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2019 Supreme(Kar) 1632
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
B.V. NAGARATHNA, BELLUNKE A.S., JJ.
Dadagouda Balagouda Patil & Ors. - Appellants
Versus
Kusuma W/o. Paris Mirje & Ors. - Respondents
Regular First Appeal No.100105 of 2014 (PAR/POS)
Decided On : 28-01-2019
For the Appellant :Sri. M.G. Naganuri, Advocate.
For the Respondents:Sri. Bahubali N. Kanabargi, Sri. Laxman T. Mantagani, Advocate.
Headnote:
Indian Succession Act, 1925 - Hindu Succession Act, 1956 - Section 30 - Civil Procedure Code, 1908 - Section 151 - Order XLI - Rule 27 - Possession and enjoyment of properties - Trial court - Right or capacity to bequeath his share in suit schedule properties - Whether plaintiff proves that suit schedule properties are ancestral and joint family properties of her and defendant Nos.1 to 3 - Whether plaintiff is entitled to share and separate possession in suit schedule property - Whether trial court was right in holding that plaintiff’s father had no right to make a bequest in respect of his share in suit schedule properties in favor of defendant No.1 - Whether production of original testament Ex.D-6 by appellants by way of additional evidence by filing an application under Order XLI Rule 27 of CPC would necessitate remand of matter to trial court for purpose of adjudicating on validity of said document - First respondent-plaintiff filed suit against defendants seeking relief of partition and separate possession of her share in suit schedule properties - According to plaintiff one is original porosities - He died leaving behind his three children - Plaintiff is daughter - Defendant No.1 and his two children are defendant Nos.4 and 5 - It is case of plaintiff that her father died and that her mother and herself were not given their share in joint family/ancestral properties despite demand being made for same - In circumstances plaintiff was constrained to file a suit seeking relief of partition and separate possession of her share in suit properties – Held, Court have heard learned counsel for appellants and learned counsel for respondent No.1. Respondent No.2 is dead and is represented by her legal representative—respondent No.1. Respondent No.3 is served and unrepresented - Learned counsel for appellants submitted that trial court was not right in rejecting fact that plaintiff’s father had executed a registered Will in favor of defendant No.1 - In order to prove said testament defendants had let-in evidence of two attesting witnesses namely DW-2 & DW-3 and that of scribe of Will DW-4 - That since original testament was not available so as to be produced before trial court as it was with an application was filed seeking production of said document through but trial court has rejected said application – However a certified copy of Will Ex.D-6 was marked in evidence without any objection being raised from side of plaintiff and requisite evidence was let-in - Even then trial court has not believed Will and has decreed suit granting share to plaintiff - He submitted that in order to further establish that there was a Will executed in favor of defendant No.1 by his brother an application has been filed under Order XLI Rule 27 of Code of Civil Procedure, 1908 and said application may be allowed and matter may be remanded so that original Will could now be considered by trial court - Learned counsel for appellants submitted that impugned judgment and decree may be set aside and matter may be remanded to trial court in order to re-determine validity of Will as original is now produced before this Court and same may be sent to trial court to adjudicate upon its validity - Plaintiff has sought for share in suit schedule properties – However it is contention of defendants that plaintiff’s father had bequeathed his share in suit schedule properties in favor of his brother/defendant No.1 - Trial court could not have held that plaintiff’s father had no right or capacity to bequeath his share in suit schedule properties in favor of his brother / defendant No.1 - Under Section 30 of Act, any Hindu may dispose of by Will or other testamentary disposition any property which is capable of so being disposed of by him or by her in accordance with provisions of Indian Succession Act, 1925 or any other law for time in force applicable to Hindus - Explanation to Section 30 states inter alia that interest of a male Hindu in property shall notwithstanding anything contained in Act or in any other law for time being in force be deemed to be property capable of being disposed of by him or by her within meaning of this section - It is submitted that since reasoning of trial court proceeds mainly on basis of original Will not being produced and therefore signature of testator could not be compared or authenticated – Hence Ex.D-6 was not believed - Now that original of Ex.D-6 itself is produced same may be considered by trial court and hence a plea is made by appellants’ counsel seeking remand of matter by allowing application under Order XLI Rule 27 of CPC - Appeal is allowed
JUDGMENT :
Though this appeal is listed to consider the application seeking early hearing of the appeal, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal assails the correctness of the judgment and decree dated 21.06.2014 passed in O.S. No.80 of 2012 by the Court of Senior Civil Judge and JMFC, Raibag. The appeal is preferred by defendants 1, 4 and 5 in the said suit.
3. For the sake of convenience, the parties would be referred to in terms of their status before the trial Court.
4. The first respondent-plaintiff filed the suit against the defendants seeking the relief of partition and separate possession of her 1/6th share in the suit schedule properties. According to the plaintiff, one Balagouda Patil is the original propositus. He died leaving behind his three children namely, Housavva, Nemagouda and Dadagouda. Plaintiff is the daughter of Nemagouda and Akkatai (defendant No.2). Dadagouda is defendant No.1 and his two children namely, Shanthinath and Chetan are defendant Nos.4 and 5. Housavva is defendant No.3. It is the case of the plaintiff that Nemagouda, her father, died and that her mother Akkatai and herself were not given their share in the joint family/ancestral properties despite demand being made for the same. In the circumstances, plaintiff was constrained to file a suit seeking the relief of partition and separate possession of her 1/6th share in the suit properties.
5. In response to suit summons and court notices, defendant No.3 remained absent and he was placed ex parte. Defendant No.2 though appeared through his counsel did not choose to file any written statement. Defendant Nos.1, 4 & 5 had appeared through their counsel and filed written statement and defendant No.1 filed his written statement which has been adopted by defendant Nos.4 & 5.
6. Defendant No.1, while admitting the relationship between the parties, has stated that he and Nemagouda are the sons of one Balagouda Patil and that the plaint paragraph No.1 properties were originally owned by his father. That during the life time of Balagouda Patil, the suit properties were inherited by him and his brother-Nemagouda jointly. That defendant No.3/Housavva-their sister consented to the same. Nemagouda had only a daughter, i.e., the plaintiff and his wife defendant No.2. Defendant No.3 is aged 80 years and she was born prior to the commencement of Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’ for the sake of brevity) and had relinquished her succession to the suit properties as per M.E. No.4280 of Soundati on 21.04.1983 and the names of his brother-Nemagouda and 1st defendant’s name were jointly entered in the revenue records in respect of the suit schedule properties, which were enjoyed by them jointly till the death of Nemagouda on 22.04.2000. It is further contended by defendant No.1 that he is the absolute owner and in possession of the suit schedule ‘A’ properties item Nos.1 to 8 on the strength of a registered Will executed by the father of the plaintiff in his favour on 28.12.1995. The suit schedule items 9 to 11 are house and open spaces which were inherited by him and his brother-Nemagouda from their father. That plaintiff’s father-Nemagouda had relinquished his joint share in the suit schedule ‘A’ item Nos.9 to 11 in his favour and those properties are standing in his name as well and he is the exclusive and absolute owner in possession of the suit schedule properties. That there is no existence of joint family between the plaintiff and defendants. That the plaintiff was not in any point of time in joint possession and enjoyment of the properties along with defendants. That some of the suit schedule properties have been transferred by defendant No.1 in the names of defendant Nos.4 & 5 for better cultivation and that they are in their possession and enjoyment. Defendant No.3 was given in marriage to Dada Mirje of Parmanandwadi village and plaintiff has been given in marriage to 3rd defendant’s s
