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Karnataka High Court
TIPPANNA - Appellant
Versus
JALAL SAB - Respondent
Decided On : 09-15-05
R.S.A. : 581 of 2003
Case Referred: AIR 1999 SC 3571.
Succession under the section
HINDU SUCCESSION ACT, 1956
Section 15(2) - Succession under -Second plaintiff is brother of first plaintiff s husband -Hence, second plaintiff is related to family of first plaintiff -Material available on record to that effect and hence, upon death of first plaintiff, trial court held that, second plaintiff succeeded to suit property belonging to first plaintiff -Reversal of decree by first appellate court -not proper being clearly perverse and arbitrary.
[V. G. Sabhahit, J]: It is clear from the perusal of the judgment passed by the First Appellate Court that the filing of the first Appellate Court that second plaintiff has failed to prove that he has succeeded to the property under Section 15(2) of the Hindu Succession Act as held by the trial Court is erroneous is clearly perverse and arbitrary. The First Appellate Court has proceeded on the basis that there is no material regarding relationship of the plaintiff No.2 with plaintiff No.1. On the other hand, it is clear from the perusal of the averments made in the plaint and the written statement that there is material on record to show the relationship of plaintiff No.2 with plaintiff No. 1 in the plaint and the written statement and the Trial Court after considering the same and by assigning reasons had arrived at the conclusion that he has succeeded to the property under Section 15(2) of the Hindu Succession Act. The First Appellate Court has failed to consider the said reason and has proceeded on the basis that there is no material to show the relationship between plaintiffs 1 and 2 and he has succeeded to the property under Section 15(2) of the Hindu Succession Act and wherefore the said finding is also clearly baseless and wherefore perverse.
Case Referred: AIR 1999 SC 3571.
CIVIL PROCEDURE CODE, 1908 - Effect of non-filing of cross-appeal or objection - Order 41, Rule 22 -Effect of non-filing of cross-appeal or objection -Plaintiffs filed suit for declaration and possession -First plaintiff was owner of suit property -Second plaintiff is the brother of first plaintiff s husband -Former had executed a Will in favour of latter -Death of former -Trial Court held that, second plaintiff failed to prove execution of Will but, is entitled to property under Hindu Succession Act -First appellate Court held that, first plaintiff having failed to prefer cross-appeal or objections, the findings of trial Court regarding Will cannot be agitated by him -Held, finding of first appellate Court is contrary to provisions of Rule 22. [V. G. Sabhahit, J]: The appeal was filed by the unsuccessful defendant against the decree passed in favour of the plaintiffs and since suit had been decreed, the second plaintiff did not prefer any cross appeal or objection. However, in view of the provisions of Order 41 Rule 22 CPC., it is clear that it was open for him to support the decree passed by the trial Court on the ground that issue No.1 also ought to have been answered in his favour by holding that he had proved due execution of the Will by plaintiff No.1 in his favour and mere fact that no cross appeal or consideration had been filed would not debar him from contending in that behalf.
Case Referred: AIR 1999 SC 3571.
( 2 ) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows.- plaintiffs I and 2 filed the suit O. S. No. 26 of 1988 later numbered as o. S. No. 126 of 1989 on the file of the Civil Judge (Junior Division), yadgir seeking for a judgment and decree declaring that plaintiffs are the owners of the suit schedule land and for possession of the suit schedule property by dispossessing the defendants and for mesne profits and costs.
( 3 ) IT is averred in the plaint that plaintiff 1 is the absolute owner in possession of the land shown in the schedule which she inherited after the death of her father. The property is inherited from maternal side by plaintiff 1. Plaintiff 1 is aged and blind and taking the support of her husband's brother Thippanna-plaintiff 2 in managing the properties of the plaintiffs. Plaintiff 1 has also bequeathed the suit land in favour of plaintiff 2 by executing a Will dated 23-10-1973. Plaintiff 2 is the member of the family of plaintiff 1. Defendants 1 and 2 are the sahukars of the Village. Plaintiff 1 has taken loan of Rs. 2,000/- on the next day of Ugadi of 1987 and has orally mortgaged the suit land to defendants 1 and 2 subject to the terms that they should enjoy the usufruct of one crop i. e. , in 1987-88 and thereafter give back the possession. The plaintiff had raised groundnut and bajra and harvested the same. Taking advantage of the helplessness of plaintiff behind her back, without her information and knowledge got their name mutated in the record of rights neither plaintiffs have sold an area of 5 acres 35 guntas of land shown in the schedule nor executed any document regarding sale of suit land in favour of defendants and plaintiffs came to know of the mutation only in the first week of March and she filed appeal before the Assistant Commissioner. The defendants on the basis of wrong entries in the record of rights are asserting title and possession of the defendants over the suit schedule land is unlawful and that of a trespasser and wherefore the suit for the above said reliefs.
( 4 ) THE suit was resisted by the defendants by filing common written statement averring that it is true that plaintiff 1 is the absolute owner and possessor of the suit land. It is false to say that plaintiff 1 is blind and taking assistance of her husband's brother by name Thippanna as plaintiff 2 and plaintiff 2 is in management of the property. It is also false and baseless to say that plaintiff 1 bequeathed suit land in favour of plaintiff 2 by Will dated 23-10-1973 and that plaintiff 2 is the member of family of plaintiff 1. It is further averred that averments made in the plaint regarding alleged oral mortgage is false and it is further averred that plaintiff 1 has entered into an agreement of sale in favour of defendants on 30-6-1974 by executing a deed of agreement in favour of defendants. But plaintiffs with mala fide intention has suppressed the fact of agreement of sale in favour of defendants and wherefore the suit is liable to be dismissed.
( 5 ) THE Trial Court framed appropriate issues. Plaintiff 1 died during the pendency of the suit. On behalf of the plaintiffs, second plaintiff was examined as P. W. 1 and he got marked Exs. P. 1 to P. 5. On behalf of the defendants, defendant 2 was examined as D. W. 1 and also examined d. Ws. 2 and 3 and got marked Exs. D. 1 to D. 10. The Trial Court after considering the contention of the parties and the material on record held that the first plaintiff was the owner of the schedule property and plaintiff 2 has faile
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