Allowed

Smt. Pushpavati W/O Bapusaheb Patil v. Shri. Ajit S/O Lakhagouda Patil

Karnataka HC10 Sept 2024RFA/100225/2017

Case brief

AI extract

What is this about?

In a regular first appeal regarding succession and property disputes, the High Court allowed the appeal, set aside the impugned order dismissing the suit on preliminary grounds, and directed the restoration of the suit for a complete trial on all issues while withdrawing the related suit for common adjudication.

What did the court decide?

Set aside impugned order, restore suit for decision on all issues except 4 and 5, and withdraw related suit O.S. No.2/2021 for common trial.

Smt. Pushpavati W/O Bapusaheb Patil Vs Shri… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024 PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI REGULAR FIRST APPEAL NO.100225 OF 2017 (MON)

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BETWEEN:

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SMT. PUSHPAVATI W/O. BAPUSAHEB PATIL AGE: 47 YEARS, OCC: AGRICULTURE, R/O: AINAPUR, TALUKA: ATHANI, DIST: BELAGAVI-591303.

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JAYASHREE W/O. RAVASAB PATIL SINCE DECEASED BY HER LR’s.,

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SHRI. MOHAN S/O. RAVASAB PATIL AGE: 32 YEARS, OCC: AGRICULTURE, R/O: AINAPUR, TALUKA: ATHANI, DIST: BELAGAVI-591303.

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.10.01 12:33:36 +0530

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SMT. VEENA W/O. PRASHANT DEVMORE AGE: 34 YEARS, OCC: HOUSEHOLD, R/O: 100 FT ROAD, VISHRAMBAUG, SANGLI-416416, MAHARASHTRA STATE.

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SMT. PADMAVATI W/O. SUBHASH PATIL AGE: 67 YEARS, OCC: HOUSEHOLD, R/O: AINAPUR, TALUKA: ATHANI, DIST: BELAGAVI-591303.

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SHRI. SURESH S/O. APPA PATIL SINCE DECEASED BY HIS LR’s.,

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5(A). MALATI W/O. SURESH PATI AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O. KUMBAR BHAVIGALLI ATHANI, DIST: BELAGAVI-591304.

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5(B). VAIBHAV S/O. SURESH PATIL AGE: 46 YEARS, OCC: AGRICULTURE, R/O. KUMBAR BHAVIGALLI ATHANI, DIST: BELAGAVI-591304.

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5(C). VIDYANANAD S/O. SURESH PATIL AGE: 37 YEARS, OCC: SERVICE, R/O. KUMBAR BHAVIGALLI ATHANI, DIST: BELAGAVI-591304.

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1. SMT. SUSHILA W/O. ADAGOUDA PATIL AGE: 74 YEARS, OCC: HOUSEHOLD, R/O: MAHAVEER NAGAR, NEAR GUJARAT SCHOOL, SANGLI-416416, MAHARASHTRA STATE.

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1. SMT. PRAMEELA W/O. OBHASKAR PATIL AGE: 69 YEARS, OCC: HOUSEHOLD, R/O: MAHAVEER NAGAR, NEAR GUJARAT SCHOOL, SANGLI-416416, MAHARASHTRA STATE.

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1. SHRI. CHANDRAKANT S/O. MAHADEV NANDAGAON, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: GUNDWAD, TALUKA: RAIBAG, DIST: BELAGAVI-591317.

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1. SMT. UJWALA W/O. SURESH PATIL AGE: 54 YEARS, OCC: HOUSEHOLD, R/O: MANGALWAR PETH, MIRAJ-416410, DIST: SANGLI, MAHARASHTRA STATE. …APPELLANTS

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(BY SRI. ROHIT S. PATIL, ADVOCATE FOR SRI. SHRIKANT T. PATIL, ADVOCATE) AND: 1. SHRI. AJIT S/O. LAKHAGOUDA PATIL SINCE DECEASED BY HIS LR’s., ARE ALREADY ON RECORD I.E. RESPONDENTS NO. 2, 3 AND 4.

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SMT. KAMAL W/O. AJIT PATIL AGE: 59 YEARS, OCC: HOUSEHOLD,

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3 - NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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R/O: AINAPUR, TALUKA: ATHANI,

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DIST: BELAGAVI-591303.

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SMT. PADMASHREE W/O. PRAVEENKUMAR YENDAGOUDAR, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: AINAPUR, TALUKA: ATHANI, DIST: BELAGAVI-591303.

