bangalore rural district. In the said appeal, the

purchaser/fourth defendant in the suit was arrayed as the

third respondent and he remained absent.

6. In the said appeal, the settlement was recorded

based on a joint memo signed by the second appellant

(one of the heirs of deceased second defendant, the

vendor) and the first respondent/ plaintiff. Admittedly, the

third respondent/purchaser of the property who had

remained absent in the appeal is not a signatory to the

joint memo. Acting on the said memo, the first appellate

court vide judgment and decree dated 27.10.2009,

modified the judgment and decree which were under

challenge before it. The said judgment and decree dated

27.10.2009 are impugned in this appeal by the legal

representatives of the purchaser/fourth defendant.

7. This appeal was admitted in terms of order

dated 27.09.2013 to consider the following substantial

questions of law:

a) Whether the lower appellate Court's judgment and decree is illegal as the same is passed without serving summons of the appeal to the 3rd respondent/appellant in R.A.No.175/2008?

b) Whether the lower appellate Court has committed an error as it has proceeded to adjudicate R.A.No.175/2008 without ensuring that the parties to the appeal are served and heard?

c) Whether the lower appellate Court was correct in modifying the decree of the trial Court based on a memo filed only by 1st respondent/plaintiff in the appeal filed by respondents 3 to 9?

d) Whether the compromise decree passed by the appellate Court modifying the judgment and decree of the trial court is sustainable as it appears the appellate court has accepted the terms of compromise to declare the respondent No.1 and plaintiff owners of item No.1 and 2 properties without the consent of the appellant?

e) Whether this appeal is maintainable in view of pendency of R.A.No.175/2008 said to have been filed by the appellant?

8. Later, vide order dated 04.04.2019, one more

substantial question of law was framed by my Learned

predecessor which reads as under.

"Whether in a suit for partition when all the parties have compromised the matter, except one defendant, who is placed ex-parte in the appeal and suit ends in compromise is it open for the said defendant to adjudicate (sic) the matter in second appeal without resorting (sic) the regular appeal against the judgment and decree of the trial court?"

9. Heard Sri.C.M.Nagabhushan, the learned

counsel appearing for the appellants No.1(a) and 1(d),

Sri B.Ramesh, the learned counsel appearing for appellants

No.1(b) and 1(c). Sri. H.N.Shashidhara, the learned Senior

counsel appearing for the respondent No.1.

10. Learned counsel appearing for the appellants

would submit that the third respondent in the first appeal,

under whom they claim, was not served with the notice of

the appeal and case was decided in violation of principles

of natural justice. Alternatively, it is submitted that

assuming the third respondent was served, the First

Appellate Court has not applied its mind to satisfy itself

that the alleged settlement is lawful. The court blindly

accepted the joint memo without applying its mind. The

settlement accepted by the First Appellate Court, to which

the purchaser/third respondent before it was not a party,

has adversely affected the right of the purchaser.

Accordingly, prayed for allowing the appeal.

11. Learned Senior counsel Sri.Shashidhar,

appearing for the respondents would urge that the present

appellants the legal representatives of the

purchaser/fourth defendant have not pursued the appeal in

R.A. No.175/2011, filed by the purchaser and the same

was dismissed in the year 2017, as abated consequent to

the death of the purchaser/appellant in R.A No.175/2011.

Thus, according to the learned senior counsel, nothing

survives for consideration in this appeal as the judgment

and decree in O.S. No.1690/2006 has attained finality. It is

his further contention that the present appellants being the

legal representatives of the deceased third respondent/

purchaser in R.A. No.175/2008, cannot question the

judgment and decree rendered in O.S. No.1690/2006 as

there iseno first appeal against the said judgment and

decree by the purchaser. It is further urged that the First

Appellate Court is justified in accepting the joint memo

signed by the second appellant and the first respondent

and the counsel of all the appellants and the first

respondent. Since the third respondent before it, remained

absent, his consent was not required is the submission.

12. In terms of the settlement the decree-holder

has given up his claim in respect of one of the properties

namely a residential house, and the right of the third

respondent/purchaser who purchased the agricultural land

is not affected by the settlement.

13. Learned Senior counsel has relied upon a

judgment and decree of the Hon'ble Apex Court in the case

of State of Andra Pradesh vs. Rangareddy reported in

2020 (5)SCC 1581 to contend that the appeal by the

legal representatives of the second respondent in the first

appeal is not maintainable on the premise that there was

no first appeal by the fourth defendant who had suffered a

decree in the trial Court.

14. This Court has considered the contentions

raised at the bar.

15. The impugned decree is passed on a joint

memo filed in the first appeal under Section 96 read with

Order XLI of the Code. The Order XLI Rule 4 of the code

will have some bearing on the case on hand. Said provision

reads as under:

Where there are more plaintiffs or more defendants, than one in a suit, and the decree appealed from proceeds on any ground common to all, the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants. as the case may be.

