Karnataka High Court
Smt A.N.Leelanagaraja vs Smt Nagarathnamma on 16 January, 2025
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RFA No. 515 of 2009
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO.515 OF 2009 (PAR)
BETWEEN:
1. SMT. A.N.LEELANAGARAJA,
W/O A S NAGARAJA,
AGED ABOUT 59 YEARS,
R/AT BEHIND KEB,
OPP. HOUSE OF MINERVA
NAGANNA, NR. EXTENSION,
CHINTAMANI-563 125.
2. SRI A N SHARATHRAJ @
[WRONGLY DESCRIBED AS
A N SHANTARAJ @ SHARATHBABU]
S/O A S NAGARAJA,
AGED ABOUT 34 YEARS,
R/AT BEHIND KEB,
Digitally OPP. HOUSE OF MINERVA
signed by NAGANNA, NR. EXTENSION,
NANDINI R CHINTAMANI-563 125.
Location:
High Court
of Karnataka 3. SRI A S VENKATAKRISHNAIAH,
S/O LATE AKULASRINIVASAIAH,
AGED ABOUT 46 YEARS.
R/AT N R. EXTENSION,
CHINTAMANI-563 125.
4. SRI A NAGESHBABU,
S/O LATE KODANDARAMAIAH,
AGED ABOUT 49 YEARS.
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RFA No. 515 of 2009
SINCE DEAD BY HIS LRS.,
A4(a) SMT. M.V RADHA,
W/O NAGESHBABU,
AGED ABOUT 45 YEARS.
A4(b) N NAGASHREE,
D/O NAGESHBABU,
AGED ABOUT 19 YEARS.
BOTH ARE R/AT VENKATESHWARA NILAYA,
N.R EXTENSION, CHINTAMANI,
CHIKKABALLAPURA DIST.563 125.
[AMENDMENT CARRIED AS PER COURT
ORDER DATED 03.03.2016]
...APPELLANTS
(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE FOR A1 TO A3
& A4 (a) & (b))
AND:
1. SMT. NAGARATHNAMMA,
D/O LATE AKULA VENKATARAYAPPA,
W/O B N RAMAIAH,
AGED ABOUT 71 YEARS,
SINCE DEAD BY HER LRS.
R1(a) SRI B.R. JAYAPRAKASH,
S/O LATE B N RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT OPP. KARNATAKA STATE SEEDS
CORP. OFF. VINAYAKAM STREET,
N.R. EXTENSION, CHINTAMANI-568 125.
[AMENDED VIDE ORDER DATED 23.06.2023]
2. A.N KUSUMA,
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RFA No. 515 of 2009
D/O A.S NAGARAJA,
AGED ABOUT 34 YEARS,
R/AT BEHIND KEB,
OPP: HOUSE OF MINERVA,
NAGANNA, N.R. EXTENSION,
CHITAMANI-563 125.
3. SMT. A V NAGAVENAMMA,
D/O AKULA VENKATARAYAPPA,
W/O SRINIVASAIAH,
AGED MAJOR.
SINCE DEAD BY LRS.
3(a) K VENUGOPAL,
S/O SMT. A.V NAGAVENAMMA,
AGED ABOUT 53 YEARS,
S/O KAIWARA VILLAGE,
CHINTAMANI TQ,
CHICKBALLAPUR DIST.
(AMENDED AS PER ORDER OF COURT DATED
09.03.2023)
4. SMT. ASWATHAMMA,
W/O LATE AKULA NARAYANASWAMY,
AGED MAJOR,
R/AT C/O BAGGULA,
KRISHNAPPA PROVISION STORES,
OPP: HOUSE OF LAWYER,
LAKSHMIKANTHAM,
DODDA BHAJANE ROAD,
CHICKBALLAPUR-563 115.
(SINCE DEAD BY LRS APPELLANT NOS.2, 3 AND 4(B))
5. SMT. A.V VENKATANARASAMMA,
W/O VENKATARAYAPPA,
D/O AKULA VENKATARAYAPPA,
AGED MAJOR,
OCC: RETIRED KEB ENGINEER,
NO.90, VAPASANDRA,
CHICKBALLAPUR-563 115.
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RFA No. 515 of 2009
6. SMT. A.S KASTURAMMA,
W/O K.T VENKATACHALAPATHI,
D/O AKULASRINIVASAIAH,
AGED MAJOR,
OCC: RETIRED SBM MANAGER,
R/AT AGARAM PALACE ROAD,
N.R. EXTENSION,
CHINTAMANI-563 125.
7. SMT. A.S UMA,
W/O SRINIVASA (KUKKULA FAMILY),
D/O AKULASRINIVASAIAH,
AGED MAJOR,
R/AT ANDAWARAHALLI,
CHICKBALLAPUR-563 115.
8. SMT. A.S MANJULA,
W/O S. RAMACHANDRAPPA (DEPOT),
AGED MAJOR,
R/AT VAPASANDRA,
CHICKBALLAPURA-563 115.
9. SMT. A.S GEETHA,
W/O K.C KRISHNAMURTHY,
[KUKKULA FAMILY],
AGED MAJOR,
R/AT OLD POST OFFICE ROAD,
CHICKBALLAPUR-563 115.
10. SMT. A.S PADMA,
W/O K.T SUKUMAR,
AGED MAJOR,
R/AT: C/O H.B KRISHNAPPA,
NO.552, NTM SCHOOL, HEBBAL,
BANGALORE-560 024.
11. SMT. A NIRMALA @ RANI,
W/O T.ANAND,
D/O AKULA KODANDARAMAIAH,
AGED MAJOR,
R/AT NEAR CHURCH,
SIDLAGHATTA ROAD,
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RFA No. 515 of 2009
CHINTAMANI-563 125.
12. A.SUKANYA (KUNNI),
D/O AKULA KODANDARAMAIAH,
AGED MAJOR,
OCC: RETIRED TEACHER,
R/AT C/O MANGANTI VENKATARAMAPPA,
VAPASANDRA, CHICKBALLAPUR-563 115.
...RESPONDENTS
(BY SRI T. RAJARAM, ADVOCATE FOR R1(A);
SMT. G.R. SUJATHA, ADVOCATE FOR R3;
SRI K.N. NITISH, ADVOCATE FOR
SRI K.V. NARASIMHAN, ADVOCATE FOR R4(A) & R5;
SRI K.A. NAGESH, ADVOCATE FOR R7;
NOTICE TO R2, R8 & R12 SERVED, BUT UNREPRESENTED;
NOTICE TO R9 & R10 HELD SUFFICIENT V/O DATED
22.11.2011;
NOTICE TO R11 DISPENSED WITH V/O DATED 22.11.2011)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 31.01.2009 PASSED IN
OS.NO.21/1993 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) &
JMFC, CHINTHAMANI, DECREEING THE SUIT FOR PARTITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.10.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
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RFA No. 515 of 2009
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment and decree dated
31.01.2009 passed in OS No.21/1993 by the learned Civil
Judge (Sr.Dn.) and JMFC, Chintamani, defendant Nos.
