IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 05th DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD MISCELLANEOUS SECOND APPEAL NO. 36 OF 2018 BETWEEN:
1. Nagamma W/o. Late Madaiah Aged about 74 years R/at 4th Cross, Hosahalli Mandya City – 571 401.
2. Nalini D/o. Late Madaiah and W/o. Late Mahadeva (Kundappa) Aged about 42 years R/at 4th Cross, Hosahalli Mandya City – 571 401. ... Appellants (By Sri Chandrashekar H.B, Advocate) AND 1. M. Prakash S/o. Late Madaiah Aged about 44 years R/at Door No.27 1st Cross, Halahalli Main Road Mandya – 571 401.
2. Pavankumar H.P S/o. M. Prakash Aged about 22 years R/at Door No.27, 1st Cross Halahalli Main Road Mandya City – 571 401.
3. Amithkumar S/o. M. Prakash Aged about 20 years R/at Door No.27, 1st Cross Halahalli Main Road Mandya City – 571 401. ... Respondents This Miscellaneous Second Appeal is filed under Order XLIII Rule 1(u) of the CPC, 1908 against the judgment and decree dated 10.01.2018 passed in R.A.No.33/2016 on the file of the Principal Senior Civil Judge, Mandya allowing the appeal and setting aside the judgment and decree dated 09.09.2016 passed in O.S.No.722/2015 on the file of the Addl. Civil Judge and JMFC, Mandya, remanding back the matter to trial Court for fresh disposal.
This Miscellaneous Second Appeal coming on for admission this day, the court delivered the following:-
J U D G M E N T Heard the learned counsel for the appellants and perused the appeal papers.
2. This miscellaneous second appeal is by the appellants/defendants in O.S.No.722/2015 on the file of the Additional Civil Judge and JMFC, Mandya. The respondent Nos.2 and 3, sons of the respondent No.1, have filed the suit in O.S.No.722/2015 inter alia for declaration that the decree obtained by the appellants in O.S.No.105/1995 on 17.01.2005 is void being contrary to the provisions of Section 23 of the Hindu Succession Act,1956 and even otherwise in the facts and circumstances asserted by them. The appellants/defendants on being served with the notice of the suit in O.S.No.722/2015 filed their Written Statement.
3. The appellants/ defendants contended in their written statement that the decree in O.S.No.105/1995 was challenged by the respondent No.1 in first appeal in R.A. No.72/2013. This appeal was dismissed. The respondent No.1 carried the challenge to the judgment and decree in O.S.No.105/1995 to this Court in second appeal in R.S.A. No.899/2014. This Court by order dated 23.07.2015 dismissed the appeal in R.S.A. No.899/2014. As such, the question whether the appellants were entitled for the share in the suit schedule property was finally decided. Nevertheless, the present suit in O.S. No.722/2015 is filed by the respondents No. 2 and 3 at the instance of the respondent No.1. The suit in O.S.No.722/2015 is hit by the principles of res judicata.
4. The trial Court framed Issue No. 5 on whether the suit in O.S.No. 722/2015 was barred by the principles of res judicata. The trial Court took up this Issue No.5 as a preliminary issue. The trial Court by its order dated 09.09.2016 dismissed the suit in O.S.No.722/2015 answering the Issue No.5 in favour of the appellants/defendants holding that the suit was hit by the principles of res judicata. Therefore, the respondents Nos.2 and 3, the plaintiffs in O.S.No.722/2015, challenged the aforesaid order dated 09.09.2016 in R.A.No.33/2016 on the file of the Principal Senior Civil Judge, Mandya.
5. The appellate Court by the impugned order dated 10.01.2018 has allowed the appeal in R.A.No.33/2016 and set aside the order dated 09.09.2016 remanding back the suit in O.S.No.722/2015 to the trial Court for a fresh disposal of the suit qua all the issues including the Issue No.5 as regards the question whether the suit in O.S.No.722/2015 by the respondent Nos.2 and 3 is barred by the principles of res judicata.
