Remanded

Dadagouda Balagouda Patil v. Kusuma W/O.Paris Mirje

Karnataka HC28 Jan 2019RFA/100105/2014

Case brief

AI extract

What is this about?

Appeal against partition decree. Court held male Hindus can bequeath Mitakshara coparcenary shares. Allowed additional evidence application for original will. Remanded suit for fresh adjudication on will validity. Ordered 10% release of deposit to plaintiff.

What did the court decide?

Impugned judgment set aside; matter remanded for adjudication; 10% of deposited amount released to plaintiff; trial to conclude within six months.

Dadagouda Balagouda Patil Vs Kusuma W/O.Paris… — Succession and Inheritance | Karnataka HC (2019)

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RFA No.100105/2014

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF JANUARY, 2019

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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REGULAR FIRST APPEAL No.100105 OF 2014 (PAR/POS)

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BETWEEN:

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DADAGOUDA BALAGOUDA PATIL AGE: 58 YEARS, OCC: AGRICULTURE R/O. SAUNDATTI (BAVAN)-591213 TQ: RAIBAG, DIST: BELGAUM

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SHANTINATH DADAGOUDA PATIL AGE: 24 YEARS, OCC: AGRICULTURE R/O. SAUNDATTI (BAVAN) -591213 TQ: RAIBAG DIST: BELGAUM

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CHETAN DADAGOUDA PATIL AGE: 22 YEARS, OCC: AGRICULTURE R/O. SAUNDATTI (BAVAN) -591213 TQ: RAIBAG DIST: BELGAUM

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... APPELLANTS

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(By Sri. M G NAGANURI ADVOCATE)

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AND:

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KUSUMA W/O.PARIS MIRJE

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RFA No.100105/2014

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AGE: 40 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE R/O. PARMANANDWADI-591329, TQ: RAIBAG DIST: BELGAUM

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AKKATAI W/O. NEMAGOUDA PATIL (SINCE DEAD. R1 IS TREATED AS LEGAL REPRESENTATIVE OF R2.)

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HOUSAVVA W/O. DADA MIRJE AGE: 63 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE R/O. PARMANANDWADI-591329, TQ: RAIBAG, DIST: BELGAUM

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... RESPONDENTS

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(By Sri. BAHUBALI N KANABARGI, ADVOCATE FOR C/R1 & SRI. LAXMAN T.MANTAGANI ADV. FOR R1; R2 DEAD & R1 IS TREATED AS LR OF DECEASED R2; R3—SERVED)

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THIS APPEAL IS FILED UNDER ORDER XLI RULE 1 READ WITH SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.06.2014 PASSED IN O.S. No.80/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, RAIBAG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR HEARING ON IA THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:

RFA No.100105/2014

J U D G M E N T

Though this appeal is listed to consider the application seeking early hearing of the appeal, with the consent of learned counsel on both sides, it is heard finally.

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This appeal assails the correctness of the judgment and decree dated 21.06.2014 passed in O.S. No.80 of 2012 by the Court of Senior Civil Judge and JMFC, Raibag. The appeal is preferred by defendants 1, 4 and 5 in the said suit.

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For the sake of convenience, the parties would be referred to in terms of their status before the trial Court.

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The first respondent-plaintiff filed the suit against the defendants seeking the relief of partition and separate possession of her 1/6^th share in the suit schedule properties. According to the plaintiff, one Balagouda Patil is the original

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propositus. He died leaving behind his three children namely, Housavva, Nemagouda and Dadagouda. Plaintiff is the daughter of Nemagouda and Akkatai (defendant No.2). Dadagouda is defendant No.1 and his two children namely, Shanthinath and Chetan are defendant Nos.4 and 5. Housavva is defendant No.3. It is the case of the plaintiff that Nemagouda, her father, died and that her mother Akkatai and herself were not given their share in the joint family/ancestral properties despite demand being made for the same. In the circumstances, plaintiff was constrained to file a suit seeking the relief of partition and separate possession of her 1/6^th share in the suit properties.

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In response to suit summons and court

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notices, defendant No.3 remained absent and he

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was placed ex parté . Defendant No.2 though appeared through his counsel did not choose to

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file any written statement. Defendant Nos.1, 4 & 5 had appeared through their counsel and filed written statement and defendant No.1 filed his written statement which has been adopted by defendant Nos.4 & 5.

