Allowed

Smt Sannamma W/O Sri Chinnappa v. Smt Sanna Obamma W/O Late Sri Obanna

Karnataka HC18 Apr 2022RSA/289/2007

Case brief

AI extract

What is this about?

Appeal against a decree granting a share in partition property. The High Court quashed the first appellate Court's judgment which relied on an additional document (1949 agreement) without allowing defendants to rebut it per CPC Order 41 Rule 28. The matter is remitted to the first appellate Court to record evidence on the additional document. The appeal and second appeal are disposed of. Quality:

What did the court decide?

First appellate Court judgment set aside; matter remitted to record evidence on the 1949 agreement in accordance with Order 41 Rule 28 CPC and dispose within 3 months.

Smt Sannamma W/O Sri Chinnappa Vs Smt Sanna Obamma W/O Late Sri… — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^th DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.No.159 OF 2006 C/W

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R.S.A No.289 OF 2007

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IN R.S.A NO.159 OF 2006

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BETWEEN:

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1 . SMT SANNA OBAMMA W/O LATE OBANNA AGED ABOUT 73 YEARS

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2 . SRI OBANNA S/O LATE OBANNA

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AGED ABOUT 50 YEARS

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BOTH ARE AGRICULTURISTS BY PROFESSION, RESIDENTS OF DEVARAMARIKUNTE VILLAGE CHALLAKERE TALUK CHITRADURGA DIST – 577 501.

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…APPELLANTS

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(BY SRI. B.M. SIDDAPPA, ADVOCATE APPEAL AGAINST APPELLANT NO.1 IS ABATED V/O DATED:20.04.2011)

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AND:

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1 . SMT SANNAMMA W/O CHINNAPPA @ CHINNAIAH AGED ABOUT 52 YEARS

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2 . SMT HANUMAKKA W/O GOVINDAPPA AGED ABOUT 47 YEARS

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BOTH ARE AGRICULTURISTS BY PROFESSION, RESIDENTS OF DEVARAMARIKUNTE VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT – 577 501.

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… RESPONDENTS

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(BY SRI. RAVI H.K., FOR SRI. H. KANTHA RAJA, ADVOCATE FOR C/R1 SMT. VIJAYA M.N., ADVOCATE FOR R2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 04.10.2005 PASSED IN R.A.NO.31/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED: 14.02.2003 PASSED IN O.S.NO.5/98 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC, CHALLAKERE.

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IN R.S.A NO.289 OF 2007

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BETWEEN:

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SMT SANNAMMA W/O SRI CHINNAPPA @ CHINNAIAH AGED ABOUT 52 YEARS

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R/AT DEVARAMARIKUNTE VILLAGE CHALLAKERE TALUK-577522.

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… APPELLANT

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(BY SRI. RAVI H.K., FOR SRI. H. KANTHA RAJA FOR ADVOCATE)

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AND:

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1 . SMT SANNA OBAMMA W/O LATE SRI OBANNA AGED ABOUT 73 YEARS

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SINCE DEAD, REPRESENTED BY HER LEGAL REPRESENTATION THE RESPONDENT NO.2 HEREIN

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AMEMDMENT AS PER ORDER DATED:15.02.2011.

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2 . SRI OBANNA S/O LATE SRI OBANNA AGED ABOUT 51 YEARS

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3 . SMT HANUMAKKA W/O SRI GOVINDAPPA AGED ABOUT 48 YEARS

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ALL THE DEFENDANTS AND AGRICULTURIST

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R/O DEVARAMARIKUNTE VILLAGE CHALLAKERE TALUK-577 522.

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… RESPONDENTS

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(BY SRI. B.M. SIDDAPPA, ADVOCATE FOR R2 SMT. M.N. VIJAYA, ADVOCATE FOR R3

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R1- DEAD R2 IS TREATED AS LR OF DECEASED R1 V/O DATED:15.02.2017)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 04.10.2005 PASSED IN R.A.NO.31/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN). CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:14.02.2003 PASSED IN O.S.NO.5/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN), CHALLAKERE.

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THESE APPEALS ARE COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are filed by the defendants and

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the plaintiff No.1 respectively aggrieved by the judgment and Order dated 04.10.2005 passed in R.A.No.31/2003 on the file of Civil Judge (Sr.Dn.), Challakere, (hereinafter referred to as the ‘first appellate Court’) in and by which, the first appellate Court setting aside the judgment and decree dated 14.02.2003 passed in O.S.No.5/1998 on the file of Civil Judge (Jr.Dn.) and JMFC, Challakere (hereinafter

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referred to as the ‘trial Court’) decreed the suit of the plaintiffs.