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DR. SUPRIYA W/O. AJIT PATIL AGE: 33 YEARS, OCC: HOUSEHOLD, R/O: AINAPUR, TALUKA: ATHANI, DIST: BELAGAVI-591303.

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SHRI. SHRIMANDHAR S/O. SUBHASH PATIL AGE: 55 YEARS, OCC: AGRICULTURE, R/O: AINAPUR, TALUKA: ATHANI, DIST: BELAGAVI-591303.

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AMRUTCHETAN D/O. CHANDRAKANT NANDAGAV, AGE: 31 YEARS, OCC: SERVICE, R/O: C/O. INFOSYS, BENGALURU, NOW AT GUNDWAD, TALUKA: RAIBAG, DIST: BELAGAVI-591311.

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…RESPONDENTS

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(BY SRI. S.A.SANDUR, ADVOCATE FOR SRI. K.L.PATIL, ADVOCATE FOR R2 TO R4; NOTICE TO R5 AND R6 – SERVED AND UNREPRESENTED; R1- DECEASED)

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THIS RFA IS FILED UNDER SEC.96(1) R/W XLI RULE 1 OF C.P.C., 1908, AGAINST THE JUDGMENT AND DECREE DATED 27.04.2017 PASSED IN O.S.NO.66/2013 ON THE FILE OF THE ADDITIONAL SERIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI, DISMISSING THE SUIT FILED FOR DECLARATION AND POSSESSION AND MESNE PROFIT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is by the plaintiffs in O.S. No.66/2013 on the file of the Additional Senior Civil Judge and JMFC, Athani [for short, ‘the civil Court’ ] and the appellants are aggrieved by the civil Court’s impugned order dated 27.04.2017 because the civil Court by this order has dismissed the suit answering Issue Nos.4 and 5 against the appellants. It is undisputed that the civil Court’s order is based on the parties’ pleadings in the light of earlier suits and without evidence being recorded. The civil Court’s impugned order is while examining the following two issues.

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1) Whether the defendants 1 to 4 prove that the present suit is not at all maintainable in view of disposal of O.S. No.104/2010.

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2) Whether the Defendants 1 to 4 prove that in view of disposal of O.S. No.200/1972 and O.S. No.42/1998 and O.S. No.79/1999, O.S. No.430/1997, the present suit is not at all maintainable.

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Sri. Rohit S. Patil, the learned counsel for the

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appellants, and Sri. S.A. Sandur, the learned counsel for the

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5 - NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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contesting respondents, are heard for final disposal in the light of these following unanimous submissions by them that:

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[a] There are civil suits not just the present suit but also in O.S. No.7/1968, O.S. No.200/1972, O.S. No.91/1967, O.S. No.430/1997, O.S. No.79/1999, O.S. No.165/1998, O.S. No.42/1998 and O.S. No.104/2010, but all these suits do not relate to the properties left behind by Sri. Appugouda Patil and Sri. Chamanrao Patil.

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[b] Sri. Appugouda Patil was married to Smt. Avubai, who is the daughter of Sri. Chamanrao Patil.

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[c] The suits in O.S. No.42/1998, O.S. No.104/2010 and the present suit do not relate to the properties left behind by Sri. Appugouda Patil. These suits relate to the family of Sri. Chamanrao Patil.

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6 - NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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[d] Sri. Chamanrao Patil, apart from Smt. Avubai, had a son by name Sri. Dada who has left behind two sons, Sri. Somagouda and Sri. Shrimandhar who took Sri. Nabhiraj in adoption and Sri. Nabhiraj is married to Smt. Housakka who is the youngest daughter of Kalagouda, son of Sri. Appugouda Patil and Smt. Avubai.

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The present suit and the suits in O.S. No.42/1998 and O.S. No.104/2010 relate to the dispute over the last Will and Testament executed by Sri. Nabhiraj and Smt. Housakka. The Will and Testament asserted from Sri. Nabhiraj is dated 01.01.1990 and the Will asserted by Smt. Housakka is dated 15.12.2007. The learned counsels further submit that

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[a] Smt. Housakka has assertedly executed Will dated 15.12.2007 bequeathing lands in R.S. No.410 and 342/2A of Ainapur Village, Athani Taluk in favour of Ajit Lakhagouda Patil who is

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7 - NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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related to Sri. Somagouda, the elder brother of Sri. Shrimandhar.

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[b] Sri. Nabhiraj has allegedly executed the Will dated 01.01.1990 in favour of the same Ajit Lakhagouda Patil bequeathing the lands in R.S. No.409/2, 805/1+2/A of Ainapur Village, Athani Taluk and two residential properties in VPC No.207 and VPC No.191 of also Ainapur Village, Athani Taluk.

