Arvind and Others vs Tangewwa and Others

B.V. Nagarathna, J.—1. Though the appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.

The legal representatives of deceased Ramalingappa who was second respondent in F.D.P. No. 8/1987, i.e., respondent Nos. 2(A) and 2(B) have preferred this appeal, assailing judgment and decree dated 19.03.2015 passed in R.A. No. 40/2013 by the Fast Track Court & Addl. District Court, Gokak. By that judgment and decree the appeal filed by the appellants herein was dismissed and the modified preliminary decree dated 08.01.2013 passed by the 1st Addl. Senior Civil Judge, Gokak, I/C of Prl. Sr. Civil Judge, Gokak in F.D.P. No. 8/1987 was confirmed.

For the sake of convenience, parties shall be referred to, in terms of their status in the final decree proceedings.

One Smt. Tangewwa wife of Gurupadappa Lokannavar had filed F.D.P. No. 8/1987. The said final decree proceedings arose out of O.S. No. 39/1981. That was a suit filed by Girimallappa son of Gurupadappa, respondent No. 1 before the trial Court where F.D.P. No. 8/1987 was instituted. That suit was decreed by judgment and decree dated 31.01.1984 and half share was allotted to the branch of Gurupadappa and the other half share was allotted to the branch of Ramalingappa. In fact Ramalingappa and Gurupadappa are brothers being the sons of Dundappa Lokannavar and Neelawwa. That decree attained finality. Consequently, Tangewwa wife of Gurupadappa instituted F.D.P. No. 8/1987. It is the case of the appellants herein that in the interregnum Ex.D.1 M.E. No. 4743 dated 29.08.1984 came into existence by which all the suit schedule properties were partitioned between the branch of Ramalingappa and Gurupadappa. Thereafter Gurupadappa''s wife Tangewwa instituted F.D.P. No. 8/1987. During the pendency of the said proceeding Gurupadappa died. Then the question with regard to the modification of the shares was taken up suo motu by the trial Court. The trial Court by preliminary decree dated 08.01.2013 held asunder:

ORDER

The preliminary decree dated 31.1.1984 in O.S. No. 39/1981 dated 31.1.1984 is modified to the following effect.

1) As the respondent No. 3 is dead, his 1/6th share is rounded off.

2) In the branch of the deceased respondent No. 3, the petitioner Smt. Tangewwa Gurupadappa Lokannavar, the respondent No. 1 Shri. Girimallappa @ Mahadev Gurupadappa Lokannavar and the respondent No. 3A Smt. Girewwa w/o Ayyappa Anantapur are entitled for 1/6th share each in the decreetal properties. Rest of the portion of the preliminary decree would remain intact.

3) Office is directed to draw modified preliminary decree accordingly.

That decree was challenged by the appellants herein in R.A. No. 40/2013. By judgment and decree dated 19.03.2015 the said regular appeal has been dismissed confirming the aforesaid order passed by the trial Court in the final decree proceedings. It is against the judgment and decree of the first appellate Court in R.A. No. 40/2013 that the present regular second appeal has been filed.

I have heard learned counsel for the appellants and learned counsel for respondent No. 1 and perused the material on record as well as the original records.

It is contended on behalf of the appellants that they have no grievance with regard to the modification of the shares in the family of Gurupadappa by order passed by the trial Court on 08.01.2013 which is in the nature of preliminary decree. But while passing the same the trial Court held that Gurupadappa, Girimallappa and Girewwa have their respective shares in the "decreetal properties" and that the trial Court has recorded that rest of the portion of the preliminary decree would remain in tact, thereby the trial Court has ignored Ex.D.1-M.E. No. 4743 dated 29.08.1984. If that had been taken into consideration then the shares of Gurupadappa, Girimallappa and Girewwa or could not have been in all the decreetal properties as by then certain properties had already been sold. He therefore contended that the appellants have the grievance with regard to the operative portion of the trial Court''s preliminary decree dated 08.01.2013. He drew my attention to the order passed by the trial Court and pointed out that what was stated in the order dated 02.01.2013 with regard to Ex.D.1-M.E. No. 4743 dated 29.08.1984 has been taken note of by the trial Court and it is in that regard that the appellants have a grievance.

