IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR R.S.A.NO.3028 OF 2006 C/W R.S.A.NO.3027 OF 2006(DEC-INJ) IN R.S.A.NO.3028/2006 BETWEEN:
SHIVARAMEGOWDA S/O JAVAREGOWDA AGE: 49 YEARS, OCC: AGRICULTURE R/O KONNAPURA VILLAGE HALAGUR HOBLI, MALAVALLI TALUK – 571 430 MANDYA DISTRICT – 571 401.
DIED ON 23.07.2014 IN OBEDIENCE OF THIS COURT ORDER DATED: 07.04.2015 THE CAUSE TITLE IS AMENDED BRINGING THE LR’S APPELLANTS.
1. SMT.JAYAMMA W/O LATE SHIVARAMEGOWDA AGE 62 YEARS, HOUSEWIFE HALGUR POST MALAVALLI TALUK MANDYA DISTRICT – 571 421.
2. THAYAMMA D/O SHIVARAMEGOWDA AGE 40 YEARS, HOUSE WIFE W/O RAMESH R/O HULLEGALA VILLAGE KASABA HOBLI MALAVALLI TALUK MANDYA DISTRICT.
3. SHIVAKUMARASWAMY.S S/O LATE SHIVARAMEGOWDA AGE 42 YEARS, AGRICULTURIST KONNAPURA VILLAGE HALAGUR POST MALAVALLI TALUK MANDYA DISTRICT – 571 421.
…APPELLANTS (BY SRI. SYED AKBAR PASHA, ADVOCATE FOR SRI. MAHANTESH.S.HOSMATH, ADVOCATE ALSO PROPOSED LR’s DECEASED APPELLANT) AND:
SMT.KEMPAMMA W/O JAVAREGOWDA DECEASED BY LR.S 1. INDRAMMA W/O RAMAKRISHEGOWDA AGE 47 YEARS R.O KONNAPURA VILLAGE HALAGUR HOBLI, MALAVALLI TALUK MANDYA DISTRICT – 571 430.
2. RAMAKRISHNAGOUDA S/O JAVAREGOUDA AGE 57 YEARS VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK – 571 430 MANDYA DISTRICT – 571 401.
3. HANUMANTHEGOWDA S/O JAVAREGOWDA AGE 51 YEARS VILLAGE, HALAGUR HOBLI MALAVALLI TALUK – 571 430 MANDYA DISTRICT – 571 401.
…RESPONDENTS (BY SRI.M. SHIVA PRASAD, ADVOCATE FOR R-1 & R-2 R-3-SERVED) THIS APPEAL IS FILED UNDER SECTION 100 OF CPC., AGINST THE JUDGMENT & DECREE DATED: 02.09.2006 PASSED IN R.A.NO. 1/1997 ON THE FILE OF THE ADDL.DISTRICT JUDGE, MANDYA, PARLTY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 11.12.1996 PASSED IN O.S.NO. 81/91 ON THE FILE OF THE ADDL. CIVIL JUDGE AND CJM, MANDYA AND ETC.
IN R.S.A.NO.3027/2006 BETWEEN:
SHIVARAMEGOWDA S/O JAVAREGOWDA AGE: 49 YEARS, OCC: AGRICULTURE R/O KONNAPURA VILLAGE HALAGUR HOBLI, MALAVALLI TALUK MANDYA DISTRICT – 571 401.
DIED ON 23.07.2014 AMENDED VIDE COURT ORDER DATED: 07.04.2015 AND THE LRs OF APPELLANTS BROUGHT ON RECORD.
1. SMT.JAYAMMA W/O LATE SHIVARAMEGOWDA AGE 62 YEARS, HOUSEWIFE HALGUR POST MALAVALLI TALUK MANDYA DISTRICT – 571 421.
2. THAYAMMA D/O SHIVARAMEGOWDA AGE 40 YEARS, HOUSE WIFE W/O RAMESH R/O HULLEGALA VILLAGE KASABA HOBLI MALAVALLI TALUK MANDYA DISTRICT.
3. SHIVAKUMARASWAMY.S S/O LATE SHIVARAMEGOWDA AGE 42 YEARS, AGRICULTURIST KONNAPURA VILLAGE HALAGUR POST MALAVALLI TALUK MANDYA DISTRICT – 571 421.