1(a),1(c), 2, 3 have filed this appeal.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. Respondent Nos.1, 3 to 5 herein are the
plaintiffs and respondent Nos.2, 6 to 12 herein are the
defendants before the trial Court.
4. Brief facts of the case are as below:
The propositus Nagappa had six sons and a
daughter. The first son, who was also Nagappa, had
separated from the family more than 50 years back. The
rest of the sons of Propositus Nagappa constituted a joint
Hindu family. The father of plaintiff Nos.1 to 3, namely,
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Venkatarayappa, was manager of the family. The family
had ancestral and joint family properties, which are
described in the suit schedule. The pedigree of the family
of the plaintiffs and defendants is as below:
GENEALOGICAL TREE
NAGAPPA
Nagappa Venkatakrishnappa Venkatarayappa Srinivasiah Kodandaramiah Narayanaswamy Narayanamma
(Unmarried - died) (died)
=Ashwathamma(P-4)
Nagarathnamma Nagavunamma Venkatanarasamma Nagesh Babu A Nirmala A Sukanya
(P1) (P2) (P3) (D-3) (D-10) (D-11)
Kastwamma A.S.Nagaraj A.S.Venkatakrishniah A.S.Uma A.S.Manjula A.S.Geetha A.S.Padma
(D-5) =Leela Nagaraj (D-2) (D-6) (D-7) (D-9) (D-9)
[1(a)]
Kusuma A.N.Sharatraj
[1(b)] [1(c)]
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5. It was further contended that
Venkatakrishnappa, who was the son of Nagappa died
unmarried. Plaintiff Nos.3 and 4, who were arrayed as the
defendants, were transposed as plaintiffs during the
pendency of the suit. Plaintiff No.4 happens to be the wife
of Narayanaswamy, who was another son of Nagappa.
Defendant Nos.1, 2, 5 to 9 represent the branch of
Srinivasaiah; defendant Nos.3, 10 and 11 represent the
branch of Kodandaramaiah. During pendency of the suit,
defendant No.1, A.S. Nagaraj died and his LRs are brought
on record. Since the death of the father of plaintiff Nos. 1
to 3, Venkatarayappa about 20 years back, the plaintiffs
were demanding their respective shares. It was contended
that defendants on one or the other pretext, postponed
the partition. Therefore, the plaintiffs were constrained to
file this suit for partition.
6. On being served with summons, defendant Nos.
1 to 4 and 6 appeared through their counsel and
defendant Nos. 5, 7 to 10 were placed exparte.
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7. The LRs of defendant No.1 and defendant No.2
filed their written statement. The same was adopted by
defendant Nos.3 and 6. Later, defendant No.3 also filed
his separate written statement, taking up exactly similar
contentions as earlier. Defendant No.4 filed a separate
written statement.
8. Defendant Nos.1 and 2 admitted the
relationship of the parties but denied that they still
constitute a Hindu undivided family. They further
contended that during the life time of father of the
plaintiffs i.e., Venkatarayappa, plaintiff Nos.1 to 3 were
extracting more conveniences from their father and other
family members by threatening that their father had no
male issues. It was contended that in the year 1970, the
joint family properties were divided orally among the then
joint family members. The father of plaintiff Nos.1 to 3
i.e., Venkatarayappa, refused to take any share in the
joint family properties as he had no male issues and
consented other joint family members to partition the joint
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family properties by excluding him and accordingly, a
Palupatti was also prepared. They further contended that
plaintiff Nos.1 to 3 having learnt about the oral partition
and the stand taken by their father Venkatarayappa,
demanded for their respective shares even though
Venkatarayappa had refused to take any share in the joint
family property. During 1972, after death of
Venkatarayappa, plaintiff Nos.1 to 3 again claimed their
share, which was refused by the defendants. Thereafter,
these plaintiffs lost all their connection with the family of
the defendants until the filing of the suit. Therefore, they
contended that plaintiff Nos.1 to 3 had been ousted from
the joint family and the joint family property on account of
the wish of their father. Thereafter, defendant Nos.1 and
2, father of defendant Nos.3, 10 and 11 i.e.,
Kodandaramaiah and the husband of plaintiff No.4
Narayanaswamy entered into a registered Partition Deed
dated 23-06-1983 on the same lines as per the Palupatti
dated 31-03-1970. By way of amendment to the Written
Statement, it was also contended that the after oral
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partition of the year 1970, it was also reduced in the form
of an agreement dated 31-03-1976. It was alleged that
plaintiff No.4, who was earlier arrayed as defendant No.4
colluded with plaintiff Nos.1 to 3 on account of the enmity
with defendant Nos.1 and 2 and joined the plaintiffs in
claiming share. The husband of plaintiff No.4 was also a
party to the partition deed dated 23-06-1983. Therefore, it
was contended that the suit is not maintainable unless the
registered partition deed dated 23-06-1983 is declared to
be void. On these grounds, they sought dismissal of the
suit.
9. Defendant No.4, though admitted the
relationship, contended that after death of
Venkatarayappa, the shop which was run by him in rented
premises, was closed and defendant Nos.1 to 3 vacated
the shop by receiving sum of Rs.3,00,000/- from the
owner of the shop. Therefore, she contended that
defendant Nos.1 to 3 are not giving proper accounts and
she supported the claim of the plaintiffs seeking partition
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of the property. She contends that she has no worldly
knowledge, and she is illiterate and therefore, she being
unaware of any partition deeds, her 1/4th share may be
divided and given to her.
10. On the basis of the above pleadings, the trial
Court framed the issues as below:
Issues
1. Whether the 4th defendant proves that
Venaktarayappa refused to take any share in oral
partition dt.13.1.70 as such the plaintiffs are not
entitle to any share in suit property?
2. Whether the 3rd defendant proves that
Venkatarayappa was ousted from share in joint
family property as alleged in paras 6 and 7 of
written statement?
3. If not, whether the plaintiff proves that they are
entitled to 1/4th share jointly with
Venkatanarasamma being the legal heirs of
deceased Venaktarayappa?
4. Whether the suit is bad for non-joinder of
necessary parties?
5. What decree or order?
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Additional Issues (Dated: 28.8.2000)
1) Whether the defendants prove that the suit is
not maintainable unless the registered partition
deed, dt.23.6.1983 is set aside?
2) Whether the defendants prove that the valuation
made by the plaintiffs is incorrect and court fee
paid is insufficient?
Additional Issue (Dated: 26.6.2001)
1) Is suit not maintainable for partial partition for
not including the properties of propositus Akula
Nagappa fell to his share under the partition deed,
Dt.13.8.1921?
11. The second plaintiff was examined as PW1 and
Exhibits P1 to P12 were marked. The second defendant
was examined as DW1, third defendant as DW2 and
Exhibits D1 to 9 were marked. Since the settlement efforts
did not fructify, the sides were closed and the arguments
were heard. The trial Court felt that the issues need to be
recasted and therefore, the following recasted issues were
framed:
1) Whether the plaintiffs prove that the plaintiffs
and the defendants are still the members of joint
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family and the suit properties are in joint
possession and enjoyment of the plaintiffs and the
defendants?
