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Karnataka High Court · body

2023 DIGILAW 1186 (KAR)

M. Tejkumar v. M. Thrilakshi

2023-10-06

H.P.SANDESH

body2023
JUDGMENT 1. Heard the learned counsel for the appellant and learned counsel for the Caveator-respondent Nos.1 and 2 and learned counsel for respondent Nos.4 and 5. 2. These regular second appeal and miscellaneous second appeal are filed against the judgment and decree passed in R.A.Nos.87/2014 and 86/2014 respectively for setting aside the judgment of the Trial Court and remanding the matter to the Trial Court to consider the same afresh, in view of allowing the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. in R.A.No.86/2014. 3. The appellant in R.S.A.No.1291/2017 and M.S.A.No.41/2017 is the defendant No.1 in O.S.No.24/2011 and the respondent Nos.1 and 2 are the plaintiffs in O.S.No.24/2011 i.e., the daughters of G.H. Mariyappa have filed the suit for the relief of partition and separate possession of their 1/7th share by metes and bounds claiming that they are entitled for share in the suit schedule properties. It is contended that the suit schedule properties are joint family properties of plaintiffs and the defendants. The plaintiffs and defendant Nos.1 to 4 and deceased Bharathi are children of G.H. Mariyappa. The said G.H. Mariyappa died leaving behind his wife and children and subsequently, the mother of them also died and one Bharathi, who is the daughter of G.H. Mariyappa also died leaving behind her husband and two children, who are defendant Nos.5 to 7 and they are also made as parties. 4. It is the contention of the plaintiffs that suit schedule properties are in joint possession and enjoyment of the plaintiffs and defendants as coparceners which originated from original propositor Gurushanthappa and Kallavva. The family originally consists of Gurushanthappa, Gangappa and Gangadharappa and they got divided their properties. Gurushanthappa was the kartha of their joint family and he had one son by name G.H. Mariyappa. After the death of G.H. Mariyappa, his wife Gowramma, the mother of the plaintiffs and defendant Nos.1 to 4 and Bharathi succeeded to the joint family properties as the legal heirs. The defendant Nos.3 and 4 are settled in Mysuru. The defendant No.1 is looking after the joint family properties as kartha. The defendant No.1 in the last 7 to 8 years is not distributing the profits of the joint family. There is a misunderstanding between the plaintiffs and defendant No.1. The other defendants are colluding with the defendant No.1 supporting him blindly. The defendant No.1 is looking after the joint family properties as kartha. The defendant No.1 in the last 7 to 8 years is not distributing the profits of the joint family. There is a misunderstanding between the plaintiffs and defendant No.1. The other defendants are colluding with the defendant No.1 supporting him blindly. The defendant No.1 stopped the distribution of the profit of the joint family income among the joint family members altogether and completely. When the demand was made to partition the properties, the defendant No.1 declined to allot the share. Hence, legal notice was issued and notice issued against the defendant Nos.3 and 4 was returned unserved with an endorsement that intimation is delivered but, not received. But, the defendants have not replied to their notice. The plaintiffs were constrained to publish paper publication on 31/1/2011 in local news daily. The defendant No.1 goes on making false promises and not shown any inclination for effecting division in the family. The defendant No.1 is making effort to alienate the suit schedule properties. Hence, the plaintiffs, without any other alternative, filed the suit for the relief of partition and separate possession. 5. In pursuance of the suit summons issued to the defendants, the defendant Nos.2, 5 to 7 not appeared before the Court and placed exparte and defendant Nos.1, 3 and 4 appeared through their advocates and filed the written statement separately. The defendant No.1 in his written statement contended that suit schedule properties were already partitioned after the death of their mother Gowramma under registered partition deed dtd. 30/1/2002 and hence, the plaintiffs are not entitled for any share in the suit schedule properties. The defendant No.1 also took the contention that plaintiffs and defendant No.2 were married prior to 1985 and hence, they are not entitled for any share in the suit schedule properties. The defendant Nos.3 and 4 took the contention that they are also entitled for 1/7th share each in suit schedule properties and also contend that the registered partition deed dtd. 30/1/2002 was executed only for the limited purpose of raising loans and no partition was effected. 6. The Trial Court, having considered the pleadings of the parties, framed appropriate issues and allowed the parties to lead evidence. The plaintiff No.1 examined herself as P.W.1 and got marked the documents as Exs.P1 to P18. 30/1/2002 was executed only for the limited purpose of raising loans and no partition was effected. 