Dismissed

Smt.Manjavva v. Smt.Mallavva

Karnataka HC22 Jun 2024RSA/100508/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the second appeal and related delay application. The court held that the delay was unexplained and the appeal raised no substantial question of law, as the lower court findings on the will were supported by valid evidence.

What did the court decide?

Second appeal dismissed, I.A. No.1/2016 for condonation of delay dismissed, and I.A. No.2/2016 for stay dismissed.

Smt.Manjavva Vs Smt.Mallavva — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:8430 RSA No. 100508 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 100508 OF 2016 (PAR/POS-)

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BETWEEN:

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SMT. MANJAVVA W/O GYANAPPA PUJAR, AGE: 34 YEARS, OCC: HOUSEHIOLD WORK, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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SMT. MAHANTAVVA W/O AMARAGUNDAPPA JILEDAR, AGE: 32 YEARS, OCC: HOUSEHIOLD WORK, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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RAMAPPA S/O AMARAPPA JILEDAR, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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YAMANAPPA S/O AMARAPPA JILEDAR, SINCE DEAD BY LRS

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YELLAVVA W/O LATE YAMANAPPA, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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IRAPPA S/O YAMANAPPA JILEDAR, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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AMARAVVA D/O YAMANAPPA, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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NC: 2024:KHC-D:8430 RSA No. 100508 of 2016

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RUDRESH @ RUDRAPPA S/O YAMANAPPA, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: HERUR, TQ: HUNAGUND, DIST: BAGALKOT.

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…APPELLANTS

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(BY SRI ANAND R. KOLLI, ADVOCATE)

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AND:

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SMT. MALLAVVA W/O GYANAPPA TONDIHAL, AGE: 73 YEARS, OCC: HOUSEHOLD WORK, R/O: ILAKAL BACK SIDE OF POLICE STATION, TQ: HUNAGUOND, DIST: BAGALKOT.

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SMT. SHYANTAVVA W/O BASAPPA OLEKAR, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, KR/O: ILAKAL KULKARNI PETE, WARD NO.2, TQ: HUNAGUND, DIST: BAGALKOT.

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SMT. YAMANAVVA W/O NAGAPPA DOTIHALIHAL, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: GUDADUR, TQ: KUSHTAGI, DIST: KOPPAL.

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SMT. MALLAVVA W/O AMARAGUNDAPPA JILEDAR, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: HERUR, NOW RESIDING AT AMINGAD, TQ: HUNAGUND, DIST: BAGALKOT.

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MALLAPPA S/O AMINAPPA GADAD, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: BEVINAL, TQ: HUNAGUND, DIST: BAGALKOT.

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…RESPONDENTS

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THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN O.S.NO.122/2002 AND R.A.NO.38/2012 DATED 12.07.2012 AND 30.08.2013 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HUNAGUND AND SENIOR CIVIL JUDGE, HUNAGUND RESPECTIVELY.

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

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JUDGMENT

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The above second appeal is filed under Section 100 of Code of Civil Procedure, 1908¹ by the defendant Nos.3 to 6 challenging the judgement and decree dated 30.08.2013 passed in RA No.38/2012 passed by the Senior Civil Judge, Hunagund² and the judgement and decree dated 12.07.2012 passed in OS No.122/2002 by the Court of Senior Civil Judge and JMFC, Hunagund³ , were under, the suit for partition was decreed by the Trial Court and affirmed by the F irst Appellate Court.

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Along with the above appeal, I.A No.1/2016 is filed for condonation of delay of 935 days in filing the appeal. In the affidavit accompanying the application, appellant No.5 has deposed that defendant No.4 was taking care of the entire legal process and since he was unwell, he could not contact the Advocate. That after his

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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death, he contacted the Advocate who informed him about the Orders passed by the First Appellate Court and after obtaining the certified copies, he was involved in the agricultural work and since he was the only person taking care of the agriculture, he could not approach the Advocate for the purpose of filing the present appeal.

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It is relevant to note that, the appellants have not furnished details, particulars or documents pertaining to the averment that defendant No.4 was unwell and he also not produced any medical document regarding the same. While it was deposed that after the death of the defendant No.4, he has contacted the Advocate, the date of the death of the deceased is not mentioned, nor the date on which the deponent contacted the Advocate. There are absolutely no material produced in support of the application seeking for condonation of delay.

