Allowed

Smt Tulasiprabha v. Kumari Rashmi

Karnataka HC12 Jul 2021RFA/160/2014

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a declaration suit regarding ancestral property and mortgage redemption. The trial court decreed the suit based on initial pleadings where appellants denied redemption. This court remanded the matter to admit late-produced evidence of mortgage redemption and sale deeds, imposing costs on the negligent appellants.

What did the court decide?

The appeal was allowed, the trial judgment was set aside, the matter was remanded for fresh adjudication, and the appellants were ordered to pay costs of Rs. 15,000 to the plaintiffs.

Smt Tulasiprabha Vs Kumari Rashmi — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE M.I.ARUN

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RFA NO.160 OF 2014 (PAR)

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BETWEEN :

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SMT. TULASIPRABHA W/O RAMACHANDRAIAH AGED ABOUT 69 YEARS

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SMT. K.V. SATHYAVATHI W/O UDAYSHANKAR AGED ABOUT 65 YEARS

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BOTH ARE R/AT NO.38 APPAYANNA STREET DADDAMAVALLI BANGALORE – 04 … APPELLANTS

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(BY SRI.YESHU MISHRA, ADV. FOR SRI. S. S. SRINIVAS RAO, ADV.)

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AND :

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KUMARI RASHMI D/O SRI. V. VASUDEVA AGED ABOUT 27 YEARS

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MASTER RAKSHITH S/O SRI. V. VASUDEVA AGED ABOUT 24 YEARS

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SMT. NAGARATHNA W/O SRI. V. VASUDEVA AGED ABOUT 43 YEARS

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ALL ARE R/AT NO.7 ANNAYAPPA LANE DODDAMAVALLI BANGALORE – 04

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SRI. V. VASUDEVA S/O SRI. B. M. VENKATANARAYANA AGED ABOUT 43 YEARS R/AT NO.41, ANNAYAPPA STREET DODDAMAVALLI BANGALORE - 04 … RESPONDENTS

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(BY SRI. R. SHYAMA, ADV. AND SRI. CHANDRA, ADV. FOR C/R-1 TO R-3; R4 SERVED)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND ORDER DATED 31.10.2013 PASSED IN O.S.1610/2007 ON THE FILE OF THE XVIIIADDL. CITY CIVIL JUDGE, BENGALURU, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and decree dated

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31.10.2013 passed by XVIII Additional City Civil Judge,

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Bengaluru, in O.S.No.1610/2007, defendant nos.1 and 2 therein have preferred this appeal.

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For the sake of convenience, the parties are referred to herein as per their status before the trial court.

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Plaintiff nos.1 and 2 are the children of defendant no.3 and plaintiff no.3 is the wife of defendant no.3. The plaintiffs filed the above suit contending that the suit schedule property was ancestral property belonging to the family of defendant no.3 and that they have a share in the said property. However, defendant no.3 had mortgaged the said property in favour of defendant nos.1 and 2. Nevertheless the plaintiffs were always willing to pay back the loan amount and redeem the mortgage and prayed for the following reliefs:

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“Wherefore, it is humbly prayed that this Hon’ble court be pleased to pass a judgment and preliminary decree declaring that the defendants Nos.1 and 2 cannot continue to hold the property;

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(i) directing the defendants Nos.1 and 2 to execute the Deed of discharge in respect of the suit schedule property against the Document No.1926 dated 28.08.1985;

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(ii) direct the defendants to deliver back the possession of the suit schedule property to the plaintiffs by receiving mortgage amount;

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(iii) and pass any other order/s as this Hon’ble court deems fit to grant in the circumstances of the case, including the cost of the suit, in the interest of justice and equity.”

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The said suit was contested by defendant nos.1 and 2, but defendant no.3 remained absent and was placed ex parte . Defendant nos.1 and 2 denied the averments made by the plaintiffs and sought for dismissal of the suit.

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Based on the pleadings, the trial court framed the following issues for consideration:

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1. Whether the plaintiffs are entitled to a deed of discharge sought for?

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1. Whether the plaintiffs are entitled to declaration sought for?

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1. Whether the plaintiffs are entitled to delivery of possession of the schedule property?

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1. To what decree or order?”

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The plaintiffs, to prove their case, examined one witness and got marked Exs.P1 to P3(a). The defendants did not examine any witness nor got marked any documents.

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7. Based on the pleadings and the evidence let in, the

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trial court answered the aforementioned issues in the following manner:

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Issue No.1: Affirmative

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Issue No.2: Affirmative Issue No.3: Affirmative

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Issue No.4: As per final order for the following”

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Consequently, the suit of the plaintiffs was decreed as under:

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“ORDER

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Suit of the plaintiffs is decreed as under:

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The plaintiffs are directed to deposit mortgage amount of Rs.20,000/- within 2 months from the date of judgment.

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The defendants 1 and 2 are directed to receive amount deposited by the plaintiffs and execute redemption deed by cancellation of deed of mortgage by discharging mortgage deed executed by defendant No.3 in their favour in respect of suit schedule property on 28-8-1985 and deliver possession within one month from the receipt of amount.

