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Tippanna Vs. Jalal Sab and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 581 of 2003
Judge
Reported inAIR2006Kant1; ILR2005KAR6011; 2005(6)KarLJ100
ActsHindu Succession Act, 1956 - Sections 15, 15(2) and 16; Code of Civil Procedure (CPC) - Order 41, Rule 22
AppellantTippanna
RespondentJalal Sab and anr.
Appellant AdvocateJayavittal Rao Kolar, Adv.
Respondent AdvocateN.S. Sanjay Gowda, Adv. for Cavoator
DispositionAppeal allowed
Excerpt:
.....the suit of the plaintiff by judgment dated 30-8-1997. being aggrieved by the said judgment and decree, defendants preferred r. 69 of 1997 on the file of civil judge (senior division), yadgir and the first appellate court by judgment dated 7-3-2003 reversed the judgment and decree passed by the trial court holding that plaintiff 2 has failed to prove that he has succeeded to the property of plaintiff 1 under the provisions of sections 15 and 16 of the hindu succession act and in view of the fact that no cross-appeal or objection has been filed, the finding given by the trial court that plaintiff 2 has failed to prove the execution of the will by plaintiff 1 in his favour cannot be agitated and accordingly, reversed the judgment and decree passed by the trial court and allowed the..........the suit of the plaintiff by judgment dated 30-8-1997. being aggrieved by the said judgment and decree, defendants preferred r.a. no. 69 of 1997 on the file of civil judge (senior division), yadgir and the first appellate court by judgment dated 7-3-2003 reversed the judgment and decree passed by the trial court holding that plaintiff 2 has failed to prove that he has succeeded to the property of plaintiff 1 under the provisions of sections 15 and 16 of the hindu succession act and in view of the fact that no cross-appeal or objection has been filed, the finding given by the trial court that plaintiff 2 has failed to prove the execution of the will by plaintiff 1 in his favour cannot be agitated and accordingly, reversed the judgment and decree passed by the trial court and allowed.....
Judgment:

V.G. Sabhahit, J.

1. This appeal by the second plaintiff is directed against the judgment and decree; passed by the Court of Civil Judge (Senior Division), Yadgir, in R.A. No. 69 of 1997, dated 7-3-2003 reversing the judgment and decree passed by the Court of Civil Judge (Junior Division), Shahapur in O.S. No. 1.26 of 1989, dated 30-8-1997 and dismissing the suit of the second plaintiff

2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows.--

Plaintiffs 1 and 2 filed the suit O.S. No. 26 of 1988 later numbered as O.S. No 126 of 1989 on the file of the Civil Judge (Junior Division), Yadgir seeking for a judgment and decree declaring that plaintiffs are the owners of the suit schedule land and for possession of the suit schedule property by dispossessing the defendants and for mesne profits and costs.

3. It is averred in the plaint that plaintiff 1 is the absolute owner in possession of the land shown in the schedule which she inherited after the death of her father. The property is inherited from maternal side by plaintiff 1. Plaintiff 1 is aged and blind and taking the support of her husband's brother Thippanna-plaintiff 2 in managing the properties of the plaintiffs Plaintiff 1 has also bequeathed the suit land in favour of plaintiff 2 by executing a Will dated 23-10-1973. Plaintiff 2 is the member of the family of plaintiff 1. Defendants 1 and 2 are the Sahukars of the Village. Plaintiff 1 has taken loan of Rs. 2,000/- on the next day of Ugadi of 1987 and has orally mortgaged the suit land to defendants 1 and 2 subject to the terms that they should enjoy the usufruct of one crop i.e., in 1987-88 and thereafter give back the possession. The plaintiff had raised groundnut and bajra and harvested the same. Taking advantage of the helplessness of plaintiff behind her back, without her information and knowledge got their name mutated in the record of rights neither plaintiffs have sold an area of 5 acres 35 guntas of land shown in the schedule nor executed any document regarding sale of suit land in favour of defendants and plaintiffs came to know of the mutation only in the first week of March and she filed appeal before the Assistant Commissioner. The defendants on the basis of wrong entries in the record of rights are asserting title and possession of the defendants over the suit schedule land is unlawful and that of a trespasser and wherefore the suit for the above said reliefs.