…APPELLANTS (BY SRI. SYED AKBAR PASHA, ADVOCATE FOR SRI. MAHANTESH.S.HOSMATH, ADVOCATE AND ALSO PROPOSED LR’s DECEASED APPELLANT.) AND:
SMT.KEMPAMMA W/O JAVAREGOWDA DECEASED BY LR.S 1. INDRAMMA W/O RAMAKRISHEGOWDA AGE 47 YEARS R.O KONNAPURA VILLAGE HALAGUR HOBLI, MALAVALLI TALUK MANDYA DISTRICT – 571 430.
2. RAMAKRISHNAGOUDA S/O JAVAREGOUDA AGE 57 YEARS VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK – 571 430 MANDYA DISTRICT – 571 401.
3. HANUMANTHEGOWDA S/O JAVAREGOWDA AGE 51 YEARS VILLAGE, HALAGUR HOBLI MALAVALLI TALUK – 571 430 MANDYA DISTRICT – 571 401.
…RESPONDENTS (BY SRI.M. SHIVA PRASAD, ADVOCATE FOR R-1 & R-2 R-3-SERVED) THIS APPEAL IS FILED UNDER SECTION 100 OF CPC., AGINST THE JUDGMENT & DECREE DATED: 02.09.2006 PASSED IN R.A.NO. 3/1997 ON THE FILE OF THE ADDL.DISTRICT JUDGE, MANDYA, PARTLY ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 11.12.1996 PASSED IN OS NO. 81/1991 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN) & CJM, MANDYA AND ETC.
THESE APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These appeals are directed against common judgments and decrees dated 02.09.2006 passed in R.A.Nos.1/1997 and 3/1997 on the file of the Additional District Judge, Mandya, whereby appeal in R.A.No.1/1997 was partly allowed and appeal in R.A.No.3/1997 was dismissed by the lower appellate Court.
2. For the purpose of convenience, the parties are referred to by their respective ranks in the suit before the trial Court.
3. The brief facts giving rise to these appeals are as follows:
The plaintiff Smt.Kempamma was married to one Sri.Javarayigowda. The said Smt.Kempamma filed a suit in O.S.No.81/1991 against her three sons, i.e., Shivaramegowda, Ramekrishnegowda and Hanumanthegowda for declaration and possession of her title over three items of suit schedule properties, for permanent injunction and other reliefs. It was specifically contended by the plaintiff Smt.Kempamma that the suit schedule property belonged to her father Kenchamayigowda who did not have any male issues and as such, he gifted the suit schedule properties in favour of Smt.Kempamma and her husband Javaregowda under registered gift deed dated 03.08.1944. It was contended that pursuant to the said gift, the plaintiff and her husband were in possession and enjoyment of the property.
4. The plaintiff further contended that during the lifetime of the aforesaid Javaregowda, the suit schedule properties were divided under unregistered partition deed dated 05.05.1977. Under the said partition deed, the suit schedule properties fell to the share of the plaintiff who has been living separately from the defendants having regard to the strained relationship between them. The revenue proceedings pending between the parties also indicate that the plaintiff does not have cordial relationship with the defendants who are none other than her own sons. It was therefore contended that the plaintiff was the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule properties. Defendants did not have any manner of right, title and interest or possession and having regard to the hostile and adverse conduct of the defendants, the plaintiff was constrained to file the suit in the trial Court.
5. The defendants having been served, the defendant No.1-J.Shivaramegowda alone contested the suits. While denying the plaint allegations, the defendant No.1 admitted the registered gift deed dated 30.08.1944 executed in favour of the plaintiff and her husband Javarayigowda. It was contended that the plaintiff put the properties acquired by her under a gift deed into the common stock and by blending it with the other joint family properties, the suit schedule properties and other joint family properties were enjoyed by all the members as joint family properties. It was further contended that in the year 1969 during the lifetime of Javarayigowda, the defendant and his parents including the plaintiff partitioned the joint family properties including the suit schedule properties and at the said partition, the suit schedule properties fell to the share of the defendant No.1. It was therefore contended that except defendant No.1, no one else has any manner of right, title and interest or possession over the suit schedule properties. It was also contended on behalf of defendant No.1 that he has perfected his title to the suit schedule property having been in uninterrupted hostile possession and enjoyment from 1969 onwards and the suit was liable to be dismissed as barred by limitation as well as for mis joinder of parties.