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Defendant No.1, while admitting the relationship between the parties, has stated that he and Nemagouda are the sons of one Balagouda Patil and that the plaint paragraph No.1 properties were originally owned by his father. That during the life time of Balagouda Patil, the suit properties were inherited by him and his brother-Nemagouda jointly. That defendant No.3/Housavva-their sister consented to the same. Nemagouda had only a daughter, i.e., the plaintiff and his wife defendant No.2. Defendant No.3 is aged 80 years and she was born prior to the commencement of Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’ for the sake of brevity) and had

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relinquished her succession to the suit properties as per M.E. No.4280 of Soundati on 21.04.1983 and the names of his brother-Nemagouda and 1^st defendant’s name were jointly entered in the revenue records in respect of the suit schedule properties, which were enjoyed by them jointly till the death of Nemagouda on 22.04.2000. It is further contended by defendant No.1 that he is the absolute owner and in possession of the suit schedule ‘A’ properties item Nos.1 to 8 on the strength of a registered Will executed by the father of the plaintiff in his favour on 28.12.1995. The suit schedule items 9 to 11 are house and open spaces which were inherited by him and his brother-Nemagouda from their father. That plaintiff’s father-Nemagouda had relinquished his joint share in the suit schedule ‘A’ item Nos.9 to 11 in his favour and those properties are standing in his name as well and he is the exclusive and absolute owner in possession of the suit schedule

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properties. That there is no existence of joint family between the plaintiff and defendants. That the plaintiff was not in any point of time in joint possession and enjoyment of the properties along with defendants. That some of the suit schedule properties have been transferred by defendant No.1 in the names of defendant Nos.4 & 5 for better cultivation and that they are in their possession and enjoyment. Defendant No.3 was given in marriage to Dada Mirje of Parmanandwadi village and plaintiff has been given in marriage to 3^rd defendant’s son and that they are residing together. Defendant No.2 is the mother of the plaintiff. During her lifetime, for her maintenance, suit land item No.1 had been given for her and she is separately residing in plaintiff’s house and enjoying suit item No.1. That the plaintiff and defendant Nos.2 & 3 have no right, title and interest in the suit schedule properties. They have colluded with each other to file a false suit

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against the defendants. Therefore, defendant No.1 prayed for dismissal of the suit.

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As already noted, defendant Nos.4 and 5 have adopted the written statement filed by defendant No.1.

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On the basis of the aforesaid pleadings, the trial court framed the following issues for its consideration:

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(i) “Whether the plaintiff proves that the suit schedule properties are ancestral and joint family properties of her and defendant Nos.1 to 3?

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(ii) Whether the plaintiff is entitled to 1/6^th share and separate possession in the suit schedule property?

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(iii) What order or decree? ”

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In support of her case, the plaintiff

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examined herself as PW-1 and Shri.Sunil Annasab Daramannavar as PW-2. Plaintiff produced 16

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documents which were marked as Exs.P-1 to P-16. Defendant No.1 examined himself as DW-1. Three other witnesses were examined as DW-2 to DW-4. Defendants produced eight documents which were marked as Ex.D-1 to Ex.D-8.

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On the basis of the said documents, trial court answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and decreed the suit in part with cost holding that the plaintiff is entitled to 4/9^th share in the suit schedule properties along with her mother-defendant No.2. A direction to draw up a preliminary decree was also issued by the trial court. Being aggrieved by the judgment and decree of the trial court, defendant Nos.1, 4 and 5 have preferred this appeal.

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We have heard learned counsel for the appellants and learned counsel for respondent No.1. Respondent No.2 is dead and is represented

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by her legal representative—respondent No.1. Respondent No.3 is served and unrepresented.

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We have perused the material on record as well as original records.

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Learned counsel for the appellants submitted that the trial court was not right in rejecting the fact that plaintiff’s father Nemagouda had executed a registered Will in favour of defendant No.1 dated 28.12.1995 (Ex.D-6). That Nemagouda died thereafter on 22.04.2000. In order to prove the said testament, the defendants had let-in evidence of two attesting witnesses namely DW-2 & DW-3 and that of the scribe of the Will DW-4. That since the original testament was not available so as to be produced before the trial court as it was with the Tahasildar, an application was filed seeking production of the said document through the Tahasildar, but the trial court has rejected the said application. However, a certified

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copy of the Will Ex.D-6 was marked in evidence without any objection being raised from the side of the plaintiff and the requisite evidence was let-in. Even then the trial court has not believed the Will and has decreed the suit granting 4/9^th share to the plaintiff. He submitted that in order to further establish that there was a Will executed in favour of defendant No.1 by his brother-Nemagouda (plaintiff’s father), an application has been filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’ for the sake of brevity) and the said application may be allowed and the matter may be remanded so that the original Will could now be considered by the trial court. Learned counsel for the appellants submitted that the impugned judgment and decree may be set aside and the matter may be remanded to the trial court in order to redetermine the validity of the Will dated 28.12.1995 as the original is now produced before

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this Court and the same may be sent to the trial court to adjudicate upon its validity.

