Appeals by defendants against preliminary decree declaring a 1976 Gift Deed null and void and granting the plaintiff half share, and against the final decree accepting the Commissioner's partition report. The defendants had not participated in the suit or final decree proceedings; their explanation of illiteracy was held perfunctory.
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- 1 - NC: 2024:KHC-D:12736-DB RFA No. 100048 of 2016 C/W RFA No. 100248 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100048/2016 C/W REGULAR FIRST APPEAL NO. 100248/2022 (PAR/POS)
IN RFA NO.100048 OF 2016:
BETWEEN:
Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.10.01 12:32:57 +0530
NC: 2024:KHC-D:12736-DB RFA No. 100048 of 2016 C/W RFA No. 100248 of 2022
R/O: KAGADHALL, TQ: SAUNDATTI, DIST: BELGAUM.
(BY SRI. G.N.NARASAMMANAVAR, ADVOCATE)
AND:
SMT. YALLAVVA W/O. BHIMAPPA SAVANNAVAR, SINCE DECEASED R/BY LR’s.,
(BY SRI. SRINIVAS B. NAIK, ADVOCATE FOR R1(A))
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1 AND 2 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 16.04.2015 PASSED IN O.S. NO. 41/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC.
IN RFA NO.100248 OF 2022:
BETWEEN:
AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: KAGADHALL, TQ: SAUNDATTI, DIST: BELGAUM.
(BY SRI. G.N.NARASAMMANAVAR, ADVOCATE)
AND:
SMT. YALLAVVA W/O. BHIMAPPA SAVANNAVAR, SINCE DECEASED R/BY LR’s.,
(BY SRI. SRINIVAS B. NAIK, ADVOCATE FOR R1(A))
THIS RFA IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1 AND 2 OF C.P.C., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRL. SENIOR CIVIL JUDGE, SAUNDATTI, IN F.D.P. NO. 41/2015 DATED 13.01.2021 & ETC.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
THE HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD) These appeals are by the defendants in O.S. No. 41/2014 on the file of the learned Senior Civil Judge, Savadatti [for short, ‘ the civil Court’ ]. The appeal in R.F.A. No. 100048/2016 is as against the preliminary decree in the said suit, and the appeal in R.F.A. No. 100248/2022 is as against the final decree in F.D.P. No. 41/2015. The civil Court by the judgment and decree dated 16.04.2015, which is impugned in R.F.A. No. 100048/2016, has decreed the suit filed by the original respondent – plaintiff, Smt. Yallavva wife of Bhimappa Savannavar, declaring the Gift Deed dated 22.04.1976 executed by her in favour of Sri Ningappa Savannavar [who is now represented by the first to eighth appellants] as null and void and not binding and also declaring that she would be entitled to half share in the suit schedule properties. The civil Court by the final decree dated 31.01.2021, which is impugned in the appeal in the appeal in RFA No. 100248/2022, has accepted the
Commissioner’s report for partition of the suit schedule properties by metes and bounds.
despite service of notice, in either the original suit or the final decree proceedings. As regards non-participation in the suit the appellants have only stated before this Court that they could not give instructions within time to their learned counsel to file written statement, and as regards non-participation in the final decree proceedings they have only stated that they could not, because of their illiteracy, approach the counsel. The relationship between the parties being necessary for a decision in these appeals are stated thus:
with his eldest son, Sri Ningappa Savannavar, predeceasing him in the year 1997. Sri Ningappa Savannavar is survived by his wife and children, the first to the seventh appellants. The other son of Udachappa is Sri Bhimappa, the eighth appellant. Smt. Gadigevva is the wife of Sri Udachappa @ Channappa Bhimappa Savannavar.
further contended that this is a created document and that it is not acted upon inasmuch as she has continued to be in possession of the property and has also entered into transaction with a Co-operative Society to avail loan. The defendants, as admitted by them, have entered appearance but not filed their written statement or otherwise contested the suit.
and preliminary decree in question in the appeal in R.F.A.
No. 100048/2016. The plaintiff has died during the pendency of this appeal. The defendants have filed an application under Order XXII of CPC proposing to bring the plaintiff’s deceased daughter’s son as her legatee under the last will and testament executed by her. The aforesaid legal representative/legatee has signified his willingness to be arrayed, and he is accordingly permitted to represent the estate of the plaintiff.
must opine that the following point arises for consideration.
Whether this Court in the circumstances must interfere with either the preliminary decree or the final decree?
1 (2019) 11 SCC 301
not participated in the final decree proceedings resulting in conclusion of the entire dispute.
the defendants are entitled to succeed as against the challenge to the Gift Deed and the share being granted in Sy. No. 180 and the other two agricultural lands because the other two lands are either purchased by Sri Udachappa @ Channappa Bhimappa Savannavar or he has acquired interest on the demise of his wife, Smt. Gadigevva. However,
no document is produced to show Smt. Gadigevva owned any of these properties and the learned counsel submits that he will secure instructions and place the same on record, but this Court, in the light of salient that well considered judgments must be final, cannot grant such indulgence. This Court is also of the considered view that the additional documents filed along with the application under Order 41 Rule 27 CPC will not inure to the defendants’ advantage inasmuch as the only thing that can be deduced is that the properties stood in the name of Sri Udachappa Savannavar.
The point for consideration, in the light of the afore, is answered against the appellants and both the appeals stand dismissed.
The Pending applications also stand disposed of.
Sd/(B.M.SHYAM PRASAD) JUDGE
Sd/(C M JOSHI) JUDGE
BVV Ct:vh List No.: 1 Sl No.: 0
1 issue framed by the court
Whether this Court in the circumstances must interfere with either the preliminary decree or the final decree?
Colour shows how this judgement treated each authority
G. Ratna Raj (D) by Lrs. Vs. Sri Muthukumar Swamy Permanent Fund Ltd. & AnotherRelied on¶8
(2019) 11 SCC 301 · Who else cites this
4 provisions across 1 enactments
Smt. Parvatevva W/o. Nigappa Savannavar
Rudrappa S/o. Nigappa Savannavar
Smt. Hanamavva W/o. Maningappa Chougale
Smt. Renuka W/o. Manjunath Chougale
Smt. Bhimavva W/o. Hanamant Dasappanavar
Siddappa S/o. Nigappa Savannavar
B.M. Shyam Prasad
C M Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
