Karnataka High Court
Smt Kamalamma vs Smt Rathnamma on 1 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1810/2007 (PAR)
C/W.
R.S.A. NO.1911/2016 (DEC)
IN R.S.A. NO.1810/2007:
BETWEEN:
1. NARAYANASWAMY
S/O LATE NANJAPPA
AGED ABOUT 52 YEARS
2. VENKATESH
W/O GURULINGAYYA
AGED ABOUT 76 YEARS
ALL RESIDING AT KARANJIKATTE KELAGE
NEAR RAILWAY TRACK,
KADERIPURA ROAD, KOLAR-563101.
... APPELLANTS
(BY SRI B.C.RAJEEVA, ADVOCATE)
AND:
1 . SMT. RATHNAMMA
W/O LATE MUNIVENKATASWAMY
AGED ABOUT 53 YEARS
2 . SMT. ANASUYAMMA
D/O LATE MUNIVENKATASWAMY
2
AGED ABOUT 34 YEARS
3 . SMT. MANJULA
D/O LATE MUNIVENKATASWAMY
AGED ABOUT 33 YEARS
ALL ARE RESIDING AT
SRI RAJARAJESHWARI
TEMPLE ROAD, DEVASANDRA,
BANGALORE-560002.
... RESPONDENTS
(BY SRI R.BHADRINATH, ADVOCATE FOR R1 TO R3)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 05.03.2007 PASSED IN
RA.NO.180/2004 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-III, KOLAR, DISMISSING THE APPEAL
GILED AGAINST THE JUDGEMENT AND DECREE DATED
12.08.2004 PASSED IN OS.NO.345/2001 ON THE FILE OF THE
PRL.CIVIL JUDGE (JR.DN.) KOALR.
IN R.S.A. NO.1911/2016:
BETWEEN:
1 . SMT. KAMALAMMA
W/O NARAYANASWAMY,
AGED ABOUT 51 YEARS,
2 . MADHUSUDANA
S/O NARAYANASWAMY,
AGED ABOUT 25 YEARS,
3 . KUM. SUDHA
D/O NARAYANASWAMY,
AGED ABOUT 25 YEARS,
3
ALL ARE RESIDING AT
KARANJIKATTE KELEGE,
KADRIPURA ROAD,
KOLAR - 563 1031
4 . SRI VENKATESH
S/O LATE NANJAPPA,
AGED ABOUT 49 YEARS,
R/AT KARANJIKATTE KELEGE,
NEAR RAILWAY TRACK,
KADRIPURA ROAD,
KOLAR - 563 1031
... APPELLANTS
(BY SRI VIJAYAKUMAR R., ADVOCATE)
AND:
1 . SMT. RATHNAMMA
W/O LATE MUNIVENKATASWAMY,
AGED ABOUT 60 YEARS,
2 . SMT. ANUSUYAMMA
D/O LATE MUNIVENKATASWAMY,
AGED ABOUT 43 YEARS,
3 . SMT. MANJULA
D/O LATE MUNIVENKATASWAMY,
AGED ABOUT 41 YEARS,
ALL ARE RESIDENTS
OF KARANJIKATTE,
KOLAR CITY, KOLAR
NOW RESIDING NEAR
SREE RAJARAJESHWARI
TEMPLE ROAD, DEVASANDRA,
BENGALURU - 560 036.
4
4 . SMT. LAKSHMAMMA
W/O NARAYANASWAMY,
AGED ABOUT 55 YEARS,
5 . SRI MANJUNATH
S/O NARAYANASWAMY,
AGED ABOUT 29 YEARS,
6 . SRI NAVEEN
S/O NARAYANASWAMY,
AGED ABOUT 29 YEARS,
7 . SRI DHIVAKARA
S/O NARAYANASWAMY,
AGED ABOUT 26 YEARS,
ALL ARE RESIDING AT
KARANJIKATTE KELEGE,
KADRIPURA ROAD,
KOLAR - 5631031.
... RESPONDENTS
(BY SRI BHADRINATH R., ADVOCATE C/R1 TO R3
AND ALSO FOR R4 TO R7)
THIS R.S.A. IS FILED U/S 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 05.08.2016 PASSED IN R.A.
NO.139/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 07.06.2013 PASSED IN
O.S. NO.177/2007 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC, KOLAR.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
5
JUDGMENT
Heard the learned counsel appearing for the
appellants and the learned counsel for the respondents.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The factual matrix of R.S.A No.1810/2007 is that
a suit is filed by the plaintiffs seeking the relief of partition
and separate position in respect of item Nos.1 and 2 of the
suit schedule properties claiming that they are entitled for
1/3rd share each in all the suit schedule properties. It is
contended in the plaint that plaintiff No.1 is the mother and
plaintiff Nos.2 and 3 are her daughters through her
husband late Munivenkataswami. It is contended that the
late Munivenkataswami and the defendants are own
brothers and they are the sons of late Nanjappa. The
defendant No.3 is the mother of defendant Nos.1 and 2 and
late Munivenkataswami. The suit schedule properties are all
ancestral and joint family properties consisting of
themselves and the defendants. During the lifetime of
Nanjappa, he was the Karta of the joint family and after his
death, the elder son of the family that is late
Munivenkataswami was managing the affairs of the joint
family and enjoying the suit schedule properties jointly.