6. The Trial Court, having considered the pleadings of the parties, framed appropriate issues and allowed the parties to lead evidence. The plaintiff No.1 examined herself as P.W.1 and got marked the documents as Exs.P1 to P18. On the other hand, the defendant No.1 examined himself as D.W.1 and defendant No.4 examined himself as D.W.2 and got marked the documents as Exs.D1 to D43. 7. The Trial Court having considered both oral and documentary evidence placed on record, dismissed the suit and also dismissed the counter claim made by the defendant Nos.3 and 4. Being aggrieved by the judgment and decree of the Trial Court, the defendant Nos.3 and 4 have filed the appeal in R.A.No.86/2014 and plaintiffs have filed the appeal in R.A.No.87/2014 before the First Appellate Court. The First Appellate Court, having considered the grounds urged in the appeals and the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C., formulated the point whether the appellants in R.A.No.86/2014 have made out sufficient grounds to produce additional evidence at appellate stage and also formulated the point whether the Trial Court has committed an error of law and fact and interference by this Court in the judgment and decree passed by the Trial Court is necessary. 8. The First Appellate Court, having reassessed the material on record and also the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. and the documents which have been produced before the Court, considered both the points together and comes to the conclusion that the Trial Court has dismissed the claim of the plaintiffs with reference to their share under Hindu Succession Act, 1956 in the share of their father only on the ground that they have not challenged the partition deed Ex.D4 and with reference to the plaintiffs, Ex.D4 is not binding on them, as they are not parties to the partition deed and the suit is filed within 12 years from the date of partition deed. Hence, the Trial Court committed an error in dismissing the suit in entirety and also considering the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. and in Para No.25 of the judgment, an observation is made by the First Appellate Court that no relief is sought in respect of Ex.D4 challenging the partition deed and defendant Nos.3 and 4 have also not challenged the document of Ex.D4. Hence, set aside the judgment of the Trial Court and allowed both the appeals and remanded the matter to the Trial Court with a direction to receive the additional evidence sought to be produced by the appellants in R.A.No.86/2014 and give opportunity to both the sides to lead additional evidence, if any and consider the present suit along with O.S.No.3/2014 which was filed by the defendant Nos.3 and 4 questioning the very document of Ex.D4-partition deed before the Trial Court. Being aggrieved by setting aside the judgment of the Trial Court and remanding the matter, these two appeals i.e., regular second appeal and miscellaneous second appeal are filed before this Court. 9. The main contention of the appellant-defendant No.1 in the regular second appeal before this Court is that the First Appellate Court has committed gross error in setting aside the judgment and decree passed by the Trial Court and the same reflects non-application of mind of the First Appellate Court in allowing R.A.No.87/2014, as except Para Nos.23 and 24 of the judgment, the whole judgment speaks about allowing the application filed by the respondent Nos.1 and 2 under Order 41, Rule 27 read with Sec. 151 of C.P.C. and ordering for remanding the suit and nowhere, cogent reasons have been assigned as to what made the First Appellate Court to arrive at such a conclusion. 10. It is also contended that the First Appellate Court failed to note that the females were considered as coparceners only from the date of the amendment of Sec. 6 of the Hindu Succession Act, 2004 and to seek for an equal share and coparcenaryship, father should be alive as on the date of the amendment and in the present case, the father of the respondent Nos.1 and 2 expired in the year 1998 itself and even the partition deed was registered way back in the year 2002 itself. Hence, the very approach of the First Appellate Court is erroneous and the First Appellate Court nowhere in the whole body of its judgment has endeavored to render any rational and level headed finding as to why the judgment of the Trial Court needs to be reversed and no cogent reasons are assigned. Hence, it requires interference of this Court to set aside the judgment and decree passed in R.A.No.87/2014 and the same requires to be set aside. The counsel also would submit that this Court has to admit the appeal and frame substantial question of law and in the absence of specific prayer for declaration sought by the defendant Nos.1 and 2 challenging the registered partition deed dtd. 30/1/2002, the First Appellate Court has committed an error in setting aside the judgment. 