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Chandrashekar Vs. Yellavva and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka Dharwad High Court
Decided On
Case NumberCRP No. 100087 of 2016
Judge
AppellantChandrashekar
RespondentYellavva and Others
Excerpt:
.....filed by the petitioner under order xxiii rule 1(3) read with section 151 of cpc. 2. heard the learned counsel for the petitioner and the learned counsel for the respondent nos.1 and 2. perused the impugned order passed by the trial court. the learned counsel for the petitioner filed a memo praying permission of the court to dispense with the notice to respondent no.3 on the ground that 3rd respondent has not contested the application filed by the petitioner under order xxiii rule 1(3) r/w section 151 of cpc. memo is not opposed. hence, it is allowed and notice to 3rd respondent is dispensed with. 3. petitioner filed a suit in o.s.no.54/2012 against the respondent nos.1 and 2 seeking the following reliefs:- a) declaring that, the deed of gift dated 28/6/2012, registered in the office.....
Judgment:

(Prayer: CRP filed under sec.115 of CPC, 1908, praying to allow the revision petition and thereby setting aside the impugned order produced at annexure-D(order on I.A.NO.2 perused by 2nd additional district and sessions judge, belagavi in RA.NO.40/2014 dated:18.08.2016) permit this petitioner to withdraw the original suit at OS.NO.54/2012 before senior civil judge, savadatti, with permission to file fresh suit on the same cause of action.

This crp coming on for admission, this day, the court made the following)

1. The first respondent in RA No.40/2014 pending on the file of the II Additional District Judge, Belagavai, has preferred this revision petition, seeking to quash the order passed by the Trial Court, whereby it has rejected the application filed by the petitioner under Order XXIII Rule 1(3) read with Section 151 of CPC.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondent Nos.1 and 2. Perused the impugned order passed by the Trial Court.

The learned counsel for the petitioner filed a memo praying permission of the Court to dispense with the notice to respondent No.3 on the ground that 3rd respondent has not contested the application filed by the petitioner under Order XXIII Rule 1(3) r/w Section 151 of CPC. Memo is not opposed. Hence, it is allowed and notice to 3rd respondent is dispensed with.

3. Petitioner filed a suit in O.S.No.54/2012 against the respondent Nos.1 and 2 seeking the following reliefs:-

a) Declaring that, the Deed of Gift dated 28/6/2012, registered in the Office of the Sub-Registrar, Saundatti, Belgaum District, vide Document N.SDT-1-01257/2012-13, is not binding on the plaintiff in respect of plaintiff s 1/7th Share in the suit schedule property in pursuance to the Deed of Partition dated 29/07/2005 and the Deed of Gift dated 28/06/2012 registered in the Office of the Sub-Registrar, Saundatti, Belgaum District, vide Document No.SDT-1-01257/2012-13 do not confer any right, title or interest on the Defendant No.2 over the plaintiff s 1/7th Share in the suit schedule property.

b) To grant such other relief as this Honourable Court deems fit in the facts and circumstances of the case, including the cost of the present suit.

4. The suit was contested by respondent Nos.1 and 2 herein.

5. The trial Court after hearing the learned counsel appearing for the parties decreed the suit as under:-

Suit of the plaintiff is hereby decreed.

The gift deed dated 28/6/2012 executed by the defendant No.1 in favour to defendant No.2 is not binding to the extent of 1/7th share of the plaintiff and gift deed to that effect is declared as nullity.

Parties shall bear their own costs.

Draw decree accordingly .

6. The defendants 1 and 2 aggrieved by the said judgement and decree of the trial Court, have challenged the same by preferring a regular appeal in RA No.40/2014 before the Lower Appellate Court. It is in the said appeal, the petitioner has made an application under Order XIII Rule 1(3) r/w Section 151 of CPC praying permission of the Lower Appellate Court to withdraw the suit and file a fresh suit. The application was vehemently opposed by the respondent Nos.1 and 2 herein. The Lower Appellate Court after hearing the learned counsel appearing for the petitioner and respondent Nos. 1 and 2 by the impugned order dated 18/8/2016 rejected the application. Challenging the said order of the Lower Appellate Court, the petitioner has preferred this revision petition.

7. The learned counsel for the petitioner submits that the petitioner while instituting the suit seeking to declare that the gift deed dated 28/6/2012, executed by the first defendant in favour of her daughter is null and void, by oversight has not asked the consequential relief of possession or injunction. Therefore it has become necessary for the petitioner-plaintiff to make an application under Order XXIII Rule 1(3) r/w Section 151 of CPC praying permission of the Lower Appellate Court to withdraw the suit with a liberty to file a fresh suit asking consequential relief. The learned counsel submits that the Lower Appellate Court without considering the fact that permission sought by the petitioner squarely falls within the scope of the provision of Order XXIII Rule 1(3) of CPC, has committed an error in rejecting the application. Therefore, the learned counsel prays for allowing the revision petition by setting aside the order passed by the Lower Appellate Court and granting permission to the petitioner to withdraw the suit with a liberty to file a fresh suit praying consequential relief of possession or injunction in addition to the relief of declaration.