Late Munivenkataswami was working in ITI and after his
death, all the benefits of rents invested in construction of
the house, digging well and installing pump set. It is
contended that the husband of the first plaintiff
Munivenkataswami died about 20 years back and after his
death, they continued as members of the joint family. The
joint family is owning the suit schedule lands and the family
is having sufficient income, Out of the said income, the joint
family constructed a residential house and there is no
division or partition in the joint family and hence, the
plaintiffs are entitled for 1/3rd share.
4. When a demand was made for partition by the
plaintiff the same was postponed by the defendant No.1,
who is the Karta of the family and a Panchayat was
convened by him, but all their efforts went in vain and
hence, they filed the suit.
5. In pursuance of the suit summons, defendants
No.1 and 2 have appeared through their Advocate and have
filed written statement. They have admitted the relationship
of the parties, but they have denied the contention with
regard to that the plaintiffs are living in the joint family and
the suit schedule properties are the joint family properties.
It is contended that plaintiffs never lived with the
defendants and denied all the allegations of convening of a
Panchayat and demand of partition and that there is no
cause of action for filing the suit. The defendants also
denied the contention with regard to that the father of the
plaintiffs Venkataswamappa gifted the Sy.No.109/2
measuring 23 gunths to her husband Venkataswamappa
and also Chowdamma, the mother of defendant Nos.1 and
2.
6. It is contended by the defendants that the
husband of the first plaintiff left the village in the year 1968
to work as a Mason in Bangalore and at no point of time, he
cultivated the agricultural lands and he was also working in
ITI at Bangalore and started living separately ever since
from 1968. In the year 1969, Munivenkataswami married
the first plaintiff who was a resident of K.R.Puram. After the
marriage, the said Munivenkataswami established his
residence at K.R.Puram and lived there until his death in
1974 and he never lived at Karanjikatte.
7. It is contended that in the year 1971, the
husband of the first plaintiff expressed his desire to
completely severe his title with defendants, since he
intended to construct a house at ITI and establish his
residence permanently at K.R.Puram. In order to establish
his own independent residence, he demanded a sum of
Rs.15,000/- from the father of the defendants. It is
contended that they agreed to pay the said amount and in
turn called upon Munivenkataswami to execute a document
whereby he was required o clearly express his intention of
complete severance in status. Accordingly, on receiving the
amount, he executed an agreement styled as Hakku
bidugade patra and hence, the plaintiffs cannot claim any
right over the suit schedule properties.
8. It is contended that 1st item of the suit schedule
was gifted to the mother of the defendants by her brother
Chikkamuniswamappa through a registered gift deed in the
year 1949. The mother of the defendants is still alive and
hence, they cannot claim any share as the same is the
absolute property of Chowdamma.
10. The trial having considered the pleadings of
parties, framed the following issues:
(i) Whether the plaintiffs prove that the
husband of 1st plaintiff Munivenkataswami and
defendants are brothers and members of Hindu
Undivided family and the suit properties are the
joint family properties and all of them are in joint
possession and enjoyment of the suit schedule
properties?
(ii) Whether the plaintiffs prove that the
1st defendant is acting as Kartha of the joint
family?
(iii) Whether the plaintiffs further prove
that they have demanded for partition and
separate possession of their share?
(iv) Whether the plaintiffs prove that the
father of the 1st plaintiff gifted item No.1 of the
suit properties to husband of 1st plaintiff?
(v) Whether the plaintiffs prove that they
are entitled for partition and separate possession
of the suit schedule property by metes and
bounds as prayed for?
(vi) Whether the defendants prove that the
husband of 1st plaintiff had taken relationship
15,000/- in lieu of share of the properties of
family and executed Hakku bidgade patra as
contended in para 11 to 13 of the written
statement?
(vii) Whether the defendants prove that the
item No.1 property is the absolute property of
mother of defendants as contended in para 15 of
the written statements?
11. Plaintiff No.1 examined herself PW1 and got
marked documents viz., Ex.P1 to Ex.P5 and defendant No.2
examined himself as DW1 and examined two more
witnesses as DW2 and DW3 and got marked one document
viz., Ex.D1. The trial court having taken note of both oral
and documentary evidence, has come to the conclusion that
the husband of the 1st plaintiff - Munivenkataswami and
defendants are brothers and are the members of Hindu
Undivided Family and answered the issue No.1 partially in
the affirmative and partially in the negative and has come
to the conclusion that they are entitled for share only in
respect of item No.2 of the property and not in respect of
item No.1 of the property and also comes to the conclusion
that the defendant No.1 is not the Karta of the joint family
and answered issue No.3 in the affirmative hold that the
plaintiffs have demanded partition and sought for separate
possession, but plaintiffs have failed to prove that the
father of the 1st plaintiff gifted item No.1 of the suit
schedule property to husband of 1st plaintiff and answered
Issue No.5 partially in the affirmative and partially in the
negative regarding the share is concerned and answered
issue No.6 in the negative regarding executing of the
release deed and comes to the conclusion that item No.1 of
the property is the absolute property of the mother of the
defendants. Ultimately, the trial court decreed the suit
partly in respect of item No.2, granting 1/4th share and
rejected the claim in respect of item No.1. Being aggrieved
by the judgment and decree of the trial court, both the
plaintiffs against declining the relief in respect of item No.1
filed an appeal in Regular Appeal No.148/2004 and
defendants have also filed appeal in Regular Appeal
No.180/2004.
