Sharanappa vs Sangamma

Budihal R.B. J.—This is the regular second appeal preferred by the plaintiffs against the judgment and decree passed by the Trial Court dismissing the suit of the plaintiffs which is confirmed by the First Appellate Court.

The brief facts of the case are that plaintiffs filed the suit stating that the suit properties are situated in Nidgunda bearing Sy.Nos.231/A2,244, 374, 376, 377 and house Nos. 1-72, 1-72/1 and 1-72/1. They have claimed the relief that they are the owners of the suit properties as per the Will executed by Ramanna. The relief claimed in the suit is declaration of ownership and for perpetual injunction. However, it appears that during the pendency of the suit, plaintiffs have lost possession of the suit properties. Consequently, by way of amendment of plaint, they also filed suit for the relief of recovery of possession. Hence, it is suit for declaration of title and recovery of possession.

Defendant No. 1 in the said suit is the mother of defendant Nos. 2 and 3. One Ramanna s/o Irappa Bachetti was the absolute owner and in possession of the suit properties. They are the ancestral properties of the said Ramanna. The aforesaid Ramanna had two brothers, one Sidramappa and second one Sharanappa. Among them Ramanna was the youngest. The said Sidramappa the elder brother of Ramanna was taken in adoption long ago by one Smt. Eramma w/o Irappa a collateral. Hence, the said Sidramappa has lost all his rights in the family properties of his birth. Defendant No. 1 is the daughter-in-law of the aforesaid Sidramappa. Another brother Sharanappa had two wives, namely, Shivalingamma and Sangamma. The said Sharanappa had a son by name Sangappa from the first wife Shivalingamma. The said Sangappa was leper. The first wife Shivalin gamma predeceased Sharanappa. Hence, the said Sharanappa had married Sangamma. The said Sharanappa died in the year 1963 leaving behind his second wife Sangamma and his son Sangappa. The said Sangappa had also died in the year 1964 being unmarried leaving behind his stepmother Sangamma. The said Sangamma also died issue less in the year 1972. Consequently, the said Ramanna being the only legal heir has inherited all the properties of Sharanappa of his brother. Ramanna had executed a registered Will on 30.12.1977 bequeathing of his properties in favour of the plaintiffs. The plaintiffs are the sons of Ramanna''s wife''s brother one Sharanasiddappa and as said Ramanna had no issues and he was looked after by the plaintiffs during his old age. One Shivaputrappa the late husband of the defendant No. 1 and father of the defendant Nos. 2 and 3 had filed a suit bearing O.S.No. 11/1972 before the Munsiff Court, Chincholi against the said Ramanna and Sangamma seeking the relief of title and also the possession in respect of the suit properties by contending that late Sangappa s/o Sharanappa had executed a Will deed on 15.06.1964 in his favour bequeathing the suit properties to him. The said suit came to be decreed on 31.10.1973. During the pendency of the said suit, said Sangamma died. Later, Ramanna preferred an appeal to the Appellate Court in R.A.No.l 11/1973 and same came to be dismissed. Later, the said Ramanna had preferred Regular Second Appeal to the Hon''ble High Court of Karnataka bearing R.S.A. No. 1073/1974. That during the pendency of the said RSA the said Ramanna died on 28.03.1978. Then the present plaintiffs and one Basamma the wife of said Ramanna filed an application before the Hon''ble High Court of Karnataka requesting to bring them on record as legal heirs of deceased Ramanna. However, the Hon''ble High Court of Karnataka was pleased to bring only Basamma on record as the legal heir of deceased Ramanna. The application filed by the plaintiffs was disallowed on the ground that the disposition of property by way of Will by the deceased cannot be acted upon in the proceedings unless the Will is probated. Subsequently the said Basamma also died on 09.09.1980. Hence, the appeal is abated on 16.06.1981. As the plaintiffs had given the Will deed to the Advocate representing them and said Advocate of High Court had misplaced the same, hence, the plaintiffs could not file the original Will. The plaintiffs have sought permission to file the certified copy of the Will to lead secondary evidence. That Shivapurtrappa the husband of defendant No. 1 also expired on 04.10.1981 leaving behind defendant Nos. 1 to 3 as his only legal heirs. Thus, the judgment in O.S.No. 11/1972 is no bar to present suit. The plaintiffs are in possession of the suit properties as the owners in the capacity of legatees of Ramanna since his death. That prior to it, the said Ramanna was in possession of the suit properties. The defendants are trying to interfere in the peaceful possession of the plaintiffs over the suit properties on the strength of the decree passed in O.S.No. 11/1972. Hence, the plaintiffs have filed the present suit. It is further pleaded that during the pendency of the present suit, the defendants have taken the possession of the suit lands in execution of decree in O.S.No.11/1972. Hence, the plaintiffs are also entitled for the possession of the suit lands.