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The plaintiffs had filed the above suit for decree of partition and separate possession of the suit schedule property contenting inter-alia that one Late Obanna had three sons namely, Sri.Chinnappa, (the husband of plaintiff No.1), Sri.Govindappa, (husband of plaintiff No.2) and Sri.Obanna, (the defendant No.2). That the defendant No.1 is the wife of late Sri.Obanna and the mother-in-law of plaintiff Nos.1 and 2. That the suit schedule property is the joint family ancestral property and the plaintiffs being members of Hindu Joint Family are entitled for 1/3^rd share in the suit schedule property. That the defendant Nos. 1 and 2 in collusion had effected the partition on 20.01.1997 without giving any share to the plaintiffs. Hence the suit.

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The defendants in the written statement

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denying the relationship of the plaintiffs contended that they are the absolute owners of the suit schedule property and in possession of the same by virtue of partition deed dated 20.01.1997. That the defendant No.1 purchased the suit schedule property from Sri.Obanna s/o Ramanna under deed of sale dated 16.09.1955 and that ever since the date of purchase the property has been standing in the name of defendant No.1, she having absolute right, possession and interest over the same, as her self acquired property. That the said Sri.Chinnappa and Sri.Govindappa died without marriage. As such, the plaintiff Nos. 1 and 2 are not having any share, right and interest in the suit schedule property. Hence, sought for dismissal of the suit.

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The trial Court by its judgment and decree dated 14.02.2003 dismissed the suit holding that the

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plaintiffs had failed to prove that the suit schedule property is the joint family property and that they are the members of the joint family. Aggrieved by the same, the plaintiffs filed regular appeal before the First appellate Court in R.A.No.31/2003. The plaintiffs before the first appellate Court had produced an agreement of the year 1949 claiming to have been executed by Sri.Obaiah s/o Ramanna in favour of Lingappa s/o Gudiyappa. The first appellate Court accepted the said document to be read along with the sale deed of the year 1955 and consequently allowed the appeal decreeing the suit allotting 6/25^th share to the plaintiff No.1 and 2 in the suit schedule property. Being aggrieved by the same, defendants are before this Court in R.S.A.No.159/2006. The plaintiff No.1 being partly aggrieved by the decree to the extent allotting 6/25^th share instead of 1/3^rd as claimed by her, is before this Court in R.S.A.No.289/2007.

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5. This Court by order dated 06.08.2008 while

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admitting the appeal in RSA No.159/2006 had framed

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the following substantial question of law.

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“Whether the Lower Appellate Court was right in placing the reliance on the agreement of 1949 which was produced for the first time before the Lower Appellate Court without giving an opportunity to the defendants to counter the same particularly when the execution of the said document is denied.”

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6. Thereafter, by order dated 30.05.2019

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additional substantial questions of law were framed in

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these appeals which are as under;

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“i) Whether non-consideration of the document filed under I.A.1 under Order 41 Rule 27 has materially affected the Judgment.

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ii) Whether the suit schedule property belonged to the joint family of the descendants of Lingappa, as whatever was promised to be sold to Lingappa was sold under the registered sale deed dated:16.09.1955?

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iii) Whether the document filed along with I.A.No.1 declares that property belongs to joint family. So the sale agreement which is not mentioned has to be read in connection to the sale deed?”

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Sri.B.M.Siddappa, learned counsel for the

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appellants reiterating the grounds urged in the memorandum of appeal submitted that the first appellate Court having allowed the plaintiffs to produce the additional evidence, grossly erred in decreeing the suit based on the said document without providing an opportunity to the defendants to oppose the same. That the first appellate Court ought not to have placed reliance on the said document without marking it in evidence and recording the rebuttal evidence of the defendants thereon. That the non-compliance of the mandatory procedure of taking additional evidence on record the judgment and order of the first appellate Court warrants interference. Hence, seeks for allowing of the appeal.

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Per contra Sri. Ravi H.K, learned counsel for Sri.Kantha Raja and Smt. M.N.Vijaya appearing for respondents/plaintiffs submitted that the appeal does

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not involve any substantial questions of law inasmuch as acceptance of the document namely, the agreement of the year 1949 by the first appellate Court is only for the purpose of reading it into the sale deed of the year 1955 which is a contemporaneous document. That the first appellate Court had passed the impugned judgment and order based on the other material evidence placed by the parties and the same did not cause any prejudice to the defendants warranting any interference. Hence, sought for dismissal of appeal.

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Heard learned counsel for the parties and perused the records.

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Perusal of the aforesaid substantial questions of law would indicate in substance, noncompliance by the first appellate Court with the requirement of provisions of Order 41 Rule 28 of CPC.

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The first appellate Court in its judgment and Order dated 04.10.2005 had framed the following points for consideration;

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“(i) Whether additional evidence produced is to be accepted?.

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(ii) Whether the plaintiffs prove that they are wives of late Chinnappa and late Govindappa?.

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(iii) Whether the plaintiffs prove that the suit schedule property is ancestral joint family property?

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(iv) whether the plaintiffs are entitled for share in the suit schedule property if so, what is their share?

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(v) Whether the judgment and decree of the trial Court calls for interference?

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(vi) what order?”