6. Based on the aforesaid pleadings, the trial Court framed the following issues:
“i) Whether plaintiff is the absolute owner of the suit properties?
ii) Whether the plaintiff is in lawful possession of the suit property?
iii) Whether the defendant no.1 proves that the suit properties are joint family properties?
iv) Whether the defendant no.1 proves that suit properties item no.1 1 & 2 fell to his share in the partition since then he is in exclusive possession of the same?
v) Whether the plaintiffs is entitled for declaration as sought?
vi) Whether plaintiff is entitled for permanent injunction as sought?
vii) What order or decree?”
7. The trial Court answered all the issues against the plaintiff and thereby, came to the conclusion that the plaintiff was not entitled to the decree for declaration and injunction as sought for by her. However, having held that the gift deed dated 30.08.1944 was not in dispute between the parties, the question of title of the plaintiff over the suit schedule properties was left open by the trial Court. The trial Court also negatived the contention of the plaintiff that there was a partition vide unregistered partition deed- Ex.P.2 dated 05.05.1977 and that consequently, the claim of the plaintiff that she was the absolute owner of the suit schedule property was rejected. Similarly, the trial Court also came to the conclusion that the alleged partition of the year 1969 set up by the defendant No.1 had also not been proved by him in accordance with law and his claim to that extent was also rejected. Thus, having rejected the plea of prior partition set up by both plaintiff and defendant No.1, the trial Court came to the conclusion that the plaintiff was entitled to half share in the suit schedule properties as per the gift deed dated 03.08.1944 executed in favour of the plaintiff and her husband Javarayigowda. However, the trial Court came to the conclusion that in a simple suit for declaration and permanent injunction, if absolute/full title is not proved by the plaintiff, the suit was liable to be dismissed. Under these circumstances, leaving open the question of title qua the gift deed dated 03.08.1944 regarding plaintiff’s half share over the suit schedule properties, the trial Court proceeded to dismiss the suit.
8. Aggrieved by the aforesaid judgment and decree passed by the trial Court dismissing her suit, plaintiff Smt.Kempamma preferred an appeal in R.A.No.1/1997 before the lower appellate Court. Similarly, aggrieved by the judgment and decree passed by the trial Court rejecting the contention of the defendant No.1 that there was a prior partition in the year 1969, the defendant No.1 also preferred an appeal in R.A.No.3/1997. The lower appellate Court took up both the appeals together and passed the impugned judgment and decree dismissing the appeal in R.A.No.3/1997 filed by defendant No.1 and partly allowing R.A.No.1/1997 filed by Smt.Kempamma.
9. At this stage, it is relevant to take note of a few subsequent events that occurred during the pendency of the aforesaid appeals in R.A.No.1/1997 and 3/1997 before the lower appellate Court. As stated above, both the aforesaid appeals were preferred in the year 1997 before the lower appellate Court. Smt.Kempamma the appellant in R.A.No.1/1997 expired on 21.07.2002. Pursuant thereto, one Smt.Indiramma who was the daughter-in-law of Smt.Kempamma, i.e., the wife of 2nd defendant- Ramakrishnegowda filed an application under Order 22 Rule 3 CPC in R.A.No.1/2007 for permission to come on record as the legal representative of the deceased appellant-Smt.Kempamma. It was the specific contention of the said Smt.Indiramma that during her lifetime, she had executed a registered Will dated 23.02.2002 bequeathing the suit schedule properties in favour of Smt.Indiramma. The execution as well as genuineness and validity of the said Will was opposed by the defendant No.1 in the said appeal. It was contended by him that said Smt.Indiramma not being a class-I heir of Smt.Kempamma, the question of Smt.Indiramma coming on record as L.R of the deceased Smt.Kempamma did not arise.
10. By order dated 24.01.2005, the lower appellate Court allowed the said application filed by Smt.Indiramma and permitted her to come on record for the limited purpose of representing the estate of the deceased Smt.Kempamma and to prosecute the appeal in the place of Smt.Kempamma. A perusal of the said order dated 24.01.2005 indicates that the impleading of Smt.Indiramma was only for the purpose of continuation of the appeal and the status of Smt.Indiramma was only as legal representative for the purpose of continuation of the appeal and not for any other purpose. It was also held that the said impleadment of Smt.Indiramma was not on account of a finding on the conclusive proof of the Will.
