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2023 Supreme(Kar) 1276
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
ANANT RAMANATH HEGDE, J.
Shri Ragavendra - Appellant
Versus
Mr. Anand and ors. - Respondents
Regular First Appeal No. 657 of 2006 (PAR-).
Decided on : 09-03-2023
For the Appellant :Sri. Sridhar. Prabhu, Advocate for Sri. S. G. Kadadakatti, Advocate Sri. Lingesh V. Kattemane, Advocate
For the Respondent:Sri. D. Ravikumar Gokakakar, Advocate
Headnote:(A) Code of Civil Procedure, 1908 - Order XLI Rule 27 - Partition and separate possession - Suit filed for partition by plaintiffs claiming 1/7th share in properties owned by Bandopant - Defendant contends properties self-acquired by Kamalabai, supported by unproven Will - Trial Court concluded properties purchased by Bandopant and ruled in favor of plaintiffs; appeal filed against this decision. (Paras 2-6)
(B) Evidence - Additional documents - Appellant seeks to produce additional documents under Order XLI Rule 27 to substantiate claims - Court allows production and remands for fresh consideration of evidence. (Paras 8-12)
(C) Remand - Purpose of remand - Appeal allowed for reconsideration of evidence and validity of the Will - The nature of properties and execution of Will left open for determination. (Paras 18-19)
Findings of Court:
The trial Court's ruling is set aside, and the appeal is allowed for the trial Court to reassess the case with additional documents and expert testimony, if necessary.
Issues: The validity of a Will, ownership of properties, and the ability to produce new evidence were central issues.
Ratio Decidendi: The court emphasized the necessity for a fresh evaluation of evidence under the additional application—remanding the case for substantive review whilst maintaining open all contentions.
Result: Appeal allowed and matter remanded.
| Table of Content |
|---|
| 1. claim for partition based on inheritance (Para 2 , 3 , 4) |
| 2. dispute over ownership and will validity (Para 5 , 8 , 9 , 10) |
| 3. court's considerations for remand (Para 6 , 12 , 13 , 14 , 15 , 16 , 17) |
| 4. conclusion to remand for trial court review (Para 18 , 19) |
JUDGMENT :
Mr. Anant Ramanath Hegde, J. - Heard Sri.Sridhar Prabhu, learned counsel for the appellant. There was no representation for the respondents.
2. The appeal is filed challenging the judgement and decree passed in O.S.No.69/2002 on the file of the II Additional Senior Civil Judge, Belagavi. The said suit was one for partition and separate possession, wherein the plaintiffs claimed 1/7th share each in the suit schedule properties. The genealogy of the parties is as under:
3. One Bandopant Hanamant Mallihalli was the propositus. He had a wife by name Kamalabai. The couple had two sons, Mohan and Umesh and three daughters, Mohini, Radha and Seetha. Mohan the elder son of the propositus Bandopant died and his wife is Gangubai and they had two sons, Anand and Arun and two daughters, Smita and Kanta. The suit is filed by plaintiff No.1 the grandson of Bandopant through his deceased son Mohan. Radha the daughter of Bandopant, is the plaintiff No.2.
4. The suit properties are residential properties bearing City Survey No.1450 and 1451. Suit schedule properties were purchased in the name of Kamalabai under a registered sale deed dated 31.12.1953. The suit is filed on the premise that though the suit properties were purchased in the name of wife of Bandopant i.e., Kamalabai, Bandopant was gainfully employed, and paid the consideration amount to purchase the suit properties in the name of Kamalabai. After the purchase, the residential houses in suit properties were constructed from funds paid by propositus Bandopant and it is further contended that after the demise of Bandopant, all the plaintiffs and defendants inherited the properties as Class-I heirs. On this premise suit is filed seeking partition and separate possession.
5. Defendant No.1 who is one of the sons of Bandopant and Kamalabai contested the suit on the premise that the properties in question were purchased by Kamalabai from the money paid by her parents and the properties were the self acquired properties of Kamalabai. It is further contended that Kamalabai executed a registered Will dated 13.01.2000, registered before the Sub-Registrar, Belagavi. According to defendant No.1, he is the exclusive owner of the properties in terms of the Will executed by his mother.
6. The trial Court has held that the defence of defendant No.1 that his mother purchased the properties from the money paid by her parents is not established and the trial Court has come to the conclusion that the properties in question were purchased by Bandopant in the name of his wife. The trial Court also concluded that the Will in question is not proved and decreed the suit as prayed for. Hence, defendant No.1 is in appeal before this Court.
7. The appellant has filed an application dated 15.09.2022 under Order XLI Rule 27 of Code of Civil Procedure for production of additional documents to substantiate his contention in the written statement. In addition to that, the appellant has filed one more application dated 07.03.2023, under Order XLI Rule 27 of Code of Civil Procedure and appellant seeks to produce original mortgage deed dated 15.02.1975.
8. The appellant contends that the original sale deed in the name of his mother Kamalabai does not bear the thumb impression or the signature of Kamalabai as the said document was executed in the name of Kamalabai by the vendor and the sale deed was presented for registration by the vendor himself.
9. Learned counsel for the appellant would submit that the Will which is produced by the appellant which is said to be the Will executed by Kamalabai bears the thumb impression and he would submit that the thumb impression on the Will has to be compared and examined with the thumb impression on the mo