12. The First Appellate Court having considered the
judgment and decree of the trial court and also the grounds
urged in both the appeals, formulated the following points:
(i) Whether the plaintiff proves that the 1st
item of the suit schedule property is the
joint family property of the plaintiffs
and defendants?
(ii) Whether the defendants prove that
Munivenkataswamy got separated from
the joint family and is not entitled for
partition?
(iii) Whether the judgment and decree of
the lower court is sustainable?
(iv) What order?
13. The First Appellate Court having re-assessed
both oral and documentary evidence, answered the point
Nos.1 and 2 in the negative holding that the plaintiffs did
not prove that the item No.1 of the suit schedule property
is the joint family property of the plaintiffs and the
defendants. It has also observed that the defendants have
failed to prove that Munivenkataswami got separated from
the joint family and is not entitled for partition. However,
insofar as the findings on issue Nos.4 and 7, the appellate
court comes to the conclusion that the same is not
sustainable. Having considered the material on record
dismissed the suit and confirmed the judgment of the trial
court and both the appeals filed by the plaintiffs and
defendants are dismissed. Being aggrieved by the
judgment of the trial court as well as the First Appellate
Court, the present second appeal is filed before this court.
14. The main contention in the second appeal is that
admittedly, the plaintiffs themselves admitted that
Munivenkataswami was working in the ITI till his death in
the year 1974. The hakku bidugade patra was executed and
marked at Ex.D1 was produced before the court. It was the
specific case of the defendants that Munivenkataswami was
ousted from the family, but both the courts below have
failed to consider the said fact. The 1st plaintiff also
categorically admitted that she and her children were not in
possession of the suit schedule properties. In the light of
this submission and the plea of the defendants regarding
ouster, the Courts below are not justified in decreeing the
suit in respect of item No.1 of the suit schedule properties.
15. This court having considered the grounds urged
in the appeal, while admitting the appeal, framed the
following substantial question of law:
(i) Whether the courts below were right in not
considering Article 110 of the Limitation
Act and omitting to frame issue in respect
of Article 110 of the Limitation Act?
16. The factual matrix in R.S.A.No.1911/2016 is that
the plaintiffs sought for the relief of declaration and
permanent injunction. It is contended that the suit schedule
properties originally belonged to the father of the 1st
plaintiff by name Munivenkataswamappa. The defendants
mother Chowdamma is the sister of
Munivenkataswamappa. The said Chowdamma married
Nanjappa and both of them are having three sons i.e., 1st
plaintiff's husband Munivenkataswami and defendant Nos.1
and 2. Chikkamuniswamappa being the owner of the suit
property, gifted it to the 1st plaintiff's husband
Munivenkataswami through registered gift deed dated
18.05.1949 and put him in possession of the same and at
that time, the Munivenkataswami was aged about five years
and was a minor and he was represented by his mother
Chowdamma. The said Chowdamma held the land for and
on behalf of the minor till 1962 i.e., till he attained the age
of majority. However, Munivenkataswami who was the
absolute owner of the suit schedule properties died on
17.01.1976 and Chowdamma died on 30.03.2007, but the
RTC stands in the name of Chikka Munivenkatappa and in
the RTC, his name is mentioned as the Dommanahalli
Muniswami. Chowdamma did not disclose about the
registered gift deed either to the 1st plaintiff's husband or
the plaintiffs and the original Gift deed is still in the custody
of the defendant No1.
17. The defendants contend that in the earlier
partition suit, gift deed is only in the name of said
Chowdamma and the plaintiffs obtained the certified copy of
the same only on 28.03.2007 and on going through the
same, it is confirmed that the gift deed is only in the name
of the 1st plaintiff's husband and the plaintiffs were not
aware of the same though they lived together and enjoyed
the properties jointly and hence, filed a suit for partition in
O.S.No.345/2001 by including the present suit property.
Chowdamma and the defendants herein have contended in
the earlier suit that land is not a joint family property, but it
is the separate property of Chowdamma as
Chikkamuniswamappa had executed registered gift deed in
the year 1949 only in favour of Chowdamma and the court
believed the said contention and decreed the suit only in
respect of item No.2 of the property. An appeal was filed
against the rejection of item No.1 in R.A.No.148/2004 and
the same was transferred to Fast Track Court-III, which
was also dismissed with an observation that the land in
Sy.No.109/2 measuring 23 guntas is not the ancestral
properties of the plaintiffs and the defendants and the
plaintiffs remedy, if any, is not in the said petition suit. It is
further pleaded that defendants have nothing to do with the
suit property as a registered gift deed is in favour of
husband of 1st plaintiff and defendants denied the title of
the plaintiffs, but are in joint possession of the suit land and
the plaintiffs are entitled for exclusive possession of the
same, hence, sought for the relief of declaration based on
the gift deed and for possession and permanent injunction.