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Learned counsel for the appellants

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contended that if the testament is proved by the appellants, then the plaintiff would not be entitled to any share in the suit schedule properties and the suit of the plaintiffs will have to be dismissed.

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Learned counsel for the appellants further contended that the trial court was not right in holding that plaintiff’s father was not entitled to bequeath his properties to defendant No.1 as the said properties were the joint family ‘A’ properties. In this regard he drew our attention to Section 30 of the Hindu Succession Act, 1956 to contend that any Hindu may dispose of by will or any other testamentary disposition any property, which is capable of being disposed of by him or her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any

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other law for the time being in force and applicable to Hindus.

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Learned counsel for the appellants contended that now that the original of Ex.D-6 is made available before this Court, an opportunity may be granted by this Court to prove the said testament in which case, the trial court may readjudicate upon the validity of the Will and if the appellants are successful in proving the Will, then respondent No.1/plaintiff would not be entitled to any share in the suit schedule properties.

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Per contra , learned counsel for respondent No.1 / plaintiff at the outset submitted that the suit schedule properties consist of eight items. That item No.1 namely land bearing RS No.245/1 measuring 33 guntas was given to plaintiff’s mother / Akkatai for her maintenance. That the said landed property was in her possession and she has died intestate. The

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plaintiff being the daughter and only heir of her mother Akkatai, she has succeeded to the said property. That there could not have been any bequest in respect of the said item. Therefore, even if this Court were to remand the matter as far as item No.1 is concerned, plaintiff is entitled to succeed to the said property as the said property has been inherited by her from her mother, even if some of the other items which has been bequeathed by plaintiff’s father in favour of defendant No.1.

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Learned counsel for respondent No.1 / plaintiff further contended that if this Court were to remand the matter on the basis of the fact that the alleged original Will is now brought on record by filing an application under Section XLI Rule 27 of CPC, in that event, a direction may be issued to the trial court to dispose off the suit expeditiously.

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Learned counsel for respondent No.1 further contended that pursuant to the directions issued by this Court, a sum of Rs.3,00,000/- is deposited before this Court and that the same is towards the mesne profits and that a direction may be issued for allotting 4/9^th share in the mesne profits to respondent No.1/plaintiff.

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By way of reply, learned counsel for the appellants while reiterating his earlier submissions contended that the right, title and interest of the plaintiff to 4/5^th share in the suit schedule properties would arise only in the event the appellants fail to establish in proving the Will. If the appellants are successful before the trial court to prove the testament of plaintiff’s father in favour of defendant No.1, the plaintiff would not be entitled to any share in the suit schedule items. He, therefore, contended that no direction may be

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issued at this stage regarding disbursement of the amount deposited before this Court.

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Having heard learned counsel for the respective parties, the following points would arise for our consideration:

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(i) “ Whether the trial court was right in holding that the plaintiff’s father Nemagouda had no right to make a bequest in respect of his share in the suit schedule properties in favour of defendant No.1?

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(ii) Whether the production of original testament Ex.D-6 by the appellants by way of additional evidence by filing an application under Order XLI Rule 27 of CPC would necessitate the remand of the matter to the trial court for the purpose of adjudicating on the validity of the said document?

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(iii) What order? ”

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The relationship between the parties is not in dispute. The plaintiff is the 1^st defendant’s brother’s only daughter. Her parents are no more alive. The plaintiff has sought for 4/9^th share in the suit schedule properties. However, it is the contention of defendants that plaintiff’s father had bequeathed his share in the suit schedule properties in favour of his brother/defendant No.1. The trial court could not have held that the plaintiff’s father had no right or capacity to bequeath his share in the suit schedule properties in favour of his brother / defendant No.1. Under Section 30 of the Act, any Hindu may dispose of by Will or other testamentary disposition any property which is capable of so being disposed of by him or by her in accordance with the provisions of Indian Succession Act, 1925 or any other law for the time in force applicable to Hindus. The explanation to Section 30 states inter alia, that the interest of a male Hindu in Mitakshara

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coparcenary property shall notwithstanding anything contained in the Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.