6. The respondent Nos.2 and 3 have instituted the suit in O.S.No.722/2015 contending inter alia that appellant No.1 is the wife of Sri Madaiah and appellant No.2 and respondent No.1 are his children. Sri Madaiah was employed in P.E.S. College, Mandya and he was entitled for service benefits and also amounts payable under the Life Insurance policy/ies purchased by him. After the demise of Sri Madaiah, the appellants and respondents agreed that the appellants would be entitled to receive the amount payable under Life Insurance policy/ies and also for service benefits, and in lieu thereof, the appellants would not be entitled to seek any share in the suit schedule property/residential property. The respondents constitute a joint family and the suit schedule property is the property of such joint family. Therefore, the appellants could not have filed the earlier suit in O.S.No.105/1995 without impleading the respondent Nos.2 and 3 as parties to the proceedings. Therefore, the decree in O.S.No.105/1995 would not be binding on them. On the other hand, the appellants/defendants contend that the suit schedule property was the absolute property of late Madaiah and on his demise, the appellants and respondent No.1, being his class-I legal representatives, would be entitled for equal share. Therefore, the suit in O.S.No.105/1995 is decreed.
7. The trial Court has considered the Issue No.5 framed as regards the maintainability of the suit because of the principles of res judicata as a Preliminary Issue. The trial Court without considering the question whether the dispute as set up by the respondent Nos.2 and 3 was conclusively decided amongst the parties, including the respondent Nos.2 and 3, has concluded that the suit was barred by principles of res judicata and therefore, the suit is liable to be dismissed. In the appeal in R.A.No.33/2016, the appellate Court, relying upon the authoritative pronouncements of the Hon’ble Supreme Court and this Court, has interfered with the orders of the trial Court. The appellate Court has reasoned that the question whether the suit is barred by principles of res judicata is a mixed question of fact and law, and such mixed question of fact and law should be decided with appropriate opportunities to both the parties to justify the respective stand. In light of the respective cases, the first appellate Court is of the opinion that the trial Court had erred in treating Issue No.5, which relates to whether the suit was barred by principles of res judicata, as a Preliminary Issue, and the appellate Court has also opined that the Issue No. 5 should be considered along with other Issues including the Issue as to whether the decree in O.S.No.105/1995 was contrary to the provisions of Section 23 of the Hindu Succession Act, 1956.
8. The learned counsel for the appellants submits that the present suit is an umpteenth effort to defeat the appellants’ rights to the suit schedule property. The respondent No.1 was not diligent in conducting the earlier suit in O.S.No.105/1995. The respondent No.1 did not file his written statement in such proceedings. The respondent No.1, having failed in his challenge to the judgment and decree in O.S.No.105/1995, has set up the respondent Nos.2 and 3 to file the present suit. The applications by the respondent Nos.2 and 3 to come on record in the pending final decree proceedings is dismissed, and the present suit is filed after dismissal of those applications. It is thus obvious that there is an effort to deny to the appellants the benefits of concluded decree in O.S.No.105/1995. The learned counsel also submits that the rejection of the repeated applications filed by the respondent Nos.2 and 3, demonstrate the conduct of the respondent Nos.2 and 3. As such, the appellate Court should not have interfered with the trial Court’s order.
9. However, this Court is of the considered view that the rejection of the application filed by the respondent Nos.2 and 3 in the final decree proceedings cannot be a reason to interfere with the impugned order. The opinion of the appellate Court that the question of res judicata is a mixed question of fact and law is too trite. Even otherwise, the case of the respondent Nos. 2 and 3 is that it was agreed that the appellants would receive all the service benefits, and the payouts under the relevant Life Insurance policy/ies payable on the demise of Late Madaiah in lieu of their interest in the suit schedule property. The respondent Nos. 2 and 3 with the respondent No. 1 constitute a joint family and the suit schedule property is their common property. Therefore, the appellants could not have filed the earlier suit without the respondent No. 2 and 3 being made parties to the suit. These assertions are questions of facts that will have to be adjudicated after a trial, and could not have been adjudicated without a trial. The appellate Court’s impugned order, in the facts and circumstances of the case, does not suffer from any infirmity justifying inference.
10. However, it is irrefutable that the parties have been agitating for a share in the suit schedule property right from the year 1995, and as such, it would be just and reasonable to observe, as requested by the learned counsel for the appellants, that the Civil Court shall expedite the final adjudication in the suit and neither of the parties shall seek unnecessary adjournments.
Therefore, the appeal is disposed of with these observations.
SD/- JUDGE KA/nms