(emphasis supplied)

16. The expression "any one of the plaintiffs or of

the defendants may appeal from the whole decree, and

thereupon the Appellate Court may reverse or vary the

decree in favour of all the plaintiffs or defendants as the

case may be" enables the appellate court, to set aside the

entire judgment and decree under appeal even in a

situation where the appeal is filed by one of the plaintiffs

or one of the defendants though the judgment and decree

under challenge in appeal, affect all the plaintiffs or all the

defendants. The appellate court can grant the relief to the

plaintiff/s or the defendant/s who though aggrieved, may

not have preferred the appeal. The test contemplated

under the said provision is whether the grounds of appeal

are common to the party filing the appeal and the one not

filing the appeal.

17. In the suit, the vendor/second defendant and

the purchaser/fourth defendant were defending the case

on common grounds. This being the position, the appeal in

R.A. No.175/2008 filed by the legal representatives of

vendor/second defendant if decided in their favour, would

result in dismissal of the suit which is also the prayer of

the fourth defendant the purchaser from the second

defendant. Thus, purchaser/fourth defendant though not

filed an appeal against the judgment and decree in the

suit, it cannot be said that he accepted the trial court

decree. He being the third respondent in R.A.

No.175/2008, filed by the legal representatives of

vendor/second defendant is permitted under Order XLI

Rule 4 of the Code of Civil Procedure to pray for the

dismissal of the suit.

18. The fact situation obtained in this case would

not enable the court to say that there was no challenge to

the judgment and decree of the trial court. It is also

relevant to note that the purchaser/fourth defendant

though immediately did not file an appeal, later filed an

appeal in R.A. No.175/2011, with an application to

condone the delay. Of course, said appeal was filed after

the disposal of R.A. no.175/2008.

19. The legality of the joint memo and order

accepting the joint memo is to be considered in the

backdrop of discussion made above on Order XLI Rule 4 of

the Code. When the joint memo was filed which is signed

by only the second appellant and the first respondent, and

the advocates for the appellants and the first respondent,

the court owed a duty to consider the consequences of the

joint memo on a party who has not signed the joint memo

and who has remained absent, in the event of the court

accepting the joint memo and modifying the judgment and

decree of the trial Court based on the joint memo.

20. The provisions of Order XXIII rule 3 of the Code

would require the Court to satisfy itself as to the

correctness of the settlement/satisfaction referred to in the

joint petition recording settlement or satisfaction. The

petition/ application recording settlement can be accepted

only if the settlement is lawful. The court accepting the

settlement has to record its satisfaction and the order

accepting the settlement has to be supported by reasons.

Merely because some of the parties to the proceeding have

signed the joint memo the court is not obliged to accept

the joint memo and pass the decree based on it.

21. It is to be noticed that the appeal filed by the

legal representatives of the vendor purported to protect

the interest of the third respondent/purchaser who

remained absent. The acceptance of a joint memo would

result in the dismissal of an appeal and confirmation of the

judgment and decree of the trial court in respect of the

properties in the name of third respondent in the said

appeal. The court owed a duty to consider the effect of the

settlement which apparently is contrary to the plea in the

appeal memo, and the grounds urged in the appeal memo

which purported to protect not only the interest of the

appellant but also the interest of the third respondent.

Since the joint memo is a 'U' turn to the stand taken in the

appeal, the third respondent ought to have had the notice

of the said joint memo. If there are valid reasons, which

of course need to be recorded, for holding that there is no

need to notify the third respondent who has remained

absent, about the proposed settlement, the appellate court

can accept the joint memo, though it is not signed by one

of the parties to the proceeding. Now the court has to

consider the impugned judgment and decree. The said

judgment reads as under:

"Compromise memo filed.

Accepted, Draw decree in terms of compromise. In view of the compromise the judgment of the court below is modified"

22. The impugned judgment apparently does not

disclose the reasons for accepting the joint memo. The

consequence of accepting the joint memo and the effect of

the decree based on the joint memo on the rights of the

third respondent who is not before the Court and who has

not signed the joint memo is not considered by the

appellate Court. If the appellate Court were to adjudicate

the case on merits based on the grounds urged in the

appeal memo and to deliver the judgment where the third

respondent has not appeared despite service of notice,

then the third respondent cannot complain about case

being heard and decided on merits. However, the scenario

is different here. The case is decided on a joint memo to

which the third respondent is not a party and moreover he

had no notice of it. The settlement is contrary to what is

urged in memorandum of appeal sent along with the notice

of appeal, and when the grounds of appeal seek to

safeguard the interest of the third respondent in the

appeal, then the Court had to first satisfy itself as to

whether the compromise can be accepted in the absence

of the third respondent to the proceeding who is going to

be affected by the compromise. The first appellate court

has not carried out this exercise and no reasons are

forthcoming in the impugned judgment and decree

recording such satisfaction. The court has not considered

whether the settlement is lawful or not. There is total lack

of application of mind as to the legality of the joint memo.

23. The learned Senior counsel for the respondent

would submit that the appeal filed by the purchaser in R.A.

No.175/2011 is dismissed in 2017 as abated. The

purchaser died in 2012. The present appellants who are

the legal representatives of the deceased purchaser have

not prosecuted the appeal in R.A. No.175/2011 by

substituting them as the legal representatives of the

deceased appellant in the said appeal. In the backdrop of

these facts, it is urged that the present appellants cannot

maintain this appeal.