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It is forthcoming that, the judgement and

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decree was passed by the First Appellate Court on 30.08.2013 and the appeal has been filed on 20.06.2016

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and there is a inordinate delay of 935 days in filing the above appeal. The delay is not adequately explained in the affidavit accompanying the application, nor has any document being produced along with the application of I.A No.1/2016.

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However, in order to consider as to whether I.A.No.1/2016 is required to be favourably considered, the merits of the matter are also considered.

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The parties herein are referred to as per their rankings before the Trial Court for the sake of convenience.

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It is the case of the plaintiff that the suit properties are the joint family properties of the plaintiff and defendant Nos.1 to 6. The propositus was one Amarappa who died on 11.02.1991, leaving behind his sons Shivarudrappa, Amaragundappa, Ramappa (defendant No.5), Yamanappa (defendant No.6) and plaintiffs. The defendant No.1 is the son of Amarappa who

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was one of the sons of Shivarudrappa. Defendant Nos.2, 3 and 4 are the legal representatives of the other son Amaragundappa.

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It is the case of the plaintiffs that the plaintiffs and defendants are in joint possession and enjoyment of the suit property and the plaintiffs are having 3/35^th share in the suit properties. That defendant No.1 filed OS No.187/1995 for partition and saperate possession against defendant Nos.2 to 6 without impleading the plaintiffs in the suit. That the plaintiffs are daughters of the propositus. That by giving false information a decree was passed in OS No.187/1995. Hence, the plaintiffs have filed the present suit for declaration that they are not bound by the decree passed in OS No.187/1995 and for partition and separate possession of their share.

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The defendants entered appearance through their counsel. Defendant Nos.1, 5 and 7 filed a separate written statement and defendant Nos.3, 4 and 6 have adopted the written statement of defendant No.5.

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Defendant No.1 in the written statement contended that pursuant to the decree passed in OS No.187/1995, FDP No.4/2001 was filed and that she had no knowledge to implead the plaintiffs in the said suit and that the plaintiffs also had a share in the suit property. That the plaintiffs can seek their share in FDP No.4/2001 without filing a fresh suit.

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Defendant No.5 in her written statement has stated that, she has no objection to give 3/35^th share to the plaintiffs but, objected to impleading the defendant No.7 in the suit. It is denied that the share of defendant Nos.7 and 8 has been bequeathed by executing the Will dated 05.02.2005. That the said Will is a concocted one.

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Defendant No.7 was impleaded before the Trial Court pursuant to order passed on I.A No.2 dated 04.06.2011. Defendant No.7 has also filed a written statement wherein the suit in OS No.189/1997 is admitted. It is however contended that, the defendant No.1 during her life time has executed a Will dated

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04.02.2005 in his favour and he is the son of her brother

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and bequeathed her 1/4^th share in the suit property as per the decree in OS No.185/1995. Hence, he contended that,

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he is entitled for share of the deceased defendant No.1.

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The Trial Court, consequent to the pleadings of

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the parties framed the following issues and additional

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issues:

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“Issues

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1. “Whether plaintiffs prove that decree passed in O.S.no.187/1995 is not binding on them?

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2. If so, further prove that, they are having 3/35^th share in the suit schedule property?

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3. Whether the plaintiff are entitled for the relief sought by them?

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4. What order or decree?

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Additional issue dt.20.07.2011

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1. Whether defendant no.7 proves that deceased defendant no.1 has executed will deed dt. 5.2.2005 in his favour?

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Additional issue dt.23.9.2011

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1. Whether defendant no.7 proves that he is entitled for share in the suit property as prayed in the counter claim?”

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Plaintiff No.2 was examined as PW.1. Ex.P.1 to Ex.P.4 was marked in evidence. The defendant No.7 examined himself as DW.1 and a witness as DW.2. Ex.D.1 and Ex.D.2 have been marked in evidence. Defendant No.5 has been examined as DW.3.

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The Trial Court by its judgement and decree dated 12.07.2012 decreed the suit and declared that the plaintiffs are not bound by the decree passed in OS No.187/1995 and further declared that, the plaintiffs are having a 3/35^th share and defendant No.7 is having 8/35^th share in the suit property.

