Dismissed

Sri Lokanath Poojary v. Sri Kiran Kumar

Karnataka HC22 Jul 2021RSA/316/2020

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by a defendant challenging a decreed suit for mandatory injunction. The lower courts held that a will granted the grandmother a limited estate, which devolved to the plaintiffs as they were the legal heirs of the pre-deceased granddaughter. The High Court found no substantial question of law under Section 100 CPC.

What did the court decide?

The second appeal is dismissed at the stage of admission.

Sri Lokanath Poojary Vs Sri Kiran Kumar — 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 22^ND DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR SECOND APPEAL NO.316 OF 2020

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BETWEEN:

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Sri Lokanath Poojary Aged about 63 years S/o late Chandu Poojary R/o “Aruna Nilaya” Near Pallavi Rice Mill Ambalpady Village Udupi Taluk and District.

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...Appellant

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(By Shri Giridhar H, Advocate)

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AND:

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Sri Kiran Kumar Aged about 49 years S/o late Chandrashekar R/o “Janaki” Chandu Poojary Compound Near N.H.66, Ambalpady Udupi-576 101.

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Smt. Aruna Umesh Aged about 44 years W/o Sri Umesh S P Flat No.205, Dune Apartments Shivabagh, I Cross Kadri Mangalore-575 002.

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….Respondents

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(By Shri Prasanna V R, Advocate for R1)

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This Regular Second Appeal is filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 28^th August, 2019 passed in RA No.24 of 2019 on the file of the Principal Senior Civil Judge, Udupi, dismissing the appeal and confirming the judgment and decree dated 23^rd February, 2019 passed in OS. No.547 of 2013 on the file of the III Additional Civil Judge and JMFC, Udupi.

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This Appeal coming on for admission, this day, the court delivered the following:

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J U D G M E N T

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This second appeal is filed by the defendant challenging

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the judgment and decree dated 28^th August, 2019 passed in Regular Appeal No.24 of 2019 by the Principal Senior Civil Judge at Udupi confirming the judgment and decree dated 23^rd February, 2019 passed in Original Suit No.543 of 2013 by the III Additional Civil Judge and JMFC, Udupi.

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Rank of the parties in this appeal are referred to with their status before the trial Court.

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It is the case of the plaintiffs that their grandfatherChandu Poojary was the absolute owner of the suit schedule property and he died leaving behind Will dated 11^th August, 1995. It is further stated that, in terms of the said Will, some of the properties were given to the wife of said Chandu Poojary, i.e. the grandmother of the plaintiff-Bidugu

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Poojarthy. It is the case of the plaintiffs that their grandfather-Chandu Poojary, while bequeathing the schedule property in favour of his wife-Bidugu Poojarthy, had given limited interest in her favour, and further stated that the suit schedule property was given to the elder daughter of Bidugu Poojarthy, Janaki Poojarthy, and Janaki Poojarthy acquires the same after the demise of Bidugu Poojarthy. It is further stated that Janaki Poojarthy pre-deceased her mother-Bidugu Poojarthy and therefore, after the death of said Bidugu Poojarthy, the suit schedule property shall devolve upon the plaintiffs as the legal heirs of Janaki Poojarthy. It is further averred in the plaint that defendants and one Achutha Poojary were residing in the suit schedule property along with their mother-Bidugu Poojarthy and after the death of said Bidugu Poojarthy, plaintiffs requested the defendant to vacate the premises in terms of their right accrued by virtue of Will dated 11^th August, 1995 executed by their grandfather-Chandu Poojary. It is further averred in the plaint that plaintiffs have filed suit against defendants and their brother Sridhar C. Poojary, seeking relief of permanent injunction in Original Suit No.152 of 2006 and the said suit came to be decreed on 27^th

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December, 2013, wherein it was observed that Bidugu Poojarthy had no right to bequeath the suit schedule property in favour of the defendant by virtue of the settlement deed said to have been executed by her and as such, plaintiffs have filed Original Suit No.547 of 2013 on the file of the trial Court, seeking relief of mandatory injunction against the defendants. Defendants entered appearance and filed written statement contending that the Will dated 11^th August, 1995 is executed on a suspicious circumstance and same has not been proved before the court of law. It is further averred in the written statement that plaintiffs have filed Original Suit No.152 of 2006 before the competent court seeking permanent injunction and the present suit is filed seeking mandatory injunction and therefore, the subsequent suit is hit by Order II Rule 2 of the Code of Civil Procedure. Defendants also raised contention with regard to limitation and sought for dismissal of the suit. The trial Court, based on the pleadings on record, framed following issues for its consideration:

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1. Whether the plaintiffs prove that he is entitled for possession by way of mandatory injunction?

