Karnataka High Court
Dundappa And Ors vs Ramappa And Ors on 22 October, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 202794 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.202794/2024(GM-CPC)
BETWEEN:
1. SRI DUNDAPPA
S/O SHANKREPPA NUCHANNAVAR
@ SAVUKAR
AGE: 77 YEARS
OCC: AGRICULTURE
R/O. KHATIZAPUR
TQ AND DIST VIJAYAPUR - 586 101.
2. PALLAVI
D/O DUNDAPPA NUCHANNAVAR
@ SAVUKAR
Digitally signed by
SUMITRA AFTER MARRIAGE KNOWN AS
SHERIGAR
Location: HIGH
LAXMI
COURT OF W/O MALAPPA VADED
KARNATAKA
AGE 39 YEARS
OCC AGRICULTURE
R/O. KHATIZAPUR
TQ AND DIST VIJAYAPUR - 586 101.
3. SMT DUNDAVVA
W/O SHANKREPPA NUCHANNANAVAR
@ SAVUKAR
AGE 67 YEARS
OCC AGRICULTURE
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WP No. 202794 of 2024
R/O. KHATIZAPUR
TQ AND DIST VIJAYAPUR - 586 101.
4. SANGAPPA
S/O DUNDAPPA NUCHANNAVAR
@ SAVUKAR
AGE 47 YEARS
OCC AGRICULTURE
R/O KHATIZAPUR
TQ AND DIST VIJAYPURA - 586 101.
5. ASHA
D/O SRI DUNDAPPA NUCHANNAVAR
@ SAVUKAR
AFTER MARRIAGE KNOWN AS
MANJULA
W/O SHANKREPPA PUJARI
AGE 37 YEAR
OCC AGRICULTURE
R/O. KOTNAL TQ
AND DIST VIJAYPUR - 586 101.
...PETITIONERS
(BY SRI B. BHIMASHANKAR, ADVOCATE)
AND:
1. SRI RAMAPPA
S/O KALLAPPA WALIKAR
AGE 70 YEARS
OCC AGRICULTURE
R/O. SHEGUNASHI
TQ AND DIST VIJAYAPUR - 586 101.
2. SRI SIDDAPPA
S/O RAMAPPA WALIKAR
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WP No. 202794 of 2024
AGE 50 YEARS
OCC AGRICULTURE
R/O. SHEGUNASHI
TQ AND DIST VIJAYAPUR - 586 101.
3. SRI KAREPPA
S/O RAMAPPA WALIKAR
AGE 48 YEARS
OCC AGRICULTURE
R/O SHEGUNASHI
TQ AND DIST VIJAYAPUR - 586 101.
4. SMT. LAXMI
W/O AMOGHI NUCHANNAVAR
@ SAVUKAR
AGE 45 YEARS
OCC AGRICULTURE
R/O. KARJOL
TQ AND DIST VIJAYAPUR - 586 101.
5. SRI SHANKAR
S/O AMOGHI NUCHANNAVAR
@ SAVUKAR
AGE 25 YEARS
OCC AGRICULTURE
R/O KARJOL
TQ AND DIST VIJAYAPUR - 586 101.
6. SMT BHARATHI
W/O MALLAPPA NUCHANNAVAR
@ SAVUKAR
AGE 45 YEARS
OCC AGRICULTURE
R/O. SHURPALLI
TQ JAMAKHANDI
DIST BAGALKOT - 587 301.
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WP No. 202794 of 2024
7. CHETAN
S/O MALLAPPA NUCHANNAVAR
@ SAVUKAR
AGE 23 YEARS
R/O. BHARATHI
W/O MALLAPPA NUCHANNAVAR @ SAVUKAR
R/O.SHURPALI
TQ JAMAKHANDI
DIST BAGALKOT - 587 301.
8. SRI AJIT
S/O MALLAPPA NUCHANNAVAR
@ SAVUKAR
AGE 21 YEARS
OCC AGRICULTURE
R/O. SHURPALI
TQ JAMAKHANDI
DIST BAGALKOT - 587 301.