2) Whether the defendants prove that they have
ousted the plaintiffs from the joint family and
hence, the plaintiffs are not entitled for any share?
3) Whether the suit is bad for non-joinder of
necessary parties?
4) Whether the defendants prove that suit is not
maintainable without seeking the relief of
cancellation of partition deed, dt.23.6.1983 as null
and void and not binding on the plaintiffs?
5) Whether the plaintiffs are entitled for the relief
claimed?
6) What order or decree?
12. After hearing both sides, the trial Court held
issue Nos.1 and 5 in the affirmative; issue Nos. 2 to 4 in
the negative and proceeded to decree the suit awarding
1/4th share together to plaintiff Nos.1 to 3 and 1/4th share
to plaintiff No.4.
13. The said judgment and decree is challenged in
this appeal by the defendant Nos. 1(a), (c), 2 and 3.
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14. On issuance of notice, respondents/defendants
appeared before this Court through their counsel.
15. On admitting the appeal, the trial Court records
have been secured.
16. During pendency of this appeal, respondent
No.1 (plaintiff No.1) Nagarathnamma, died and her LRs
are brought on record. When respondent No.4 (plaintiff
No.4) Aswathamma died, one V.V. Vijayaprasad (who is
the son of plaintiff No.3 Venkatanarasamma) filed
applications in IA Nos. 2,3 and 4 of 2017 seeking to come
on record claiming to have inherited rights under the Will
dated 28-06-2014 by Aswathamma. Appellant Nos.2, 3
and 4(b) (who are the defendant No.1(a), defendant No.2
and daughter of defendant No.3) also filed IA No.1/2017
under order 22 Rule 10 CPC contending that by virtue of
the Will dated 15-03-2016, they have inherited
rights from Aswathamma.
17. Since there was a rival claim to succeed to the
estate of Aswathamma, this Court by order dated
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17-7-2018, referred the matter to trial Court to hold an
enquiry for the purpose of determining as to who could be
declared to be the legal representatives in terms of Order
22 Rule 5 CPC and to give a report to this Court.
Accordingly, the trial Court, after holding an enquiry, has
given its report holding that the second Will dated
15-03-2016 is established and Appellant Nos.2, 3 and 4(b)
(who are the defendant No.1(a), defendant No.2 and
daughter of defendant No.3) are the legal representatives
of Aswathamma.
18. After receipt of the Report from the trial Court,
IA No.1/2023 was filed by respondent No.3- K. Venugopal
who was the LR of Smt. A.V. Nagavenamma on
13.1.2023 under Section 151 of CPC seeking orders as the
appellants have violated the stay order by erecting
constructions over some portion of the schedule property.
Thereafter, by order dated 09-03-2023, this Court ordered
that IA No.1/2017 to 4/2017 and IA No.1/2023 be heard
along with the main matter.
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19. The arguments by learned counsel
Sri G. Balakrishna Shastry for appellants; Sri T. Rajaram
for Respodnent No.1(a) and Sri Nitish for Sri K.V.
Narasimhan, for respondent No. 4(a) and 5 were heard.
20. The learned counsel Sri G. Balakrishna Shastry
for appellants would urge that the defendants contend
ouster of the plaintiffs prior to the partition and that there
was an oral partition which later was reduced into writing.
In view of the father of plaintiff Nos. 1 to 3 having refused
to receive the share, they were not entitled for any share.
It is contended that the claim of the plaintiffs is hit by the
prior ouster and the prior partition. Apart from this, the
first son of propositus Nagappa is not made a party to the
suit and that there is no evidence to show that he had
separated from the joint family. Lastly, he contends that
the trial Court erred in holding that plaintiff No.4 is also
entitled for share in view of the registered Partition Deed,
for which plaintiff No.4 was a party and he has not sought
declaration of Partition Deed as void.
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21. He also submits that during the pendency of the
suit, plaintiff No.4 died leaving behind her the two Wills
dated 28-06-2014 in favour of Vijaya Prasad; and dated
15-03-2016 in favour of appellant Nos.2, 3 and 4(b). He
submits that the opinion of the trial Court on this aspect
need not be interfered with. In conclusion, he submits
that plaintiff No.4 is not entitled for any relief and there
being a prior partition, the suit deserves to be dismissed.
22. Regarding scope of Order 22 Rule 5 of CPC, he
has relied on the following decisions:
1. Mary Joyce Poonacha Vs. K.T Plantations Private
Limited, Bangalore1
2. Jaladi Suguna (Deceased) Through LRS. Vs.
Satya Sai Central Trust and Others2
3. Dashrath Rao Kate Vs. Brij Mohan Srivastava3
4. Varadarajan Vs. Kanakavalli4
5. Daya Ram and Others Vs. Shyam Sundari and
Others5
6. P.S Sairam Vs. P.S Rama Rao Pisey6
ILR 1996 (KAR) 833
(2008) 8 SCC 521
(2010) 1 SCC 277
(2020) 11 SCC 598
AIR 1965 SC 1049
AIR (SC)-2004-0-1619
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7. Seth Beni Chand Vs. Kamla Kunwar7
8.Pentakota Satyanarayana Vs Pentakota
Seetharatnam8
9. Suresh Kumar Bansal Vs. Krishna Bansal9
23. Per contra, learned counsel Sri Nitish, submits
that the trial Court should not have given a finding on the
Wills since it is only a report which is contemplated under
order 22 Rule 5 CPC. He submits that the deceased
Aswathamma, was suffering from health issues and on
15-03-2016, she was admitted to Deepashri Old Age
Rehabilitation Centre and therefore, the testimony of CW1
and the case sheet would clearly show that she was not of
sound and disposable state of mind on the date of the
execution of the second Will. Therefore, the first Will, will
hold the field since it has been proved by Vijaya Prasad
through the attesting witness Srinivasarao (AW2). Hence,
he submits that the testatrix Aswathamma, was being
looked after by Vijaya Prasad and as such, she bequeathed
her estate to him. The Will propounded by the appellants
(1976 ) 4 SCC 554
AIR(SC)-2005-4-4362
AIR(SC)-2010-0-344
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dated 15-03-2016 is shrouded with mysterious
circumstances and Aswathamma died on 27-08-2016 and
therefore, the conclusions of the trial Court in this regard
cannot be accepted.
24. Regarding scope of the enquiry under Order 22
of CPC, he also relied on the following decisions:
1. Jaladi Suguna (Deceased) Through LRS. Vs.
Satya Sai Central Trust and Others10
2. Dashrath Rao Kate Vs. Brij Mohan Srivastava11
3. Varadarajan Vs. Kanakavalli12
4. Parwatibai W/o Namdeo (Since deceased through
LR. Anna S/o Sheku Chavan) Vs. Ramrao
Barikrao Lahane13
25. Learned counsel Sri Rajaram, would submit that
both the Wills are not believable and, in such event, the
share of Aswathamma would revert to all the heirs of
Nagappa under the provisions of Hindu Succession Act. In
other words, there shall be partition in respect of the
AIR 2008 SC 2866
AIR 2010 SC 897
AIR 2020 SC 740
2002(5) Mh.L.J 515
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shares of Narayanaswamy, which was inherited by
Aswathamma.
