Kalamma vs Honne Gowda and Others

Ravi V. Malimath, J.—The case of the plaintiff is that she and the first defendant are sisters. Their parents are Durgegowda and Honnamma. There are no other children. They are the only two children of their parents. The suit schedule property originally belonged to Durgegowda. The mother of the plaintiff and the first defendant executed a registered settlement deed in favour of the first defendant and her husband on 19.07.1952. Certain obligations were incorporated to be performed by the husband of the first defendant and the first defendant herself. These obligations/contingencies were not adhered to. Thereafter, Honnamma cancelled the registered settlement deed on 04.11.1957 by executing a cancellation deed. The right given to the first defendant and her husband was extinguished.

Honnamma and the plaintiff succeeded to the property of their father. After the death of the father, the first defendant had executed a registered settlement deed in favour of the plaintiff namely, the sister on 19.08.1959, ostensibly on the ground that she did not have any children. By virtue of the same, the plaintiff became the owner of the said property. The first defendant did not retain any right nor was she in possession of the same.

In the year 1991, there was a dispute between the sons, which ended in the conviction of the sons of the plaintiff. During the pendency of the long trial, the plaintiff was alone in the house. Taking undue advantage of the situation, the second defendant, who was a stranger to the family, fraudulently obtained a sale deed from the first defendant on 04.10.1991. No consideration was paid. The first defendant had no right to execute the sale deed and the sale deed executed was not enforceable under law and would not bind on the plaintiff, in view of the settlement executed by the first defendant in favour of the plaintiff on 19.07.1952. On the strength of the fraudulent sale deed, the revenue entries were changed. On the basis of the same, the defendant trespassed into the suit property and attempted to dispossess the plaintiff. Hence, the present suit was filed for declaration and possession.

The defendants entered appearance. The fourth defendant, the brother of the purchaser of the property, and the second defendant filed their written statement. It was contended that the plaintiff and the defendant were sisters and daughters of Durgegowda and Honnamma. That after the death of Honnamma on acquiring the right, executed a settlement deed in favour of the first defendant. Non-performance of the conditions of the settlement was denied and the plaintiff would not be entitled for any right, title or interest. The first defendant has not retained any right over the suit schedule property was denied. That the sale deed executed by the first defendant in favour of the second defendant was valid. The second defendant on the strength of the sale deed approached the revenue authorities and got the katha changed in the family partition. In the family partition, the schedule property was allotted to the fourth defendant with the consent of the other parties. Hence, the katha was changed to the name of the fourth defendant. The second defendant is a bona fide purchaser. Hence it was pleaded that the suit be dismissed.

Based on the pleadings, the trial court framed the following issues for consideration:

"i. Does the plaintiff prove the title in respect of suit schedule property?

ii. Does the defendant no, A prove the Cancellation Deed dated 04.11.1957, was a void document?

iii. Does the defendant no, A prove that Settlement Deed dated 19.08.1959 is voidable?

iv. Does the plaintiff entitled to mesne profit?

v. Does the plaintiff entitled to any possession?

vi. What decree or order?"

In support of her case, the plaintiff examined herself along with two witnesses and marked nineteen documents. Defendant No. 4 was examined as D.W.-1 and marked eleven documents. The trial court held issue Nos. 1, 4 and 5 in the affirmative and issue Nos. 2 and 3 in the negative.

The suit was decreed with costs. The plaintiff was declared as an absolute owner of the suit schedule property. The sale deed dated 04.10.1991 made by the first defendant in favour of the second defendant was declared as null and void and not binding on the plaintiff''s right and title over the suit schedule property. It was held that the plaintiff is entitled for possession of the suit schedule property from defendant Nos. 2 to 4. Aggrieved by the same, the defendants filed an appeal. The appeal was allowed. The judgment and decree passed by the trial court was set-aside. The suit was dismissed. Hence, the present second appeal by the plaintiff.

By the order dated 22.02.2012, the appeal was admitted to consider the following two substantial questions of law:

"i. Whether the Lower Appellate Court was justified in reckoning Exhibit-D12 - judgment and decree dated 17th February, 1975 in O.S. No. 33/1974 between the first defendant and her husband to allow the appeal and dismiss O.S. No. 157/2000?

ii. Whether the Lower Appellate Court was justified in recording a finding that the suit was barred by limitation?"

The learned counsel for the appellant-plaintiff contends that the impugned order passed by the courts below are erroneous and liable to be set-aside.

During the pendency of the suit before the first appellate court, defendant No. 4 produced a document which was marked as Exhibit-D12. It was the certified copy of the judgment and decree passed in O.S. No. 33/1974, on the file of Munsiff and J.M.F.C, Malavalli. The suit was filed by the first defendant in the present suit, against her husband seeking a relief of declaration, partition and possession. It was contended that in view of the settlement deed dated 19.07.1952, Exhibit-P1 in the instant suit, she and her husband were in joint possession of the suit schedule property and her husband on getting married for the second time with one Kempamma, deserted the 1st wife for about 8 years and has not complied with the settlement deed by which she and her husband received the property. Six items of properties was mentioned in the suit. The suit was decreed. The plaintiff therein, namely, the first defendant herein was held to be the owner in possession of the suit schedule property. Based on the said documents, the trial court was of the view that the case of the defendants requires to be accepted. That the suit filed by the mother of the first defendant for declaration and permanent injunction in O.S. No. 1266/1960 was dismissed.