4. The suit was resisted by the defendants by filing common written statement averring that it is true that plaintiff 1 is the absolute owner and possessor of the suit land. It is false to say that plaintiff 1 is blind and taking assistance of her husband's brother by name Thippanna as plaintiff 2 and plaintiff 2 is in management of the property. It is also false and baseless to say that plaintiff 1 bequeathed suit land in favour of plaintiff 2 by Will dated 23-10-1973 and that plaintiff 2 is the member of family of plaintiff 1. It is further averred that averments made in the plaint regarding alleged oral mortgage is false and it is further averred that plaintiff 1 has entered into an agreement of sale in favour of defendants on 30-6-1974 by executing a deed of agreement in favour of defendants. But plaintiffs with mala fide intention has suppressed the fact of agreement of sale in favour of defendants and wherefore the suit is liable to be dismissed.

5. The Trial Court framed appropriate issues. Plaintiff 1 died during the pendency of the suit. On behalf of the plaintiffs, second plaintiff was examined as P.W. 1 and he got marked Exs. P. 1 to P. 5. On behalf of the defendants, defendant 2 was examined as D.W. 1 and also examined D.Ws. 2 and 3 and got marked Exs. D. 1 to D. 10. The Trial Court after considering the contention of the parties and the material on record held that the first plaintiff was the owner of the schedule property and plaintiff 2 has failed to prove that he has succeeded to the schedule property by virtue of the Will dated 23-10-1973. However, the second plaintiff has succeeded to the property of plaintiff 1 in view of the provisions of Sections 15 and 16 of Hindu Succession Act, 1956, and negatived the contention of the defendants and answered the issues in favour of the plaintiff and decreed the suit of the plaintiff by judgment dated 30-8-1997. Being aggrieved by the said judgment and decree, defendants preferred R.A. No. 69 of 1997 on the file of Civil Judge (Senior Division), Yadgir and the first Appellate Court by judgment dated 7-3-2003 reversed the judgment and decree passed by the Trial Court holding that plaintiff 2 has failed to prove that he has succeeded to the property of plaintiff 1 under the provisions of Sections 15 and 16 of the Hindu Succession Act and in view of the fact that no cross-appeal or objection has been filed, the finding given by the Trial Court that plaintiff 2 has failed to prove the execution of the Will by plaintiff 1 in his favour cannot be agitated and accordingly, reversed the judgment and decree passed by the Trial Court and allowed the appeal and dismissed the suit of the second plaintiff. Being aggrieved by the said judgment and decree, the second plaintiff has preferred this appeal which was admitted on 17-4-2004 for consideration of the following substantial questions of law:

'(1) Whether the finding of the first Appellate Court that the second plaintiff without filing any cross-appeal/objections cannot challenge the finding given by the Trial Court regarding the execution of the Will by first plaintiff in his favour is contrary to Order 41, Rule 22 of the CPC, and wherefore perverse and arbitrary?

(2) Whether the finding of the first Appellate Court reversing the finding of the Trial Court that plaintiff 2 has failed to prove that he has succeeded to the property of the first plaintiff under Section 15(2) of the Hindu Succession Act is perverse and arbitrary?'

6. I have heard the learned Counsels appearing for the parties on the above said substantial questions of law.

7. The learned Counsel appearing for the appellant-plaintiff submitted that in view of the provisions of Order 41, Rule 22 of the CPC, and the well-settled position of law that the finding given by the Trial Court can be challenged even without filing any cross-appeal or objections to support the decree passed by the Trial Court in view of the provisions of Order 41, Rule 22 of the CPC, the first Appellate Court was not justified in reversing the finding of the Trial Court that plaintiff 2 has succeeded to the property under Section 15(2) of the Hindu Succession Act as there is material to show the relationship of the plaintiff with the deceased as averred in the plaint and evidence on record which was relied upon by the Trial Court in arriving at the finding.

8. On the other hand, the learned Counsel appearing for the respondents submitted that the finding of the first Appellate Court reversing the judgment and decree passed by the Trial Court in dismissing the suit is justified.

9. I have considered the contention of the Counsels appearing for the parties and I have been taken through the oral and documentary evidence on record and the judgment passed by the Trial Court and the first Appellate Court and I answer the substantial questions of law as follows.--

Point No. 1.--In the affirmative.