26. Having heard the above submissions, the points
that arise for consideration are:
1. Who are the legal representatives of plaintiff
No.4 Aswathamma, who can represent her
estate?
2. Whether the defendants have proved the
ouster of plaintiff Nos. 1 to 3 and have
established the prior partition?
3. Whether a suit for partition without seeking
voidance of registered partition deed would be
maintainable?
Re.Point No.1:
27. Since plaintiff No.4- Aswathamma died during
the pendency of this appeal, there being rival claims to
represent her estate, based on two Wills dated
28-06-2014 and 15-03-2016, the same has to be decided
by this Court by following the procedure laid down under
Order 22 of CPC. In that background, the matter was
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referred to trial Court to hold an enquiry and the report
along with the evidence is before this Court.
28. It is pertinent to note that the scope of the
enquiry under Order 22 Rule 5 CPC is limited. The Court
has to decide as to who would be entitled to represent the
estate and interest of Aswathamma. Order 22 Rule 5 CPC
reads as below:
"5. Determination of question as to legal
representative.--Where a question arises as to
whether any person is or is not the legal
representative of a deceased plaintiff or a deceased
defendant, such question shall be determined by the
Court:
Provided that where such question arises before an
Appellate Court, that Court may, before
determining the question, direct any subordinate
Court to try the question and to return the records
together with evidence, if any, recorded at such
trial, its findings and reasons therefor, and the
Appellate Court may take the same into
consideration in determining the question."
(emphasis added)
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29. The enquiry contemplated under order 22 Rule
5 CPC is not based on pleadings and issues in that regard.
It is not in the nature of a suit. Though the principles of
Audi Alterem Partem are applicable and the trappings of
the suit are envisaged under Rule 5 of Order 22, it cannot
partake the character of a trial where the suspicious
circumstances involved in execution of the Will can be
addressed to in a comprehensive manner. Absence of
pleadings and issues on which the evidence is to be
adduced would restrict the scope of the enquiry. It is to
be noted that the purpose of the enquiry is circumscribed
by Rule 5 of Order 22. Keeping in mind the above scope,
this Court proceeds to examine the propositions of law in
this regard.
30. In the case of Rajamma Vs.
Chandrasekhariah i.e., short note No.39, (CRP 602/1974
DD 1-7-1974), it was held that "any decision given under
Order XXII Rule 5 of CPC does not operate as res-judicata
or is not conclusive and such decision is only for limited
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purpose of continuing the suit". It was held that "the High
Court can interfere in revision against an order passed
under Order XXII Rules 4 and 5 of CPC only where the
Court does not hold an enquiry. When an enquiry is held
and an order is made, such an order cannot be questioned
under Section 115 of CPC".
31. In the judgment in the case of Mary Joyce
Poonacha Vs. K.T Plantations Private Limited,
Bangalore referred supra a Co-ordinate Bench of this
Court held in para 14 as below:
"14. It is well-settled that the enquiry contemplated
under order 22, Rule 5, is only summary in nature and an
order under the Rule does not finally determine the rights
of parties. An order under order 22, Rule 5, will only
enable a person to represent the estate in the suit and to
make the adjudication therein binding on the estate. The
mere appointment of a person as a legal representative
for the purpose of further prosecution of the suit will not
conclusively establish his right to the property. It is also
clear that an order appointing a person as the legal
representative for the suit will not have the effect of
deciding that he is the heir of the deceased party or that
his title to the property is declared."
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32. Further, the judgment in the case of Jaladi
Suguna (Deceased) Through LRS. Vs. Satya Sai
Central Trust and others, referred supra, which is relied
by both the sides, the Apex Court in para 16 and 17 has
observed as below:
"16. The provisions of Rules 4 and 5 of Order 22 are
mandatory. When a respondent in an appeal dies, the
court cannot simply say that it will hear all rival claimants
to the estate of the deceased respondent and proceed to
dispose of the appeal. Nor can it implead all persons
claiming to be legal representatives, as parties to the
appeal without deciding who will represent the estate of
the deceased, and proceed to hear the appeal on merits.
The court cannot also postpone the decision as to who is
the legal representative of the deceased respondent, for
being decided along with the appeal on merits. The Code
clearly provides that where a question arises as to
whether any person is or is not the legal representative
of a deceased respondent, such question shall be
determined by the court. The Code also provides that
where one of the respondents dies and the right to sue
does not survive against the surviving respondents, the
court shall, on an application made in that behalf, cause
the legal representatives of the deceased respondent to
be made parties, and then proceed with the case. Though
Rule 5 does not specifically provide that determination of
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legal representative should precede the hearing of the
appeal on merits, Rule 4 read with Rule 11 makes it clear
that the appeal can be heard only after the legal
representatives are brought on record.
17. ............The appeal could be heard on merits only
after the legal representatives of the deceased first
respondent were brought on record. But in this case, on
the dates when the appeal was heard and disposed of,
the first respondent therein was dead, and though rival
claimants to her estate had put forth their claim to
represent her estate, the dispute as to who should be the
legal representative was left undecided, and as a result
the estate of the deceased had remained unrepresented.
The third respondent was added as the legal
representative of the deceased first respondent only after
the final judgment was rendered allowing the appeal.
That amounts to the appeal being heard against a dead
person. That is clearly impermissible in law. We,
therefore, hold that the entire judgment is a nullity and
inoperative."
Though the order dated 9-3-2023 to hear all the
applications filed under order 22 Rule 4 and 5 of CPC
appears to be hit by the principles laid down in the
above decision, it is not of any consequence as this
Court is allowing the IA Nos. 2/2017 to 4/2017 and the
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applicants are appellants 2, 3 and 4(b) who are already
on record.
33. Then in the case of Dasharath Rao Kate Vs.
Brij Mohan Srivastava, referred supra, the Apex Court
has observed as below:
"10. The Full Bench of the Punjab and Haryana High
Court in a judgment reported as Mohinder Kaur Anr. v.
Piara Singh & Ors., (AIR 1981 P&H 130) examined the
question as to whether a decision under Order XXII Rule
5 of the Code would act as res judicata in a subsequent
suit between the same parties or persons claiming
through them. The Court held as under.
"5. So far as the first argument of Mr. Bindra,
noticed above is concerned, we find that in addition
to the judgments of the Lahore High Court and of
this Court, referred to in the earlier part of this
judgment, he is supported by a string of judgments
of other High Courts as well wherein it has
repeatedly been held on varied reasons, that, a
decision under Order 22, Rule 5, Civil Procedure
Code, would not operate as res judicata in a
subsequent suit between the same parties or
persons claiming through them wherein the
question of succession or heirship to the deceased
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party in the earlier proceedings is directly raised.
Some of these reasons are as follows:--
(i) Such a decision is not on an issue arising in
the suit itself, but is really a matter collateral to
the suit and has to be decided before the suit
itself can be proceeded with. The decision does
not lead to the determination of any issue in the
suit.
