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Kalappa Mallappa Hosmani Vs. Kalappa Ningappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 27 of 1922
Judge
Reported inAIR1924Bom469; (1924)26BOMLR494; 87Ind.Cas.705
AppellantKalappa Mallappa Hosmani
RespondentKalappa Ningappa
DispositionAppeal dismissed
Excerpt:
high court - second appeal--point of law--practice.;the high court will, in second appeal, entertain a point of law if it arises on the issues as framed and on the evidence as led in the trial court. but where the point of law cannot be decided without remanding the case for further evidence, no second appeal can be entertained. - .....should take the property assigned to them together with their mother, and that when basvantappa died ningappa should remain in possession as survivor. however that may be, the point was never taken in the lower courts and cannot be taken now.2. then the only question remaining is whether defendant kalappa can be said to have acquired a title by adverse possession to the suit property. no doubt, as found by the trial court, there are certain facts proved to show the manner in which kallappa dealt with the property after ningappa died when ningappa's widow irava was living with him. it is a question whether on these facts the proper inference is that kallappa was holding adversely to the reversioners who would succeed to the property on the death of irava. if kallappa had been an.....
Judgment:

Norman Macleod, Kt., C.J.

1. [His Lordship after stating facts as above, went on:] It is now argued that, even assuming that certain property was assigned by Mallappa. to Ningappa and Basvantppa, they would not hold it as joint tenants but as tenants-in-common, so that when Basvantappa died and his widow re-married his share of the property would go to his heirs. Now it is quite clear that no attempt was made to raise this question in either of the lower Courts. If it was a point of law arising on the issues as framed and on the evidence as led in the trial Court, there is no doubt that in second appeal we could have entertained that point. But it is quite clear that we could not decide this point of law without remanding the ease for further evidence, and that being so the point of law is no longer competent Moreover it may safely be assumed that under the arrangement by which Mallappa divided his property between his children by his two wives it was intended that Ningappa and Basvantappa should take the property assigned to them together with their mother, and that when Basvantappa died Ningappa should remain in possession as survivor. However that may be, the point was never taken in the lower Courts and cannot be taken now.

2. Then the only question remaining is whether defendant Kalappa can be said to have acquired a title by adverse possession to the suit property. No doubt, as found by the trial Court, there are certain facts proved to show the manner in which Kallappa dealt with the property after Ningappa died when Ningappa's widow Irava was living with him. It is a question whether on these facts the proper inference is that Kallappa was holding adversely to the reversioners who would succeed to the property on the death of Irava. If Kallappa had been an outsider the inference to be drawn from his conduct would have been entirely different. Taking into consideration the relationship of the parties, and the fact that Irava had no other male member in the family to manage her property, it was not an impossible inference to draw that Kallappa, so far from asserting a light to hold the property against the reversioners, was intending only to help his brother's widow. That being the case when Irava adopted the plaintiff he would be entitled to recover the property which had belonged to the adoptive father. Therefore the judgment of the Court below was right, and the appeal must be dismissed with costs.

Shah, J.

3. I agree.


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