He contended that order dated 02.01.2013 has merged with the preliminary decree dated 08.01.2013 and therefore the trial Court was not right while modifying the shares of the parties with regard to Gurupadappa, Girimallappa and Girewwa by holding that they have a share in "all the decreetal properties" and also concluding that rest of the preliminary decree would remain in tact. He emphasized that this could not have been done in a suo motu initiation force of action under Order XLVII Rule 1 of CPC. He therefore contended that the trial Court was not right in passing the modified preliminary decree and when that was challenged before the first appellate Court the same has been simply confirmed without going into the grievance of the appellants with regard to M.E. No. 4743 dated 29.08.1984. He contended that substantial questions of law would arise in this appeal which would call for admission of the matter for a detailed hearing.

Per contra, learned counsel for respondents supporting the judgment and preliminary decree respectively passed by the Courts below, contended that, on 08.01.2013 all that the trial Court did was to modify the share of Tangewwa, Girimallappa and Gurupadappa in the suit schedule properties on account of the death of Gurupadappa during the pendency of the final decree proceedings. He contended that there has been no modification of any portion of the preliminary decree as granted by the trial Court in the original suit for the simple reason that the trial Court by order dated 02.01.2013 had held that the petition could not be decided on the basis of Ex.D.1, i.e., M.E. No. 4743 dated 29.08.1984 and has opined that Ex.D.1 had no sanctity in the eye of law and cannot be given effect to. That order passed on 02.01.2013 has not been challenged by the appellants. In the circumstances, the trial Court was justified while modifying the shares of the family members of late Gurupadappa by holding that rest of the preliminary decree would remain intact vis-a-vis decreetal properties. He contended that the impugned judgment of the first appellate Court as well as the modified decree of the trial Court would not call for any interference.

Having heard learned counsel for the parties and on perusal of the materials on record I am of the view that the appeal would have to be admitted to consider the following substantial question of law:

Whether the first appellate Court was right in confirming the preliminary decree dated 08.01.2013 passed by the trial Court in the final decree proceedings, which preliminary decree came to be made on a suo motu initiation of proceedings under Order 47 Rule 1 of the CPC?

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Appeal is admitted to consider the aforesaid question of law.

It is noted that relationship between the parties is not in dispute. Late Dundappa Lokannavar and late Neelawwa were husband and wife who had two sons namely, late Ramalingappa and Gurupadappa. Ramalingappa''s wife is Sidalingawwa and their son is Aravind, appellant No. 1 herein. Gurupadappa''s wife is Tangewwa, who instituted final decree proceedings. They have two children namely, Girimallappa and Girewwa. On passing of the preliminary decree in O.S. No. 39/1981 Tangewwa instituted final decree proceedings F.D.P. No. 8/1987 before the trial Court. Her contention in the final decree proceedings was that Ex.D.1 pertaining to M.E. No. 4743 dated 29/08/1984 could not be given effect to as she was not a party to the said proceedings. The said grievance was raised under Order XXI Rule 2 of CPC. Insofar as M.E. No. 4743 dated 29.08.1984 is concerned, on 02.01.2013 the trial Court passed the following order:

"ORDER

The petition cannot be decided on the basis of Ex.D-1 M.E. No. 4743 dated 29.08.1984.

In fact, Ex.D-1 M.E. No. 4743 dated 29.08.1984 has no sanctity in the eye of law & cannot be given effect to.

The parties are given an opportunity to express their view about the entitlement or otherwise the respondent No. 3A in the decreetal properties."