(ii) The legal representative is appointed for
orderly conduct of the suit only. Such a decision
could not take away, for all times to come, the
rights of a rightful heir of the deceased in all
matters.
(iii) The decision is the result of a summary
enquiry against which no appeal has been
provided for.
(iv) The concepts of legal representative and
heirship of a deceased party are entirely
different. In order to constitute one as a legal
representative, it is unnecessary that he should
have a beneficial interest in the estate. The
executors and administrators are legal
representatives though they may have no
beneficial interest. Trespasser into the property
of the deceased claiming title in himself
independently of the deceased will not be a legal
representative. On the other hand the heirs on
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beneficial interest devolved under the law
whether statute or other, governing the parties
will be legal representatives.
xx xx xx
9. We are, therefore, of the opinion that in essence
a decision under Order 22, Rule 5, Civil Procedure
Code, is only directed to answer an orderly conduct
of the proceedings with a view to avoid the delay in
the final decision of the suit till the persons claiming
to be the representatives of the deceased party get
the question of succession settled through a
different suit and such a decision does not put an
end to the litigation in that regard. It also does not
determine any of the issues in controversy in the
suit. Besides this it is obvious that such a
proceeding is of a very summary nature against the
result of which no appeal is provided for. The grant
of an opportunity to lead some sort of evidence in
support of the claim of being a legal representative
of the deceased party would not in any manner
change the nature of the proceedings. In the instant
case the brevity of the order (reproduced above)
with which the report submitted by the trial Court
after enquiry into the matter was accepted, is a
clear pointer to the fact that the proceedings
resorted to were treated to be of a very summary
nature. It is thus manifest that the Civil Procedure
Code proceeds upon the view of not imparting any
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finality to the determination of the question of
succession or heirship of the deceased party."
34. After observing as above and also by relying on
the judgment in the case of Suresh Kumar Bansal vs.
Krishna Bansal referred supra, it was observed that the
finding under Order XXII Rule 5 of CPC does not operate
as a res-judicata and the inter se dispute between the rival
legal representatives has to be independently tried and
decided in probate proceedings.
35. In the judgment in the case of Daya Ram and
Others Vs. Shyam Sundari and Others, referred supra,
it was again held that the finding on Order XXII Rule 22 of
CPC would not amount to res-judicata.
36. In the case of P.S.Sairam Vs. P.S.Ramrao
Pisey referred supra also a similar view was adopted by
the Apex Court. It was held that the devolution of the
interest of the coparcenary property will be on the kartha
of the family. It was further observed that the judgment in
the case of Seth Beni Chand Vs. Kamla Kunwar supra
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deals with the manner in which a Will has to be proved. It
was held that the burden in the testamentary cases is of a
different order than in other cases in the sans that an
attesting witness must be called wherever possible to
prove the execution, the propounder must remove the
suspicion, if any, attaching the execution of the Will and if
there be any doubt regarding the due execution, he must
satisfy the conscious of the Court that the testator had a
sound and a disposing state of mind and memory when he
made the Will.
37. Lastly, the learned counsel for the appellants
relied on the judgment in the case of Suresh Kumar
Bansal supra, which has been considered above.
38. Per contra, the learned counsel appearing for
the respondents Sri Nitish, relied on the judgment in the
case of Parwatibai W/o Namdeo (since deceased
through LR Anna s/o Sheku Chavan Vs. Ramrao
Barikrao Lahane (2002 (5) MHLJ 515) rendered by
Bombay High Court, where again, it was held that even in
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execution proceedings an application filed under Order
XXII Rules 5 and 10 of the CPC, a full-fledged enquiry with
regard to the genuineness of the Will and its due execution
in the light of the mandate of Section 68 of the Evidence
Act is not necessary and the Court has only to prima facie
satisfied for exercising its discretion in granting leave for
continuing the execution proceedings. In para 16 and 17,
it was held as below:
"16. In my view, the question which was raised
before the Executing Court on account of presentation of
application by legatee under the Will Exh.77, squarely
falls within the mischief of Order 22, Rules 5 Civil
Procedure Code. Where a question arises as to whether
any person is or is not the legal representative of the
deceased, such question is required to be determined by
the Court. The enquiry contemplated under Order 22,
Rule 5, Civil Procedure Code is also summary in nature.
In a summary enquiry contemplated under Order 22,
Rule 5, Civil Procedure Code, the Court should refrain
from going into the question of genuineness of the Will in
such type of enquiry. Because the question of validity of
Will is not in issue in such type of summary enquiry. The
issue is who is the legal representative of the deceased
for the purpose of proceeding with the pending matter, In
this behalf, I would like to refer a decision of Single
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Judge of this Court in the case of Shivaji Ramaji Paul-
Shete vs. Prayagbai Mahadu Shete (1994 Mh.L.295).
17. The scope of enquiry under Order 22, Rule 5,
Civil Procedure Code was examined by the Single Judge
of this Court in case of Shivraj Ramaji Paul Shete
(supra). In the said case, more than two persons put
forth their claims as the sole heir of deceased plaintiff
and, therefore, scope of enquiry under Order 22, Rule 5.
Civil Procedure Code was raised for determination. While
dealing with this issue the Single Judge of this Court has
held that when Wills making claims contrary to each
other are produced before the Court to form the basis of
right of claimant as a legal representative of the
deceased plaintiff, the Court in a summary enquiry under
Order 22, Rule 5, Civil Procedure Code should, as far as
possible, refrain from going into the question of
genuineness of the Will in such an enquiry. This Court
further held that after summary enquiry, the party
having the better right to be the legal representative of
the deceased, should be substituted in the place of
deceased plaintiff and the other claimants should be
directed to be added as defendants and leave the final
adjudication of rival claims for the trial. This Court has
also incidently held that the order passed by the Court
under Order 22, Rule 5 of Civil Procedure code Will not
operate as a res-judicata in a subsequent proceedings."
(emphasis supplied)
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39. The learned counsel Sri Nitesh, also relied on
the judgment in the case of Varadarajan Vs.
Kanakavalli and others supra, wherein, the provisions of
Order XXII were discussed in detail. Apart from the above
decisions which are relied by both the sides, the judgment
in the case of Mangaluram Devangan Vs. Surendra
Singh and others14 supra also deals with the provisions
of Order XXII Rule 5 of CPC. In Para 8, the following
questions were raised by the Apex Court and the questions
were answered in paragraph 31 which were reproduced as
below:
"8. The following questions arise for consideration on
the contentions urged:
(i) Whether an order of the trial court rejecting an
application filed under Order 22 Rule 3 of the Code,
by a person claiming to be the legatee under the will
of the plaintiff and consequently dismissing the suit
in the absence of any legal heir, is an appealable
decree?
(ii) Whether the High Court was justified in upholding
the decision of the trial court that the will was not
(2011) 12 SCC 773
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proved and rejecting the application under Order 22
Rule 3 of the Code?"
"31. In view of the above, the finding of the High
Court that the order dated 31-8-1996 passed by the trial
court, was not appealable is upheld. The finding of the
High Court that the will was not proved and therefore,
the appellant was not a legal representative is set aside
as the said finding was not warranted without
consideration of the entire evidence. As a consequence, it
will be open to the appellant to challenge the order dated
31-8-1996 in a revision petition before the High Court
and if such a revision is filed, the period spent till now in
bona fide litigation, shall have to be excluded for
purposes of limitation."