18. The defendants appeared and filed the statement
of objections admitting the 1st plaintiff's father viz.,
Chikkamuniswamappa was the owner of the suit land and
that the defendants mother Chowdamma is his sister and
that Chowdamma married Nanjappa and Nanjappa had
three sons i.e., the husband of the 1st plaintiff and
defendant Nos.1 and 2. The defendants also reiterated that
1st plaintiff's husband left the KeeluKote village in the year
1968 and he started residing separately and he stayed
along with his family till 1974 of his death. In the said suit
also, it is reiterated that he had executed the document of
Hakku bidugade patra relinquishing his right and he had
severed from the family for more than 30 years and hence,
they are not entitled for any relief of declaration and
possession.
19. It is also contended that the plaintiff No.1 has
clearly admitted in O.S.No.345/2001 that the present suit
property belongs to Chowdamma and that the defendants
are in possession and enjoyment of the property along with
Chowdamma for the last 40 years. The defendant Nos.1
and 2 also partitioned the property in the year 1989
through Panchayat. The defendant No.1 constructed
residential house in the suit schedule property and is
residing in the said house. The defendant Nos.1 and 2 are
enjoying the suit schedule properties. The defendant No.1 is
enjoying 11 ½ guntas towards the western side including
the residential house and defendant No.2 is enjoying 11 ½
guntas towards eastern side even during the lifetime of
their mother. After dismissal of O.S.No.345/2001,
Chowdamma executed a registered Will dated 29.10.2004
in favour of the defendants, which came into force on her
death on 23.02.2007 and the alleged gift deed claimed by
the plaintiffs is not acted upon in favour of husband of 1st
plaintiff and the defendants are enjoying the said property
openly, adversely including the plaintiffs. The plaintiffs are
estopped from contending that they are the owners in
possession as alleged, when the 1st plaintiff has clearly
admitted with regard to the execution of the gift deed by
her father in favour of the mother of the defendants and
now the plaintiffs are estopped from contending that they
are not aware of the gift deed. The suit is barred by
principles of res judicata and law of limitation and the
defendants are in adverse possession for more than the
stipulated period and the judgment in R.A.No.148/2004 and
R.A.No.180/2004 are questioned in R.S.A. No.1810/2007,
which is pending for consideration. The defendant No.2 also
filed a written statement regarding amendment of the plaint
to amend the name of the Chikkamuniswamappa as Muni
Venkatappa and prayed to treat the previous written
statement as its part and parcel.
20. The trial court having considered the pleadings
of the parties that is the plaintiffs and defendants from the
following issues:
(i) Whether the plaintiffs prove that they are
the absolute owners of the suit schedule
property?
(ii) Whether the plaintiffs prove that they are
in possession of suit schedule property as
on the date of suit?
(iii) Whether the plaintiffs prove the alleged act
of interference by the defendants?
(iv) Whether the defendants prove that value of
eth suit property more than 18 Lakhs as
such this court has no jurisdiction to try the
suit?
(v) Whether the defendants further prove that
the court fee paid is in sufficient?
(vi) Whether the defendants prove that
Munivenkataswamy has executed
relinquishment deed?
(vii) Whether the defendants prove that suit of
the plaintiff is barred by principles of
resjudicata?
(viii) Whether the defendants prove that the suit
of the plaintiff is barred by time?
(ix) Whether the plaintiffs are entitled for the
relief sought for?
(x) What order or decree?
21. The trial court allowed the parties to lead
evidence and 1st plaintiff examined herself as PW1 and got
marked documents viz., Ex.P1 to Ex.P6 and examined
another witness as PW2 who has not tendered for cross-
examination. The defendant No.2 has examined himself as
DW1 and got marked documents viz., Ex.D1 and Ex.D2 and
examined 3 other witnesses as DW2 to DW4 and closed the
same. In the cross-examination, Ex.D1 is confronted and
the same is the deposition of PW1 in the previous suit in
O.S.No.345/2001 and the same was marked. In the
evidence of DW1, Ex.D1 and Ex.D2 are also marked. Ex.D1
and Ex.D2 marked subsequently through DW1 was got re-
numbered as Ex.D2 and Ex.D3 before the trial court while
passing the order dated 19.11.2013. Thus Ex.D1 to Ex.D3
are available documents from the side of the defendants.
The trial court has answered issue No.1 as affirmative in
coming to the conclusion that the plaintiffs are the absolute
owners and issue Nos.2 to 8 are also held in the negative
and partly decreed the suit holding that the plaintiffs are
the absolute owners of the suit schedule properties, but
further held that they are not entitled for the relief of
possession or permanent injunction.