8. Per contra, the learned counsel for the contesting defendants 1 and 2 submits one Siddappa Gadageppa Koujager had a wife by name Yellavva and from her he had a son by name Chandrashekar, who is none other than the plaintiff. The said Siddappa Gadageppa Koujager after the death of his first wife Yallavva, married another whose name is also Yellavva and from her he had six sons and a daughter. According to him, the plaintiff himself has stated in the plaint that the property owned by Siddappa were partitioned between him and his children born to him from both the wives. All of his sons were given shares in the properties under the said partition except his daughter Annapoorna. His second wife Yallavva was also given certain properties in the said partition, but, with a rider that she is entitled to enjoy the properties given to her share during her life time and after her demise, the property will go to his sons. According to the learned counsel for the respondents 1 and 2, notwithstanding that rider, Yallavva (second wife) of Siddappa had absolute right to deal with the property given to her share in any manner she likes including the right alienation, accordingly, she has gifted the property given to her share in favour of her daughter Annapoorna. Therefore, the suit itself is not maintainable and consequently, the plaintiff - petitioner is not entitled for permission to withdraw the suit and file a fresh suit.

9. The learned counsel for the petitioner by way of reply submits, that the second wife of Siddappa was given certain properties to enjoy the same during her lifetime with a condition that after her demise it will dwell among his sons. Therefore, she had no right to gift the said properties in favour of her daughter. Therefore plaintiff in the suit prayed for declaring the gift deed executed by Yallavva in favour of her daughter is not binding upon the plaintiff and to declare the same as null and void. But by oversight, the plaintiff has not sought for the consequential relief of possession. Defendants 1 and 2 while opposing the application of the plaintiff filed under Order XIII Rule 1(3) of CPC have contended that when plaintiff can seek the consequential relief of possession by way of seeking an amendment to the plaint, is not entitled to withdraw the suit and file a fresh suit. The Lower Appellate Court by accepting the said contention of the defendant has rejected the suit.

10. Admittedly, the suit is for declaration of the Will (gift deed) executed by the first defendant (Yallavva) - the second wife of Siddappa in favour of her daughter Annapoorna (Second defendant) as null and void. The said relief is granted by the trial Court. But, the said judgement and decree passed by the trial Court has been challenged by the defendants 1 and 2 by preferring an appeal before the Lower Appellate Court. It is at this stage, the plaintiff realizing that the suit as brought by him for declaration of the will (Gift deed) executed by Yallavva in favour of her daughter without asking the consequential relief of possession is not maintainable, has made an application praying permission of the Court to withdraw the suit and file a fresh suit asking the consequential relief of possession and injunction. According to the plaintiff, the suit for declaration without the prayer for consequential relief is a formal defect. Therefore, the plaintiff can be granted a permission to withdraw the present suit and file a fresh suit asking the consequential relief. According to the contesting defendants 1 and 2, when plaintiff can ask the said consequential relief by way of seeking an amendment to the plaint, he is not entitled to withdraw the present suit and file a fresh suit asking the consequential relief. The main ground on which the defendants have challenged the judgment and decree passed by the trial Court is that the suit as brought by the plaintiff is not maintainable.

11. As could be seen from the case put forth by the parties, the plaintiff wants to contend that the properties are given to Yallavva (Second wife) under the family partition with a rider that she should enjoy the property during her life time without right of alienation and after here demise, it should dwell among the sons of Siddappa Whether such a restriction can be imposed or not is a matter which is required to be adjudicated. Therefore, it would suffice if this revision is disposed of by granting liberty to the plaintiff to seek the consequential relief by way of seeking an amendment to the plaintiff instead of seeking permission to withdraw the present suit and file a fresh suit as rightly contended by the defendants and so observed by the Lower Appellate Court in the course of the impugned order. It is not the case of the plaintiff that the present suit is bad for non joinder of necessary parties nor it is his case that all the properties are not inserted to the suit. If that is so, plaintiff can seek that consequential relief by way of seeking an amendment to the plaint as rightly observed by the trial Court. Hence the following:

i) The Civil Revision Petition stands disposed of with the following observations:-

1) It is open for the plaintiff/petitioner to file an application within fifteen days from the date of receipt of a copy of this order and seek consequential relief of possession/injunction by way of seeking an amendment to the plaint. In such case, the Lower Appellate Court shall consider and dispose of such application on merits and in accordance with law after providing an opportunity of hearing to both the parties keeping in mind the contention of the defendant in their statement of objection filed to the present application that plaintiff can ask consequential relief of possession / injunction by seeking amendment to the plaint and in the light of observation made in the course of the impugned order while rejecting the application filed by the plaintiff under Order XXIII Rule 1(3) of CPC.


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