Allowed

Smt Chowdamma v. Srinivasa

Karnataka HC6 Aug 2021RSA/2032/2006

Case brief

AI extract

What is this about?

The High Court allowed the second appeal challenging the first appellate court’s order which set aside a partition suit amendment. The High Court upheld the trial court’s decree granting the widow a 1/3rd share in ancestral property, finding her legal wife status and adopted son’s status established.

What did the court decide?

The Regular Second Appeal allowed; the First Appellate Court judgment set aside; the Trial Court judgment affirming the plaintiff’s 1/3rd share affirmed.

Smt Chowdamma Vs Srinivasa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.2032/2006 (PAR)

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BETWEEN:

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SMT. CHOWDAMMA SINCE DECEASED BY HER LRS

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GOOLEGOWDA S/O CHOWDAMMA AGED ABOUT 25 YEARS R/AT JADERI VILLAGE HOLUR HOBLI KOLAR Taluk-563 101.

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... APPELLANT

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(BY SRI H V RAJA RAM, ADVOCATE)

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AND:

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1 . SRINIVASA S/O MUNISWAMAPPA AGED ABOUT 36 YEARS R/AT HOLUR VILLAGE HOLUR HOBLI, KOLAR TALUK-563 101.

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2 .SHIVASHANKARAPPA SINCE DECEASED REPRESENTED BY HIS LEGAL REPRESENTATIVE- R1

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3 . CHANDRAPPA S/O LATE VENKATARAMANA AGED ABOUT 56 YEARS R/AT HOLUR VILLAGE

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HOLUR HOBLI, KOLAR TALUK-563 101.

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4 . SRI B RAMESH KUMAR S/O BALAKRISHNAPPA AGED ABOUT 56 YEARS R/AT HOLUR VILLAGE HOLUR HOBLI, KOLAR TALUK-563 101.

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5 . THE MANAGER/SECRETARY SFSCS LTD., VADAGUR VILLAGE HUTHUR VILLAGE, KOLAR TALUK KOLAR DISTRICT

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... RESPONDENTS

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(BY SRI H S RAMAMURTHY, ADVOCATE FOR R1; R3 TO 5 ARE SERVED;

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VIDE ORDER DATED 02.12.2019 R2 IS DEAD AND R1 IS THE ONLY SURVIVING LEGAL HEIR))

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 20.06.2005 PASSED IN R.A.NO.268/1999 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK COURT-III, KOLAR, ALLOWING THE APPELA AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.09.1999 PASSED IN OS.NO.816/1991 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN), KOLAR.

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THIS R.S.A. COMING ON FOR HEARING THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the legal representative of

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plaintiff-Smt.Chowdamma challenging the judgment and decree dated 20.06.2005 passed in RA.No.268/1999 by

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the Fast Track Court-III, Kolar, allowing the appeal and setting aside the judgment and decree dated 14.09.1999 passed in OS.No.816/1991 by the Additional Civil Judge (Junior Division) Kolar, decreeing the suit of the plaintiff.

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is case of the plaintiff that her husbandP.Muniswamappa died in an accident leaving behind herself

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and defendants No.1 and 2. It is further stated in the plaint that she had adopted one Goole Gowda as per Adoption Deed since she has no issues. It is further stated in the plaint that suit schedule properties are the ancestral properties of her husband and after the death of her husband, herself adopted a son-Goole Gowda and defendants are the sole surviving legal representatives to succeed the estate of P.Muniswamappa. It is further stated in the plaint that her husband-P.Muniswammppa married

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to one Samakka and she died without issues and

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thereafter, he married the plaintiff and they had no issues and as such, the said P.Muniswamappa married to one Nanjamma- third wife, with the consent of the plaintiff and through said Nanjamma, defendants were born. It is further stated in the plaint that defendant No.1 was managing the affairs of the joint family and plaintiff claimed her share in the suit schedule properties, which came to be denied by the defendants, and as such, she has filed a suit seeking relief of partition in OS No.816/1991 on the file of the trial court.