11. The main contention of the learned counsel for the appellant-defendant No.1 in the miscellaneous second appeal which was filed challenging the judgment and decree passed in the appeal in R.A.No.86/2014 is that the First Appellate Court committed an error in setting aside the judgment and decree by allowing the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. and the documents sought to be produced as additional evidence are not necessary for deciding the case and those documents are only plaint, written statement, issues and order sheet in O.S.No.3/2014 and the production of documents clearly demonstrates the conduct of the respondent Nos.1 and 2 and the First Appellate Court without evaluating this aspect has blindly without application of mind, erroneously allowed the application. The First Appellate Court committed gross error in not noting that application for leading additional evidence were filed by the parties, who are defendant Nos.3 and 4 in the original suit and the documents which have been sought to be produced as additional evidence are nothing but order sheet, plaint copy and written statement in O.S.No.3/2014 and the First Appellate Court should have been more cautious in allowing such an application. Hence, the Trial Court rightly comes to the conclusion that the document of Ex.D4 has not been challenged either by the plaintiffs or by the defendant Nos.3 and 4 and not assigned sufficient reasons and also not looked into very proviso of Order 41, Rule 27 read with Sec. 151 of C.P.C. and even though there are no grounds to allow the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C., the First Appellate Court committed an error in allowing the application and permitting the appellants to produce additional documents before the Trial Court and committed an error in remanding the matter to the Trial Court to consider the suit afresh along with other suit in O.S.No.3/2014. Hence, the very approach of the First Appellate Court is erroneous. 12. Learned counsel appearing for the respondent Nos.4 and 5 in both the appeals would vehemently contend that the First Appellate Court rightly comes to the conclusion that when the father namely, G.H. Mariyappa passed away without executing any testamentary document and when the suit is filed for the relief of partition, the Trial Court ought to have considered the claim of the plaintiffs and the same has not been considered and the First Appellate Court, considered the same and comes to the conclusion that since the properties are ancestral joint family properties, rightly set aside the judgment of the Trial Court and remanded the matter for fresh consideration on account of additional documents which have been placed before the First Appellate Court by the defendant Nos.3 and 4 in other connected appeal. 13. It is the contention of the defendant Nos.3 and 4 that item Nos.6 to 8 of the suit schedule properties are their self-acquired properties and the very approach of the Trial Court is erroneous in dismissing the suit and also the counter claim made by the defendant Nos.3 and 4. The learned counsel for the defendant Nos.3 and 4 also vehemently contend that the partition deed is executed only for borrowing loan and not for partitioning the properties by metes and bounds and the very observation of the Trial Court that suit is not filed challenging the partition deed is erroneous when the suit was also filed in O.S.No.3/2014 for the relief of declaration to declare that the partition deed as null and void. It is also contended that the Trial Court ought to have considered both the suits in O.S.Nos.24/2011 and 3/2014 and the same has not been done and the judgment and decree in O.S.No.24/2011 was passed on 27/8/2014 without considering the fact that already suit in O.S.No.3/204 was pending before the Court and the very approach of the Trial Court is erroneous. Hence, the First Appellate Court, taken note of the said fact into consideration and the very contention of the learned counsel for the appellant that the judgment and decree of the Trial Court is set aside, in view of filing an application under Order 41, Rule 27 read with Sec. 151 of C.P.C. is not correct and in Para No.22 of the judgment, the First Appellate Court comes to the conclusion that the plaintiffs are also entitled for share in the property of the father which was left by him without executing any testamentary document and also considered the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. 14. It is also the contention of the learned counsel for the defendant Nos.3 and 4 that the First Appellate Court taken note of the fact that the documents sought to be produced by way of additional evidence pertains to filing of suit in O.S.No.3/2014, wherein specific relief is sought for a declaration to declare that the partition deed dtd. 30/1/2002 as null and void but, the Trial Court dismissed the suit on the ground that either the plaintiffs or the defendant Nos.3 and 4 have not challenged the partition deed. Hence, the very approach of the Trial Court is erroneous and the First Appellate Court rightly set aside the judgment by allowing R.A.Nos.86/2014 and 87/2014 and remanded the matter to consider the same afresh along with the suit in O.S.No.3/2014. Hence, no grounds are made out to allow the appeals and set aside the judgment and decree of the First Appellate Court. Therefore, no interference of this Court is warranted to admit the appeals and frame substantial question of law. 15. Hence, no grounds are made out to allow the appeals and set aside the