The defendants appeared in the said suit and filed written statement contending that suit of the plaintiffs is false and it is not maintainable. They have denied that Ramappa s/o Irappa Bachetti was the absolute owner and possessor of the suit properties. However, it is true that the said Ramanna had two brothers, Sidramappa and Sharanappa. The eldest brother was taken in adoption long ago by one Smt.Eramma w/o Irappa a collateral and as such said Sidramappa had lost all his rights in the properties of the family of his birth. It is denied that the brother of Ramanna one Sharanappa had two wives, namely, Shivalingamma and Sangamma. However, the said Sharanappa had only wife by name Shivalingamma and through her he had a son by name Sangappa who was a leper. Further, the defendants have denied that Sharanappa after the demise of Shivalingarmma had married to Sangamma and said Sangamma was the second wife of said Sharanappa. However, the defendants have admitted that Sangappa died in the year 1964 without wife or issues. Hence, the question of Ramanna inheriting all the properties of Sangappa and Sangamma will not at arise. The defendants have denied that the deceased Ramanna had executed a registered Will deed on 30.12.1977 in favour of the plaintiffs bequeathing his alleged properties. It is false that the plaintiffs were looking after said Ramanna during his old age. The defendants have contended that the deceased father-in-law of the defendant one Sidramappa and two brothers, namely, Sharanappa and Ramanna and both of them divided long ago. The deceased Sharanappa was the absolute owner and in possession of all the suit properties. That Sharanappa had only wife by name Shivalingarnma who pre-deceased her husband. Later Sharanappa also died on 05.12.1963 leaving behind his only son Sangappa. Hence, the said Sangappa became the owner of all the properties of deceased Sharanappa. The said Sangappa was a leper. Hence, his wife had abandoned him and she had married a second husband and left the family. Consequently, the husband of defendant No. 1 Shivaputrappa was looking after that Sangappa and his properties during his life time. So, the said Sangappa bequeathed all his properties including the suit properties in favour of the deceased husband of the defendant No. 1 by executing a Will deed on 15.06.1964. At the time of execution of Will deed Sangappa was in a sound dispossessing state of mind and had executed the Will deed to the knowledge of Ramanna and Sharanasiddappa the father of the plaintiffs who was then in possession of some of the suit lands as a possessory, mortgagee for about six years. So the deceased husband of the defendant No. 1 requested Sharansiddappa to deliver the possession of the lands which were in his possession. But he had refused to recognise the rights of late husband of the defendant No. 1 and started contending that the deceased Ramanna was the owner of all the suit properties and he was cultivating them on behalf of the said Ramanna. Consequently, the late husband of defendant No. 1 filed a suit bearing O.S.No. 11/1972 both against Ramanna and Sangamma before this Court seeking the relief of declaration of title on the basis of Will deed executed by the deceased Sangappa and also for the possession of the suit properties.

On the basis of the said pleadings, the Trial Court framed as many as six issues and two additional issues.

Whether the plaintiffs proves that deceased Ramanna was the owner of the suit property?

Whether the plaintiffs prove that Ramanna executed a Will in their favour bequeathing the suit properties on 30.12.1977?

Whether the judgment in O.S.No. 11/197 on the file of Munsiff, Chincholi operates res judicata to the present suit?

Whether the plaintiffs prove that they are in possession of the properties?

Whether the plaintiffs are entitled to declaration as sought by them?

What Decree or Order?

Addl. Issue:

Whether the valuation of the suit is proper and court fee paid is correct?

Addl. Issue

Whether the plaintiffs prove that they are entitled to get the possession of the suit properties''?

The parties led their evidence. After hearing counsels on both sides and perusing both oral and documentary evidence, the Trial Court dismissed the suit of the plaintiffs.

Being aggrieved by the judgment and decree of dismissal of the suit, plaintiffs preferred appeal before the First Appellate Court. The First Appellate Court also confirmed the judgment of the Trial Court and ultimately dismissed the appeal.

Being aggrieved by the judgment and decree passed by the Courts below, the appellants-plaintiffs are before this Court in this Regular Second Appeal.

Heard the arguments of the learned counsel appearing for the plaintiffs-appellants and also the learned counsel appearing for the respondents-defendants, on admission.

The counsel for the appellants during the course of arguments made the submission that, plaintiffs relied upon the Will said to have executed by Ramanna, which is disputed by the defendants-respondents in the said suit. The learned counsel made the submission that there was a specific issue framed under issue No. 2 casting the burden on the plaintiffs whether they have proved the execution of the Will by Ramanna in their favour. The learned counsel further made the submission that looking to the judgment of the Trial Court, the said issue is not at all discussed nor finding recorded on it. The counsel submitted that the Trial Court mainly concentrated on the principles of res judicata and its applicability to the said suit and on that ground without recording finding on issue No. 2 wrongly proceeded to dismiss the suit of the plaintiffs. The learned counsel further submitted that even the finding of the Trial Court that the present suit is hit on principles of res judicata is also not correct. Because, as per Section 11 of the CPC. the said principle is applicable when the earlier matter attained finality. In this connection also the learned counsel for the appellants made the submission that in the earlier proceedings when the Regular Second Appeal was pending before the Hon''ble High Court in RSA No. 1073/1974, the present plaintiffs made the application before the Hon''ble High Court requesting the Court that they may be permitted to come on record as legatees under the Will. The learned counsel submitted that the Hon''ble High Court allowed only Basamma to come on record and rejected the application filed by the present plaintiffs holding that the Will that they are relying is not at all probated. Hence, it is the contention of the learned counsel that as subsequently Basamma also expired, the appeal was dismissed as abated. He contended that the Regular Second Appeal disposed by the High Court was not on merits and it is only because it is abated. Hence, it is his contention that still the plaintiffs can come on record even in the said Regular Second Appeal and they can challenge the judgment and decree passed by the Courts below. Hence, the learned counsel submitted that application of the principles of res judicata by the Trial Court as well as the First Appellate Court in these subsequent proceedings are wrong and they are not sustainable in law. Hence, he made the submission that the matter involves substantial question of law to be tried in this appeal and hence, he submitted to admit the appeal.

