Allowed

Smt Hanumamma v. Sri T Mahesh Kumara

Karnataka HC19 Dec 2023RFA/117/2016

Case brief

AI extract

What is this about?

High Court allowed the appeal and set aside the trial court's decree in a partition suit. The Court remitted the matter for reconsideration, allowing the appellant defendants to adduce evidence and cross-examine witnesses, particularly the adopted son plaintiff.

What did the court decide?

Impugned judgment set aside; First Appeal allowed; matter remitted to Trial Court for reconsideration with liberty to adduce further evidence and cross-examine.

Smt Hanumamma Vs Sri T Mahesh Kumara — Succession and Inheritance | Karnataka HC (2023)

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.117 OF 2016 (PAR/INJ)

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BETWEEN:

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SMT HANUMAMMA W/O LATE SRI T THIMMAIAH AGED ABOUT 62 YEARS R/O VAGARAGERE VILLAGE GIDDAGERE POST YEDIYUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT – 572 101.

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SMT SHARADAMMA W/O CHIKKA HANUMAIAH AGED ABOUT 45 YEARS R/A NO.3, MARUTHI NILAYA SAPTAGIRI LAYOUT, SHETTIHALLI OPP: HMS COLLEGE TUMKUR – 572 101.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT YASHODAMMA D/O LATE SRI T THIMMAIAH W/O KESHAVA MURTHY AGED ABOUT 42 YEARS CORPORATION QUARTERS NO.3 AIRPORT ROAD, KODIHALLI BANGALORE-560 008.

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SMT RAJESHWARI W/O SURESH AGED ABOUT 39 YEARS NO.2462, HAL II STAGE 16^TH ‘C’ MAIN, INDIRANAGAR BANGALORE-560 038.

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…APPELLANTS

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(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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AND:

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SRI T MAHESH KUMARA S/O T. PUTTASWAMY AGED ABOUT 35 YEARS CORPORATION QUARTERS NO.3 AIRPORT ROAD, KODIHALLI BANGALORE-560 008.

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…RESPONDENT

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(BY SRI. V. SHIVA REDDY., ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2015 PASSED IN O.S NO.4384/2008 ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION.

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THIS APPEAL, COMING ON FOR HEARING , THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the defendants in O.S.No.4384/2008 is directed against the impugned judgment and decree dated 31.10.2015 passed by the XXII Addl. City Civil & Sessions Judge, Bengaluru, whereby the said suit filed by the respondent – plaintiff against the appellants – defendants for partition and separate possession of his alleged share in the suit schedule immovable properties was decreed by the Trial Court.

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Heard learned counsel for the appellants and learned counsel for the respondent and perused the material on record.

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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3. The material on record discloses that the appellants

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are the wife and children of late Thimmaiah, who is said to have expired on 06.09.2007. The respondent claiming to be the adopted son of the said Thimmaiah instituted the aforesaid suit against the appellants for partition and separate possession of his alleged share in the suit schedule immovable properties. The said suit was contested by the appellants – defendants, who specifically disputed and denied the alleged adoption of the respondent by Thimmaiah as well as the alleged relationship of the respondent with the appellants and Thimmaiah. The Trial Court framed the following issues:

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(i) Whether the plaintiff proves that he is the adopted son of defendant No.1 late Thimmaiah, as pleaded in the plaint?

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(ii) Whether the plaintiff proves that the suit properties are the undivided properties of the plaintiff and the defendants?

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(iii) Whether the plaintiff has a share in suit properties? (iv) What Decree or Order?

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Pursuant to framing of issues, the respondent

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examined himself as PW1 and exhibits P1 to P6 were marked on his behalf. The appellants – defendants examined appellant No.3

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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as DW1 and exhibits D1 to D18 were marked on their behalf.

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However, since DW1 did not tender herself for cross-examination by the respondent – plaintiff, her evidence was not taken into consideration by the Trial Court, which proceeded to accept the evidence adduce by the respondent – plaintiff and decreed the suit in his favour by passing the impugned judgment and decree which is assailed in the present appeal.