9. SANTOSH
S/O MALLAPPA NUCHANNAVAR
@ SAVUKAR
AGE 19 YEARS
OCC AGRICULTURE
R/O SHURPALI
TQ JAMAKHANDI
DIST BAGALKOT - 586 101.
10. SMT. KAMALAVVA
W/O SIDDAPPA WALIKAR
AGE 45 YEARS
OCC AGRICULTURE
R/O. SHEGUNASHI
TQ AND DIST VIJAYAPURA - 586 101.
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WP No. 202794 of 2024
11. SURESH
S/O DUNDAPPA NUCHANNAVAR
@ SAVUKAR
AGE 44 YEARS
OCC MILITARY SERVICE
R/O. KHATIZAPUR
TQ AND DIST VIJAYAPURA - 586 101.
12. SMT. VIDYASHREE
W/O SADASHIVA NUCHANNAVAR
@ SAVUKAR
AGE 25 YEARS
OCC HOUSEHOLD
R/O. SHEGUNASI
TQ. BABALESHWAR DIST VIJAYPURA - 586 101.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER ON I.A.NO.III FILED UNDER ORDER 1 RULE 10(2) CPC,
DATED 26TH DAY OF JULY 2024 PASSED BY THE LEARNED II
ADDL. DISTRICT AND SESSIONS JUDGE VIJAYAPUR IN RA
NO.47/2022 PRODUCED AT ANNEXURE-E AND REJECT THE
SAME.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
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WP No. 202794 of 2024
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)
This petition by respondent Nos.1 to 4 and 6 in R.A.
No.47/2022 on the file of the II Additional District and
Sessions Judge, Vijayapur (for short 'trial Court') is
directed against the impugned order dated 26.07.2024
passed by the trial Court on I.A. No.III in R.A.
No.47/2022, whereby, the said application filed by
respondent Nos.1 to 3 seeking impleadment as additional
parties to the appeal was allowed by the trial Court.
2. Heard the learned counsel for the petitioners
and perused the material on record.
3. A perusal of the material on record will indicate
that respondent Nos.6 to 10 instituted a suit in O.S.
No.114/2017 for partition and separate possession of their
alleged share in the suit schedule properties. The said suit
was contested by the petitioners, who were arrayed as
defendant Nos.1 to 4 and 6. In the said suit, defendant
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No.6A and defendant Nos.8 and 9 supported the claim of
the plaintiffs.
4. After contest, the trial Court proceeded to
dismiss the suit as well as the claim made by the aforesaid
defendant Nos.6A and 8 and 9 vide judgment and decree
24.2.2022. Aggrieved by the said judgment and decree,
defendant No.6A has filed R.A. No.47/2022, while plaintiff
Nos.1 to 5 have filed R.A. No.46/2022 and defendant
Nos.8 and 9 have filed R.A. No.45/2022, all of which are
pending before the first appellate Court.
5. In the aforesaid R.A. No.47/2022 filed by
defendant No.6A, the respondent Nos.1 to 3 filed the
instant application I.A. No.III seeking impleadment as
additional respondents on the ground that they are also
family members, hence they are proper and necessary
parties to the appeal. The said application having been
opposed by the petitioners, the first Appellate Court
proceeded to pass the impugned order allowing I.A. No.III
by holding as under:
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"ORDERS ON I.A. No. III
I.A. No.3 is filed by the proposed respondents
No.14 to 16 U/O 1 rule 10 of C.P.C praying to
implead them as respondents No. 14 to 16 in
the appeal.
2. In support of the application affidavit of
Siddappa S/o Ramappa Walikar,
applicant/proposed respondent No.15 is filed,
by contending that, applicant No.14 and 16 are
his father and younger brother. He is swearing
the affidavit on behalf them also. The
respondent No.1 Dundappa and his deceased
mother Nimbevva are the full brother and
sister. His mother deceased Nimbevva w/o
Ramappa Walikar died on 14/7/1998.