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2. Whether plaintiffs prove that they are entitled for damages?

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3. Whether the defendant proves that the suit is not maintainable for want of proper court fee?

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4. Whether the defendant proves that suit is barred by time?

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5. What order or decree?

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The second plaintiff was examined as PW1 and plaintiffs have produced 10 documents, which were marked as Exhibits P1 to P10. No evidence on behalf of defendants. The Trial Court, after considering the material on record, by its judgment and decree dated 23^rd February, 2019 decreed the suit with a direction to the defendants to vacate the suit schedule property within one month from the date of the order. Being aggrieved by the judgment and decree passed by the trial Court, defendant has preferred Regular Appeal No.24 of 2019 on the file of the First Appellate Court. The said appeal was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 28^th August, 2019 dismissed the appeal and thereby confirmed the judgment and decree dated 23^rd February, 2019 passed by the trial Court. Being aggrieved the judgments and decree passed by the courts below, defendants have presented this second appeal.

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Heard Sri Giridhar H, learned counsel appearing for the defendant-appellant herein and Sri V.R. Prasanna, learned counsel appearing for the plaintiffs-respondents. Shri Giridhar H, learned counsel for the defendant-appellant submitted that both the courts below have not considered the facts on record in the right perspective and submitted that Section 14(2) of the Hindu Succession Act, 1956 is applicable to the case on hand and the said aspect of the matter was not considered by both the courts below. He further contended that the cause of action in earlier suit, viz. Original Suit No.152 of 2006 and the present suit are one and the same and therefore, the provisions of Order II Rule 2 of the Code of Civil Procedure is applicable to the case and the said aspect of the matter was not considered by the courts below. He further contended that the trial Court ought to have dismissed the suit on the ground of limitation, as the Will was executed on 11^th August, 1995 and the suit was filed in 2013, and moreover, pursuant to Will dated 11^th August, 1995 executed by Chandu Poojary, his wife Bidugu Poojarthy was residing in the suit schedule property and therefore, the suit ought to have been dismissed by the trial Court as the same is not filed within three years

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from the date of execution of settlement deed dated 13^th December, 2005, entered into between Bidugu Poojarthy and the defendant. Therefore, he contended that both the courts below have not considered the factual aspects in the right perspective. Hence, he prays that the impugned judgments and decree passed by the courts below be set aside.

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Per contra, Sri V.R. Prasanna, learned counsel appearing for the plaintiff-respondents contended that the courts below have evaluated the evidence on record in the right perspective and concurrent findings have been given with regard to the issues framed therein and therefore, this second appeal deserves to be dismissed as this Court cannot interfere with the finding of fact recorded by the courts below. He further contended that Section 14(2) of the Hindu Succession Act, 1956 is not applicable to the case on hand as the Will was executed by Chandu Poojary on 11^th August, 1995 bequeathing the property for a limited estate in favor of his wife Bidugu Poojarthy and on her demise, the daughter of Bidugu Poojarthy, Janaki Poojarthy became the legatee and since Janaki Poojarthy pre-deceased her mother, the property shall devolve upon the legal heirs of Janaki Poojarthy and

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therefore, Section 14 of the Hindu Succession Act is not applicable. He further contended that in the Will dated 11^th August, 1995, the defendant was given certain properties by Chandu Poojary and therefore, there is no discrimination made among the legal heirs of the deceased Chandu Poojary, as the defendant was one of the beneficiaries of the said Will and therefore, the finding recorded by the courts below are just and proper. Accordingly, he sought for dismissal of the appeal.