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In case of failure of the defendants no.1 and 2, the plaintiffs are at liberty to file final decree proceedings and get the deed of redemption of mortgage and get vacant possession of suit schedule property through court of appointment of commissioner.

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The parties are directed to bear their own costs.

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Draw preliminary decree accordingly.”

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Aggrieved by the same, defendant nos.1 and 2 have

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preferred this appeal.

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Heard learned counsel for the appellants and learned counsel for respondent nos.1 to 3. Respondent no.4, though served with the notice, has remained unrepresented.

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After filing of the appeal, the appellants/defendant nos.1 and 2 have filed the application-I.A.No.4/2017 under Order 6 Rule 17 read with Section 151 of PCC seeking to amend the written statement. They have also filed I.A.No.5/2017 seeking to produce additional documents.

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It is the case of the appellants/defendant nos.1 and 2 that defendant no.3 indeed mortgaged the suit schedule property in favour of defendant no.2 on 28.08.1985 by virtue of a registered mortgage deed produced at Ex.P3. It is contended that the said mortgage was redeemed by a deed of discharge executed on 09.06.1989 which is also registered and the substantial portion of the property was split into two and each of the appellants have purchased one property by way of registered sale deeds and they have also got khatha done in their favour. However, the

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fact of the mortgage being redeemed and portions of the schedule property being sold in favour of defendant nos.1 and 2/appellants is not forthcoming from the written statement. Strangely, the said ground is not taken in the appeal also. It is only by way of I.A.Nos.4 and 5/2017 the said grounds have sought to be taken and the relevant documents are sought to be produced. It is the contention of the counsel for the appellants that by inadvertence the same were not produced before the trial court and that mistake should not result in injustice being caused to defendant nos.1 and 2/appellants.

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Per contra, the counsel for respondent nos.1 to 3/plaintiffs vehemently opposes considering I.A.Nos.4 and 5/2017. He contends that sufficient opportunity was given to defendant nos.1 and 2/appellants and they never cared for producing the said documents nor is there a pleading to that effect before the trial court or in the appeal proceedings and only by way of I.A.Nos.4 and 5/2017, the appellants are seeking to introduce the said facts to the

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case, making it a new case altogether. He also brings to the notice of this Court that the appellants have conducted the case before the trial court in a careless and callous manner. They have not let in any evidence and prays that the said I.As. be dismissed and also the appeal. He further contends that the trial court has passed a just and fair judgment based on the materials placed before it and the pleadings made by the parties and no fault can be found in the judgment and decree of the trial court and consequently the appeal should be dismissed. However, he is not in a position to totally deny the documents sought to be produced by the appellants by way of I.A.No.5/2017 but contends that his right of denying the same and cross examining the appellants be reserved in the event the case was to be remanded.

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The documents sought to be produced by the appellants are registered documents pertaining to redemption of mortgage and sale of portions of the suit schedule property in their favour. However, the same can

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be held to be proved only upon due evidence is let in, documents are marked and the plaintiffs are given liberty to counter the same and cross examine the persons who produced the documents. There is no doubt that defendant nos.1 and 2/appellants herein has suffered the judgment and decree due to their callousness and negligence. No doubt, justice needs to be done, but at the same time, in this case, the plaintiffs have been driven to this Court because of the negligence on part of defendant nos.1 and 2/appellants herein for which certain costs needs to be imposed. Nevertheless, keeping in view the interest of justice, in the light of the appellants producing the documents relating to redemption of mortgage and sale of portions of the suit schedule property in their favour, the matter requires to be remanded. Hence, the following:

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ORDER

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(i) The appeal is allowed. The judgment and decree dated 31.10.2013 passed by XVIII

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Additional City Civil Judge, Bengaluru, in O.S.No.1610/2007 is hereby set aside;

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(ii) The matter stands remanded to the trial court for fresh adjudication;

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(iii) The appellants/defendant nos.1 and 2 are permitted to make necessary pleadings before the trial court and lead fresh evidence pursuant to the same;

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(iv) The plaintiffs shall be given liberty to file necessary objections to the amendment that may be sought by defendant nos.1 and 2/appellants to their written statement and shall be given an opportunity to cross examine any witness on behalf of defendants;

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(v) The appellants/defendant nos.1 and 2 shall pay costs of Rs.15,000/- (Fifteen Thousand only) to the plaintiffs;

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(vi) Any observations made herein are limited for the purpose of this appeal and the trial court

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should not be swayed by the same and should

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examine the matter independently.

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(vii) All contentions of the parties are left open;

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(viii) The parties are directed to appear before the

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trial court on 2^nd August 2021 without any further notice;

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(ix) Office is directed to return the trial court records forthwith;

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(x) The appellants/defendant nos.1 and 2 are permitted to receive back the original documents produced along with I.A.No.5/2017.

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Pending I.As. do not survive and they stand disposed

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of accordingly.

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Sd/JUDGE

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hkh.

Smt Tulasiprabha v. Kumari Rashmi

Case brief

What is this about?

What did the court decide?

Smt Tulasiprabha v. Kumari Rashmi

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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