3. The respondent No.1 is his maternal
uncle and he is nephew of respondent No.1. his
deceased grandfather Shankreppa
Nuchannavar @ Savukar blessed with 2 sons
by i.e., Dundappa respondent No.1 and
Basappa and 2 daughters i.e., deceased
Nimbevva and Neelavva.
4. That his deceased maternal grandmother
Siddawwa w/o Shankreppa Nuchannavar @
savukar died intestate leaving behind suit
properties. His deceased mother Nimbevva
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being the Dio the deceased Siddawwa having
shares in the suit properties.
5. That his maternal uncles Dundappa
respondent No.1 and Basappa, behind their
back filed the O.S. No.53/2000 on the file of
the principal civil judge (Sr. Div), Vijayapura
and compromised among them on 7-11-2008
and compromise decree also drawn on 29-11-
2008. In the said suit the applicant/proposed
respondents are not parties. Hence the said
compromise decree is not binding on them.
6. Now, the applicants are deriving the
share/title through the deceased Nimbevva in
respect of the suit properties. Hence the
are necessary parties for complete and final
decision on the question involved in the
appeal/suit properties. That for the purpose of
complete adjudication as to their right over the
suit properties in dispute, their presence is
necessary.
7. That without impleading them if the
appeal is disposed of, it would create
unnecessary complication and multiplicity of
proceedings. Hence it is just and necessary to
bring them on record as they are also
necessary parties to the dispute and dispute
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may be determined in their presence. Hence
prayed to allow the application.
8. I.A. No.3 is objected by the respondents
No.1, 5 to 7 by filing objections. In the
objections it is contended that;
i. The application filed by the
applicants/proposed respondent No.10 to
13 is not maintainable either in law or
facts of the case and as such the same
deserves to be dismissed with cost. It is
denied that Siddawwa w/o Shankreppa
Nuchannavar @ savukar died intestate
leaving behind the suit properties and it is
further false to say that deceased Smt
Nimbawwa having share in the suit
properties.
ii. It is denied that the applicants are having
any share in the suit properties as the suit
properties are not joint Hindu coparcener
properties, it is self-acquired properties of
Dundappa - respondent No.1 and his
brother Basappa and the applicants no
way concerned to the suit property, hence
they are not parties to the suit in O.S.
No.53-2002.
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iii. The properties were owned by one Smt.
Chayawa Wo Dundappa gavali, who had
no male tesurs, but had only a daughter
by name Siddawwa who married to
Shankreppa So of Siddappa Nuchannavar
savukar, the said shankreppa is the father
of respondent No. 1 Dundappa, after the
death of Smt. Chayawwa w/o of dundappa
gavali, the suit property land in R.S.No.
100/1 of Hanchinal PH came to inherited
by Smt. Siddawwa, hence the suit lands is
herself acquired properties. The said
Siddawwa is the mother of respondent
No.1 and one Basappa, and she is the
absolute owner of the suit property and
during her life time she relinquished her
right and title in favour of her sons
dundappa and sri Basappa as result
thereof the names of respondent No.2 and
his younger brother Basappa came to
entered to the suit land R.S.No. 100/1 of
Hanchinal PH village as joint owners, the
said property is not the ancestral property
and not inherited from the male lineage.
iv. Smt. Chayawwa w/o dundappa gavali
owner of the suit land R.S.No. 566/1 of
kasaba Vijayapura has gifted the said
land to her only daughter Smt.
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Siddawwa, who is the mother of
respondent No.1 and Basappa in the year
1942 under the registered gift deed
executed at sub registrar office at
Bijapura, and Smt. Siddawwa became
absolute owner of the suit land R.S.No.
566/1 of kasaba village. In the year
1985 Smt. Siddawwa has relinquished
her right and title over the said land to
her sons dundappa and Basappa, as a
result thereof the names of respondent
No.1 and his younger brother came to be
entered to the suit land R.S.No.566/1 as
joint owners. This land is not the
ancestral property inherited from male
lineage.
v. Smt. Chayawwa and Smt. Siddawwa
have executed the registered gift deed in
favour of shankreppa in respect of suit
land. R.S.No. 570/1 kasaba Vijayapura
and suit house CTS No.651 and house
CTS No.654 in the year 1954 in sub-
registrar Vijayapura and he became the
absolute owner of the said land and the
said properties are not ancestral
properties of shankreppa Siddappa
Savukar.