40. Further, in a recent judgment in the case of
Swami Vedavyasa Nandaji Maharaj Vs. Shyamlal
Chauhan,15 the Apex Court in para 17 has observed as
below:
"17. Proviso to Rule 5 does not say that the Appellate
Court can direct the subordinate court to decide the
question as to who would be the legal representative, it
only provides that the Appellate Court can direct the
subordinate court to try the question and return the
2024 SCC ONLINE SC 683
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records to the Appellate Court, along with the evidence
and the subordinate court has then to send a report in
the form of a reasoned opinion based on evidence
recorded, upon which the final decision has to be made
ultimately by the Appellate Court, after considering all
relevant material. While dealing with the report sent by
the subordinate court under Order 22 Rule 5 of CPC, the
Appellate Court may consider the findings of the
subordinate court and then give its reasons before
reaching any conclusion. The words 'the Appellate Court
may take the same into consideration in determining the
question' used in the proviso to Rule 5 gives discretion to
the Appellate Court to make its own separate opinion
notwithstanding the opinion of the subordinate court. The
proviso cannot be construed to be a delegation of the
powers of the Appellate Court to substitute the deceased
party, but is merely to assist it in ultimately deciding the
issue of substitution. Thus, the Appellate Court 'may'
take into consideration the material referred by the
subordinate court under Rule 5 of Order 22, CPC along
with the objections, if any, against the report while
deciding on the substitution of the appellant."
41. Lastly, the Punjab and Haryana High Court in
the case of Lakwinder Singh (deceased) through his
LRs., Vs. Gurucharan Singh and another16 has
2018 SCC ONLINE P & H 7548
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squarely relied on the judgment of the Apex Court in the
case of Mohinder Kaur and another Vs. Para Singh
and others17 referred Supra.
42. In the light of the above decisions, it is relevant
to note that even though the provisions of Order XXII Rule
5 of CPC refer to the word 'try' and 'trial' twice, it has to
be construed as an inquiry only. It should be clarified that
the principle of res-judicata is not applicable to the parties
to the proceeding, and non-parties as well. It is pertinent
to note that the findings of the trial Court are not
separately appealable in view of the fact that it is part and
parcel of the present appeal. Under these circumstances,
when the proviso uses the word 'try' and 'trial' twice, it
cannot be said that the conclusions reached by the trial
Court in its opinion and finally decided by this Court in this
appeal in respect of the two Wills would bind the parties
herein and it will not act as a res-judicata to the parties
who are before this Court.
AIR 1981 Punjab and Haryana 130
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43. In the light of the above decisions, the
principles that emerge may be summarized as below:
(1) The principle of res judicata is inapplicable to the
parties to the proceedings i.e., the enquiry or trial under
order 22 Rule 5 CPC.
(2) The findings of the First Appellate Court on such
'finding' is binding on the parties to the lis in that
proceeding, only to represent the estate of the deceased;
(3) The coinage of the word summary enquiry have
emanated from the fact that (a) there is no pleadings,
issue concerning the questions involved in the enquiry;
(b) that there should not be delay in adjudication of the
main matter.
(4) The proviso to Rule 5 do not indicate a summary
enquiry as is done under Order 37 of CPC but uses the
word 'try' and 'trial' twice indicating that the evidence
recorded has trappings of trial.
44. This would lead us to conclude that though the
evidence recorded is having the trappings of the trial, it is
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not res-judicata for the parties in as much as it is not
preceded or supported by pleadings and issues.
45. In many cases where the enquiry is conducted
under Order XXII Rule 5 of CPC, the parties venture into
letting in all evidence as if it is in a suit where the Will is in
challenge. But in fact such a venture is unnecessary.
Therefore, whenever such voluminous evidence is
recorded and let in during the enquiry, it may be of
significance, if imported in the subsequent proceedings
between same parties. However, the reasoning of the trial
Court or the Appellate Court cannot be of any significance
as it is only for the purpose of ascertaining the Legal
Representative.
46. When we examine the evidence collected by the
trial Court in the enquiry under Rule 5 of Order 22 in the
case on hand, it is evident that voluminous evidence has
been let-in in respect of both the Wills.
47. The son of plaintiff No.3, Vijaya Prasad filed IA
Nos. 2,3 and 4 of 2017 seeking to come on record based
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on the Will dated 28-06-2014. Appellant Nos. 2, 3 and
4(b), who represent the branch of Srinivasaiah and
Kodandaramaiah filed IA No.1/2017 seeking to come on
record based on the Will dated 15-03-2016.
48. The son of plaintiff No.3, Vijaya Prasad was
examined as AW1 and a witness was examined as AW2.
The Will propounded by him was marked as Ex.A1.
Appellant Nos.2, 3 and 4(b) (who are the defendant
No.1(a), defendant No.2 and daughter of defendant No.3)
examined appellant No.2 Venkatakrishnaiah, as BW1,
three witnesses were examined on their behalf as BWs. 2
to 4 and Exhibits B1 to B8 were marked on their behalf.
Plaintiff No.2- Nagavenamma, now represented by her son
respondent No.3(a), K. Venugopal, was examined as BW5
and Exhibits B9 to 16 were marked on his behalf. The
Doctor of Deepashri Old Age Rehabilitation Center is
examined as CW1 and Ex. C1 was marked.
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49. The trial Court after hearing the submissions of
both the parties, raised the following points for
consideration and answered them as below:
1. Whether the applicant by name V.V Negative
Vijayaprasad proves that he is the
legal representative of deceased
plaintiff No.4/ Aswathamma under
the Will dated 28-06-2014 executed
by her in his favor?
2. Whether the defendant No.1(c), Affirmative
defendant No.2 and legal
representative of defendant
No.3(i.e., Nagashree) prove that
they are the legal representatives of
deceased plaintiff No.4/
Aswathamma under the Will dated
15-03-2016 executed by her in their
favor?
