IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27"' DAY OF AUGUST, 2008.
BEFORE M% VA
THE HON'BLE MR. JUSTICE JAWAD__R,A',EjI»M':wA.,,,: 3
R.S. A. No. 873 2CI{j2:j. "
BETWEEN: * '
1 INDIRAMMA W/O K B RAI\l_GE_GOW'DA
61 YRS, R/AT KUDUVALLI VILLAGE, I "
CHICKMAGALUR TALUK &.D.T..ST.
I 5 _ APPELLANT
(By SRI B.M.KRISHNA,--BHAT?,,iAD'v;}.,V _
AND: ._ " R. T ' ..
1 H M PAR\%'A'I'F,;1.,EGO\}'-.\lD;t\"S/O"MO-GANYNAGOWDA
46 YRS,~CL.AI-M51 T'O.jBE--LR*-.OF,LA_TE MALLAMMA
KOM Bi~1VAI32_REGO'V\f[)L'£\,i,'TR/AT HADIHALLI VILLAGE,
AMBLE_'HQBLiZ1,:;,C_HICKMAGALLIR TALUK & DIST.
H N NvINc;EGOwfD-,A'S/O-.N'I~NGEGOwDA
42 YRS , R/AT 'HAD.1'HALL_I"I/ILLAGE,
AMBLE HOBLI, NI.AL!3,LUFf{jPOST,
cHIcKMAGAL,uRwvTALuK,
CH4]?-CKI\"/EAGALUR .[)_I_ST.
I 'H;CV.JA'VAR!éGQWDA,S/O CHICKKEGOWDA,
I 'A,SED._A=.BOLJT.,5.2 YEARS,
AH.S.ER,l§GOWDA, S/O SOMEGOWDA
AG-ED ABOUT 52 YEARS,
I R/_A_,--HADIHALLI VILLAGE,AfVfBLE HOBLI,
a,,,_:ABATED
'R/AY'HADI'.HAL:;LI vILLAGE,AMBLE HOBLI,
MALUR-ROS--T CHICKMAGALUR TALUK & DIST.
".'-YEALUR POST CHICKMAGALUR TALUK & DIST.
if 1-;
AV'
if
''u./
Ex)
5. H.N.HONNEGOwDA, S/O NINGEGOWDA,
AGED ABOUT 57 YEARS,
R/A HADIHALLI VILLAGE,AMBLE HOBLI, ,
MALUR POST CHICKMAGALUR TALUK & DIST.
6. H.N.GOvINDEGOwDA, S/O MALLEGOWDA
AGED ABOUT 45 YEARS,
R/A HADIHALLI VILLAGE,AMBLE...H_OBLI, '
MALUR POST CHICKMAGALUR:TALtJK..8I._DIST.
7. H.N.PARvATHEGOwDA--_O_ELETED'<._
(av SRI C.N.KAMATH, AD'\)It.A.:F'OR RI)'
THIS APPEAL IS FILED U/S'1:O0.--~QF-CP__C. AGAINST THE
JUDGMENT AND;D.EcREE"*DT. '1.3._.e.02QPASSED IN RA
NO.94/95 ON_THE...-FILE3._OF*~TH'E C1fVIL___jUDGE (SR. DN.),
CHICKMAGA__|_UR,4 ;A_LLOwI_NG_ T-_HEQAPPEAL AND SETTING
ASIDE THE }UD;GENT'=--AN'DJ:iDEGREE,DT. 6.9.95 PASSED IN
O.S.NO.6.9.3,/'9'2,_ON=:IHEFILE OF..TH,E PRL. MUNSIFF & JMFC,
CHICKMVAGALUFL TRIA_L"«...COURT RE}ECTED THE SUIT.
