Karnataka High Court
S K Manjunatha vs K G Srikantappa on 23 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 86 of 2021
C/W MSA No. 85 of 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.86 OF 2021 (RO)
C/W
MISCELLANEOUS SECOND APPEAL NO.85 OF 2021 (RO)
IN MSA NO.86/2021:
BETWEEN:
S.K.MANJUNATHA
S/O B. KARIYAPPA
AGED ABOUT 83 YEARS
R/O NO.170, 4TH CROSS
2ND MAIN, WOODS ENCLAVE
PHASE-1, VIDYANAGARA CROSS
INTERNATIONAL AIRPORT ROAD
BENGALURU-562 157.
...APPELLANT
(BY SRI. HARISH KUMAR M.S., AND
Digitally signed
by DEVIKA M SRI. GANGADHARA D.C., ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA K.G. SRIKANTAPPA
SINCE DECEASED BY LRS.
SMT. SAKAMMA
W/O LATE K.G.SRIKANTAPPA
AGED ABOUT 82 YEARS
R/O KORATIKERE VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT-577 215.
...RESPONDENT
(BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR C/R)
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MSA No. 86 of 2021
C/W MSA No. 85 of 2021
HC-KAR
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED
16.09.2021 PASSED IN R.A.NO.67/2017 ON THE FILE OF THE
II ADDITIONAL DISTRICT AND SESSIONS JUDGE
DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 30.05.2017 PASSED IN
O.S.NO.251/2006 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, DAVANAGERE. DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION REMANDING
BACK TO THE TRIAL COURT FOR FRAMING OF ADDITIONAL
ISSUE WITH REGARD TO THE ALLEGED WILL DATED
21.11.2005, AND AFTER GIVING SUFFICIENT OPPORTUNITY TO
BOTH PARTIES TO ADDUCE ADDITIONAL EVIDENCE.
IN MSA NO.85/2021:
BETWEEN:
S.K.MANJUNATHA
S/O B. KARIYAPPA
AGED ABOUT 83 YEARS
R/O NO.170, 4TH CROSS
2ND MAIN, WOODS ENCLAVE
PHASE-1, VIDYANAGARA CROSS
INTERNATIONAL AIRPORT ROAD
BENGALURU-562 157
...APPELLANT
(BY SRI. HARISH KUMAR M.S., AND
SRI. GANGADHARA D.C., ADVOCATE)
AND:
K.G. SRIKANTAPPA
SINCE DECEASED BY LRS.
SMT. SAKAMMA
W/O LATE K.G. SRIKANTAPPA
AGED ABOUT 82 YEARS
R/O KORATIKERE VILLAGE
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MSA No. 86 of 2021
C/W MSA No. 85 of 2021
HC-KAR
CHANNAGIRI TALUK
DAVANAGERE DISTRICT-577 215
...RESPONDENT
(BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR C/R)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED
16.09.2021 PASSED IN R.A.NO.68/2017 ON THE FILE OF
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAVANAGERE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 30.05.2017
PASSED IN O.S.NO.299/2006 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE.
DISMISSING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION AND REMANDING BACK THE
MATTER TO THE TRIAL COURT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellant and learned
counsel for caveator-respondent.
2. These two miscellaneous second appeals are filed
challenging judgment and decree passed in R.A.Nos.67/2017
and 68/2017, wherein the First Appellate Court allowed
I.A.No.1 filed under Order 6, Rule 17 CPC and I.A.No.2 filed
under Order 41, Rule 27 CPC and remanded the matter for
fresh consideration, since specific plea is taken in terms of
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I.A.No.1 that there is a Will dated 21.11.2005. Hence, directed
the Trial Court to give an opportunity to both the parties to
adduce their additional evidence and then dispose of the matter
afresh.
3. Learned counsel appearing for the appellant in his
argument would vehemently contend that Trial Court
committed an error in remanding the matter and contend that
the Will is propounded after more than a decade and
amendment allowed by the Trial Court is erroneous and ought
not to have allowed the amendment and remanded the matter
for fresh consideration. The counsel also vehemently contend
that when the Will is produced and if the Court comes to the
conclusion that, in order to decide the issue involved between
the parties, Will is necessary, then ought to have remanded the
matter only for the limited purpose to examine in respect of the
Will is concerned and ought not to have set aside the entire
judgment of the Trial Court.
4. Per contra, learned counsel appearing for caveator-
respondent would contend that on search, found the document
of Will which is a registered Will and counsel would contend
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that in terms of the Will, appellant as well as the respondent,
who propounded the Will are the beneficiaries of the Will. When
such being the case, the Trial Court has not committed any
error in allowing the application filed under Order 6, Rule 17
CPC and while seeking for production of additional documents,
pleading is necessary. Hence application for amendment is
allowed and in order to allow the application, there must be
pleading and having taken note of the fact that Will was
executed and in order to decide the same, rightly allowed
application Nos.1 and 2 and remanded the matter to the Trial
Court to decide the same.