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The defendants in the suit are Sri Ajit Lakhagouda Patil and his wife and daughters. Apart from Ajit Lakhagouda Patil, his wife and children, two members of the plaintiffs’ side of the family are arrayed as the fifth and sixth defendants for complete adjudication. The fourth defendant is Smt. Supriya Ajit Patil. If the controversy surrounding the last Will and testament dated 01.01.1990 and 15.12.2007 are resolved after due opportunity, the inter se claims amongst the appellants and defendants who claim under Smt. Chandrabai, D/o Shrimandhar and as legatees

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8 - NC: 2024:KHC-D:12935-DB RFA No. 100225 of 2017

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under Sri. Nabhiraj and Smt. Housakka would be resolved. This court must record that it appears Sri. Nabhiraj and Smt. Housakka have died without issues.

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This Court must observe that if the dispute is only amongst a particular branch of Sri Chaman Rao Patil viz., the branch of Shrimandhar, the decisions in the suits relating to the properties of the family of Appugouda Patil would be totally extraneous. Further, the appellants’ case is that decree in OS No.104/2010 is a collusive decree inasmuch as that Sri. Ajit Lakhagouda Patil has filed this suit against his wife, Smt. Housakka. The appellants claim under Chandrabai (Sri Nabhiraj’s sister) and that this suit has ended in compromise and as such one of the reliefs claimed in O.S. No.42/1998 is for appropriate declaration in this regard (in the present suit).

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These are material circumstances, but the civil

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Court has opined as following while answering the Preliminary Issues without considering the material aspects:

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So that itself clearly goes to show that the present suit is not at all maintainable in view of disposal of OS No.104/2010 dated 26.03.2010, OS No.7/1968 dated 02.08.1968, OS No.200/1972 dated 17.09.1984, OS No.165/1998 dated 30.01.2010 and OS No.430/1997 dated 08.11.1997 and in view of pendency of OS No.42/1998. So the defendants No.1 to 4 they have rightly taken contention that the present suit is not at all maintainable as it is hit by Order 2 Rule 2 of CPC.

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In this Court’s considered view it is rather

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refutable that the civil Court’s decision to dismiss the suit even without evidence on preliminary Issues is without enabling complete adjudication of all matters. Therefore, there must be interference with the impugned order. The question that follows would be whether this Court must restore the suit for adjudication with the civil Court or the Civil Judge and J.M.F.C., Kagwad which is seized of the suit in O.S. No.42/1998 [renumbered as OS No.2/2021] without driving the parties to another round of litigation under Section 24 of CPC in the peculiarities of this case.

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The controversy in the present suit, as is obvious

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from the common submissions before this Court relates not

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just to the Will and testament asserted by the respondentsdefendants from Sri Nabhiraj (which is dated 01.01.1996) but also to the Will asserted from Housakka (which is dated 15.12.2007), and given the appellants grievance as against a compromise decree in O.S. No.104/2010, the question for consideration is of wider expanse in the present suit. In the peculiar circumstances of the case, this suit must be restored to the civil Court while withdrawing the suit in OS No.42/1998 (OS No.2/2021) from the file of Civil Judge, Kagwad and transferred to the Civil Court to avoid duplication in findings on similar issues leading to further proceeding. Hence, the following:

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ORDER

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a) The appeal is allowed, and the Civil Court’s impugned order dated 27.04.2017 is set aside and the suit is restored for decision on all issues except issue Nos.4 and 5.

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b) The parties to the present proceedings, without further notice, shall appear before the Civil Court on 28.10.2024.

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c) The suit in O.S. No.2/2021 on the file of the Civil Judge, Kagwad is withdrawn and directed to be listed before the civil Court with the same being registered afresh. The appellants and respondents who are parties even to such proceedings shall also appear before the civil Court in this transferred suit without further notice on 28.10.2024.

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d) The Registry is directed to communicate this order both to the civil Court and the Civil Judge Kagwad for due compliance and for listing of both the suits on 28.10.2024.

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e) These two suits shall be taken up for common trial.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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RSH: para 1 to 5 HMB: para 6 to end Ct:vh / List No.: 1 Sl No.: 5

Smt. Pushpavati W/O Bapusaheb Patil v. Shri. Ajit S/O Lakhagouda Patil

Case brief

What is this about?

What did the court decide?

Smt. Pushpavati W/O Bapusaheb Patil v. Shri. Ajit S/O Lakhagouda Patil

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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