3. Who could be declared as to be the In favour of
legal representative/s of deceased defendant No.
plaintiff No.4/Aswathamma? 1(c), defendant
No.2 and legal
representative
of defendant
No.3
(Nagashree)
4. What order? As per the final
order
50. While coming to such conclusions, in para 45 it
was observed as below:
"45. In the background of these principles
and dictum laid down in the above decisions it is to
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be seen in the instant case whether Ex.B.2/will is
duly executed. In the case on hand defendant
No.1(c), defendant No.2 and legal representative of
defendant No.3(Nagashree) examined attesting
witness to Ex.B.2 as Bw.2 and also scribe as Bw.4
and also examined Sub-registrar as Bw.3. They
deposed about the due execution of will by testator
Aswathamma and about testator putting her
Signature in their presence. Therefore, it is quite
natural for the Smt. Aswathamma to execute will in
favour of Defendant No.2 and others by canceling
the earlier registered will/ExA.1 executed in favour
of applicant Vijayaprasad, who has not at all taken
care of Smt. Aswathamma. As Defendant No.2
admitted Said Aswathamma to the Depashree old
age rehabilitation center and who is looking after all
the affair of deceased Aswathamma so it is quite
natural to execute Ex.B.2 in favour of defendant
No.2 and others. Furthermore, it is significant to
note the ExB2 was executed on 15.03.2016 and
Smt.Ashwathamma is died on 27.08.2016 at
Depashree old age and rehabilitation Center at
Bangalore, that means to say after execution of
ExB2 said Ashwathamma lived almost five months,
during the said period apart from defendant no.2,
neither the applicant nor plaintiff no.2 or others
have taken care of the deceased
Smt.Ashwathamma and said Ashwathamma also
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not made any attempt to cancel the ExB2. If, really
said Ashwathamma has not executed will in favour
of defendant no.2 and others as per ExB2 as per
her own will and wish and if she is having any love
and affection towards defendant no.2 and if she is
not happy with defendant no.2, certainly she would
have canceled the said Will. But, she has not made
any such efforts. Hence, this also makes it clear
that deceased Ashwathamma executed ExB2 as per
her own wish and will. Wherefore, there are no
suspicious Circumstances surrounding Ex.B.2/will.
All the mandatory requirements in proof of the
Ex.B.2 were complied with by the defendant
No.1(c), defendant No.2 and legal representative of
defendant No.3(Nagashree). The applicant and
plaintiff No.2 have failed to prove before this court
that deceased Aswathamma was not in sound
disposing state of mind when Ex.B.2 came into
existence. The attestation of Will and even
execution of the will is also proved by the
defendant No.2 in accordance with law. As such,
the applicant Vijayaprasad utterly failed to establish
that he is the legal representatives of deceased
Aswathamma under the registered Will dated 28-
06-2014 and defendant No.1(c), defendant No.2
and legal representative of defendant
No.3(Nagashree) established that they are the legal
representatives of deceased Aswathamma under
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the Will dated 15-03-2016 executed by her
in their favor."
51. So far as the Will executed by Aswathamma in
favour of Vijaya Prasad dated 28-06-2014 is concerned,
his Will being the first Will and it having been superseded
by the last Will dated 15-03-2016, was held to be
ineffective.
52. This Court also has gone through the evidence
recorded during the enquiry. It is pertinent to note that if
the Will dated 15-03-2016 is proved, then the question of
considering the Will dated 28-06-2014 would not arise
inasmuch as the said Will was cancelled by the
Cancellation Deed dated 09-03-2016 and the Will dated
15-03-2016 being the last Will of the Testatrix. Therefore,
the evidence in respect of the second Will gains
importance.
53. It is in the light of the above propositions of law
that the evidence recorded by the trial Court during
enquiry and its opinion is to be considered.
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54. The records show that Aswathamma had
executed the cancellation deed dated 9-3-2016 as per
Ex.B1 and then on 15-3-2016, she executed the last Will
and Testament as per Ex.B2. It is categorically mentioned
in Ex.B2 that it is the said Sharathraj, Venkatakrishnaiah
and Nagashree, who are looking after her in a proper way
and therefore, she is bequeathing the properties in their
favour. Ex.B2 is signed by Aswathamma and is also
signed by the witnesses D.V.Prabhakar Murthy, G.T.
Venugopal S/o G.Thippanna and Bharath Kumar and is
registered.
55. On a bare perusal of Ex.B2, there is no reason
to hold that Aswathamma was not capable of signing the
same. She has signed the Will clearly. Similarly, the
signatures are tallying with the Cancellation Deed which is
at Ex.B1. A comparison of the signature has been made by
the trial Court and found that they slightly differ with the
Ex.A1. In fact, comparing the signatures of Aswathamma
- 46 -
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to Ex.B1, B2 and Ex.A1 was unwarranted in view of the
deposition of the attesting witnesses.
56. The perusal of testimony of CW.1- Dr K.C
Shridhar who is a Medical Officer of the said Deepashri
Nursing and Re-habiltation Center with Old age Home
managed by CAD MS (Care At Door Medical Service) Trust
at Ex.C1 would disclose that Aswathamma was admitted to
Deepashri Hospital on 15.03.2016. The case sheet
discloses that the said Aswathamma is hypertensive
suffering from ischemic heart disease, epilepsy and she is
conscious, oriented but drowsy and is admitted in the
center for a rehabilitation care. It was found that there
was a poor prognosis and possible risk of cardiac and
respiratory failure. It is pertinent to note that after her
admission to the hospital on 15.03.2016, she survived till
26.08.2016. In other words, she survived for about 05
months after her admission to the said hospital and
rehabilitation center.
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57. The testimony of CW.1-Dr.Shridhar K.C., would
show that the deceased Aswathamma was aged 77 years
when she was admitted to the rehabilitation centre and
two days prior to death, she was unconscious. In para
No.6 of the cross-examination he admits that on
15.06.2016 she was unconscious and she was so
unconscious for about 06 days and thereafter, she
regained the consciousness. He later states that on
15.03.2016 when Aswathamma was admitted, she was
drowsy but not unconscious. He denies that it was not
drowsiness but it was unconsciousness. It is pertinent to
note that the alleged admission of CW.1 in para No.6 that
she was unconscious for about 06 days from the date of
her admission do not get any support from the case sheet
which is at Ex.C1. Evidently, Ex.C1 bears not only the
notes of the Medical Officer but also the notes by the other
officials of the hospital. However, the notes at Ex.C1 which
were recorded at about 06.00 pm would show that there
was poor prognosis, but she had complained only about
the general illness. Thereafter, she was shifted to other
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hospital for higher care. Under these circumstances, the
testimony of the CW.1 coupled with the case sheet at
Ex.C1 would show that she was capable of understanding
what she is doing.
58. The testimony of BW.3-H.B.Prabhakar Naik who
was the Sub-Registrar discloses that Aswathamma had
signed the registered Will at Ex.B2 in his presence. He
denies in the cross-examination that the contents of the
Will was not read over to the testatrix.
59. The attesting witness to the said Will is
examined as BW.2. He states that on 15.03.2016, the
testatrix Aswathamma was conscious, and she had
executed the said Will. He states that Aswathamma had
brought certain orders and records of the High Court
where the litigation was pending. He states that one
Lakshmipathy was also present.
60. On a careful perusal of the above evidence on
record, it is clear that Aswathamma became unconscious
only after about 09.30 pm on 15.03.2016. It is important
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to note that prior to executing the Will on 15.3.2016 she
had executed the cancellation of the earlier Will on
9.3.2016. There is no such allegation that on 9.3.2016 she
was suffering any ill-health. The very fact that she
survived for about 5 months after the Will, is indicative of
the fact that she was conscious. Under these
circumstances, the trial Court having come to the opinion
that she had executed the Will on 15.3.2016 has to be
upheld. It is pertinent note that though Vijaya Prasad
states that she was unconscious, such a contention is not
supported by any medical records. Under these
circumstances, the conclusions reached by the trial Court
while furnishing its opinion as to who is to be treated as
the legal representative of the estate of deceased
Ashwathamma has to be accepted. The decision relied by
the learned Counsel for the appellant in Pentakota
Satyanarayana Vs Pentakota Seetharatnam supra,
is not applicable since it pertains to a suit where
the proof of Will was involved, but not an
enquiry under Order XXII. As noted supra, the finding
does not amount to res-judicata and it is
- 50 -
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squarely covered by judgment of the Apex Court in the
case of Swami Vedavyasa Nandaji Maharaj supra.