5. Learned counsel for caveator-respondent in support
of his argument relied upon the judgment passed by this Court
in R.S.A.NO.683/2015 dated 04.03.2020 and in similar set of
facts, when the Will was traced after the judgment, in
paragraph No.5 taken note of regarding remanding the matter
and in similar circumstances, matter was remanded to the Trial
Court to decide the application within a time bound period of
six months. Hence, learned counsel for the appellant cannot
find fault with the judgment of of the trial Court,
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6. Having heard learned counsel for the appellant and
learned counsel for caveator-respondent and also considering
the material available on record, the points that would arise for
consideration of this Court are:
(1) Whether the First Appellate Court committed
an error in allowing I.A.Nos.1 and 2 in
remanding the matter for fresh
consideration?
(2) What order?
7. Having perused the material available on record, it
is not in that dispute that both the suits are filed for the relief
of declaration and permanent injunction. It is the contention in
O.S.No.251/2006 that one B. Kariyappa and his wife Basamma
of Sirigere Village, Chitradurga Taluk has got plaintiff and a
daughter S.K. Sarojamma and they were the only children to
them. The plaintiff's sister S.K. Sarojamma, who was much
devotee of Akkamahadevi and she was accustomed to spiritual
life and she led sacred life of spinster. She was a retired
Professor of Kannada in AVK College of Babuji Education at
Davanagere. It is further contended that said S.K. Sarojamma
was a member of Babuji Educational Association Employees
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House Building Co-operative Society Limited, Davanagere. The
said society was allotted Site No.32 for Rs.4,200/- and building
was constructed by the society in the said site in the name of
S.K. Sarojamma and sale deed was executed by House Building
Co-operative Society on 09.03.1989 in the name of S.K.
Sarojamma. The said S.K.Sarojamma become the absolute
owner and in peaceful possession and enjoyment of the suit
schedule property. The said S.K. Sarojamma has very much
love and affection on her brother i.e., the plaintiff, who is the
only brother and there is no other brothers and sister, except
the plaintiff. The plaintiff also had high love and affection with
his sister and they were always in very high good cordial terms
throughout their life and both of them were ready to sacrifice
each other anything and everything. The said S.K.Sarojamma
inclined to transfer the suit schedule property in favour of
plaintiff in her lifetime by way of gift, but the plaintiff refused
the same, as he told that the property be continued to be stand
in her name till the end of her life.
8. It is contended that the plaintiff lived with his sister
in the suit schedule property during her last days of years and
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still residing in the suit schedule property and he continued his
possession over the suit schedule property. It is also the
contention that she had suffered from so many ailments with
cancer since last 5-6 years. The said S.K. Sarojamma died on
12.06.2006 leaving behind suit schedule property. The father
and mother of deceased S.K. Sarojamma were no more and the
plaintiff is the only full blood uterine brother, who succeeded to
the estate of his deceased sister and he become the absolute
owner and in enjoyment of the suit schedule property and
hence contend that by succession, she become the absolute
owner of the property.
9. The main contention of defendant in the said suit is
that he married Sakamma, the first wife when he was 20 years
old. The doctor's and Astrologers told that she cannot get any
children. Therefore, this defendant at the instance of
Shivakumar Swamiji of Sirigere, Mutt married S.K.Sarojamma
at his costs, when she was aged about 16-17 years at
Koratikere in the presence of above said Swamiji. The parents
of S.K.Sarojamma acted as a guardian for her. As promised,
the defendant helped in completing the education of
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S.K.Sarojamma at Davanagere, Mysore and Dharwad. After
completion of education, she was employed by Sirigere Swamiji
in their educational institution. This defendant also helped the
plaintiff to complete his education and also helped him to get a
job at Siddagangamutt Educational Institution. The defendant
was running a Dalali Shop. After the marriage of plaintiff, this
defendant brought S.K. Sarojamma to Davanagere and got her
job in Bapuji Education by influencing the Secretary S.
Kotrabasappa. Therefore, she was working in AVK College as a
Lecturer. The defendant was living with S.K.Sarojamma in a
rented building and become member of Bapuji Educational
Employees House Building Co-operative Society. The said
society allotted Site No.32 and defendant paid the said amount
to the society through S.K.Sarojamma. The house was
constructed by the society on the said site. The defendant has
spent money for constructing extra needs of the said house.
The sale deed was executed by the society in the name of S.K.
Sarojamma on 29.03.1989. The plaintiff never used to come to
schedule house and ill-treated his mother, though she was a
widow. Therefore, the mother of the plaintiff came to
Davanagere in 1990 and lived in the suit schedule house along
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with this defendant and S.K. Sarojamma. Afterwards, the
plaintiff used to come to house with a view to see his mother.
