Karnataka High Court
Smt. Sheshamma vs Smt. Shivamma W/O Rachappa Shetkar on 30 July, 2024
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RSA No. 7057 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 7057 OF 2012 (DEC/INJ)
BETWEEN:
1. SMT. SHESHAMMA
SINCE DECEASED THROUGH LRS,
I) SIDRAMAPPA S/O BHIMRAO
AGED ABOUT 66 YEARS, OCC: PENSIONER.
II) NARENDRA KUMAR S/O SIDRAMAPPA
SINCE DECEASED THROUGH LR'S
A) SAVITRI @ SAVITHRAMMA
W/O LATE NARENDRA KUMAR,
Digitally signed
by RENUKA AGED ABOUT 44 YEARS.
Location: HIGH
COURT OF B) CHANDRA S/O LATE NARENDRA KUMAR
KARNATAKA AGED ABOUT 25 YEARS,
C) KUM. JYOTHI @ BHAGYA JYOTHI
D/O LATE NARENDRA KUMAR,
AGED ABOUT 23 YEARS.
D) ABHISHEK
S/O LATE NARENDRA KUMAR
AGED ABOUT 21 YEARS,
ALL ARE RESIDING AT H.NO. 10-1-113 (OLD)
11-2-47 (NEW) AND NO. 11-2-77 (RECENT)
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RSA No. 7057 of 2012
AT MANGALPET,
BIDAR
...APPELLANTS
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. SMT. SHIVAMMA W/O RACHAPPA SHETKAR
SINCE DECEASED THROUGH LRS.
A) BASAWARAJ S/O LATE RACHAPPA SHETKAR
AGED ABOUT 66 YEARS.
B) SHARDA W/O LATE MALLIKARJUN NAGURE
D/O LATE SHIVAMMA,
AGED ABOUT 50 YEARS.
C) SHASHIKALA D/O LATE RACHAPPA SHETKAR
W/O PRABHUAPPA,
AGED ABOUT 48 YEARS.
D) SURYAKANT S/O LATE RACHAPPA SHETKAR
AGED ABOUT 58 YEARS.
E) SUMITRA @ SHEELA D/O RACHAPPA SHETKAR
W/O SHIVANAND TADKAL,
AGE ABOUT 45 YEARS,
ALL ARE PRESENTLY RESIDING OF,
BEHIND GIRL'S HIGH SCHOOL,
BIDAR.
2. THE MUNICIPAL COMMISSIONER
CMC BIDAR
...RESPONDENTS
(BY SRI GOURISH S. KHASHAMPUR, ADVOCATE FOR R2;
R1 (A) TO (E) ARE SERVED)
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RSA No. 7057 of 2012
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE ABOVE SECOND APPEAL AND SET
ASIDE THE JUDGMENT AND DECREE R.A.NO.28/2006 PASSED
BY THE SENIOR CIVIL JUDGE AT BIDAR AND CONSEQUENTLY
CONFIRM THE JUDGMENT AND DECREE IN O.S.NO.233/1994
PASSED BY THE CIVIL JUDGE (JR.DIV) AT BIDAR DATED
27.2.2006.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH
HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
1. The defendant in O.S. No.233/1994 on the file of
the Additional Civil Judge, Junior Division at Bidar is before
this Court aggrieved by the divergent finding recorded in
R.A. No.28/2006 on the file of Senior Civil Judge, Bidar. This
appeal was admitted on 12.07.2002 to answer the following
substantial question of law:-
"Whether the first appellate Court is justified
in reversing the judgment and decree passed by
the trial Court which is based on oral and
documentary evidence."
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2. After hearing the learned counsel appearing
for the appellant, this Court is of the view that one more
substantial question of law is required and the same is
framed as under:-
"Whether the first appellate Court is justified
in holding that late Seshamma is not the legally
wedded wife of late Shantappa and not entitled to
any right in the suit schedule property." and
"Whether the trial Court is justified in
holding that the suit of the plaintiff is barred by
limitation."