Thus, the appellant Nos. 2,3, and 4(b), who are applicants
in IA Nos. 2,3,4 of 2017 are the legal representatives of
deceased Aswathamma. Consequently, I.A.Nos.2, 3, 4 of
2017 deserve to be allowed. I.A.No.1/2017 filed by Vijaya
Prasad deserves to be dismissed. Point No.1 is answered
accordingly.
Reg. Point Nos.2 & 3:
61. Learned counsel appearing for the appellants
has contended that the plaintiffs were ousted from the suit
schedule property. A perusal of the evidence on record
would disclose that the DW.1 in his testimony has stated
that there was a partition in the year 1970 and it was an
oral partition. Thereafter, there was a demand made by
the plaintiffs in the year 1972. He states that the plaintiffs
were driven out holding their neck and therefore, it is
contended that there is an ouster. It is pertinent to note
that by driving the plaintiffs out of the house when they
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demanded share cannot be equated to an ouster from the
suit schedule property, for which, they were in joint
possession. The defendants have denied the rights of the
plaintiffs stating that they are not entitled for the share in
the suit schedule properties and it cannot be an ouster. A
denial of rights and title in the joint family property at no
stretch of imagination can be held to be an ouster from
the property.
62. It is pertinent to note that all along it is the
case of the plaintiffs that they were demanding share and
such share was being denied. The defendants contend that
the father of the plaintiffs had refused to accept the share.
It is not the case of the defendants that the father of the
plaintiff Nos.1 to 3 has relinquished his share in the suit
schedule property. If at all there was a relinquishment of
his share, he should have executed a registered
Relinquishment Deed. Furthermore, the father of plaintiff
Nos.1 to 3 is not a party to the Partition Deed also. Even
though there was an agreement regarding the partition in
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the year 1976, it was not subscribed by the father of
plaintiff Nos.1 to 3. Therefore, except the oral testimony of
the defendants that the father of plaintiff Nos.1 to 3 had
refused his share, it cannot be said that he had
relinquished his share. There is no other evidence to show
that the father of plaintiff Nos.1 to 3 had refused his share
in the property. Anyhow, the plaintiffs have denied the
same. Therefore, it was incumbent upon the defendants to
establish that the father of plaintiff Nos.1 to 3 had
relinquished his share in the suit schedule property and
such relinquishment can happen only by way of a
registered document. Therefore, at no stretch of
imagination it can be said that the plaintiffs were ousted
from the suit schedule property.
63. The second point that is urged by the learned
counsel for the plaintiffs is that the registered Partition
Deed dated 23.06.1983 was not challenged by the
plaintiffs. Plaintiff Nos.1 to 3 are not parties to the Ex.D1.
It is relevant to note that when the plaintiff Nos.1 to 3 or
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their father were not parties to the Exs.D1 and D2 or any
other document, it cannot be said that they should seek a
declaration that such document has to be declared null
and void. It would suffice to put forth their claim by
ignoring the document which was entered into between
the defendants alone. Therefore, this argument of the
learned counsel appearing for the plaintiffs cannot be
accepted.
64. It is pertinent to note that plaintiff No.4-
Aswathamma was a party to the Partition Deed at Ex.D2.
It is worth to note that Aswathamma was the defendant
earlier and later she was transposed. She has contended
in her written statement that she being an illiterate lady,
she did not know the effect of the deed of partition.
Moreover, she states that her husband Narayanaswamy
entered into the Partition Deed at Ex.D2 in the year 1983
without knowing the contents. It is pertinent to note that
though the Partition Deed was executed in the year 1983,
the mutation entries have not been changed. This aspect
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has been specifically observed by the trial Court in its
judgment. It is also pertinent to note that a shop which
was owned by father of plaintiff Nos.1 to 3 was closed
after his death in the year 1982 and thereafter, the shop
was vacated by the defendants after receiving a sum of
Rs.3,00,000/-. It is the case of defendant No.4-
Aswathamma that the said amount was not distributed to
her husband. Therefore, it is contended that the Partition
Deed was not acted upon.
65. Be that as it may, it is pertinent to note that the
plaintiff Nos.1 to 3 were not parties to the Partition Deed
of 1983 or the agreement in the year 1976. When the
plaintiff No.4, who was a defendant earlier is transposed,
she subscribes to the claim of the plaintiffs. She has not
filed separate pleadings in this regard. It may be true that
the Partition Deed binds her since her husband had signed
it. But when the said partition itself is non-est for not
giving a share to the father of plaintiff Nos.1 to 3, it would
not be in the mouth of defendants to contend that the
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transposition of the plaintiff No.4 would come to their aid
in contending that there should be a declaration in respect
of cancellation of the Partition Deed.
66. So far as Sy.No.135 which was allegedly
purchased by father of plaintiff Nos.1 to 3 in the name of
the plaintiff No.2 is concerned, it is relevant to note that
there is no such contention in the written statement of the
defendants that such property was purchased out of the
joint family funds and Venkatarayappa had no
independent income. It is relevant to note that as per the
contention of the plaintiff No.4-Ashwathamma,
Venkatarayappa had a shop. The said shop was closed
after his death. That itself would indicate that
Venkatarayappa had certain income. It is not the case of
the defendants that the shop which was run by
Venkatarayappa was the joint family business. Therefore,
in the absence of any clear pleadings on behalf of the
defendants in this regard, it is not possible to hold that
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Sy.No.135 was purchased by Venkatarayappa out of the
joint family nucleus.
67. In the light of the above discussions, there is no
necessity of interference in the judgment of the trial Court.
The plaintiffs are entitled for the share as determined by
the trial Court. Hence, the Point Nos.2 and 3 are answered
in the negative. Under these circumstances, the main
appeal deserves to be dismissed. The share of the plaintiff
No.4 Aswathamma will now be represented by appellant
No. 2,3 and 4(b) herein.
68. Hence, the following:
ORDER
I.A.No.1/2017 is dismissed. I.A.Nos.2, 3 and
4 of 2017 filed under Order XXII Rule 4, XXII Rule
9 of CPC and Section 5 of Limitation Act seeking
condonation of delay are allowed and the
appellant Nos.2, 3 and 4(b) are treated as Legal
Representatives of Plaintiff No.4-Aswathamma
and accordingly shown in the cause title.
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The appeal being devoid of merits, is ordered
to be dismissed. Judgment of the trial Court in
O.S.No.21/1993 is hereby confirmed.
Costs made easy.
In view of the dismissal of the appeal, IA
No.1/2023 does not survive for consideration.
Hence, it is dismissed.
Sd/-
(C M JOSHI)
JUDGE
tsn*/NR