22. Being aggrieved by the said judgment, the
plaintiffs have preferred R.A.No.139/2013 contending that
when the plaintiffs are owners as held, the trial court
committed an error in not granting the relief. Similarly, the
defendants have preferred R.A.No.158/2013 alleging that
the refusal to grant further relief is correct, but the trial
court ought not to have declared the plaintiffs as owners of
the property, but ought to have dismissed the suit out
rightly, instead of decreeing the suit in part. The First
Appellate Court in R.A.No.139/2013 and R.A.No.158/2013
having considered the grounds urged in both the appeals,
formulated the points for consideration as mentioned
below:
(i) Whether the findings on the issues No.1
& 9 given by the Trial Court are against
the pleadings, oral and documentary
evidence placed on record?
(ii) Whether the Trial Court has erred in
holding that Ex.P1 relied upon by the
plaintiffs is a valid document under law?
If not what is the effect of Section 8 of
Hindu Succession Act?
(iii) Whether the Trial Court has erred in not
considering the plea of limitation and
respondent-judicata raised by the
defendants as alleged?
(iv) Whether the appellate court can mould
the relief in first appeal?
(v) Whether the plaintiffs in
O.S.NO.177/2007 are entitled for
dismissal of the suit as prayed for?
(vi) Whether the defendants in
O.s.No.177/2007 are entitled for
dismissal of the suit in total as prayed
for?
(vii) Whether the judgment and decree of the
Trial Court needs interference?
(viii) To what relief and decree the parties are
entitled for?
23. The First Appellate Court on re-appreciation of
both oral and documentary evidence answered points for
consideration Nos.1, 2 to 4 to 7 in the affirmative and
comes to the conclusion that the findings on issue Nos.1
and 9 given by the trial court are against the pleadings,
both oral and documentary evidence. The trial court has
erred in holding that Ex.P1 relied upon by the plaintiffs is a
valid document under law and also with regard to the
effect of Section 8 of the Hindu Succession Act and
answered point No.3 in the negative and arrived at the
conclusion that the trial court has erred in not considering
the plea of limitation and res-judicata raised by the
defendants as alleged and comes to the conclusion that the
appellate court can mould the relief in the first appeal and
the plaintiffs are entitled for a decree as claimed in
O.S.No.177/2007 and the judgment and decree of the trial
court requires interference. Being aggrieved by the
judgment and decree of the First Appellate Court, the
present second appeal is filed by the defendants 1A to 1G
before the trial court and respondent Nos.1E to 1G before
the First Appellate Court.
24. The main contention in this appeal is that the
judgment and decree of the First Appellate Court is illegal
and contrary to the well-established principles of law and
the First Appellate Court has committed a grave error in
converting the suit, which is one for declaration of title to a
suit for partition, which the plaintiffs themselves did not ask
for and invoking Order VII Rule 7 of Code of Civil
Procedure, 1908 is erroneous. The First Appellate Court also
did not appreciate the appeal filed by the plaintiffs in its
proper perspective. The First Appellate Court ought to have
held that Article 58 of the Limitation Act attracts and as
such, the findings given by it is erroneous.
25. This court having heard the appellants and the
respective counsel and also taking into note of the fact that
the other appeal is also pending, admitted the appeal and
while admitting the appeal framed the following substantial
questions of law:
(i) Whether the First Appellate Court
committed an error in invoking Order 7
Rule & of CPC in the absence of any prayer
for partition in a suit for declaration which
was sought?
(ii) Whether both the courts fail to consider
Section 11 of CPC since already issue with
regard to the item No.1 is subject matter of
original suit has already been decided by
the court in O.S.No.345/2001 and also in
the appeal R.A.No.148/2004?
26. The learned counsel for the appellants in
R.S.A.No.1810/2007 would vehemently contend that when
the suit was already filed in O.S.No.345/2001 and a decree
is passed in respect of item No.2 and rejected the claim in
respect of item No.1, which is also the subject matter of
subsequent suit in O.S.No.177/2007 ought not to have
granted the relief in respect of the suit schedule property.
In respect of item No.2 of the suit schedule property, it is
contended that already Munivenkataswami has severed the
relationship from the family by executing the document of
release deed by receiving an amount of Rs.15,000/-. The
husband of the 1st plaintiff also died in the year 1974. The
plaintiffs cannot maintain a suit as he was ousted 30 years
ago and the same is admitted in the cross-examination of
PW1. The trial court ought to have taken note of this fact
and framed issues with regard to invoking Article 110 of the
Limitation Act, when the members were excluded for more
than 12 years, trial court ought not to have considered the
same.
27. The appellant in R.S.A.No.1911/2016 also
vehemently contend that the gift deed is in favour of
Chowdamma who is the mother of 1st plaintiff's husband
and also the father of the defendant Nos.1 and 2 and the
same is also executed by Muniswamappa in the year 1949.
The approach of the trial court in holding that the gift deed
is executed in favour of the husband of the 1st plaintiff is
erroneous and the trial court though declared that the
plaintiff's husband is the absolute owner, but did not grant
the relief. The counsel also would vehemently contend that
a release deed was executed in the year 1972 itself and in
para 8 of the plaint in O.S.No.345/2001, it is admitted that
the gift deed is in favour of Chowdamma executed by
Munivenkatappa. The admission given in the earlier suit
that the same is in favour of Chowdamma takes away the
case and the Trial Court ought not to have invoked Order 7
Rule 7 of CPC as Section 11 of CPC is applicable and
subsequent suit is barred by principles of res judicata.