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Thereafter on 08.01.2013 the trial Court suo motu passed the modified preliminary decree. This arose on account of the death of Gurupadappa during the pendency of the final decree proceedings. His share in the half share that was allotted to him had to be redivided between his legal heirs Tangewwa, Girimallappa and Girewwa, namely his widow, son and daughter. The trial Court thereby divided the share of Gurupadappa in the suit schedule properties between the three persons and thereby modification of the shares in the share of the decreetal properties of Gurupadappa''s branch took place. This is by a suo motu order of the trial Court. But the grievance of the appellants is not with regard to the modification of the shares between the legal heirs of Gurupadappa. In fact that is apparent from the preliminary decree dated 08.01.2013 but their grievance is with regard to the trial Court stating that modification of the shares is with regard to the "decreetal properties" and that rest of the preliminary decree would remain intact. In that regard learned counsel for the appellant contended that in the order dated 08.01.2013 the trial Court has reiterated what has been stated on 02.01.2013 extracted above, and therefore that order dated 02.01.2013 has merged with the preliminary decree dated 08.01.2013. Appellants had a grievance with regard to modification of the shares in the family of Gurupadappa vis-a-vis "all the decreetal properties". He contended that by such a preliminary decree M.E. No. 4743 dated 29.03.1984 vide Ex.D.1 has been given a complete go by.

The said contention could be answered with reference to order dated 02.01.2013. That order has two aspects. One aspect is regarding the validity of Ex.D.1 relating to M.E. No. 4743 dated 29.08.1984. In that order the trial Court has held that Ex.D.1 has no sanctity in law and cannot be given effect to. What has been stated in the order dated 02.01.2013 has been reiterated in the order dated 08.02.2013. Appellants have not challenged order dated 02.01.2013. It is in that context while considering the remodification of the shares vis-a-vis of late Gurupadappa, the trial Court while referring to the order dated 02.01.2013 held that the legal heirs of Gurupadappa would have a share in all the decreetal properties and that the preliminary decree would remain intact. What emerges from the above narration is the fact that the trial Court reiterated what was stated in order dated 02.01.2013 while passing the preliminary decree dated 08.01.2013 while modifying the shares of the heirs of Gurupadappa, having regard to the fact that there was no challenge to order dated 2.01.2013. In the circumstances, the trial Court was justified in saying that modified shares of the heirs of late Gurupadappa would be in the decreetal properties but the grievance of the appellants as already noted is not with regard to the modification of the shares vis-a-vis of the share of Gurupadappa which is with regard to not giving effect to Ex.D.1-M.E. No. 4743 dated 29.08.1984. The trial Court had concluded that aspect in the order dated 02.01.2013 which is not the subject matter of challenge before any Court. It is noted that subsequently trial Court has issued direction to draw up final decree and the final decree proceedings have concluded on 30.06.2015.

Having regard to this position, grievance of the appellants could be assuaged by reserving liberty to the appellants to assail order dated 02.01.2013 before the appropriate forum. While granting such liberty it is necessary to also observe that the preliminary decree passed on 08.01.2013 shall be restricted to modification of the shares between the heirs of late Gurupadappa. The observation that "the said modification of the shares is in the decreetal properties and that rest of the portion of the preliminary decree would remain intact", would be subjected to any further order, judgment or modification made by the competent Court of law in the event of appellants assail the order dated 02.01.2013.

At this stage learned counsel for the appellants submits that R.A. No. 181/2015 is filed against the direction of the trial Court with regard to drawing up of final decree and against the final decree. The said appeal is pending before the competent Court. If that is so, then the appellants are at liberty to raise the issue regarding Ex.D.1-M.E. No. 4743 dated 29.08.1984 in those proceedings by assailing order dated 02.01.2013 passed by the trial Court. All contentions on both sides are kept open. Therefore, the substantial question of law raised in this appeal is answered partly in favour of the appellants.

The appeal is allowed in partly holding that judgment of the first appellate Court confirming the preliminary decree dated 08.01.2013 is only insofar as modification of the shares of the heirs of late Gurupadappa is concerned. The observation of the trial Court with regard to the remaining portion of the preliminary decree being intact in the context of order dated 02.01.2013 pertaining to Ex.D.1-M.E. No. 4743 dated 29.08.1984 would be subject to the judgment to be passed by the appellate Court wherein the challenge to the final decree is pending.

The appeal is disposed in the aforesaid terms.

Parties to bear their respective costs.

Office to return original records to the trial Court forthwith.