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vi. In view of decree passed in O.S. No.
53/2023 by the Hon'ble principal Senior
Civil Judge Vijayapura dated 7/11/2008 the
respondent No.1 is the absolute owner of
the suit properties, neither the
applicants/proposed respondent No. 14 to
16 nor the appellants are entitled any
share or interest or title in the suit
properties. The respondent No. 1 is only
absolute owner and in possession and
enjoyment and cultivation of this suit
properties and income derived from the
suit land is not sufficient for him and his
wife. The respondent No. 2 is D/o
respondent No.1 and she is looking after
her parents and respondent No. 1 towards
love and affection and service rendered by
respondent No. 2, respondent No. 1 has
gifted the suit land Sy. No. 100*/4 of
on 21/12/2015 the same is registered at
sub-register office Vijayapura, since then
she is in and enjoyment of the suit land Sy.
No. 100*/4 of hanchinal PH and her name
is also entered in the record of rights and
she is absolute owner of the said property.
vii. The contents of para No. 5 and 6 of the
affidavit are false and they are therefore
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specifically denied by the respondents. The
suit properties are not family properties
and the applicant/proposed respondent No.
14 to 16 are not necessary parties and
question of determination of dispute does
not arise at all.
viii. The order 1 rule 10 (2) of C.P.C is not
applicable in the appeal, it is only applies in
the suit. Hence application is liable to be
dismissed with cost.
On these grounds prayed to dismiss the
application with cost.
9. Heard the argument from both side and
perused the records.
10. Now the following points arise for my
consideration,
1. Whether the I.A. No.3 filed by the
applicants/proposed respondents No.14
to 16 is deserves to be allowed?
2. What order?
11. Having heard the argument from both
side and after perusal of the records my
answer to the above point is affirmative for the
following reasons;
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REASONS
12. Point No.1: The applicants have filed
1.A.No.3 U/O I rule 10 of C.P.C to implead
in the appeal.
13. The present appeal is filed to challenge
the judgment and decree passed by the trial
court in O.S. No.114/2017 dated 24-2-2022,
wherein the suit of the plaintiffs for the relief of
partition and separate possession has been
dismissed. In the suit the plaintiffs have
contended that the plaintiffs and defendants
have inherited the suit properties from
Siddawwa w/o shankreppa, who is the
grandmother of the parties to the suit. The trial
court by holding that the suit properties are not
the coparcenary properties and dismissed the
suit.
14. The present applicants by contending
that, originally suit property were belonged to
one Chayawwa w/o Dundappa Gavali, and
Siddawwa is the only daughter of said
Chayawwa and dundappa gavali, succeeded the
suit properties. The said Siddawwa married to
one Siddappa Savukar @ Nucchhannavar, the
said Siddawwa and Siddappa Savukar were had
2 sons by name Dundappa and Basappa and 2
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daughters i.e., deceased Nimbevva and
Neelavva. The applicants claims that they are
the children of Nimbevva. It is further
contended that Dundappa and Basappa filed
partition suit in O.S. 53/2000, without making
the daughters of Siddawwa, in respect of the
property left behind by Siddawwa, in that suit
the plaintiff Basappa and defendant Dundappa
have illegally compromised, and further
contended that the applicants who are the
children of Nimbevva are also entitled to share
in the property left behind by the deceased
Siddawwa w/o Shankreppa Savukar.
15. It is undisputed fact that the applicants
are the children of the deceased Nimbevva. It
is also not disputed that the deceased
Siddawwa is the original owner of the suit
property, who inherited from her parents. It is
also not in dispute that the Siddawwa and her
husband left behind children Basappa,
Dundappa, Nimbevva and Neelavva. As per
Ex.P. 6 certified copy of the plaint in O.S.
No.53/2000, the daughters of Siddawwa i.e.