Per contra, the learned counsel appearing for the respondents during the course of his argument made the submission that abatement of the appeal and dismissal of the suit on the ground of death of the parties are not one and the same. They are having different consequences. The learned counsel submitted even if the appeal is abated and dismissed the judgment passed by the Trial Court determining the rights of the parties and giving the finding that will prevail. The counsel submitted that if the suit itself has been dismissed on the ground of death of the parties, then in that case there could not be the application of the principle of res judicata. Hence, on this ground he made the submission that the judgment in the earlier suit in O.S.No. 11/1992 it has become final and it attains finality and the submission made by other side is not correct. The learned counsel further made the submission that if at all they got their Will probated still it is open for them to challenge the judgment and decree passed by the Courts below in the earlier proceedings by filing such appropriate application in the said Regular Second Appeal. But so far these proceedings are concerned, the suit itself is not maintainable and he contended that the Trial Court as well as the First Appellate Court have rightly appreciated the entire materials placed on record and rightly dismissed the suit of the plaintiff. It is also his contention that the Will relied upon by Shivaputrappa husband of defendant No. 1 is much earlier to the alleged Will of Ramanna. The Will of Ramanna relied upon by the plaintiffs is of the year 1977 and the Will of Sangappa the son Sharanappa in favour of Shivaputrappa the husband of defendant No. 1 is of the year 1964. The counsel also made the submission that Shivaputrappa when filed the suit mainly pressing the relief of declaration of title on the basis of the Will of Sangappa. The said Will was held to be proved and declaratory decree was given in favour of Shivaputrappa the same has been confirmed by the First Appellate Court. Hence, he submitted in view of all these things there is no illegality committed by the Courts below, nor there is any substantial question in this appeal to be tried by this Court in this appeal. Hence, the learned counsel submitted to dismiss the Regular Second Appeal.

I have perused the grounds urged in the appeal memorandum, judgment and decree passed by the Trial Court as well the judgment and decree passed by the first appellate Court.

The controversy between the parties that plaintiffs claims that on the side of Sharanappa as all the persons in the family of Sharanappa expired, hence, Ramanna has became absolute owner of all the properties on heirship and he executed the Will in favour of the plaintiffs in the year 1977. Whereas it is the contention of the defendants that Sangappa S/o Sharanappa executed the Will in favour of Shivaputrappa much earlier to the Will, which is relied upon by the plaintiffs.

Perusing the materials placed on record, the earlier suit filed by the husband of defendant No. 1 in O.S.No. 11/72 was mainly based on the Will said to have been executed by Sangappa s/o Sharanappa, which suit was filed against Ramanna, which was contested by filing written statement and leading the evidence. Apart from that, the Trial Court held that the Will has been proved and Shivaputrappa, who is the husband of defendant No. 1, became the absolute owner under the said Will. The said finding has been confirmed by the first appellate Court. Not only that, looking to para 19 of the judgment of the Trial Court, it shows that the defendants filed another suit in O.S.No. 18/1985 against the plaintiffs for declaration of title and recovery of possession. In the said suit also the plaintiffs, who are defendants herein, took the similar contentions. It is held by the Court that the Will executed by Sangappa in favour of Shivaputrappa has been upheld and suit was decreed, against the said judgment, appeal was preferred in R.A.No. 17/1990, the said appeal was also came to be dismissed on 11.11.1994. The Trial Court has observed that the certified copy of the judgment dated 11.11.1994 passed in R.A.No. 17/1990 has also been produced before the Court.

Considering these materials placed on record, I am of the opinion that the contentions raised by the learned counsel for the appellants-plaintiffs in this appeal cannot be accepted at all. The Courts below have considered each and every aspect of the matter extensively and rightly came to the conclusion in dismissing the suit filed by the plaintiffs. Neither any illegality has been committed nor there is any perverse or capricious view taken by the Courts below. There are concurrent findings so far as factual aspects are concerned. Hence, in my considered opinion, no substantial question of law is involved in this appeal. Accordingly, this regular second appeal is dismissed at the admission stage itself.