28. The respondent in both the second appeals and
plaintiffs in O.S.No.345/2001 and O.S.No.177/2007 would
vehemently contend that in both the suits the courts below
have rightly decreed the suit in respect of item No.2 in the
earlier suit O.S.No.345/2001. He would also vehemently
contend that in the earlier suit, though declined to grant
the relief in respect of item No.1 but by that time, they
have suppressed the very gift of the year 1949 and
subsequent to the dismissal of the suit and appeal only,
they came to know about the gift deed in favour of the
husband of the 1st plaintiff and in the earlier suit and
appeal, the same was not brought to the notice of both the
courts and hence, invoking of Section 11 of CPC does not
arise and the finding given is in respect of the very same
item of the property by considering all the material on
record, then the provision of Section 11 of CPC attracts, but
the very document of the gift deed of the year 1949 was
suppressed. In the present suit, the same is marked as
Ex.P1 and it clearly discloses that the gift deed was in
favour of the husband of the 1st plaintiff. The husband of
the 1st plaintiff died in the year 1976 and Chowdamma died
in the year 2007 and immediately, the present suit in
O.S.No.177/2007 is filed on 02.04.2007. A relief is also
sought for declaration to declare that item No.1 of the suit
schedule property belongs to the plaintiffs as absolute
owners consequent upon the gift deed executed in the year
1949.
29. The counsel in support of his argument relies
upon a decision of the Hon'ble Apex Court in 'RAVINDER
KUMAR SHARMA V. STATE OF ASSAM & ORS.', AIR
1999 SC 3571 and brought to the notice of this court
paragraph Nos.22 and 23 with regard to non-filing of any
cross-appeal and filing of the cross-objection, after 1976
amendment is purely optional and not mandatory. The filing
of the cross-objection against the adverse finding was not
obligatory. There is no res judicata. The counsel also in his
argument vehemently contends that there is no dispute
with regard to the relationship between the parties. The 1st
plaintiff's husband and also the defendant Nos.1 and 2 are
of the children of Chowdamma. It is also contended that the
gift deed is in favour of only two persons by Chowdamma
that is also subsequent to the disposal of the earlier suit
and she was not having any absolute right to execute any
gift deed and the property vests with the plaintiff since the
gift deed is in favour of 1st plaintiff's husband and the First
Appellate Court has rightly invoked Order 7 Rule 7 of CPC
and granted the decree and it does not require any
interference.
30. Having heard the learned counsel appearing for
the appellant and also learned counsel appearing for the
respondent, this court has to analyze the material available
on record taking into consideration the substantial to
question of law framed by this court.
31. Now this court would like to consider the
substantial question of law framed in R.S.A.No.1810/2007
i.e., whether the courts below were right in not considering
Article 110 of the Limitation Act and omitting to frame the
issue in respect of Article 110 of the Limitation Act. The
main contention in this appeal is that plaintiffs themselves
have admitted that Munivenkataswami was working in the
ITI till his death in 1974. The document of Ex.D1 viz., the
Haaku bidugade patra was also produced before the trial
court and it was the specific case of the defendants that
Munivenkataswami was ousted from the family. In the light
of these facts and specific contentions of the defendants
regarding ouster, both the courts below have ignored the
said plea and have not framed any issue with regard to the
ouster and ought to have invoked Article 110 of the
Limitation Act. Having perused this ground and also the
substantial question of law, it is not in dispute that the 1st
plaintiff's husband, defendant Nos.1 and 2 and also
defendant No.3 all of them belong to the Hindu joint family.
The 1st plaintiff's husband and defendant Nos.1 and 2 are
the children of defendant No.3. It is also not in dispute that
Nanjappa, who is the propositus of the family passed away
long back. It is also important to note that both the courts
have taken note of the fact with regard to severance is
concerned and though the document of Hakku bidugade
patra is marked as Ex.D1, but it is not registered and as
such, the same is not admissible in the eye of law and also
to prove the fact that an amount of Rs.15,000/- was paid,
nothing is placed on record, as such, concurrent finding was
given to that effect. The trial court granted the relief only in
respect of item No.2 and comes to the conclusion that item
No.1 is the absolute property of the defendant No.3, since it
is the contention that the gift was made exclusively in
favour of Chowdamma. Though the plaintiffs contend that
gift deed was executed in favour of the 1st plaintiff's
husband and Chowdamma, but nothing is placed on record
before the trial court except producing the document of
Ex.P1, the genealogy tree, mutation extract, 2 RTCs, Ex.P5,
the sale deed. The defendants have also not placed the
document of gift deed and only relied upon Ex.D1 -Haaku
bidugade patra and the same has not been considered and
hence, the same is not a registered document. When there
is no severance in the family, the question of ouster does
not arise. Though there was a pleading of ouster and issue
was not framed with regard to the ouster is concerned.