judgment and decree of the First Appellate Court. Therefore, no interference of this Court is warranted to admit the appeals and frame substantial question of law. 15. Having heard the learned counsel for the appellant and learned counsels for the respondents and also considering the material available on record, this Court has to consider the reasoning given by the First Appellate Court in setting aside the judgment and decree of the Trial Court and allowing both the appeals and remanding the matter to the Trial Court for fresh consideration. Having perused the material on record, it is the case of the plaintiffs before the Trial Court that suit schedule properties are ancestral joint family properties. It is also their claim that their father G.H. Mariyappa got share when partition took place between the father of the plaintiffs and his brothers and the properties are Hindu joint family properties. Hence, they are entitled for share in the properties. Though the defendant No.1 denied the relationship between the parties, but, no dispute with regard to the fact that the plaintiffs are the sisters of defendant No.1 and defendant No.2 is also sister of the plaintiffs and defendant Nos.1, 3 and 4 and no dispute with regard to the relationship between the parties and the same was also considered by the Trial Court. 16. It has to be noted that the averments of the plaint is very clear that the other sister by name Bharathi died leaving behind her husband, the two children, who are defendant Nos.5 to 7, who are also made as parties. It is also important to note that there is no dispute with regard to the that G.H. Mariyappa, got the property in the partition among the brothers. It is also not in dispute that said G.H. Mariyappa passed away in the year 1998 leaving behind the plaintiffs, his wife and other children and the wife also passed away subsequently. The records also disclose that the plaintiffs got married prior to 1985 and the fact that the father is one of the coparcener died intestate is not in dispute. The records also disclose that the plaintiffs got married prior to 1985 and the fact that the father is one of the coparcener died intestate is not in dispute. However, the Trial Court committed an error in not allotting share of the father to his legal heirs and the same has been considered by the First Appellate Court and in Para No.16 of the judgment of the Trial Court, the Trial Court comes to the conclusion that partition took place on 30/1/2002 and the defendant Nos.3 and 4 have not challenged the partition by filing the suit and the plaintiffs have not challenged the partition deed dtd. 30/1/2002 and they have instituted the suit for simple partition without seeking any declaration and the very suit is not maintainable and this reasoning is erroneous and the same is taken note of by the First Appellate Court, while reversing the finding, particularly in Para No.22 of the judgment, the First Appellate Court comes to the conclusion that, on going through the judgment of the Trial Court, it is clear that the Trial Court has dismissed the claim of the plaintiffs with reference to their share under Hindu Succession Act, 1956 in the share of their father only on the ground that they have not challenged the partition deed Ex.D4 and with reference to the plaintiffs, Ex.D4 is not binding on them, as they are not parties to the partition deed and the suit is filed within 12 years from the date of partition deed. Hence, the Trial Court committed an error in dismissing the suit in entirety and the reasoning of the First Appellate Court not suffers from any infirmity. 17. Hence, the Trial Court committed an error in dismissing the suit in entirety and the reasoning of the First Appellate Court not suffers from any infirmity. 17. It is also important to note that in the other appeal in R.A.No.86/2014 filed by defendant Nos.3 and 4, they have also filed an application under Order 41, Rule 27 read with Sec. 151 of C.P.C. seeking permission of the Court to produce additional evidence and the First Appellate Court taken note of the scope of Order 41, Rule 27 read with Sec. 151 of C.P.C. and considered the said application on three grounds i.e., if the Trial Court rejected to receive the additional evidence, which ought to have received it and if the parties after exercise of due diligence it is not possible for them to produce such evidence before the Trial Court or if the documents or additional evidence are necessary for just decision in the case. Under such circumstances, the Court can receive those documents and also made an observation that, it is the case of the appellants in R.A.No.86/2014 that the proposed documents sought to be produced are essential documents for just decision of the case and in Para No.26 of the judgment, made an observation that on going through the 4judgment of the Trial Court, it is clear that the claim of the plaintiffs i.e., their share in the property of their father was rejected only on the ground that the relief of declaration challenging Ex.D4 partition deed is not filed by defendant Nos.3 and 4 or the plaintiffs in the suit and the documents sought to be produced are necessary for just decision in the case. Hence, allowed the application. 