Nimbevva and Neelavva are not the parties to
the suit, in the plaint it is specifically pleaded
that the Siddawwa got the suit properties
through her mother Chayawwa and it is also
pleaded that Nimbevva and Neelavva are the
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daughters of the said Siddawwa w/o Shakreppa
Savukar has released their right in the suit
properties. One thing is clear from the record
that original owner Siddawwa who got the
properties from her parents died intestate, then
as per section 15 of the Hindu succession Act
the Nimbevva and her children are entitled for
share in the suit properties, section 15 of Hindu
succession is extracted for the sake of
convenience which read as under,
15. General rules of succession in the case
of female Hindus.-(1) The property of a
female Hindu dying intestate shall devolve
according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters
(including the children of any pre-deceased son
or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section(1)-
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(a) any property inherited by a female Hindu
from father or mother shall devolve, in the
absence of any son or daughter of the
deceased (including the children of any pre-
deceased son or daughter) not upon the other
heirs referred in sub-section in the order
specified therein, but upon the heirs of the
father; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law
shall devolve, in the absence of any son or
daughter of the deceased (including the
children of any pre-deceased son or daughter)
not upon the other heirs referred to in sub-
section (1) in the order specified therein, but
upon the heirs of the husband.
So, on plain reading of this provision it is clear
that sons and daughters of deceased
'Siddawwa w/o Shankreppa Savukar are entitle
for share in the property left behind by the
Siddawwa. Release of right by the Nimbevva
and Neelavva is matter of adjudication in the
full-fledged trial. When the plaintiffs' claims
the suit property is inherited by them along
with the defendants through the deceased
Siddawwa, definitely the applicants who are the
legal heirs of deceased Nimbevva are also
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necessary parties for adjudication of the rights
and hence the application needs to be allowed.
Hence the point for consideration is answered
in the affirmative.
16. Point No.2: in view of the above
discussion, I proceeded to pass the following
order,
ORDER
I.A.No.3 is allowed, the applicants are
permitted to come on record as respondents
No. 14 to 16, in the appeal.
Learned counsel of appellant is directed
to amend the appeal memo by impleading
them as respondents No. 14 to 16."
6. A perusal of the material on record including
the impugned order will indicate that the first Appellate
Court has come to the right conclusion that respondent
Nos.1 to 3 being family members are proper and
necessary parties to the appeal and in order to avoid
multiplicity of proceedings, it would be necessary to
implead the said respondents as additional parties to the
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appeal. However, the other findings/observations
recorded on merits as regards the claims of the petitioners
and the claims of the respondents cannot be said to be
correct and the same would necessarily have to be left
open to be decided at the time of final disposal of the
appeal. In other words, the findings and observations
recorded by the first Appellate Court while passing the
impugned order as regards entitlement of shares is clearly
beyond the scope and ambit of consideration of an
application for impleadment and the rival contentions in
this regard would necessarily have to be left open to be
decided by the first Appellate Court at the time of final
disposal of the appeal. Under these circumstances, I am
of the considered opinion that the impugned order passed
by the first Appellate Court allowing I.A.No.3 cannot be
said to have caused any prejudice to the petitioners or
occasioned failure of justice warranting interference by
this Court in the present petition in the exercise of its
jurisdiction under Article 227 of the Constitution of India
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as held by the Hon'ble Apex Court in the case of Radhey
Shyam v. Chhabi Nath and others, (2015) 5 SCC 423.
7. In the result, I pass the following:
ORDER
(i) The petition is disposed of without
interfering with the impugned order;
(ii) It is however, made clear that all/any
findings, observations, etc., if any, recorded in
the impugned order on the merits of the rival
claims/contentions are kept open and the same
would have be decided by the first Appellate
Court at the time of final disposal of the petition,
without being influenced by the said findings and
observations recorded in the impugned order.
iii) All rival contentions on all aspects of
the matter on merits are kept open and no
opinion is expressed on the same.
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iv) Further, the parties are permitted to
file additional pleadings/documents, which shall
also be considered by the first Appellate Court
while disposing off the appeal.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SBS