However, in detail discussed with regard to the ouster is
concerned in its judgment and the very contention that
both the courts below ought to have invoked the Article 110
of the Limitation Act does not arise since, no material is
placed on record regarding ouster is concerned and the
same is with regard to the proving of factual aspects of
ouster in view of defence taken in the written statement. No
doubt, the 1st plaintiff's husband is working in the ITI and
he was staying in Bangalore and merely working in
Bangalore and staying at Bangalore cannot be a ground of
ouster and the same has been considered by the trial court
as well as the first appellate court. Hence, the very
contention of the appellant in the appeal that both the
courts below ought to have invoked Article 110 of the
Limitation Act cannot be accepted and the trial court rightly
granted the relief in favour of the plaintiff in respect of item
No.2 on the basis of material available on record in coming
to the conclusion that there exists a joint family. The First
Appellate Court also re-appreciated the material available
on record and rightly dismissed the suit of the appellants
and in the absence of the gift deed of the 1949, confirmed
the judgment of the trial court in respect of item No.1 is
concerned. Hence, I do not find any substance in the
contention of the appellant counsel in invoking Article 110
of the Limitation Act when joint family is in existence and
no severance of family status and nothing is placed on
record for exclusion of joint family members and Article 110
of the Limitation Act also does not attract having considered
the factual aspects of the case. Hence, I answer the
substantial question of law that the trial court has not
committed any error in not framing any issue invoking
Article 110 of the Limitation Act.
32. Having considered the substantial question of
law framed in this second appeal and the same is with
regard to the moulding of the relief by invoking Order 7
Rule 7 of CPC and also whether both the courts below failed
to consider Section 11 of CPC, and the issue with regard to
item No.1 which is the subject matter of original suit has
already been decided by the court in O.S.No.345/2001 and
also in the appeal in R.A.No.148/2004. Having considered
this fact into consideration and also on perusal of the
judgment of the Trial Court in O.S.No.177/2007, the gift
deed of the year 1949 was not produced in the earlier suit
in O.S.No.345/2001 and also the same was not urged by
filing additional document before the appellate court and in
the absence of gift deed of the year 1949, the earlier suit
and the appeal was decided and when such being the case,
the question of invoking the provisions of Section 11 of CPC
does not arise. Having perused the provision of Section 11
of CPC It is very clear that no Court shall try any suit or
issue in which the matter directly and substantially in issue
has been directly and substantially in issue in a former suit
between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in
a Court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and has
been heard and finally decided by such Court, then Section
11 of CPC attracts and in the present case on hand, no such
res judicata applies, as the said issue was not decided
earlier and though a claim in respect of the said item of the
property was made in the earlier suit, but the very
document of Ex.P1 produced in this case is not marked as
exhibit and recital of the said document is also not
considered and discussed, the same has attained finality.
The case of the plaintiff is also very clear that he came to
know about the said document and only after the death of
Chowdamma, they obtained the document Ex.P1 and then
filed the present suit. It is also important to note that in the
present suit, they have sought for the relief of declaration
based on the gift deed as they are the absolute owners
since, gift is also in favour of the 1st plaintiff's husband.
Both the courts have taken note of the fact that there is
documentary evidence and though there was an admission
on the part of the PW1 in earlier suit with regard to the gift
deed in favour of Chowdamma, the court has to take note
of the documentary evidence as well as oral evidence and
documentary evidence prevails over the oral evidence. The
mistaken fact of the admission on the part of PW1 cannot
be a ground to reject the same and when the documentary
evidence reveals that the gift deed is in favour of the
husband of 1st plaintiff and not in favour of Chowdamma
and the same is also discussed in the suit itself and
answered point No.1 in the affirmative, but committed an
error in granting the relief. However, the First Appellate
Court re-assessed both the oral and documentary evidence
available on record and particularly, answered the point for
consideration as point No.2 whether the Trial Court has
erred in holding that Ex.P1 relied upon by the plaintiff is a
valid document under law and also discussed in detail that
when the dispute was made that the same is not acted
upon and taken note of the delivery of possession and
jointly examined by the family members and rightly comes
to the conclusion that if the gift is not accepted, question of
delivering possession and continuing in the possession by
family members does not arise and rightly answered point
No.2 in the affirmative.
33. Having perused the material on record when no
finding is given with regard to the earlier gift deed is
concerned, only an admission finding is given but
documentary evidence is against the finding of the earlier
judgment and the same is taken note of by the appellate
court and hence, question of res judicata does not arise.
34. Now coming to the aspect of execution of
document of Ex.D3 i.e., the Will dated 29.10.2004 made by
Chowdamma in favour of defendant Nos.1 and 2 and also
examining the witnesses as DW2 to DW4 in order to prove
the Will, the First Appellate Court has also taken note of the
said fact into consideration to come to the conclusion that
there is an execution of the Will. The First Appellate Court
has also taken note the application of the principles of res
judicata in para 33 and comes to the conclusion that the
Trial Court has not committed any error in answering issue
No.7. Once the court comes to the conclusion that Ex.P1 is
valid under law, the suit property becomes personal
property of the husband of the 1st plaintiff, and then the
court has to look into the Class 1 heirs of the husband of 1st
plaintiff. On his death, Class-I heir are entitled to succeed
to the property under Section 8 of Hindu Succession Act.