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After service of summons, defendants entered appearance and filed their written statement denying the averments made in the plaint. The defendants have denied the adoption of Goole Gowda by the plaintiff and stated that the suit schedule properties are ancestral properties of the plaintiff’s husband-P.Muniswammay i.e. the father of the defendants and after his death, the defendants are the only surviving legal representative to succeed the estate of deceased-P.Muniswamappa.

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5. On the basis of the rival pleadings, the trial

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Court has formulated following issues for its consideration:

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1. Whether the plaintiff proves that, she is the legally wedded wife of late P.Muniswamappa ?

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2. Whether the plaintiff proves that, she and the defendants are in possession and enjoyment of the suit schedule properties ?

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3. Whether the defendants prove that, they are the sons of late Muniswamappa and they are the only legal heirs of P.Muniswamappa to succeed the suit schedule properties ?

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4. Whether the plaintiff proves that, she is entitle for ½ share in the suit schedule properties ?

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5. Whether the plaintiff proves that, she is entitle for permanent injunction as prayed ?

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6. What order or decree ?

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Additional Issue :

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1. Whether the court fee paid on the plaint is insufficient as contended in para-7 of the written statement ?

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In order to prove the case, plaintiff examined

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herself as PW1 and examined three more witnesses as

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PW2 to PW4 and got marked 17 documents as Exs.P1 to P17. On the other hand, defendant No.1 was examined as DW1 and examined two witnesses as DW2 and DW3 and produced one document and same was marked as Ex.D1.

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The trial Court, after considering the material on record, by its judgment and decree dated 14.09.1999 decreed the suit of the original plaintiff-Smt.Chowdamma and being aggrieved by the same, defendants have preferred Regular Appeal in RA.No.268/1999 on the file of the Fast Track Court-III, Kolar. The said appeal was resisted by the plaintiff. During the pendency of Regular Appeal, the original plaintiff-Chowdamma died and her adopted son, Goole Gowda was brought on record as legal representative of late Chowdamma, the original plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 20.06.2005 allowed the appeal and set aside the judgment and decree passed by the trial Court in OS.No.816/1991. Being aggrieved by the said judgment and decree passed in

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R.A.No.268/1999, the legal representative of original plaintiff has preferred this Regular Second Appeal under Section 100 of CPC.

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Sri.H.V.Rajaram, learned counsel for the appellant submits that the trial Court, after considering the material on record and on appreciating the oral and documentary evidence of the parties, rightly decreed the suit holding that plaintiff is entitled for 1/3^rd share in all the suit schedule properties, however, the First Appellate Court erroneously, reversed the said finding recorded by the trial Court on the fact that the application made by the plaintiff under Order VI Rule 17 of Code of Civil Procedure amending the relief sought for in the plaint into a partition suit. He further contended that, the First Appellate Court has not properly appreciated the Ex.P14-Registered Adoption Deed produced before the trial Court and disputed the adoption of Goole Gowda and as such, he contended that interference made by the First Appellate

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Court in the well reasoned judgment and decree passed by the trial Court calls for interference in this appeal.

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There is no representation on behalf of

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respondents.

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This Court, by order dated 28.05.2009 has formulated the following substantial question of law.

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“1. Whether the Lower Appellate Court was justified in treating the suit as one for declaration and coming to its conclusion by setting aside the amendment which had been earlier granted by the trial Court and in that regard, as to whether the Lower Appellate Court has committed any error?

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2. Whether the manner of re-appreciation of evidence, even on that aspect of the matter relating to declaration and other relief sought for, would admit of any perversity?

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Heard the learned counsel appearing for the appellant and perused the records.