Then the plaintiff used to get money from S.K.Sarojamma by
saying that he has no money even to purchase ration. He got
money from Paramashiva, who is the son of this defendant's
younger brother. The plaintiff executed a pronote in favour of
S.K.Sarojamma for an amount of Rs.28,000/- got from this
defendant and his son Prashanth got from S.K. Sarojamma in
1995. The plaintiff never helped in treating his mother when
there was fracture of her leg.
10. The Trial Court taking into note of pleadings of the
parties, framed the issues and allowed the parties to lead
evidence. In the other suit in O.S. No.299/2006 filed by the
defendant, also sought for the relief of declaration to declare
that he is the husband of Smt. S.K. Sarojamma and claimed
that he is the legal heir. The Trial Court having considered the
material on record, decreed the suit filed by the plaintiff in
O.S.No.251/2006 and the other suit in O.S.No.299/2006 filed
by the defendant is dismissed.
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11. When the appeals were filed challenging both the
suits in R.A.Nos.67/2017 and 68/2017, the respondent came
up with an application for amendment that the respondent
found the Will executed by Smt. S.K. Sarojamma and the same
was produced before the First Appellate Court and sought for
an amendment by filing an application under Order 6, Rule 17
CPC. The First Appellate Court having considered the pleadings,
application as well as the documents produced, allowed the two
applications and though filed application in I.A.No.3 for
summoning the original Will from the appellant herein, the
same was rejected. The First Appellate Court having considered
both the appeals and also considering the application comes to
the conclusion that evidence requires to be recorded in respect
of the Will is concerned and remanded the matter.
12. Having considered the reasoning given by the First
Appellate Court, the First Appellate Court comes to the
conclusion that when the document is placed before the Court
by producing certified copy of the Will and the same is
registered and invoked Order 41, Rule 27 CPC and when
pleading is made to that effect, in detail discussed the
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contentions raised in the appeal and also taken note of the very
claim made in paragraph Nos.44 and 45 regarding Will is
concerned whether Will is in existence or not, matter requires
to be considered by the Court and witnesses have to be
examined to prove the same. When such pleading was made
and also additional document was produced, in paragraph
No.45 of the judgment, the First Appellate Court comes to the
conclusion that matter requires reconsideration and remanded
the matter to the Trial Court.
13. The main contention of learned counsel appearing
for the appellant is that Trial Court ought not to have remanded
the matter and ought to have set aside the judgment and
remanded the matter only for limited purpose and when the
Will is propounded and it is the burden on the profounder of the
Will to prove the same and the Court cannot set aside the
judgment of the Trial Court for limited purpose as contended by
appellant and if the respondent succeeds in proving the Will
also, decision has to be taken by the Trial Court in terms of the
Will and such argument of learned counsel of the appellant
cannot be accepted.
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14. The counsel appearing for the caveator-respondent
relied upon the judgment of this Court, wherein also in similar
set of circumstances, when it was pleaded that they came to
know about the Will after disposal of the suit, remanded the
matter to consider the same afresh. Hence, the very judgment
is aptly applicable to the case on hand.
15. Having considered the material available on record,
the issue has to be considered by the Trial Court considering
the contents and recitals of the Will and also whether the Will
was executed and whether the same has to be proved by
examining the attesting witnesses and unless the same is done,
the Court cannot take any decision and the Court cannot
remand the judgment only for limited purpose as contended by
learned counsel for the appellant. Hence, I do not find any error
committed by First Appellate Court in remanding the matter by
allowing the applications filed under Order 6, Rule 17 CPC and
Order 41, Rule 27 CPC and matter requires reconsideration by
the Trial Court in view of the additional document of Will being
produced. Hence, no ground is made to set aside the order of
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remand made by the First Appellate Court and no merit in the
miscellaneous second appeals.
16. Learned counsel for the appellant would contend
that Trial Court has already decided the matter with regard to
the fact that respondent is not the legal heir and the same
cannot be reversed. To that effect also, the First Appellate
Court has not given any finding and only passed an order in
coming to the conclusion that matter requires reconsideration
and if such argument is accepted, the First Appellate Court
would have taken note of said fact into consideration and would
have passed an order to that effect and there is no such finding
by the First Appellate Court. Hence, the very contention of
learned counsel for the appellant cannot be accepted and
matter requires to be considered afresh.
17. In view of the discussion made above, I pass the
following:
ORDER
(i) The miscellaneous second appeals are dismissed.
(ii) The Trial Court is directed to dispose of the matter
within a time bound period of four months.
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(iii) Both the parties are directed to appear before the
Trial Court on 28.08.2025 and from the said date,
the Trial Court is directed to dispose of the matter
within a period of four months.
(iv) The appellant and the respondent and their
respective counsels are directed to assist the Trial
Court in disposal of the matter within a time bound
period of four months.
(v) The Registry is directed to send the records to the
concerned Court, forthwith to enable the Trial Court
to take up the matter on 28.08.2025.
Sd/-
(H.P.SANDESH)
JUDGE
ST
