Karabasappa vs Basavva and Others

B.V. Nagarathna, J.—1. Appellant was defendant in F.D.P. No. 7/1998. He has assailed judgment and decree of II Additional District Judge at Haveri (Sitting at Ranebennur) in R.A. No. 28/2010 dated 30.10.2014, by which the order and decree passed in F.D.P. No. 7/1998 dated 13.11.2009 by Civil Judge (Sr. Dn.) and Itinerate Court at Hirekerur has been confirmed.

The relevant facts of case are that respondent No. 1 herein Basavva, had filed O.S. No. 74/1989 against defendant appellant herein seeking partition and separate possession of her half share in suit properties and for an enquiry into mesne profits. Said suit was decreed the by trial Court on 31.07.1991 granting half share to plaintiff in suit ''A'' and ''B'' schedule properties and to get ''B'' schedule properties divided through a Court Commissioner. Plaintiffs'' claim in respect of ''C'' and ''D'' schedule properties was rejected. That preliminary decree attained finality. Thereafter on account of family necessities, plaintiff sold her half share in ''A'' schedule property in favour of plaintiff No. 2 on 28.12.1991 for a valuable consideration of Rs. 48,000/- under a registered sale deed, and therefore, plaintiff No. 2 became entitled to the said half share. It appears that said decree was an ex-parte decree and defendant had filed Miscellaneous Petition No. 1/1992 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''the C.P.C.'' for brevity) to set aside the judgment and decree dated 31.07.1991 passed in O.S. No. 74/1989. But the said Miscellaneous petition was dismissed on 19.12.1994. Defendant approached this Court in M.F.A. No. 68/1995 challenging the order dated 19.12.1994. This Court did not entertain the appeal on the ground that it had no jurisdiction to adjudicate on the same and directed the District Court at Dharwad to dispose of M.A. No. 15/1995, which was filed, on merits, in which defendant was unsuccessful. Consequently, the judgment and decree passed in O.S. No. 74/1989 dated 31.07.1991 attained finality.

In the interregnum plaintiffs had filed F.D.P. No. 4/1994. On account of the stay granted in Miscellaneous Petition, proceeding was closed. Plaintiff No. 1 died on 14.12.1995. Her legal representatives were brought on record in Miscellaneous Petition on 20.02.1996.

As noted above, during pendency of the Miscellaneous Petition, plaintiff Basavva died on 14.12.1995. Defendant filed I.A. to come on record as her legal heir on 20.02.1996. The daughter of Basavva, Seetavva and plaintiff No. 2 also filed an application to come on record as her legal heirs. Plaintiff No. 2 filed the application stating that he is also the legal heir of deceased plaintiff Basavva. After enquiry, their application was allowed on 07.03.1998. In M.A. No. 15/1995 II Additional District Court, Dharwad, held that plaintiff No. 1(a) i.e., Seetavva and plaintiff No. 2 Maheshappa are legal heirs of deceased plaintiff. The order in Miscellaneous Case was assailed by defendant in C.R.P. No. 152/1999 before this Court. This Court on 08.06.1999 allowed the Revision Petition and remitted the matter to First Appellate Court with a direction to dispose of I.As. No. 2 and 3 on merits, in accordance with law and in the light of the observations made.

The fact remains that, despite the order of this Court dated 08.06.1999 original judgment and decree passed in O.S. No. 74/1989 dated 31.07.1991 continued to remain in operation. That judgment has not been upset or set aside by any order passed by any of the Courts.

It is under the aforesaid circumstances that F.D.P. No. 7/1998 was filed by Seetavva, daughter of Basavva, and Maheshappa son of Basavva, who were declared to be the heirs of Basavva in M.A. No. 15/1995. Thus, the legal representatives of deceased plaintiff preferred F.D.P. No. 7/1998. In that proceeding, trial Court had appointed a Court Commissioner to submit a report with regard to division of properties. The Court Commissioner submitted his report. The said report was considered and accepted by trial Court by holding that plaintiff was entitled to landed properties in suit ''A'' schedule property and in regard to ''B'' schedule properties she was entitled to Rs. 40,000/- in lieu of her share therein. A direction was issued to draw up a final decree in terms of the aforesaid order.

Being aggrieved by order of trial Court dated 13.11.2009, defendant preferred R.A. No. 28/2010 before First Appellate Court, which on hearing learned counsel for respective parties framed the following points for its consideration:

Whether the final decree passed by the trial court is legal and proper?

Whether the order of the trial court needs interference?

What order?

It answered point No. 1 in affirmative and point No. 2 in negative and dismissed the appeal by confirming the order of trial Court dated 13.11.2009. Being aggrieved by judgment of First Appellate Court, defendant has preferred this appeal.

I have heard learned counsel for appellant and learned counsel for respondents No. 1 to 4 and 6. Respondent No. 5 is served and unrepresented.

It is submitted on behalf of appellant that though the original plaintiff i.e., deceased Basavva was none other than his mother, she was not entitled to any share in suit schedule properties. Her husband Bharmappa was the father of defendant. He died on 10.08.1945. Thereafter his mother i.e., Basavva married Mallappa in the year 1946 and plaintiff No. 2 Maheshappa was born to Basavva on 07.12.1947. That once Basavva remarried, after the death of her husband, she was not entitled to any share in joint family properties. He contended that widow''s estate is a restricted estate and she could not claim any share on the death of her husband absolutely. He further contended that on account of her marriage with Mallappa she lost all her right, title and interest in suit properties.