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It is not in dispute that father of defendant Nos.1 and 2-P.Muniswamappa married to one Samakka

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and she died without issues and as such, the said P.Muniswamappa married to Chowdamma, the original plaintiff and she had no issues; thereafter, with the consent of the plaintiff, he married one Nanjamma. Defendant Nos.1 and 2 are the children of

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P.Muniswamappa and Nanjamma.

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I have carefully considered the pleadings

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recorded in the plaint, wherein, at paragraph-2 of the plaint, the plaintiff stated that subsequent to the death of P.Muniswamappa, she adopted Goole Gowda under the Registered Adoption Deed as she had no issues. The said aspect was denied by the defendants in the written statement. However, they took up a contention that the Chowdamma is a stranger and not a legally wedded wife of P.Muniswamappa. The defendants have filed additional written statement stating that said P.Muniswamappa married to one Samakka who died issueless and thereafter, he married to Nanjamma, the mother of the defendant Nos.1 and 2. Though the said defence was taken

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by the defendant, in order to establish the relationship of P.Muniswampappa with the Chowdamma, the plaintiff has produced voter list (Ex.P13) pertaining to the year 1977 which would clearly substantiate the fact that Chowdamma is the wife of P.Muniswamappa and also it contains the name of Nanjamma, mother of defendant Nos.1 and 2 and the said document was not disputed by the defendants during the trial. The plaintiff has also produced the photograph which is marked as Ex.P15 along with its negative. DW2, in his evidence admits, the relationship between P.Muniswamappa and Smt.Chowdamma and further deposed that they are husband and wife. In order to prove the relationship, the plaintiff has examined PW2 and PW3, who deposed that P.Muniswamappa is the husband of plaintiff and PW3-Munivenkatappa who is the permanent resident of Huttur village, categorically deposed that, he had conversant with the plaintiff and defendants and at the time of marriage of P.Muniswampappa with the plaintiff, Samakka was no more. He further deposed that the marriage of Chowdamma took place in Jaderi Village at

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about 40 years back and PW2 and PW3 have attended the

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marriage. The defendants have not made effort to seriously elicit from the PW2 and PW3 to disprove the marriage between P.Muniswamappa and the plaintiff.

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Perusal of the testimony of PW4 would further establish the fact that plaintiff-Chowdamma married P.Muniswamappa at Jaderi Village and she is the daughter of his senior uncle. In this regard, the testimony of the DW1, denying the performance of marriage of Chowdamma with P.Muniswampapa cannot be accepted as he was aged about 32 and not even born at the time of marriage of plaintiff and P.Muniswamappa according to PW2 and PW3 marriage ceremony of Chowdamma and P.Muniswamppa was held about 40 to 45 years back. Perusal of the evidence of PW1 is silent with regard to marriage of Chowdamma. Both the Courts below have appreciated the entire material on record and had come to the conclusion that the original plaintiff-Chowdamma was the legally wedded wife of P.Muniswamappa. In this

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regard, the First Appellate Court rightly answered point No.3.

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Further, the First Appellate Court had taken

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divergent view with regard to the modification of the shares. Perusal of the cause title in the First Appellate Court would clearly indicate that the appellants have brought Goole Gowda as the legal representative of late Chowdamma i.e.original plaintiff, which would clearly substantiate the fact that Goole Gowda was adopted by Chowdamma. In this regard, perusal of Ex.P14-registered Adoption Deed would clearly establish the fact that Goole Gowda is the adopted son of late Chowdamma.

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In view of the divergent opinion taken by the First Appellate Court with regard to point Nos.1 and 2, I have carefully considered point No.1, wherein the Chowdamma had filed IA. X under Order VI Rule 17 of Code of Civil Procedure seeking relief of partition. In this regard, the defendants have filed objections, stating that no permission would be granted for claiming relief of

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partition. However, in this regard, the trial Court by order dated 16.10.1998 passed detailed order, allowing IA X filed by the plaintiff to amend the plaint as prayed in IA X subject to cost of Rs.50/-.

