Remanded

A Elizabeth v. Smt Kanika Mary

Karnataka HC15 Jun 2023RFA/1048/2008

Case brief

AI extract

What is this about?

Appeal against dismissal of partition suit. Appellants produced documents during pendency alleging joint family property. Court set aside impugned judgment and remanded to Trial Court for fresh hearing allowing production of additional evidence.

What did the court decide?

Judgment and decree set aside; matter remanded to Trial Court for fresh hearing with liberty to produce additional documents and evidence.

A Elizabeth Vs Smt Kanika Mary — Succession and Inheritance | Karnataka HC (2023)

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NC: 2023:KHC:20619 RFA No. 1048 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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REGULAR FIRST APPEAL NO. 1048 OF 2008 (PAR)

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BETWEEN:

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A. ELIZABETH

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W/O. SRI. BALASWAMY AGED ABOUT 33 YEARS

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SMT. RAPHAELA W/O. SRI. HENRY WILLIAM AGED ABOUT 30 YEARS

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BOTH ARE RESIDING AT NO.13/1 DODDBASAVANPURA K.R. PURAM BANGALORE - 560 036.

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Digitally signed by NANDINI B G Location: High Court Of Karnataka

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(BY SRI: K.R. LAKSHMINARAYANA RAO, ADVOCATE)

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AND:

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…APPELLANTS

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SMT. KANIKA MARY W/O. LATE ANTONY SWAMY MAJOR

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JOSEPHINI MARY W/O. BALARAJ AGED ABOUT 28 YEARS

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ROSALIN MARY AGED ABOUT 25 YEARS D/O KANIKA MARY

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BALARAJ S/O KANIKA MARY AGED ABOUT 23 YEARS

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NC: 2023:KHC:20619 RFA No. 1048 of 2008

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PRASHANTHKUMAR S/O KANIKA MARY AGED ABOUT 18 YEARS

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DEFENDANT NOS. 1, 3, 4 AND 5 ARE RESIDING AT NO.13/1 DODDABASAVANAPURA K.R.PURAM BANGALORE - 560 036.

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DEFENDANT NO.2 IS RESIDING AT THUMBUCHETTYPALYA BANGALORE - 560 036.

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SMT. AROGYA MARY W/O. SUSAIRAJ AGED ABOUT 38 YEARS RESIDING AT DODDABASAVANAPURA BANGALORE - 560 036.

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…RESPONDENTS

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(BY SRI: ADINARAYANA, ADVOCATE FOR C/R1 (ABSENT) NOTICE TO R2 DISPENSED WITH V/O/DTD 15.04.2009 NOTICE TO R3 TO R6 SERVED AND UNREPRESENTED)

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THIS R.F.A IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.03.2008 PASSED IN OS.NO.8038/1999 ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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NC: 2023:KHC:20619 RFA No. 1048 of 2008

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JUDGMENT

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This appeal has been filed under Section 96 of CPC by the plaintiffs challenging the judgment and decree dated 25.03.2008 passed in OS No.8038 of 1999 by the XXII Additional City Civil Judge, Bengaluru, (hereinafter referred to as 'the Trial Court' for brevity), whereby, the suit filed by the plaintiffs for partition and separate possession has been dismissed.

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For the sake of convenience, the parties are referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, the suit schedule property belongs to the father of the plaintiffs i.e., Sri Antony Swamy who passed away on 22.05.1998. Papamma @ Kitheramma is the mother of plaintiff Nos.1, 2 and defendant No.6. She also died on 21.08.1997. It is the further case of the plaintiffs that they are in possession and enjoyment of the suit schedule property with the defendants. The father of the plaintiffs died intestate leaving behind plaintiff Nos.1, 2 and defendant No.6 as legal representatives through his first wife. Defendant No.1 is the second wife of Antony Swamy and

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4 - NC: 2023:KHC:20619 RFA No. 1048 of 2008

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defendant Nos.2 to 5 are the children born to her through Antony Swamy. Since the property is in possession of defendant No.1, the plaintiffs claimed and demanded their legitimate share in the suit schedule property on 01.07.1999. Since the defendants refused to allot the share to the plaintiffs, they have filed the suit for partition and separate possession.