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Having heard the learned counsel appearing for the parties, it is not in dispute that Chandu Poojari-the grandfather of the plaintiff died leaving behind his wife and nine children. He had executed a Will dated 11^th August, 1995 and certain properties were given to his children as well as his wife for limited estate. It is also forthcoming from the impugned judgment that the testator has bequeathed the property to his wife Bidugu Poojarthy for limited estate and it is further stated that the said property which was given to Bidugu Poojarthy, after her demise, shall devolve upon her daughter Janaki Poojarthy. It is not in dispute that Janaki Poojarthy pre-deceased Bidugu Poojarthy and therefore, the

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claim made by plaintiffs that the plaintiffs who are the children of Janaki Poojarthy are entitled for share in the property. In this regard, I have carefully considered the findings recorded by the trial Court. The trial Court, at paragraph 17 of the judgment has held that as per the Will dated 11^th August, 1995 (Exhibit P1), Chandu Poojary had executed the Will bequeathing one of the items in property bearing survey No.56/9 measuring 37 cents, which includes a house, a well and farm in favour of his wife Bidugu Poojarthy as limited interest and same could be devolved upon his daughter Janaki Poojarthy after the demise of his wife-Bidugu Poojarthy. Admittedly, the suit schedule property is given to Bidugu Poojarthy and after the demise of Bidugu Poojarthy, the property shall devolve upon the plaintiffs, since the mother of the plaintiffs pre-deceased Bidugu Poojarthy. In this connection, the trial Court decreed the suit based on the provisions contained in Section 119 of the Indian Succession Act, 1925. In view of the said provision, by operation of law, plaintiffs become absolute owners of the property bearing survey No.56/9 measuring 37 cents including the suit schedule property and therefore the contention raised by the

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learned counsel for the appellant drawing the attention of the Court to Section 14 of the Hindu Succession Act, cannot be accepted. Strangely, for the reasons best known to the defendant, the defendant has not challenged the said Will dated 11^th August, 1995. Having taken note of the finding recorded by the trial Court and the first Appellate Court, certain properties had been given to the defendant in pursuance of the Will dated 11^th August, 1995 (Exhibit P1). Undisputably, the defendant is also the beneficiary of the said Will. In that view of the matter, the trial Court having taken note of the fact that the mother of the plaintiff pre-deceased Bidugu Poojarthy, rightly decreed the suit in favour of the plaintiffs. Insofar as the contention raised by the learned counsel for the appellant with regard to limitation is concerned, the trial Court has considered the fact that the plaintiffs came to know about the change of RTC on 14^th December, 2006 and immediately filed the suit seeking permanent injunction and the same came to be decreed in their favour on 27^th July, 2012 and thereafter, filed the present suit in Original Suit No.547 of 2013 seeking relief of mandatory injunction directing the defendant to vacate the

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suit schedule property. In that view of the matter, the finding recorded by the trial Court is just and proper. I have also carefully examined the finding recorded by the First Appellate Court wherein the First Appellate Court, after re-appreciating the material on record, particularly, taking into account the recitals in the Will as enumerated at paragraph 15 of the judgment and after re-appreciating the material on record, at paragraph 17 of the judgment had come to a conclusion that the property was given to Bidugu Poojarthy only for a limited estate and during her lifetime only and after her demise, the schedule property shall devolve on her daughter-Janaki Poojarthy and since the said Janaki Poojarthy pre-deceased her mother, and as such the plaintiffs are entitled for relief as prayed for in the plaint. I have also noticed that the defendants have not entered into witness box and that have not subjected themselves for cross-examination before the trial Court. In that view of the matter, I do not find any good ground to interfere with the well-reasoned judgments and decree passed by the both courts below and as such, appeal fails. Since the appellant in this appeal has not made out any ground to frame substantial question of law as required under

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Section 100 of the Code of Civil Procedure, the appeal fails and is accordingly, dismissed at the stage of Admission itself.

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Sd/JUDGE

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lnn

Sri Lokanath Poojary v. Sri Kiran Kumar

Case brief

What is this about?

What did the court decide?

Sri Lokanath Poojary v. Sri Kiran Kumar

Case brief

What is this about?

What did the court decide?

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