Partly allowed

Sadashiv S/O Mahantappa Mahalingapur, v. Basappa S/O Mahantappa Mahalingapur

Karnataka HC17 Dec 2024RFA/100210/2014

Case brief

AI extract

What is this about?

In a first appeal regarding a partition suit, the High Court allowed amendment of the plaint to include additional properties claimed by the appellant. The court also permitted production of mutation entries to investigate the relationship dispute but remanded the matter to the trial court for evidence and final determination based on fresh evidence and the amended pleadings.

What did the court decide?

Amendment of plaint allowed; admission of additional documents allowed; suit remitted to trial court for fresh consideration; notice issued to legal representatives of deceased defendants; parties to

Sadashiv S/O Mahantappa Mahalingapur, Vs… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18367 RFA No. 100210 of 2014

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 100210 OF 2014 (PAR-)

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BETWEEN:

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SRI. SADASHIV S/O. MAHANTAPPA MAHALINGAPUR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. MARAPUR, TAL: MUDHOL, DIST: BAGALKOT.

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…APPELLANT

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(BY SMT. VEENA HEGDE, ADVOCATE)

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AND:

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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SHRI. BASAPPA S/O. MAHANTAPPA MAHALINGAPUR, AGE: 72 YEARS, OCC: AGRICULTURE, R/O. MARAPUR, TAL: MUDHOL, DIST: BAGALKOT.

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SRI. RACHAPPA S/O. LATE SHANKRAPPA MAHALINGAPUR, AGE: 37 YEARS, OCC: AGRICULTURE, R/O. MARAPUR, TAL: MUDHOL, DIST: BAGALKOT.

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SRI. MAHANTAPPA S/O. LATE SHANKRAPPA MAHALINGAPUR, AGE: 32 YEARS, OCC: AGRICULTURE, R/O. MARAPUR, TAL: MUDHOL, DIST: BAGALKOT.

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2 - NC: 2024:KHC-D:18367 RFA No. 100210 of 2014

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SMT. ANNAWWA W/O. GURUPADAPPA SANNAPADI, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. MASHAGUPPI, TAL: GOKAK, DIST: BELGAUM.

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SMT. SAYAWWA W/O. SIDRAM HANDIGUND, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. CHIMMAD ROAD, BANHATTI, TAL: JAMKHANDI, DIST: BAGALKOT.

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SMT. CHINNAWWA W/O. SIDRAM HANDIGUND, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O. CHIMMAD ROAD, BANHATTI, TAL: JAMKHANDI, DIST: BAGALKOT.

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SMT. ANASUYA W/O. PARASAPPA KAMALADINNI, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O. HANAGANDI, TAL: JAMKHANDI DIST: BAGALKOT.

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…RESPONDENTS

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(BY SRI. GIRISH A. YADAWAD, ADVOCATE FOR R1 TO R3 AND R5; NOTICE TO R6 IS HELD SUFFICIENT; R4 & R7 - DECEASED – NO NEED TO SUBSTITUE THEIR LRS VIDE ORDER DATED 25.10.2024.)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 & 2 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.13/2012 ON 02.01.2014 BY THE SENIOR CIVIL JUDGE COURT, MUDHOL, DIST. BAGALKOT DISMISSING IT AND MAY BE FURTHER PLEASED TO DECREE THE SUIT FILED BY THE PLAINTIFF/APPELLANT WITH COSTS THROUGHOUT.

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3 - NC: 2024:KHC-D:18367 RFA No. 100210 of 2014

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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Heard. This appeal is filed challenging the decree dismissing the suit for partition. The plaintiff claims to be the son from the second wife of propositus Mahantappa. Rest of the defendants are said to be the legal representatives of first wife of Mahantappa. Plaintiff also claims that his mother Murigewwa who according to the plaintiff is the second wife of Mahantappa, is sister of Smt Shiddalingawwa, who according to the plaintiff is the first wife of Mahantappa. According to the plaintiff all the properties in the hands of Mahantappa were his self acquired property in the sense, are inherited the properties from his father in law. The genealogy furnished is as under:-

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Mahantappa S/o. Holeppa Mahalingapur (Dead)

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Smt. Shiddalingawwa Smt. Murigewwa
(1 st Wife) (2 nd Wife)
(Dead) (Dead)
Sadashiv
(Son)
Plaintiff
Shankreppa Basappa Annawwa Anasuya Sayawwa Chinnawwa
dead Deft.1 Deft.4 Deft.7 Deft.5 Deft.6
Rachappa Mahantappa
(Deft-2) (Deft-3)

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The defendants contested the suit. The

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defendants disputed the status of the plaintiff as son of Muregewwa from Mahantappa. Hence, the suit is

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dismissed.

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The plaintiff is in appeal before this Court.

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Learned counsel appearing for the plaintiff has

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filed an application for production of additional documents

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and also for amendment of plaint. The plaintiff seeks to produce the mutation entries wherein allegedly the name

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of plaintiff’s mother is recorded as one of the wives of late Mahantappa. The plaintiff has also produced mutation to show that mutation entry No.4024 wherein it is stated that plaintiff has sold the 1/6^th undivided share to defendants No.1 to 3. The plaintiff contends that he has not sold the property at all and the document is produced only to establish the relationship. The plaintiff has also produced the mutation to show that Mahantappa has purchased the property 211 and 212 to show that Mahantappa purchased the properties.

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An application is also filed to amend the plaint and to incorporate certain properties which are standing in the name of Muttappa who is none other than the son of first defendant. The plaintiff also contends that these properties also belonged to Mahantappa the propositus and they have been transferred in the name of Mahantappa without consent and notice of the plaintiff.