3. The facts necessary for adjudication of the
present appeal can be summarised as under:-
One Shantappa was the propositus. He died in the
year 1972. He had a wife by name Sangamma. The
plaintiff Shivamma is her daughter. Shivamma filed a
suit for declaration and possession. Shivamma claims
that after the death of Shantappa the suit schedule
property devolved upon her mother Sangamma and
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after the death of Sangamma the plaintiff inherited the
suit schedule property. The plaintiff also claims that the
defendant Seshamma had relationship with her father
and on account of that relationship the plaintiff allowed
the defendant to occupy the property as a licencee. The
plaintiff contends that the defendant on becoming the
councillor of Municipality in 1980, using her position as
the Councillor got the property name changed in her
name without the consent of the plaintiff, as such, the
plaintiff was constrained to file a suit for declaration and
possession.
4. The defendant resisted the suit on the
premise that she is the legally wedded wife of late
Sangappa and it is also her contention that the
Sangappa has given the property to her.
5. The trial Court has dismissed the suit on the
premise that the suit is barred by limitation.
6. It is also relevant to note that during the
pendency of the suit, the defendant died. The plaintiff
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impleaded two brothers of the defendant on the premise
that those two brothers occupied the suit property after
the demise of the defendant.
7. The plaintiff filed an appeal against the
dismissal of the suit. The first appellate Court reversed
the judgment of the trial Court. The first appellate
Court held that the original defendant not established
her status as the legally wedded wife of late Shantappa.
However, gave a finding that the plaintiff has treated
Seshamma as the second wife of her father. However,
the first appellate Court has concluded that the suit is in
time as the suit is for possession based on title.
Accordingly, the suit is decreed.
8. The present appellants have come on record
as the legal representative of deceased Sheshamma the
original defendant are before this Court in the second
appeal.
9. It is relevant to note that the present
appellants tried to make it claim before the trial Court
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based on a document which is styled as Will as well as
the Gift Deed in favour of the present appellants
executed by Seshamma, the sister of the said
appellants. The first appellate Court has noted that the
said document is not a registered document and said
document is styled as a gift deed cannot be looked into
and has not accepted the claim of the present
appellants based on the said gift deed dated
31.10.1991.
10. Learned counsel appearing for the appellants
would contend that the suit of the plaintiff is barred by
limitation as the possession of the defendant is very
much recognised even during the lifetime of plaintiff's
father Shantappa who died in 1972. Thus, he would
contend that even before 1972 the appellant's sister
Seshamma was in possession of the suit schedule
property and the suit for possession filed in the year
1994 is barred by limitation. It is also his contention
that the first appellate Court could not have given a
finding that the document dated 31.10.1991 is a gift
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deed. He would submit that though there is a recital in
the document which would indicate that the document is
a Gift Deed, the further recital in the document would
also indicate that the document is a Will executed by
Seshamma and one of the attesting witnesses is
examined to prove the execution of the Will and hardly
there is any evidence in the cross examination of the
attesting witnesses to disbelieve the Will. He would also
contend that the first appellant Court has recognised the
status of the original defendant as the second wife of
late Shantappa. That being the possession Seshamma
the second wife would inherit the property of late
Shantappa and she is competent to execute the Will in
respect of the said property.
11. Sri Ravi B Patil, learned counsel for the
appellants also submits that in the absence of any
specific issue relating to the proof of the Will first
appellate Court could not have gone into the pleading
that the document dated 31.10.1992 is not a Gift Deed.
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12. The respondent is served and not
represented.
13. This Court has considered the contentions
raised at the bar and perused the records.
14. Shantappa was the propositus. This fact is
not in dispute. Sangamma was his wife, again is not
dispute and the plaintiff is the daughter of Sangamma.
The question is whether Seshamma is the second wife.
