1. Succession dispute — Class-II heirs claiming share in deceased male's property under Hindu Succession Act, 1956. (Para 1 , 2 , 3 )
Back
Next 
2022 Supreme(Online)(Kar) 32280
E.S. Indiresh, J
Neelappagouda – Appellant
Versus
Kamalawwa – Respondent
REGULAR SECOND APPEAL NO. 100091 OF 2022 (DEC.)
Advocates:
For the Appellants/Petitioners: Sri Avinash Banakar
For the Respondents: Sri Chetan Munnoli
For the Appellants/Petitioners: Sri Avinash Banakar
For the Respondents: Sri Chetan Munnoli
The principle of res judicata does not apply to a subsequent suit if the preceding proceedings were not decided on their merits, such as when they were dismissed for non-prosecution or deemed not maintainable for the specific legal forum used.
Headnote:(A) Hindu Succession Act, 1956 - Section 8 and Schedule (Class II Heirs) - Succession in case of male dying intestate - Propositus died without children - Question of whether children of a sister are entitled to a share as Class II heirs - Propositus had a brother and a sister; in the absence of Class I heirs, the property devolves upon Class II heirs, which includes the children of the sister. (Para 21)
(B) Code of Civil Procedure, 1973 - Principle of Res Judicata - Applicability of the doctrine - A subsequent proceeding is not barred by res judicata if the previous proceedings were not decided on the merits. A petition for a succession certificate dismissed as not maintainable for the specific forum, or a suit dismissed for non-prosecution, does not constitute a final decision on the merits of the rights of the parties. (Paras 18, 19, 20, 23, 24)
Facts of the case:
The plaintiffs, being the children of Shambavva (sister of the propositus Mallanagouda Siddanagouda Patil), sought a declaration as surviving Class-II successors of the deceased Mallanagouda, who died intestate without children in 1982. The defendants, children of Sankanagouda (brother of the propositus), contested the claim, arguing that the suit was barred by res judicata due to previous proceedings in P & SC No. 7/2007 and O.S. No. 146/2007. The trial court dismissed the suit, but the First Appellate Court modified the decree, granting a 1/2 share to the plaintiffs.
Findings of Court:
Finding that the previous proceedings were either dismissed for non-prosecution or determined to be not maintainable as summary proceedings without an adjudication on merits, the court held that the principle of res judicata does not apply. It further affirmed that since the propositus had no children, his property devolves upon the Class II heirs under the Hindu Succession Act, including the descendants of his siblings.
Issues: Whether the suit was barred by the principle of res judicata and whether the plaintiffs were entitled to a share in the property as Class II heirs under the Hindu Succession Act.
Ratio Decidendi: To attract the doctrine of res judicata, there must be a conscious adjudication of an issue and an expression of opinion on the merits of the case. A dismissal for non-prosecution or a finding that a summary proceeding is not the appropriate forum does not bar a subsequent substantive suit for declaration.
Result: Appeal dismissed.
Legal Category Hierarchy
- practice and procedure
- family law
- property law
Table of Contents
2. Appellant argued suit barred by res judicata; respondent contended prior proceedings not on merits, hence maintainable. (Para 8 , 9 )
3. Prior proceedings dismissed without merits, no res judicata. Under Section 8 Schedule Class-II, plaintiffs as sister's children entitled to share. (Para 18 , 19 , 20 , 21 , 25 )
4. For res judicata, earlier proceeding must be consciously adjudicated on merits determining parties' rights. (Para 22 , 24 )
5. Appeal dismissed — no substantial question of law — First Appellate Court's decree upheld. (Para 25 )
6. When does the doctrine of res judicata apply to bar a subsequent suit?
It applies only when the earlier proceeding involved a conscious adjudication of the issue on merits and a final determination of parties' rights. (Para 18 , 22 , 23 , 24 )
7. Are Class-II heirs under the Hindu Succession Act entitled to succeed to a deceased male's property?
Yes, if no Class-I heir exists, property devolves upon Class-II heirs as specified in the Schedule under Section 8 of the Act. (Para 14 , 21 )
8. Can a suit dismissed for non-prosecution operate as res judicata?
No, a dismissal for non-prosecution does not involve adjudication on merits and therefore cannot create a bar of res judicata. (Para 17 , 18 , 19 , 23 )
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.11.2021 PASSED IN R.A.NO.25/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMDURG, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.12.2014, PASSED IN O.S. NO.61/2009 ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAMDURG, DISMISSING THE SUIT FILED FOR DECLARATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by defendant No.1, challenging the judgment and decree dated 12.11.2021 passed in R.A.No.25/2015 on the file of the Senior Civil Judge, at Ramadurga, (hereinafter referred to as 'the First Appellate Court', for brevity), partly allowing appeal and modifying the judgment and decree dated 20.12.2014 passed in O.S.No.61/2009 on the file of the Civil Judge and JMFC, Ramadurg (hereinafter referred to as 'the trial Court', for brevity), decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The relevant facts for adjudication of this appeal are that, the plaintiffs claim to be the surviving Class-II heirs of late Sri.Mallanagouda Siddanagouda Patil. Sri.Mallanagouda Siddanagouda Patil died on 23.02.1982 at Belagavi. Mallanagouda Siddanagouda Patil is propositus having 3 children, one Sankanagouda, Mallanagouda and Smt.Shamabavva. Sankanagouda died on 03.05.1980 leaving behind Balanagouda, Basanagouda (defendant No.3), Sankavva (defendant No.4), Smt.Sumitra (defendant No.5) and Neelappagouda (defendant No.6). Balanagouda died leaving behind his wife – Parawwa (defendant No.2). The second son of Siddanagouda – Mallanagouda married Basavva. Basavva died on 08.11.1975 and Mallanagouda died on 23.02.1982. They died without leaving any children. Shamabavva died on 16.07.1991 leaving behind plaintiffs 1 to 5. It is the case of the plaintiffs that, plaintiffs have filed P & SC No.7/2007 on the file of the Senior Civil Judge, Ramdurg, seeking succession certificate and the said competent Court directed the plaintiffs to secure declaratory relief and as such, P & SC No.7/2007 was dismissed on 05.03.2009. Hence the plaintiffs filed O.S.No.61/2009 on the file of the trial Court seeking declaration as surviving Class-II successors of late Sri.Mallanagouda Siddanagouda Patil.
4. On service of summons, defendant No.1 entered appearance and filed detailed written statement denying the averments made in the plaint. However, accepted the relationship with the plaintiffs. It is the case of the defendants that, after the death of Mallanagouda, the Revenue Authority has issued survival certificate on 12.03.1982 in the name of the defendants. It is further stated that the order in P & SC No.7/2007 is a decree and accordingly, the suit filed by the plaintiffs is hit by the principle of res judicata. It is also averred in the written statement that, OS No.146/2007 was filed by the plaintiffs seeking declaration with consequential relief of injunction and the said suit came to be dismissed on 16.04.2008 and therefore, it is the specific contention of the defendant that the suit is not maintainable. It is further stated in the written statement that, the plaintiffs are the children of Shamabavva and therefore, she being the daughter of late Mallanagouda Siddanagouda Patil, not entitled for share in the suit schedule properties and accordingly, sought for dismissal of the suit. It is also stated in the written statement that, the defendants have filed O.S.No.312/1982 before the trial Court seeking declaration and injunction against one Ayyyanagouda and the said case was compromised between the parties and in terms of the compromise decree, defendants have become absolute owners of the schedule properties and therefore, the defendants urged that, the plaint is to be dismissed in limine.
5. Based on the pleadings on