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The plaintiff contends that the plaint has to be

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amended and the application has to be allowed permitting the production of additional documents.

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Sri Girish A Yadawad, learned counsel appearing for the respondents would contend that the application for amendment of the plaint is not maintainable at this stage. It is also his contention that application for production of document also not maintainable. The names mentioned in the mutation relied upon by the plaintiff do not tally with the names of the parties to the proceedings, as such, he would contend that these documents are not necessary for adjudication of the case on hand.

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It is also his contention that the plaintiff has failed to establish his mother’s marriage with Mahantapa and unless the marriage is established the plaintiff cannot claim any share and he would urge that the appeal be dismissed.

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9. This court has considered the contentions raised

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at the bar and perused the records. The following points

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arise for consideration.

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i) Whether the plaintiff has made out a case for amendment of the plaint.

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ii) Whether the plaintiff has made out a case for production of additional documents.

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iii) Whether the plaintiff establishes that he is the son of Mahantappa from the second wife Murigewwa.

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As far as application seeking amendment of the

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plaint is concerned, the law is well settled that the plaint can be amended at any stage of the proceedings. However, after 2002 amendment to the Civil Procedure Code, the power of the Court to amend has been curtailed to some extent. The courts should be slow in allowing the application for amendment of the plaint after the commencement of the trial. The plaintiff contends that certain properties are transferred in the name of first

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defendant and those properties belong to his father Mahantappa. The plaintiff contends that he was not aware of these aspects when the suit was filed.

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Though Sri Girish A Yadawad, would vehemently objected to the amendment of the plaint, what is required to be noticed is the suit is one for partition and separate possession. If at all, the properties sought to be incorporated in the plaint by way of amendment really belonged to Mahantappa and if at all the plaintiff is really the son of Mahantappa, the right of the plaintiff to seek partition should not be taken away merely because the properties sought to be incorporated by way of amendment are not incorporated when the suit was filed. It is always possible for the plaintiff to file a second suit if he establishes the fact that despite his due diligence he could not trace the properties and include these properties in the earlier suit. Under these circumstances to avoid one more suit being filed in respect of properties which are

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now sought to be incorporated, this Court is of the view that amendment has to be allowed.

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However, the defendants should be permitted to file written statement to the amended plaint to raise their defence in respect of the properties which are newly incorporated by way of amendment. In that event, no prejudice would be caused to the defendants. Hence, application for amendment to the plaint is allowed.

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As far as the documents which are sought to be produced by way of additional documents, this Court has considered the said documents. Those documents are public records in the form of mutation entries. Though there is some descrepency in the surname mentioned in the mutation entries, the names and the survey number do tally. On considering the documents on record this Court is of the view that those documents may throw some light on the controversy involved in this case. Hence, the production of documents has to be allowed and consequently, the application is allowed. The defendants

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should be given an opportunity to contest on those documents. In case, they choose to contest and the plaintiff should be given an opportunity to explain the discrepancy pointed out by the defendants.

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It is made clear that this Court has not given any finding on the admissibility of the said documents and the said aspect is to be considered after analysing the evidence in support of the documents produced.

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As far as the contention that the plaintiff is the son of Mahantappa through his second wife Murigewwa, this Court is of the view that said finding cannot be given at this juncture based on the additional documents unless defendants are given an opportunity to meet the contentions based on the additional documents. Hence, the matter is required to be remanded to the trial court for fresh consideration. Hence, the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The judgment and decree dated 02.01.2014 in O.S. No.13/2012 passed by the Senior Civil Judge, Mudhol are setaside.

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iii) The suit is remitted to the trial court for fresh consideration in accordance with law.

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iv) The plaintiff is permitted to amend the plaint and amended plaint shall be submitted to the court on the date of appearance which is on 13.01.2025.

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v) The parties shall appear before the Court on that day without any further notice from the Court. Once the amended plaint is presented, the defendants are permitted to file additional written statement within 30 days from the date of appearance.

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vi) If required the trial court shall frame additional issues based on additional pleadings.

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vii) The trial court shall permit both the parties to lead evidence and thereafter, shall decide the case based on the evidence placed on record.

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viii) It is made clear that, this Court has not expressed any opinion on the merits of the matter.

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ix) It is noticed that defendants No.4 to 7 remained ex-parte before the trial court and respondents No.4 to 7 have died during the pendency of this appeal. The trial court shall issue notice on defendants No.5 and 6 and shall issue notice to the legal representatives of deceased defendants No.4 and 7.

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x) The plaintiff shall file application to substitute the legal representatives of

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defendants No.4 and 7 before the trial court on appearance of the proposed legal representatives. The trial court shall allow the application and they should be permitted to contest the case.

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xi) It is noticed that the suit is of the year 2012 and appellant is aged 62 years and respondent No.1 is aged 72 years. Considering these factors, both the parties shall cooperate for early disposal and trial court shall make an endeavour to decide the case within eight months from the date of appearance of the parties.

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xii) The Registry shall transmit the additional documents to the trial court along with trial court records.

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xiii)No order as to costs.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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CHS

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List No.: 1 Sl No.: 35

Sadashiv S/O Mahantappa Mahalingapur, v. Basappa S/O Mahantappa Mahalingapur

Case brief

What is this about?

What did the court decide?

Sadashiv S/O Mahantappa Mahalingapur, v. Basappa S/O Mahantappa Mahalingapur

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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