Hence, Chowdamma who is the mother of 1st plaintiff's
husband and also the 1st plaintiff being the wife and plaintiff
Nos.2 and 3 being the children would equally succeed to the
interest of Munivenkataswami in respect of the suit
schedule property. Though counsel appearing for the
appellant would contend that the gift deed is in favour of
the husband of the 1st plaintiff and also in favour of the
Chowdamma but on reading of Ex.P1, it discloses that the
same is exclusively in favour of husband of the 1st plaintiff
and not in the name of Chowdamma. It has also emerged in
the evidence that the husband of the 1st plaintiff died
leaving behind the mother, wife and two children and
hence, all of them are entitled for 1/4th undivided interest
of the deceased, consequent upon Class-I heirs under
Section 8 of Hindu Succession Act, mother Chowdamma is
also entitled to 1/4th share. The said Chowdamma also
executed a Will in favour of her two sons in terms of Ex.D3.
It is also emerged that the plaintiff being in litigation with
Chowdamma, their exclusion from the succession under
Ex.D3 is natural. It is also important to note that Ex.D3 is a
registered document and the attestors are also examined.
The First Appellate Court has also rightly come to the
conclusion that the said Ex.D3 is not surrounded by
suspicious circumstances and circumstances warranted her
to execute the Will. The court has to take note of the fact
that she has got only 1/4th undivided interest over the suit
property by virtue of Hindu Succession Act and hence,
Ex.D3 could only be affected to the extent of right
possessed by Chowdamma. It is also important to note that
Chowdamma could not have bequeathed the entire suit
property and she did not possess transferable interest in
entirety. It is also important to note that Section 8 of the
Transfer Of Property Act stipulates that one cannot transfer
what he does not possess. The same is also considered by
the First Appellate Court while re-assessing both oral and
documentary evidence. In view of execution of the Will in
favour of defendant Nos.1 and 2, they are entitled to 1/4th
share of Chowdamma and not more than that and hence,
defendant Nos.1 and 2 would be entitled to ½ share in 1/4th
share of Chowdamma, which comes to 1/8th share each. It
is also emerged in the evidence that defendant No.1 died
and his legal representatives were brought on record and
they would get 1/8th share of defendant No.1 under Section
8 of Hindu Succession Act consequent upon Will has been
accepted by this court. The plaintiffs each are entitled to
2/8th share and defendant Nos.1 and 2 are together entitled
to 1/8th share and defendant No.2 is entitled for 1/8th share
in the suit schedule property and same is also taken note of
by the appellate court.
35. No doubt, the suit is filed for the relief of
declaration and the very contention of the appellant counsel
that the appellate court ought not to have invoked Order 7
Rule 7 of CPC, cannot be accepted as the suit is for relief of
declaration. Having considered the document of Will
executed by the mother in terms of Ex.D3 in favour of
defendant Nos.1 and 2, their interest also has to be
protected. The fact that husband of the 1st plaintiff pre-
deceased leaving behind his mother, wife and two children
is not in dispute and hence, the First Appellate Court rightly
invoked Order 7 Rule 7 of CPC and modified the judgment
of the trial court. The very contention that in a suit for
declaration, the appellate court ought not to have converted
the same as partition suit, cannot be accepted and the trial
court also while apportioning the share of the parties has
also taken note of the same and has rightly come to the
conclusion that plaintiffs are entitled for partition and
separate possession of their 6/8th share, and defendants
shall be entitled for their 2/8th share together or 1/8th share
separately and even apportionment is also done in
accordance with law. When such being the case, I do not
find any force in the contention of the appellant counsel
that the 1st plaintiff's husband get ½ share and mother gets
½ the share in total extent of 23 guntas of the property
cannot be accepted. This court also accepted the reasoning
of the first appellate court that Chowdamma only gets 1/4th
share in terms of Section 8 of Hindu Succession Act and
having considered the recital made in document Ex.P1 it is
clear that the same is gifted in favour of husband of the 1st
plaintiff in his individual capacity and not gifted the
property in favour of both the husband of 1st plaintiff and
Chowdamma and hence, I do not find any error committed
by the First Appellate Court on re-appreciation of both oral
and documentary evidence, rightly invoked Order 7 Rule 7
of CPC and also rightly comes to the conclusion that the
principles of res judicata does not operate to decide the
subsequent suit. Having considered the peculiar facts and
circumstances of the case, since, the earlier item No.1 of
the suit schedule property was the subject matter in the
earlier suit, the reasoning given by the first appellate court
is correct and not erroneous. Accordingly, I answer the
substantial questions of law. In view of the discussions
made above, I pass the following:
ORDER
(i) R.S.A. NO.1810/2007 and R.S.A. NO.1911/2016
are dismissed.
Sd/-
JUDGE
Ss