That the suit was filed by the present plaintiff in O.S. No. 2224/1964 against the defendant No. 1 therein and her husband for declaration and possession based on the settlement deed dated 19.08.1959, Exhibit-P2 the cancellation deed. The suit filed by Honnamma and Kalamma and the present plaintiff was dismissed in terms of Exhibit-D12 and the judgment and decree was passed in O.S. No. 33/1974. It was held that the defendants were entitled for half share only in the suit schedule properties. Therefore, the appellate court was of the view that the decreetal of the suit by the trial court was erroneous. Hence, it is pleaded that the appellate court having committed an error in dismissing the suit based on Exhibit-D12, miscarriage of justice has occurred. That when a new document has been relied upon by the first appellate court, which calls for evidence being let-in, the matter should have been appropriately remanded to the trial court for proper consideration. It is further pleaded that the earlier suit decreed in terms of Exhibit-D12, contains a list of six properties. It is only due to inadvertence of the plaintiff, that she was unaware of the same. Therefore, on remand the plaintiff must also be given an opportunity to amend the plaint to inculcate the document as Exhibit-D12, which for the first time has surfaced before the first appellate court. Prior to this, the plaintiff did not have an opportunity to know about these properties and hence she may be permitted to amend the plaint.

On the other hand, the learned counsel appearing for respondent Nos. 1, 3 and 4 namely, defendant Nos. 1, 2 and 3 supports the impugned judgment and decree. He contends that the Exhibit-D12 being a judgment and decree, the question of remanding the matter does not arise.

Heard learned counsels and examined the records.

Undisputedly, Exhibit-D12 surfaced for the first time before the first appellate court. Exhibit-D12, the judgment and decree passed in O.S. No. 33/1974 between the first defendant as the plaintiff and her husband as the defendant therein. Six properties were narrated as properties claimed by the plaintiff. The plea was that on the failure of the first defendant to adhere to the terms of the settlement, the property would fall back to the share of the plaintiff. The suit was decreed. I'' am of the considered view that the said document would seriously affect the rights of the plaintiff. The plaintiff has claimed for half share in the suit schedule property. In this suit, it is her case that she was not aware of the existence of various other properties. The plaintiff herein was not a party in O.S. No. 33/1974. Notwithstanding the fact that the same would have relevance to her share, the fact remains that the properties of the parents Durgegowda and Honnamma, has been equally divided between the two daughters namely, the plaintiff and first defendant herein. Therefore, when the first defendant has filed a suit seeking for a declaration that she is the owner of the suit schedule properties as claimed in the plaint, necessarily, the properties would have to be divided between her and the plaintiff herein. It is for this reason that appropriate evidence would have to be let-in before the trial court with regard to the right of the plaintiff being altered in terms of Exhibit-D12 in terms whereof the property narrated in Exhibit-D12 could be claimed by the plaintiff, since all the properties belonged to the parents of the first defendant and the plaintiff. Then necessary evidence would have to be let in. The plea of the plaintiff to claim a greater share than what has been claimed in the present suit, would necessarily have to be considered by the trial court.

Under these circumstances, without recording evidence on Exhibit-D12 and consequently to dismiss the suit in my considered view is wholly inappropriate. Under these circumstance, the first substantial question of law is answered by holding that the first appellate court was not justified in reckoning, Exhibit-D12 for the first time before it and thereby dismissing the suit.

The second substantial question of law is as to whether the first appellate court is justified in recording a finding that the suit was barred by limitation. No discussion has taken place with regard to the same. The first appellate court has merely stated that in the presence of Exhibit-D12, the suit of the plaintiff is not at all maintainable. It should have given reasons for the same. It holds in a single sentence that the suit is not maintainable in the face of Exhibit-D12. I'' am of the considered view that there is no appropriate recording of any reasoning with regard to the suit being barred by limitation. Therefore, the second substantial question of law is answered by holding that the first appellate court was not justified in recording a finding that the suit was barred by limitation.

Having answered the substantial questions of law, the consequence would be that the plaintiff could make an appropriate application seeking amendment of her plaint in order to seek a greater division of property than what has been claimed by her in the plaint. The same would be necessary in view of the defendants producing Exhibit-D12 the judgment and decree passed in O.S. No. 33/1974, for the first occasion before the first appellate court. But for this judgment, the plaintiff would be restricted to the claim that she has made with respect to the sole suit schedule property. The defendants themselves having brought about six properties for division between the first defendant and the plaintiff, in law, the plaintiff would be entitled for half share in each one of the properties. However, the entitlement towards half share or otherwise would necessarily come within the domain of the trial court and it would also be within the jurisdiction of the trial court to consider whether the application for amendment of the plaint requires to be allowed or not.

Since the second substantial question of law has been answered as aforesaid, the trial court would necessarily have to frame an issue as to whether the suit is barred by limitation? Especially, in view of the fact that Exhibit-D12 requires to be reconsidered based on the evidence. Therefore, necessarily issues would have to be reframed including whether the suit is barred by limitation.

Consequently, as a consequence to answering the substantial questions of law the appeal is allowed. The judgment and decree of the first appellate court in R.A. No. 102/2006, dated 07.03.2011, on the file of the Senior Civil Judge and JMFC, Malavalli and the judgment and decree in O.S. No. 157/2000, dated 26.10.2006, passed by the Civil Judge (Junior Division), Malavalli are set-aside. The matter is remanded to the trial court for a fresh disposal, in accordance with law.

The trial court to consider on merits any application to be filed by either of the parties for reconsideration of their case purely and strictly in accordance with law and thereafter to dispose off the suit.