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Being aggrieved the defendant Nos.3 to 6 filed RA No.38/2012. The First Appellate Court framed the following point for consideration:

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1. “Whether appellant proves that findings given by lower court on additional issue no.1 in respect of will dt.5.2.2005 is not correct?

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2. Whether appellants further proves that lower court passed the judgment after 03 years of the death of respondent no.5 who is defendant no.2 before lower court, hence judgment and

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decree passed by lower court amounts to nullity?

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3. What order?”

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The First Appellate Court vide its judgement

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and decree dated 30.08.2013 dismissed the appeal and affirmed the judgement and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.

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It is the contention of the appellants that, the

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share of defendant No.1 cannot be held to have been bequeathed in favour of defendant No.7 by virtue of the registered Will dated 05.02.2005. It is further contended that, the share of the parties will have to be adjudicated in the final decree proceedings in the earlier ground of litigation.

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It is forthcoming that, the first appeal was preferred only with regard to the finding of the Trial Court on additional issue No.1 in respect of the Will dated 05.02.2005.

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The First Appellate Court considering the same, noticed that, the Will dated 05.02.2005 is a registered one. That in support of the plea made by defendant No.7 in the written statement, he has examined himself as DW.1 and also examined an attesting witness as DW.2. That the Will has been marked as Ex.D.1. It is further recorded that the Will has not been disputed by defendant No.5 and has also not been disputed by the plaintiffs and the other defendants. It is further noticed that, although the defendant No.5 has cross-examined DW.1 and 2, no reliable grounds have been made out that Ex.D.1 is a concocted one or a suspicious document. It is further noticed that, the appellant Nos.3 to 6 before the First Appellate Court had contended that, defendant No.7 had forcibly taken defendant No.1 in a jeep which was seen by one Balappa Kuri. However, it is noticed that, the said Balappa Kuri has not been examined.

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The First Appellate Court has specifically recorded a finding that, apart from the allegations in the

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memorandum of appeal, no evidence has been placed on record by defendant No.5 to disbelieve the Will Ex.D.1 as well as the contention that defendant No.1 was not in a sound state of mind.

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The First Appellate Court has recorded a finding that the said defendant No.7 has examined an attesting witness to the Will as required under Section 68 of the Evidence Act. Hence, the defendant No.5, not having produced any other materials to disbelieve the case of defendant No.7 with regard to execution of Ex.D.1, the point for consideration no.1 has been answered in the negative by the First Appellate Court.

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Further with regard to the contention that defendant No.2 died during the pendency of the suit and the decree passed against the dead person is null, the First Appellate Court has noticed that, the defendant Nos.3 and 4 are the legal representatives of the deceased defendant No.2. Hence, it has recorded a finding that, the legal representatives of the deceased defendant No.2

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already being on record, the decree of the Trial Court will not be a nullity.

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It is further forthcoming that, the Trial Court has adequately appreciated the oral and documentary evidence on record and decreed the suit. The appellants who have filed RA No.38/2012 had contested the suit only with regard to the share of defendant No.1 which was bequeathed in favour of the defendant No.7 by the Will dated 05.02.2005 (Ex.D.1).

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As noticed by the First Appellate Court, the defendant No.7 in support of proof of the Will (Ex.D.1) has examined an attesting witness as DW.2. Further, the said Will (Ex.D.1) is a registered document. Hence, there is no other material on record to demonstrate that, the findings of the Trial Court and the First Appellate Court with regard to the said Will is erroneous and that any substantial question of law arise for consideration with regard to the

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same.

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In view of what is noticed above, no useful

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purpose will be served in favourably considering I.A No.1/2016 for delay. Hence, I.A No.1/2016 is dismissed and consequently, the above appeal is dismissed .

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In view of dismissal of the above appeal, I.A No.2/2016 for stay also stands dismissed.

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Sd/JUDGE

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PJ CT:GSM List No.: 1 Sl No.: 21

Smt.Manjavva v. Smt.Mallavva

Case brief

What is this about?

What did the court decide?

Smt.Manjavva v. Smt.Mallavva

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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