24. It is to be noticed that the appeal in R.A.

No.175/2011 is filed after the disposal of R.A.

No.175/2008 which is decided in terms of impugned

decree dated 27.10.2009. In other words, when joint

memo was accepted and the decree is passed based on

the joint memo, the appeal in R.A. No.175/2011 was not

pending. That being the position and considering that the

third respondent/purchaser had the opportunity to support

the appeal, this court has to consider whether the first

appellate court exercised its power under Order XXIII Rule

3 of the Code in the manner contemplated under the said

provision. This Court has already noticed that the first

appellate court has failed to record the satisfaction as to

whether the settlement is lawful or not This being the

position, the subsequent filing of the appeal and its

dismissal as having abated does not come in the way of

this Court considering the present appeal on its merit when

the third respondent/purchaser in the R.A. No.175/2008

has the right of appeal to question the judgment and

decree in passed in R.A. No.175/2008 by invoking Section

100 of the Code.

25. The contention of the learned Senior counsel

that the respondent in R.A. No.175/2008 cannot question

the judgment and decree in the said case by filing the

second appeal on the premise that the third

purchaser/respondent has not filed the appeal against the

judgment and decree in the suit is not a valid contention.

Instant appeal is filed on 02.08.2012. By the time this

appeal was filed, R.A. No.175/2011 was also filed before

the first appellate court. The right of appeal is a statutory

right. The right of a second appeal is governed by Section

100 of the Code. The present appellants are the legal

representatives of third respondent in R.A. No.175/2008.

The decree in the said appeal, based on a compromise, to

which a third respondent before the first appeal is not a

party, directly affects the appellants' rights which they are

claiming in respect of certain properties covered in the

joint memo. Thus the appellants can invoke Section 100 of

the Code. Section 100 does not impose any embargo on

the appellants to file a second appeal when their

predecessor is a party to the suit and the first appeal.

26. The ratio laid down in the case of

B Rangareddy, supra cannot be applied to the facts of

this case. Learned Senior counsel appearing for the

respondents stressed on paragraphs 20 and 21 of the said

judgment. In the aforementioned paragraphs, the Hon'ble

Apex Court has held that the decree cannot be modified in

favour of the respondent in the absence of appeal or cross-

objection. It is also held by the Apex Court that the power

of the court under order XLI rule 33 cannot be exercised to

grant relief by overturning the decree which has attained

finality. In this case, it is to be noticed that the decree in

O.S. No.1690/2006 had not attained finality when the joint

memo was presented before the first appellate court. And

when this appeal was filed, there was one more challenge

to the judgment and decree in the suit, in R.A.

No.175/2011. This being the position, it cannot be

construed that there was no appeal against the judgment

and decree of the trial court. Moreover, the appeal in R.A.

No.175/2008 filed by the vendor would also come to the

aid of the purchaser who was arrayed as third respondent

in the said appeal and the said respondent under XLI rule

4 of the code had all the right to support the appellant.

27. For the aforesaid reason, this court is of the

view ratio laid in the aforementioned case does not apply

to the facts of this case.

28. It is also to be noticed that the suit filed before

the Trial court was one for partition and separate

possession. The suit was filed challenging the alienation

made in favour of the fourth defendant, by the second

defendant. Having purchased the property from the second

defendant, and even in a situation if the second defendant

is held to be possessing only an undivided share in the

properties sold, having stepped into the shoes of the

vendor, the purchaser can also seek equitable remedies

when it comes to allotment of shares. That being the

position it was certainly possible for the purchaser who is

the third respondent in R.A. No.175/2008 to get him

transposed as the appellant, if the appellant who filed the

appeal is unwilling to pursue the appeal. Considering these

circumstances, this Court is of the view that the appeal

filed by the legal heirs of the fourth defendant/purchaser is

maintainable.

29. For the reasons recorded the additional

substantial question of law is answered holding that this

appeal is maintainable. And since the matter is remanded

the substantial questions of law (a) to (d) do not arise for

consideration. As far as substantial question of law (e) is

concerned, same does not arise for consideration as R.A.

No.175/2011 is not pending.

30. For the reasons assigned, this court is of the

view that the judgment and decree of the first appellate

court have to be set aside and accordingly are set aside.

The matter is remanded to the first appellate Court to

consider the joint memo dated 27.10.2009 by allowing the

present appellants to submit their say on the said joint

memo. If the Court finds that the joint memo can be

accepted, the Court has to assign the reasons for

accepting the same. If the Court finds that the joint memo

cannot be accepted, then the same has to be rejected and

thereafter the appeal has to be decided in accordance with

the law.

31. Hence the following:

ORDER

(i) Appeal is allowed in-part.

(ii) The judgment and decree dated 27.10.2009 in R.A.

No.175/2008 on the file of the Principal District Judge,

Bangalore rural district are set aside. And the matter

is remanded to the first appellate court to consider the

appeal and the joint memo 27.10.2009 in accordance

with the law.

(iii) Registry to send back the records to the first

appellate Court immediately.

  (iv)     No order as to cost.




                                           Sd/-
                                          JUDGE


 gvp