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While answering the point No.(i), the First Appellate Court accepting the reasons assigned by the plaintiffs for non production of the agreement of the year 1949 purportedly executed by Obaiah s/o

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Ramanna in favour of Lingappa s/o Gudiyappa has allowed the same to be taken on record on the premise that the said document was only a contemporaneous document which could be read with the sale deeds of the year 1949 and 1955 and thus was necessary to advance the cause of justice.

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Thereafter, while answering the Point Nos. (iii) and (iv) has relied upon on the said document to hold that the suit schedule properties are the ancestral properties. The relevant observation made by the first appellate Court at paragraph 15 of its judgment referring to the said document is as under;

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“In order to constitute that the property is the property of late Lingappa, the plaintiffs have also produced the agreement of 1949. This agreement goes to show that the property originally belongs to Lingappa son of Gudiyappa, father’s father of Chinnaiah, Govindappa and Obaiah……….”

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Plaintiffs filed the suit for partition and separate possession claiming to be the wives of Sri.Govindappa and Sri.Chinnappa who were the sons of one Sri.Obanna and that they constituted members of joint family consisting of themselves and defendant Nos.1 and 2 and that suit schedule property was joint family ancestral property. On the other hand, defendant No.1 claimed that she is the absolute owner of the property having purchased the same under the deed of sale dated 16.09.1955. The plaintiffs before the first appellate Court had produced the additional document in the nature of agreement of the year 1949 to further establish that the suit schedule property was ancestral property.

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The first appellate Court taking into consideration of the aforesaid contention of the plaintiffs, permitted them to produce the agreement of the year 1949 purportedly entered into between

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Sri.Obaiah S/o Ramanna and Sri. Lingappa s/o Gudiyappa while doing so, first appellate Court has not however followed the procedure required under Order 41 Rule 28 of CPC.

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As rightly contended by the learned counsel for the appellant the first appellate Court having taken the said document on record, thereafter based on the said document having given its finding with regard to the property being ancestral property has noted above, erred in not following the mandate contemplated under the Order 41 Rule 28 of CPC providing for taking document on record. The first appellate Court ought to have exhibited and marked the document and should have followed the procedure required for mode or manner of proof of document by giving opportunity to the appellants herein to lead rebuttal evidence before placing reliance on it. That

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the first appellate Court has thus erred in not following the procedure.

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This Court is conscious of the fact that the matter is very old and pending since many years. Remand of a matter should always be the last resort and endeavor should be to achieve finality by adjudicating based on the evidence available on record. However, in the instance case the very basis of the suit of the plaintiff is that the suit schedule property is the ancestral property, though purchased in the name of minor children of defendant No.1 represented by her as their natural guardian under the deed of sale dated 16.09.1955. Both the Courts have delve on the issue of whether the property is the ancestral or not. The first appellate Court relying on the aforesaid agreement of 1949 produced as additional evidence by the plaintiff has held the property be the ancestral property without an

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opportunity to the defendants to oppose or to lead rebuttal evidence.

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In that view of the matter, the judgment and order passed by the first appellate Court warrants interference. The substantial questions of law raised above is answered accordingly.

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Considering the fact that the suit is of the year 1998 and this second appeal itself is pending before this Court since 2006, this Court is of the considered view that the first appellate Court be requested to record the evidence of the parties on the aforesaid agreement of the year 1949 by providing sufficient opportunity and dispose of the matter as expeditiously as possible, within an outer limit of three months from the date of the receipt of a certified copy of this Order.

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Hence, the following;

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ORDER

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(i) Appeal in RSA No.159/2006 is allowed.

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(ii) The judgment and Order dated 04.10.2005 passed in R.A.No.31/2003 on the file of Civil Judge (Sr.Dn.), Challakere, is set aside. Consequently R.S.A.No.289/2007 is disposed off.

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(iii) The matter is remitted to the first appellate Court. The first appellate Court shall take on record the agreement of the year 1949, which it has already allowed to be taken as additional evidence, in accordance with law by providing an opportunity

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to the defendants to lead rebuttal evidence if any.

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(iv) The first appellate Court shall dispose of the matter, as expeditiously as possible, within an outer limit of three months from the date of receipt of a certified copy of this order. Parties shall co-operate in expeditious disposal of the matter, without seeking any adjournments.

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(v) Since, the parties are represented through their counsel before this Court, the parties shall appear before first appellate Court on the next date of hearing, that is, on 30.05.2022 . It is made clear that the first appellate Court shall also ensure proper notice

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on the parties in the event of their non representation on the next date of hearing.

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(vi) Registry to return all the trial Court and first appellate Court records forthwith.

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(vii) No order as to costs.

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Sd/JUDGE

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Smt Sannamma W/O Sri Chinnappa v. Smt Sanna Obamma W/O Late Sri Obanna

Case brief

What is this about?

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Smt Sannamma W/O Sri Chinnappa v. Smt Sanna Obamma W/O Late Sri Obanna

Case brief

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What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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