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It appears from the records that defendants

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have not challenged the order dated 16.10.1998, passed by the trial Court, which has reached finality. Looking into the factual aspect of the record, the plaintiff in the plaint herself has stated that she is the wife of P.Muniswamappa and as such, sought for division of properties of late P.Muniswamppa, considering the status as she is the legally wedded wife of said P.Muniswamppa and in that view of the matter, the finding recorded by the First Appellate Court on Point No.1 is not correct and it calls for interference in this appeal. Perusal of evidence adduced by the parties, vis-a-vis the documents at Ex.P1 to Ex.P19 would clearly establish the fact that the Chowdamma is the wife of late P.Muniswamappa and as such, in terms of Section 8 of the Hindu Succession Act, 1956, the plaintiff is

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entitled for share in the suit schedule property and the said amendment sought by the plaintiff would not change the nature and basis of the original suit itself.

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Insofar as Point No.2 of the First Appellate Court is concerned, the First Appellate Court committed error in answering point No.2 taking into consideration that plaintiff has converted the suit for declaration of title and injunction into suit for partition without making all the interested persons and sharers in the suit; and said finding recorded by the First Appellate Court is without any basis. I have also carefully considered the finding recorded by the First Appellate Court with regard to point No.4, wherein, the First Appellate Court had come to a conclusion that computation of share of Chowdamma is not possible, as all the sharers have not been made as parties to the suit and the said finding recorded by the First Appellate Court is contrary to the pleadings on record, as the defendant Nos.1 and 2 in their written statement itself stated that they are the children of Nanjamma and however, they had

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taken up a contention that the Chowdamma is not the legally wedded wife of P.Muniswamppa and in view of the discussion made above holding, that the Chowdamma is the legally wedded wife of P.Muniswamappa, the finding recorded by the First Appellate Court with regard to point No.4, is contrary to pleadings and record and as such, same is rejected.

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Having taken note of the factual aspect of the case on merits, that the plaintiff had proved that she is the legally wedded wife of P.Muniswamppa and she has adopted one Goole Gowda as per registered Adoption Deed (Ex.P14) and the defendants have not seriously contested the case by adducing proper evidence to take contrary view on this issue and in that view of the matter, the finding recorded by the First Appellate Court with regard to Issue Nos.1, 2, 4 and 5 is liable to be rejected. Having taken note of the fact that the defendant Nos.1 and 2 are the children of Nanjamma and same is not disputed by the plaintiff, and the original plaintiff -Chowdamma died

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leaving behind her adopted son, who has been brought on record as legal representative of deceased-Chowdamma by the defendants themselves before the First Appellate Court and as such, this court is of the considered view that judgment and decree passed by the trial Court holding that original plaintiff is entitled for 1/3^rd share in all the suit schedule property is just and proper. Accordingly, I am answering the substantial questions of law framed by this Court on 20.05.2009 in favour of the plaintiff holding that the plaintiff has proved that she is the legally wedded wife

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of late P.Muniswamappa and she has adopted Goole Gowda as per Ex.P14-registered Adoption Deed, so also, holding that interference made by the First Appellate court with the well reasoned judgment passed by the trial Court on IA.X is bad in law and also on the findings of the trial Court. Hence, the following:

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ORDER:

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i) The Regular Second Appeal is hereby allowed;

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ii) The judgment and decree dated 20.06.2005 passed in RA No.268/1999 by the Additional District and Presiding Officer, Fast Track Court-III, Kolar is set aside.

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iii) The judgment and decree dated 14.09.1999 passed in O.S.No.816/1999 by the Additional Civil Judge (Jr.Dn.), Kolar, is affirmed.

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iv) No order as to costs;

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Sd/JUDGE

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SB

Smt Chowdamma v. Srinivasa

Case brief

What is this about?

What did the court decide?

Smt Chowdamma v. Srinivasa

Case brief

What is this about?

What did the court decide?

What the court decided

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