APPELLATE»'cOUR'T...AA.LLOTwEDA THE APPEAL. SUIT FOR
PARTITION SEPERATEF...APOS*SESSION AND ALTERNATIVE
RELIEF OF MAIl'JTE'NAI'AJ.C'E,'"_ETC.,
THIS }XPPEALV"I'S.V::COl$€ING ON FOR FINAL HEARING
T-E.-V|IS"DA'Y~, THE COURT DELIVERED THE FOLLOWING:--
aSffiUDGMENT
defendant's second appeai against the
R.A. No.94/1995 on the file of the learned
_MJ_u§dge (Sr.Dvn.), Chickmagaiur, aliowing the appeal
. R'ESP{QE\!.DE~NTS
partly and decreeing the suit of the origina! plaintiff --
Mailamma in OS No. 693/92 by judgement dated 06.409-
1995.
2. The respondents are duly notifi_e"d.:.
absent.
3. Heard the !earnedf__V’co.unsei’-
appearing for the appeitagnt andApp.eru.sed_»the.frecordsvi
4- The C°F’te><i?Ua!tfa:txpa're:
One W/jofll*§ate-.5’Btivafdredowda filed a suit
seeking p.a.rtiti”o.n”o;f–It’h.e pjro_per’tiesHd,escribed in the schedule
to the gjliainti for’V’V’=;i:ssig.n4rn_:erit and to unto her haif share
therein. In”the_suit_ she” into party one Indiramma
.~vV.«(herV_»»s=f;ep daughter)_a_s_defendant No.1 and 6 more persons
“:__d*esc~riVbing’«tr’i«-ern __as purchasers of the different portions of
the:sc.iieVduiéL:property. In support of such reiief she averred
{that ii-kgdstegowda was the absoiute owner in possession of
“.js.en\/e’ra! properties. He had married two wives, viz.,
W7Ke§nchamma and Maliamma (piaintiff). Badregowda died in
year 1975 ieaving beyond piaintiff (Maliamma), the first
-‘\’ 5 ,.
/,:..c,;-.\ *V,/
wife Kenchamma and her daughter Indiaramma (defendant
No.1). However, the first wife of Badregowda, Kenchamiiia
died after his death leaving beyond only the plaintiffand the
Indiramma (defendant herein) to succeed to th_’ei.e_’stat,e of
Bhadregowda. In short, her plea was
died intestate and his first wife Kencham’rnaV”‘a’lis.,o ‘died. isiie.
and the defendant No.1 were o-tiiy”Vhei*rs”‘tov
the property in equal
factual position and lE’9al enti–t.iérg_”ne”i’–~..,l:,,_ ‘defentlant No.1 —
Indiramma, with sinliswltg her taking
advantage of t.he.__fact’th’at’:l§/ia_i”ia.rn_rna- shifted because of
her houlsvelll of her relatives, sold five
properties- to defeAnda’nt:A’N«o~.’2 to 7. Contending that deed of
Sale by wh’ic._h defendant No.1 — Indiaramma sold property
AtO’…,d’ef.end’ant No.2′””t’oV “7 was not binding on her, she sought
tilts Vain.,n”ti.EgiTsentv._j..
suit was contested by defendant No.1
throijgh1~ a detailed written statement denying the titie of the
‘pl_afi”ntiff and she supported the saie in favour of defendant
‘ __.i\lo.2. to 7. The defendant No.2 to 7 did not file any written
il/
2;» Ki
5,?
9
view. However, Mallamma claimed for maintenance was
granted. Before the learned first appellate Court the issue
was whether Mallamma was entitled to half share–.._in the
property and whether deed of sale executed b,y7Vfn’dji4′.rah1.ma
— defendant No.1 was valid. During pendencx/jof:the’app’eal’
Mallamma died. She had no issues.
