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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
P.G.M. PATIL, J.
Shekarappa Kallappa Gunjal - Appellant
Versus
Prakashgouda Mallanagouda Ramangoudar - Respondent
R.S.A.No.52 of 2007 (DEC & INJ)
Decided on : 14-08-2019
Karnataka Village Offices Abolition Act, 1961 - Hindu Succession Act, 1956 - Section 14(2) and 14(1) - Indian Evidence Act, 1872 - Section 65 (a)[c] and 90 – Code Of Civil Procedure, 1908 - Section 100 - Properties - Registered Maintenance Deed - Whether plaintiffs proves ownership, possession and vahivat of suit property since from execution of the Potagi Patra - Whether plaintiff also proves that mutation entry erected behind back - Whether plaintiff proves interference placed by defendants - Whether suit is properly valued - Whether court got jurisdiction to entertain suit - Whether plaintiff entitled for relief of declaration, injunction and also mandatory injunction - Whether plaintiff proves that defendants have no right to borrow loan on suit schedule property - Whether Ex.P2-certified copy of registered maintenance deed could be received in evidence by way of secondary evidence under Section 65(c) of Indian Evidence Act or same is not permissible has to be considered - Whether an ordinary copy was admissible in evidence - Whether or not secondary evidence could be led of a public document – Held, Claim to maintenance, as also right to claim property in order to maintain herself, is an inherent right conferred by Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of claim or right which widow possessed from before - It cannot be said that such a right has been conferred on her for first time by virtue of document concerned and before existence of document widow had no vestige of a claim or right at all - Once it is established that instrument merely recognised pre-existing right, the widow would acquire absolute interest - it is made clear by this pronouncement that the claim to maintenance is also right to claim property in order to maintain herself is her inherent right confirmed by Hindu Law and therefore, any property given to her in view of maintenance is merely in recognizaion of claim or right which the widow possessed from before - Same principle is applicable to present case on hand - Accordingly, additional substantial questions of law at Sl.Nos.3 to 5, 7 and 8 are held in affirmative stating that Lower appellate court has committed error in holding that limited right of plaintiff for maintenance does not get ratified as an and absolute right as provided under Section 14(1) of Hindu Succession Act - Further, that suit land is service Inam land and therefore, suit is not maintainable in absence of any pleading and evidence to that effect - Lower Appellate Court is also not justified in dismissing suit of plaintiff in entirety for reason that plaintiff even as a daughter had a share in suit property of her father - Therefore, finding of Lower Appellate Court in reversing judgment and decree passed by trial Court is liable to be set aside - Substantial questions of law framed by this Court are answered accordingly - Appeal allowed.
JUDGMENT :
The plaintiff appellant being aggrieved by the judgment and decree dated 29/9/2006 passed in RA No.52/2005 on the file of the II Additional Civil Judge (Sr.Dn), Hubli, reversing the judgment and decree dated 14/2/2005, in O.S.No.297/1999 on the file of IV Addl. Civil Judge (Jr.Dn.) Hubli, has filed this regular second appeal.
2. The status of the parties is referred to as per their ranking before the trial Court.
3. The original plaintiff Smt. Shantavva W/o Shekarappa Gunjal filed the suit bearing O.S.No.297/1999 seeking declaration that she is the absolute owner of the suit property by virtue of a deed of maintenance and that the loan borrowed by the defendants is not binding on her.
4. It is the case of the plaintiff that her father Basanagouda executed a registered maintenance deed (Potige patra) in her favour on 31/1/1961 in respect of the suit schedule properties as she had no support from her husband’s side. Defendants 1 to 3 are the sons of the brother of the plaintiff and defendant No.4 is his wife. She has alleged that on the death of the brother of the plaintiff, defendant Nos.1 to 3 colluding with revenue authorities got their names mutated in the record of rights of the suit land on 31/10/1991 under M.E.No.1310 and that the revenue authorities without issuing of notice and without holding preliminary enquiry and without hearing the plaintiff have mutated the names of the defendants. She has further contended that she is the absolute owner in possession and enjoyment of the suit property. She had also filed another suit for partition in O.S.No.94/99 in respect of remaining portion of property, namely Block No.178 measuring 11 acres 14 guntas situated at Nagarahalli village of Hubli Taluk. She has further contended that defendants at the instigation of the father of defendant No.4 trying to dispossess her from the suit land. She had also filed private Criminal Case in PC No.73/99.
Therefore, she was constrained to file the said suit for the relief stated above.
5. In pursuance of summons, defendants appeared before the trial Court and filed written statement. They contended that the description of the suit property is incorrect and incomplete. They have denied the averments made in the plaint. They have questioned the factum, execution, attestation and legality of the deed of maintenance. They have further contended that the plaintiff was never in possession of the suit property in any capacity and that the maintenance deed is a sham document, never intended to be acted upon and that it is invalid, opposed to Karnataka Village Offices Abolition Act and public policy. The entry made on 31/10/1991 is legally valid and that the plaintiff cannot challenge it after lapse of time. They also contended that the Lower Court has no jurisdiction to pass the decree in respect of the revenue entries and the value of the suit property is more than Rs.50,000/-and hence, the Lower Court has no jurisdiction to entertain the suit. Therefore, sought for dismissal of the suit with compensatory cost.
6. On the basis of pleadings of the parties, the trial Court framed the following issues and additional issues:-
2. Whether the plaintiff also proves that the mutation entry erected behind the back?
3. Whether the plaintiff proves the interference placed by the defendants?
4. Whether the suit is properly valued?
5. Whether the court got jurisdiction to entertain the suit?
6. Whether the plaintiff entitled for the relief of declaration, injunction and also mandatory injunction?
7. What order or decree Additional Issues:
1. Whether the plaintiff proves that the defendants have no right to borrow the loan on suit schedule property?
2. Does the loan alleged to be raised by the defendants on the suit schedule property had no bindings on plaintiff?”
7. In support her case, plaintiff got examined 7 wit
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