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In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the material on record, learned counsel for the appellants submits that due to bonafide reasons, unavoidable circumstance and sufficient cause, the appellants were not in a position to tender DW1 (appellant No.3) for cross-examination and they also could not adduce additional oral or documentary evidence on their behalf. It was also submitted that the Trial Court committed an error in failing to appreciate that the respondent had not adduced any legal or acceptable evidence to establish that he was the adopted son of late Thimmaiah or his alleged relationship with the appellants and in the light of the highly contradictory, inconsistent, discrepant and inadmissible pleadings and evidence, the claim of the respondent

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5 - NC: 2023:KHC:46338 RFA No. 117 of 2016

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was liable to be rejected. It was therefore submitted that one more opportunity is required to be granted to the appellants to tender DW1 for cross-examination and to adduce further evidence by setting aside the impugned judgment and decree and remitting the matter back to the Trial Court, for reconsideration afresh in accordance with law.

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Per contra, in addition to supporting the impugned judgment and decree, learned counsel for the respondent invited my attention to the applications – I.A.1/2023 and I.A.2/2023 filed by the respondent under Order 41 Rule 27 CPC for permission to adduce additional evidence. In this context, it is submitted on instructions that the respondent does not have any objection or the impugned judgment and decree to be set aside and the matter remitted back to the Trial Court for reconsideration afresh, in accordance with law subject to the condition that I.A.1/2023 and I.A.2/2023 may be allowed and documents be received on record as well as liberty may be reserved in favour of the respondent to cross-examine DW1 and also adduce further defence evidence.

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By way of reply, learned counsel for the appellants on instructions submits that they dispute and deny the various

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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allegations and claims made in I.A.1/2023 and I.A.2/2023 and additional evidence sought to be adduced by the respondent. It is however submitted that liberty may be reserved in favour of the appellants to cross-examine the respondent (PW1) further on the existing evidence as well as the further evidence sought to be adduce by the respondent along with I.A.1/2023 and I.A.2/2023 as well as any other further evidence sought to be adduce by him.

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The aforesaid facts and circumstances and the material on record clearly indicate that both sides intend to adduce further oral and documentary evidence in support of their respective claims, including cross-examining the other party and their witnesses and the aforesaid further evidence was not available before the Trial Court at the time of passing the impugned judgment and decree. Under these circumstances, in order to provide one more opportunity to both sides to adduce further evidence in support of their respective claims, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to allow I.A.1/2023 and I.A.2/2023 filed by the respondent and set aside the impugned judgment and decree

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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and remit the matter back to the Trial Court for reconsideration

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afresh, in accordance with law by leaving open all contentions.

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In the result, I pass the following:

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ORDER

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(i) The appeal is hereby allowed .

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(ii) The impugned judgment and decree dated 31.10.2015 passed in O.S.No.4384/2008 by the XXII Addl.

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City Civil & Sessions Judge, Bengaluru City, is hereby set aside.

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(iii) I.A.1/2023 and I.A.2/2023 filed by the respondent is hereby allowed and the additional evidence produced by the respondent is received on record. The Registry is directed to transmit the said I.A.No.1/2023 and I.A.2/2023 along with the additional evidence to the Trial Court for consideration.

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(iv) Both parties are permitted to adduce further oral

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and documentary evidence in support of their respective claims.

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NC: 2023:KHC:46338 RFA No. 117 of 2016

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(v) Liberty is also reserved in favour of both the

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parties to cross-examine / further cross-examine PW1, DW1 and all other witnesses to be examined by both sides.

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(vi) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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(vii) Parties undertake to appear before the Trial Court on 22.01.2024.

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Sd/JUDGE

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SV List No.: 2 Sl No.: 8

Smt Hanumamma v. Sri T Mahesh Kumara

Case brief

What is this about?

What did the court decide?

Smt Hanumamma v. Sri T Mahesh Kumara

Case brief

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