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Having regard to the explanation to Section 30 of the Act, it is clear that the interest of a male Hindu in Mitakshara coparcenary property can be bequeathed or capable of being disposed of by him by a testamentary disposition i.e., by way of bequest under a Will. Therefore, the trial court was not right in holding that Nemagouda had no right or was not entitled to bequeath his share in the suit schedule properties in favour of defendant No.1. Hence, we answer point No.1 in favour of the appellants.

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But, the matter does not end at this

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stage. Precisely, the point raised by learned counsel for the appellants is that Nemagouda

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having the right to bequeath his share in the coparcenary properties and had executed a testament dated 28.12.1995 which is a registered testament and a certified copy of the same was produced as Ex.D-6. It is contended that the original of the same could not be produced as it was in the custody of the Tahasildar, Raibag and even though an application was filed before the trial court seeking production of the said document, the same was rejected by the trial court. In the circumstances, the appellants have taken steps to secure the original testament from the Tahasildar and the same has been produced by way of additional evidence under Order XLI Rule 27 of CPC. Therefore, it is submitted that since the reasoning of the trial court proceeds mainly on the basis of the original Will not being produced and therefore, the signature of the testator could not be compared or authenticated. Hence, Ex.D-6 was not believed. Now that the original of Ex.D-6

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itself is produced, the same may be considered by the trial court and hence, a plea is made by appellants’ counsel seeking remand of the matter by allowing the application under Order XLI Rule 27 of CPC.

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We have perused the application filed under Order XLI Rule 27 of CPC enclosing the registered Will dated 28.12.1995. Appellants’ counsel submits that Ex.D-6 is the certified copy of the said document.

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We have perused the reasoning given by

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the trial court to disbelieve Ex.D-6, which is primarily because original Ex.D-6 was not produced. However, now that the original Will is before us, we deem it proper to allow the application filed under Order XLI Rule 27 of CPC on the ground that the trial court ought to have secured the original Will by issuance of directions for its production, which it had refused to do so by

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dismissing the application filed by appellants’ herein. Further, the original Will could not be produced by the appellants before the trial court despite exercise of due diligence. Moreover, we find that the said document was necessary in order to enable the trial court to pronounce judgment on the substantial issue which had arisen in the suit. In the circumstances, we find that the application seeking production of additional evidence has to be allowed for the aforesaid reasons as the conditions mentioned in Order XLI Rule 27 CPC are satisfied in the instant case.

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Since, the application is allowed and the original of Ex.D-6 has to be proved, we deem it proper to remand the matter to the trial court for the said purpose. In the circumstances, the impugned judgment and decree is set aside. The matter is remanded to the trial court so as to give

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an opportunity to the appellants to prove the original of Ex.D-6 in accordance with law. The respondent – plaintiff is at liberty to raise all contentions which arise on the said aspect of the matter.

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The trial court shall dispose off the suit within a period of six months from the date the parties appear before the trial court.

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Since the parties are represented by their respective counsel, they are directed to appear before the trial court on 05.03.2019 without expecting any separate notices from the said Court. As respondent No.3-Housavva herein is not contesting respondent, her presence in the suit may not be necessary and therefore, notice to respondent No.3 may be dispensed with by the trial court.

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Office to transmit the original records along with the copy of the application filed under

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Order XLI Rule 27 read with Section 151 of CPC and the original of Ex.D-6 to the trial court scrupulously in a sealed cover and after taking all steps in due diligence, forthwith.

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As far as the amount which is in deposit before this Court, appellant’s counsel submits that a sum of Rs.3,00,000/- is in deposit before this Court pursuant to the interim direction issued by this Court.

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Learned counsel for respondent No.1 submits that 4/9^th share in the said amount to be released to respondent No.1 which is corresponding to her share in the suit schedule properties.

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However, since we have set aside the judgment and decree of the trial court, we deem it proper to release 10% of the amount deposited before this Court to respondent No.1/plaintiff. The same is towards litigation expenses, since the

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matter has been remanded to the trial court for fresh adjudication.

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The office to release 10% of the amount deposited before this Court to respondent No.1 after due identification. Balance amount shall be transmitted to the concerned trial court forthwith. The trial court on receipt of the said amount shall deposit it in any nationalised bank for a period of six months and appropriate directions may be issued regarding the same by the trial court at the time of disposal of the suit.

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Appeal is allowed and disposed off in the aforesaid terms.

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Sd/JUDGE

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Sd/JUDGE

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Paras: 1 to 4: Kmv; Paras: 5 to end: RK/-

Dadagouda Balagouda Patil v. Kusuma W/O.Paris Mirje

Case brief

What is this about?

What did the court decide?

Dadagouda Balagouda Patil v. Kusuma W/O.Paris Mirje

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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