Point No. 2.--In the affirmative for the following.--

REASONS

10. Substantial question of law No. 1.--It is clear from the material on record that the Trial Court while, answering issue 1 as to whether plaintiff 2 has proved that plaintiff 1 has bequeathed suit land in his favour by executing the Will dated 23-10-1973, in the negative. However, the Trial Court held that plaintiff 2 has succeeded to the property under Section 15(2) of the Hindu Succession Act and wherefore the plaintiff is entitled to relief of declaration and possession as sought for in the suit. The appeal was filed by the unsuccessful defendant against the decree passed in favour of the plaintiffs and since suit had been decreed, the second plaintiff did not prefer any cross-appeal or objection. However, in view of the provisions of Order 41, Rule 22 of the CPC, it is clear that it was open for him to support the decree passed by the Trial Court on the ground that issue 1 also ought to have been answered in his favour by holding that he had proved due execution of the Will by plaintiff 1 in his favour and mere fact that no cross-appeal or consideration had been filed would not debar him from contending in that behalf as held by the Hon'ble Supreme Court in Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 8571 : (1999)7 SCC 485 as follows.--

'22. In our view, the opinion expressed by Mookerjee, J. of the Calcutta High Court on behalf of the Division Bench in Nishambhu Jana v Sava Guha, (1985)89 Cal. WN 685 and the view expressed by U.N. Bachawat, J., in Tej Kumar Jain v Purshottam, : AIR1981MP55 , in the Madhya Pradesh High Court reflect the correct legal position after the 1976 amendment. We hold that the respondent-defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent the lower Court had dismissed the suit against the defendants-respondents. The filing of cross-objection, after the 1976 amendment is purely optional and not mandatory. In other words, the law as stated in Gaddem Chinna Venkata Rao v Koralla Satyanarayanamurthy, AIR 1943 Mad. 698 (FB), by the Madras Full Bench and Sri Chandra Prabhuji Jam Temple v Harikrishna, : [1974]1SCR442 , by this Court is merely clarified by the 1976 amendment and there is no change in the law after the amendment'.

11. The first Appellate Court has negatived the contention of the appellant herein plaintiff 2 by holding that in view of the fact that he has not filed any cross-appeal or cross-objection, it is not open to him to contend against the finding given on issue 1 regarding the execution of the Will which is answered against him by the Trial Court and wherefore, it is clear that the finding of the first Appellate Court is contrary to Order 41, Rule 22 of the CPC, and accordingly I answer substantial question of law No. 1 in the affirmative.

12. Substantial question of law No. 2.--It is clear from the perusal of the judgment passed by the first Appellate Court that the finding of the first Appellate Court that second plaintiff has failed to prove that he has succeeded to the property under Section 15(2) of the Hindu Succession Act as held by the Trial Court is erroneous is clearly perverse and arbitrary. The first Appellate Court has proceeded on the basis that there is no material regarding relationship of the plaintiff 2 with plaintiff 1. On the other hand, it is clear from the perusal of' the averments made in the plaint and the written statement that there is material on record to show the relationship of plaintiff 2 with plaintiff 1 in the plaint and the written statement and the Trial Court after considering the same and by assigning reasons had arrived at the conclusion that he has succeeded to the property under Section 15(2) of the Hindu Succession Act. The first Appellate Court has failed to consider the said reason and has proceeded on the basis that there is no material to show the relationship between plaintiffs 1 and 2 and he has succeeded to the property under Section 15(2) of the Hindu Succession Act and wherefore the said finding is also clearly baseless and wherefore perverse and I accordingly, I answer this substantial question of law also in the affirmative and pass the following order.--

The appeal is allowed. The judgment and decree passed by the Court of Civil Judge (Senior Division), Yadgir, in R.A. No. 69 of 1997, dated 7-3-2003 is set aside and R.A. No. 69 of 1997 is remitted to the Court of Civil Judge (Senior Division), Yadgir, for fresh disposal in accordance with law in the light of the observations made in the body of this judgment. The parties are directed to appear before the first Appellate Court on 26-10-2005 to seek further instructions in order to avoid further delay without any need of issuing fresh notice by the first Appellate Court. Let a copy of this order with lower Court records shall be transmitted to the first Appellate Court forthwith. There shall be no order as to costs in this appeal.


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