11. Therefore, the: .,re|evanVt”‘ c;ue,st’io.n:,_é.th’e “‘*?§rs’t,
appellate Court to be decilfdend _was”‘~wuhaVt will be the
consequence of her :heA”‘ha_d half share in the
schedule property, upo._n,:’her.’dVea,th”‘it.’frag. -to pass on to her
legal heirs.?_” |”ega–l-~” heir, Indiramma ~
defendant’ daughter, who was no doubt,
defendarit.__,Nio,.wloruldahecome entitled. Instead of deciding
th.is,,.iss’ue the “iear_n_ed appellate Judge held Parvathegowda,
» lone’ o.f’th’e,,”de_fendant, to come on record as legal heir of
H ‘–i\:/lai.lanfirha:dehspite opposition to such order.
if z The learned counsel for appellant is right in
if ff,p’o”i.ntin’g out that when the appellant had pointed out that
AV’,?arf\/athegowda was not related to Mallamma and was not a
I 0
legal heir he could not have bee brought on record as legal
heir of Mallamma to Continue the appeal. It must be
noticed that when the dispute is raised as to whoT’i’s. legal
heir, under Order XXI Rule 5 detailed enquiry-f_lfia_cl’C?to”..I;)e
held. That becomes very essential in th,i_s’V_A’_jcasel,”
Parvathegowda had not shown1:lho\iy,,ne””.wa’s’r.lh:egalDhVei_r’:’of
Mallamma. The order direactlng
therefore, unjust and erronelolusl’ _ V V. V ‘V
13. Viewed be seen that
undoubtedly: in the schedule
DroDertY: Court and in the
appeal the accordingly modified. However,
as durinlglthev petition since Mallamma died
vv.h§at’ev~er rig’h’t–..VsVh_e__had passed on to her legal heir and in
» Vlthils case’4i.,t”~tv__as undoubtedly Indiramma — defendant No.1,
H vvaVs’_”,:adjrnittedly a step daughter. Since except her no
ori’e,.e’i’lse’is pointed out to be heir of Mallamma, Indiramma
Padefvendant No.1 should have succeeded in her appeal
Atgactlon. The consequence would have been appeal filed by
H Mallamma had to abate, as right to sue did not survive on
any body. In the resultant position, appeal filed by
Indiramma — defendant No.1 in RA No. 100/1995 had to be
allowed in its entirety. Instead of examining this issue the
learned appellate Judge brought Parvathegowd.aVV_gl’-as~._|egal
heir of Mallamma, whose right was not atltalll'”t’e-sl;efd._.”‘a_s
required under Order xxx: Rulewss CPC'”t’g,…:’gj’ro’S’ecLiyte..:the
appeal. Further, appellate Court has:’ei*red.’
Judgment and granting re:i’_ef._to lifiallllammiaiyvlh’iry.p.oVse.:’§ai§Deaq.
had abated in the absence
14. It must Parvathegowda
had sought to_co_me the Will purported
to have been V’e:{‘e.c’ut.e’d..:by’–.Mallamma in his favour. In other
words, i5>a._rvathVégow.d”aisought to continue the appeal action
asfillelvgal helr”ef:Vl$(lalAl:.amma on the basis of the Will, which
» V:Vconte,nt«i.on.:’was urged for the first time in the appeal to
Whether there was a Will executed by
Ma’llanV1.m’afin favour of Parvathegowda was not the issue for
fcornsidleration in appeal. Rightly the appellate Court held
such contention of Parvethegowda could not be
H entertained but learned appellate Judge erred in holding
that he can continue appeal action and in the result by
allowed the appeal filed by Mallamma (deceased) granting
her share in the schedule property and declared
Parvethegowda to succeed. This order is unsustaji’i’2–afble;..A’
15. In the result, the Judgment and _§:i’ecre~e__j:p3a__ssed
in RA 94/1995 is set aside and the matter. -to
the appellate Court to reconsider as:.,tojj.W’h_ett3e–t ‘upondeiath
of Maliamrna right to sue.i’surviy\\§;,yn
including Parvathegowda. to viiili be the
consequence of her g, filed Mallamma
abate on her__death_.. the appeal in
acco rd a race .wlitnf-l.aw,,» ‘ H
“§”vhe”app’eal:”i’_s accordingly disposed of.
sag.
HJDQE