That apart, plaintiff Basavva, sold her half share to her son Maheshappa, born through her second husband Mallappa. That she had no right to alienate suit properties. He, therefore, contended that trial Court was not right in granting her half share in suit schedule property. Therefore, in the Final Decree Proceedings, trial Court ought to have gone into these aspects of the matter and considered as to whether plaintiffs were entitled to any right, title and interest in suit properties instead of simply dividing the properties as per the preliminary decree granted in O.S. No. 74/1989 dated 31.07.1991. He contended that the right, title and interest of a party to suit property is a matter which has to be gone into in Final Decree Proceedings, particularly, when it is a case of partition and separate possession of suit properties between the members of a joint family, and hence, he contended that the courts below without appreciating the aforesaid aspects has simply accepted the Commissioner''s report and divided the properties, which is incorrect. He submitted that substantial questions of law arise in this appeal, which would call for admission of the matter for a detailed hearing.

Per contra, learned counsel for respondents No. 1 to 4 and 6 supporting the judgment of First Appellate Court which has confirmed the order of trial Court contended that the issues which are raised by learned counsel for appellants do not at all arise in Final Decree Proceedings. The right, title and interest of a person in joint family properties is decided by a preliminary decree. Thereafter Final Decree Proceedings are initiated. In the Final Decree Proceedings, issues which have to be considered prior to granting of a preliminary decree cannot be taken up. These are not issues which relate to the executability of the decree.

He further submitted that in the instant case, O.S. No. 74/1989 was decreed by judgment and decree dated 31.07.1991. That decree has attained finality. It is only pursuant to that decree that Final Decree Proceedings were initiated and the Commissioner''s report has been rightly accepted by the trial Court. First Appellate Court has rightly confirmed the order of trial Court and that there is no merit in this appeal as no substantial question of law would arise. He, therefore, contended that the appeal may be dismissed in limine.

Having heard learned counsel for parties and on perusal of the material on record, it is noted that the relationship between parties is not in dispute. Basavva was the wife of Bharmappa. Her daughter was Seetavva and her son was Karabasappa, defendant appellant herein through Bharmappa. He died some time in the year 1945. On his death Basavva was entitled to Bharmappa''s half share in the suit schedule property under sub-Section (2) of Section 3 of The Hindu Women''s Rights to Property Act, 1937. Thereafter Basavva married one Mallappa in the year 1946 and though him she gave birth to Maheshappa, plaintiff No. 2. Therefore, three children of Basavva are parties in Final Decree Proceedings. Basavva filed a suit against her son Karbasappa, appellant herein seeking partition and separate possession of suit schedule properties as a widow of Bharmappa in O.S. No. 74/1989. By judgment and decree of trial Court dated 31.07.1991 she was granted half share in suit schedule properties, while defendant appellant herein was granted other half share. No share was allotted to the daughter of Bharmappa i.e., Seetavva. That judgment and decree has attained finality. Whether Basavva, as a widow of Bharmappa could have sought partition and separate possession of suit schedule properties after marrying Mallappa was not a question which was gone into the trial Court before granting the decree. Even if such a question was gone into, trial Court having granted the decree on 31.07.1991, granting half share to plaintiff Basavva, while granting remaining half share to defendant appellant herein, that judgment and decree has attained finality.

The narration of facts above would indicate that appellant was unsuccessful in getting said judgment and decree set aside. As the judgment and decree passed in O.S. No. 74/1989 dated 31.07.1991 attained finality, Final Decree Proceedings were initiated by Basavva''s daughter Seetavva in F.D.P. No. 7/1998 along with Maheshappa. But, in the interregnum what has happened is, Basavva has sold her half share in suit properties to her own son Maheshappa, who was arrayed as plaintiff No. 2 in F.D.P. No. 7/1998. In the Final Decree Proceedings, trial Court had only a limited adjudication, namely with regard to actual division of suit properties by metes and bounds. Shares of plaintiff and defendant could not be gone into as there was no occasion to either increase or decrease their shares. Entitlement of Basavva to suit schedule properties was also not a question which could have gone into in Final Decree Proceedings. Court Commissioner was appointed by trial Court, and he submitted his report. Trial Court accepted the report of Court Commissioner and directed final decree to be drawn with regard to ''A'' and ''B'' schedule properties. The said order passed by trial Court on 13.11.2009 in Final Decree Proceedings has been affirmed by First Appellate Court in R.A. No. 28/2010.

Significantly, daughter of Basavva i.e., Seetavva also did not challenge the judgment and decree passed in O.S. No. 74/1989. She did not also seek any share as the legal representative of Basavva. She has accepted the order of trial Court dated 13.11.2009. I fail to understand as to how the defendant could have any grievance with regard to the order of trial Court passed in Final Decree Proceedings, which has been confirmed by First Appellate Court. In fact, legal representatives of Seetavva and Maheshappa also have accepted the order passed by trial Court in Final Decree Proceedings. In that view of the matter, I do not find any infirmity in the judgment and decree of First Appellate Court, confirming the order of trial Court in Final Decree Proceedings. No substantial question of law arises in the appeal. The appeal is dismissed.

Parties to bear their respective costs.

In view of dismissal of appeal, I.A. No. 1/2016 is also dismissed.