18. It has to be noted that during the pendency of the suit in O.S.No.3/2014, the suit in O.S.No.24/2011 was decided though the defendant Nos.3 and 4 have already filed the suit for the relief of declaration to declare that Ex.D4 partition deed as null and void and in the suit in O.S.No.24/2011, they took the specific contention that the said partition deed came into existence only for the purpose of availing loan. The Trial Court in O.S.No.24/2011 also framed additional issue whether the defendant Nos.3 and 4 prove that registered partition deed dtd. The Trial Court in O.S.No.24/2011 also framed additional issue whether the defendant Nos.3 and 4 prove that registered partition deed dtd. 30/1/2002 was executed for the limited purpose of raising loans as alleged and when the other suit is filed to declare the partition deed as null and void and the said suit is also pending in O.S.No.3/2014 before the very same Court, the Trial Court ought to have clubbed the same together and decided the same, since the issue involved in O.S.No.24/2011 and also the allegations made in O.S.No.3/2014 also have bearing on the issue involved between the parties and the fact that O.S.No.3/2014 was also pending is not in dispute and when the additional documents are produced, particularly plaint stating that the suit is filed seeking the relief of declaration to declare the document of Ex.D4-partition deed as null and void and the very observation is also made by the Trial Court in Para No.16 of the judgment. 19. 19. I have already pointed out that the observation made by the Trial Court that both the plaintiffs as well as the defendant Nos.3 and 4 have not challenged the partition deed at Ex.D4 is an error and when the issue involved between the parties is with regard to the document of Ex.D4-partition deed and also with regard to the share is concerned, the First Appellate Court has not committed any error in setting aside the judgment and decree by allowing both the appeals and the very contention of the learned counsel for the appellant that the First Appellate Court ought not to have set aside the judgment in R.A.No.87/2014 merely because an application is filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. cannot be accepted and while setting aside the judgment passed in O.S.No.24/2011, in Para No.22 of the judgment, the First Appellate Court rightly comes to the conclusion that the Trial Court has committed an error in dismissing the suit of the plaintiffs in entirety and ought to have considered the fact that the legal heirs of father, who died intestate have right in the suit schedule properties and not only considered the said ground and also taken note of the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. and those documents are also necessary to decide the issue involved between the parties and when the suit is also pending before the Trial Court in O.S.No.3/2014 and the issue involved between the parties are interconnected, the First Appellate Court rightly remanded the matter to the Trial Court with a direction to receive additional evidence sought to be produced by the appellants in R.A.No.86/2014 directing the Trial Court to give opportunity to both the parties to lead additional evidence, if any and also specifically made it clear that the present suit in O.S.No.24/2011 has to be considered along with the suit in O.S.No.3/2014. 20. 20. When such finding is given by the First Appellate Court to give opportunity to all the parties to lead additional evidence, if any to decide the issue involved between the parties, I do not find any error committed by the First Appellate Court in setting aside the judgment and decree of the Trial Court and reasons are assigned by the First Appellate Court while setting aside the judgment and decree of the Trial Court by allowing R.A.Nos.87/2014 and 86/2014 in entertaining the application filed for adducing additional evidence which are necessary since, the Trial Court committed an error in coming to the conclusion that the very partition deed at Ex.D4 was not challenged either by the plaintiffs or by the defendants and already suit was filed challenging the same in O.S.No.3/2014. When such materials are available on record, the First Appellate Court rightly comes to the conclusion that the judgment and decree of the Trial Court requires to be set aside and matter has to be considered afresh and rightly remanded the matter. Hence, I do not find any error committed by the Trial Court in setting aside the judgment and decree of the Trial Court and remanding the matter and though the learned counsel for the appellant raised some of the substantial question of law, the same cannot be entertained and while setting aside the judgment of the Trial Court, reasons are given by the First Appellate Court. Hence, no grounds are made out to invoke Sec. 100 of C.P.C. to admit the regular second appeal and the miscellaneous second appeal and frame any substantial question of law. 21. In view of the discussions made above, I pass the following: ORDER The regular second appeal in R.S.A.No.1291/2017 and miscellaneous second appeal in M.S.A.No.41/2017 are dismissed.