The Hindu Marriage Act came into force in 1955. After
coming into force the said Act 1955, the second
marriage is prohibited when the first marriage is
subsisting. From the pleadings, it is not clear whether
Seshamma married Shantappa before the
commencement of Hindu Marriage Act, 1955. In the
absence of any such evidence, this Court cannot give a
finding that Seshamma married Shantappa before the
commencement of the Hindu Marriage Act, 1955.
Seshamma herself has not claimed that she married
Shantappa before the commencement of the Hindu
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Marriage Act, 1955. This Court cannot hold that the
marriage has taken place before 1955 and Shantamma
has acquired share in the property of late Shantappa. It
is also relevant to note that after the death of
Shantappa, Seshamma did not make a claim as a
successor to Shantappa and to record her name in the
property records along with Shantappa's daughter
Shivamma. The attempt to enter the name of
Seshamma was first made in 1980. This being the
position, this Court is of the view that Sangamma is the
wife of Shantappa and Seshamma could not have
married Shantappa and Shantappa's first marriage with
Sangamma was subsisting. This being the position,
Sangamma would inherit the property along with her
daughter Shivamma who is the plaintiff and after the
death of Sangamma the entire property of Shantappa
devolved upon Shivamma the plaintiff.
15. Admittedly, the defendant is in possession of
the property. Even if it is held that she was in
possession of the property prior to 1972 pursuant to
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permission granted by Shantappa, the possession of
defendant becomes is only a permissive possession. The
defendant has not raised the defence of adverse
possession. The permissive possession does not take
away the right of the lawful owner. The lawful owner is
entitled to sue for possession based on title against the
person who is in permissive possession. Such a suit
cannot be dismissed unless the person in permissive
possession takes up a defence of adverse possession
and establishes the plea of adverse possession. As long
as such a defence is not raised as long as plea of
adverse possession is not proved, the suit for
possession based on title cannot be dismissed.
16. The plaintiff is the owner of the property.
Thus, the suit of the plaintiff cannot be said to be barred
by limitation and finding of the trial Court that the suit
of the plaintiff is barred by limitation is clearly contrary
to the mandate of Article 65 of the Limitation Act. The
first appellate Court has rightly held that the suit of the
plaintiff is in time.
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17. As far as the finding of the first appellate
Court relating to alleged gift deed and alleged Will dated
31.10.1991 is concerned, the first appellate Court has
treated the said document as invalid gift deed and has
concluded that for want of registration the said
document cannot be construed as a valid gift deed.
Learned counsel Sri. Ravi Patil urged before this Court
that the recitals in the said document dated 31.10.1991
would also disclose the fact the said document is a Will
and one of the attesting witnesses is examined to prove
the execution of the Will. What is required to be noticed
is whether Seshamma had any right over the property.
Even if the execution of Will is proved in accordance
with law, the factual position is Seshamma was not the
owner of the property. When Seshamma was not the
owner of the property, she could not have bequeathed
the property in favour of the present appellants.
18. Though, learned counsel Ravi B. Patel would
urge that the first appellate Court has given finding that
the Seshamma is the second wife of late Shantappa that
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the finding of the first appellate Court does not come to
the aid of the appellants to hold that Seshamma has
acquired the right over the property. The finding of the
first appellate Court that Seshamma is the second wife
of Shantappa has to be understood only as the
recognition granted by the plaintiff to treat Seshamma
as the second wife of Shantappa. That does not mean
that the 2nd marriage is valid in the absence of his
specific plea that the marriage has taken place before
commencement of the Hindu Marriage Act, 1955, the
finding of the first appellate Court that Seshamma is the
second wife cannot be stretched to hold that second
marriage is a valid marriage. Admittedly, the first
marriage was subsisting between Shantappa and
Sangamma and there is no dissolution of marriage and
it is not the case of the defendant Seshamma that she
married Shantappa after the demise of Sangamma.
This being the position though the finding is given to the
effect that the Seshamma is the second wife, the finding
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cannot be interpreted to say the second marriage is a
valid marriage.
19. For the aforementioned reasons, the
substantial questions of law framed above answered
against the appellants and in favour of the respondent.
Accordingly, the appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
CT:PK