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On service of summons, defendant Nos.1, 4 and 5 have appeared before the Court through their advocate. Defendant Nos.2, 3 and 6 have been placed exparte. Defendant Nos.1, 4 and 5 have filed the written statement contending that the suit is not maintainable and they have denied the plaint averments. They contended that Antony Swamy has executed the registered Will in favour of defendant Nos.1, 3 and 5. Thus, the plaintiffs have no right to demand for partition.

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On the basis of these pleadings, the Trial Court framed the following issues for consideration:.

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" 1. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule property ever since their birth?

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5 - NC: 2023:KHC:20619 RFA No. 1048 of 2008

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2. Whether the defendants 1, 4 and 5 prove that their father bequeathed the schedule property in their favour by executing the Will on 11.5.1998?

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3. Whether the defendants 1, 4 and 5 prove that they are only in peaceful possession and enjoyment and enjoyment of the suit property?

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4. Whether the plaintiffs prove that they are entitled for 1/6th share each in the suit schedule property?

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5. What decree or order?"

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To prove the case, plaintiff No.1 got examined

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herself as PW1 and got marked Exs.P1 to P5 in support of their contention. The defendants neither examined any witnesses nor produced any documents in support of their defence. The Trial Court after taking into consideration the oral and documentary evidence on record, answered issues Nos.1 to 4 in the Negative and dismissed the suit. Being aggrieved by the same, the plaintiffs are before this Court.

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Heard Sri K R Lakshminarayana Rao, learned counsel for the appellants. None appears for the respondents.

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NC: 2023:KHC:20619 RFA No. 1048 of 2008

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Even on 12.06.2023, learned counsel for the appellants has been heard. None appeared for the respondents. To give one more opportunity, the matter has been adjourned today. Even today, none appears for the respondents. Perused the materials including the original records.

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Learned counsel for the appellants contended that the suit schedule property originally belongs to their father Antony Swamy. The plaintiffs are having right of legitimate share over the property. They have demanded their share and since the defendants have refused to allot the share to the plaintiffs, they have filed the suit for partition and separate possession. He contended that except the defendants filing the written statement contending that there is a Will in their favour, they have not produced any documents and they have not adduced any evidence. The Trial Court on the basis that the plaintiffs have not produced any documents to prove that they are in joint possession of the property and their father was the owner of the property, has dismissed the suit. He contended that during the pendency of the appeal before this Court, the plaintiffs have obtained necessary documents to show that the suit schedule property is the joint family property

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7 - NC: 2023:KHC:20619 RFA No. 1048 of 2008

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and they have filed an application before this Court under Order XLI Rule 27 of CPC to produce necessary documents. Hence, he prays to remand the matter to the Trial Court to give an opportunity to the plaintiffs to establish their case.

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In view of the submissions made by the learned counsel for the appellants, the point that would arise for my consideration is:

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"Whether the impugned judgment and decree passed by the Trial Court is perverse, erroneous or arbitrary and calls for interference by this Court?"

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The specific case of the plaintiffs is that Antony Swamy who is the father of the plaintiffs is the owner of the suit schedule property. He passed away on 22.05.1998. The plaintiffs are having legitimate share in the suit schedule property. They further contended that the plaintiffs and defendants are in joint possession of the suit schedule property.

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To prove the same, the plaintiffs have not produced any document before the Trial Court. For the first time, they have filed an application before this Court under Order XLI Rule

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8 - NC: 2023:KHC:20619 RFA No. 1048 of 2008

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27 of CPC to produce some documents to prove their case. Under these circumstances, to give an opportunity to both the parties and in the interest of justice, I am of the opinion that the matter requires to be remanded to the Trial Court, with an liberty to the parties to produce additional documents and to adduce additional evidence.

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12. Hence, I pass the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and decree dated 25.03.2008 passed in OS No.8038 of 1999 by the XXII Additional City Civil Judge, Bengaluru, is hereby set aside.

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(iii) The matter is remanded back to the Trial Court with a direction to reconsider the matter afresh, in accordance with law, without being influenced by the observations made in this order and reserving liberty to the parties to produce additional documents and to adduce evidence.

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All the contentions of the parties are kept open.

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9 - NC: 2023:KHC:20619 RFA No. 1048 of 2008

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Registry is directed to send back the Trial Court records

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along with copy of this judgment, forthwith.

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All pending applications, if any, stand disposed of.

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Sd/JUDGE

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*bgn/-

A Elizabeth v. Smt Kanika Mary

Case brief

What is this about?

What did the court decide?

A Elizabeth v. Smt Kanika Mary

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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