11. After getting herself impleaded as the legal representative of the deceased Smt.Kempamma, Smt.Indiramma prosecuted the appeal as the appellant.
12. As stated above, the defendant No.1 who was the contesting respondent in R.A.No.1/2007 as well as the appellant in R.A.No.3/2007 also prosecuted his appeal and contested the appeal in R.A.No.1/2007 being prosecuted by Smt.Indiramma.
13. As stated supra, the lower appellate Court dismissed R.A.No.3/2007 filed by defendant No.1- J.Shivaramegowda and partly allowed the appeal prosecuted by Smt.Indiramma. The operative portion of the judgment and decree passed by the lower appellate Court reads as under:
■ The appeal in R.A.No.1/1997 is allowed in part;
■ The judgment of dismissal in O.S.No.81/1991 is set aside;
■ The O.S.No.81/91 is allowed in part with costs;
■ The plaintiff Smt.Kempamma is declared as the absolute owner in possession of one half portion of the plaint schedule property;
■ The appeal in R.A.No.3/1997 is dismissed”
14. As could be seen from the operative portion, the claim of prior partition of the year 1969 urged by defendant No.1 was rejected and consequently, R.A.No.3/1997 was dismissed. The suit O.S.No.18/1991 filed by Smt.Kempamma was allowed in part declaring Smt.Kempamma to be the absolute owner in possession and enjoyment of one half potion of the plaint schedule property.
15. Aggrieved by the judgment and decree passed in R.A.No.1/1997, the defendant No.1 has preferred R.S.A.No.3028/2006. Similarly, against the judgment and decree passed in R.A.No.3/1997, the defendant No.1 has preferred R.S.A.No.3027/2006.
16. On 27.01.2010, this Court formulated two substantial questions of law. Subsequently, on 20.11.2019, this Court formulated two additional substantial questions of law.
17. In view of the aforesaid two orders dated 27.01.2010 and 20.11.2019, the following substantial questions of law arise for consideration in this second appeal as hereunder:
i) Whether the First Appellate Court was justified in passing a decree for declaration of title in respect of Smt.Kempamma’s half share in respect of the suit schedule property without there being any amendment to the plaint filed by Smt.Kempamma?”
ii) Whether the First Appellate Court was justified in coming to the conclusion that the respondent No.1-Indramma had proved the validity of the alleged Will dated 23.03.2002 at Ex.P.1 alleged to have been executed by Smt.Kempamma in her favour?
iii) Whether the suit for injunction and declaration of title of deceased Smt.Kempamma, having been dismissed while the question of title was left open and the deceased plaintiff having died during the pendency of the first appeal before the First Appellate Court, whether the daughter-in-
law of the plaintiff, who is the respondent in the present case was entitled to establish that she was a legatee under the deceased plaintiff and could claim title to the property in the appeal?
iv) Whether the First Appellate Court was justified in permitting the alleged legal representative from prosecuting the suit and establishing title, which was left open by the trial Court?”
18. Substantial Question of Law No(i) A perusal of the impugned judgment and decree passed by the lower appellate Court as well as the trial Court would indicate that both the Courts below came to a conclusion that neither the plaintiff Smt.Kempamma nor the defendant No.1-Shivaramegowda had proved the plea of earlier partition set up by them. While the plaintiff Smt.Kempamma failed to establish that the suit schedule properties had fallen to her share in the panchayath Palupatti-Ex.P.1, the defendant No.1- Shivaramegowda also had failed to substantiate his contention that the suit schedule property had fallen to his exclusive share under a partition of the year 1969. Under these circumstances, both the Courts below having concurrently come to the conclusion that both the plaintiff as well as defendant No.1 having failed to establish the plea of prior partition set up by them, the only conclusion to be arrived at was that the plaintiff Smt.Kempamma was entitled to half share in the suit schedule property. While the trial Court declined to pass a decree for declaration in respect of Smt.Kempamma’s half share over the suit schedule property, the lower appellate Court having come to the conclusion that prior partition pleaded by both parties having not been proved, the suit of Smt.Kempamma in so far as half share over the suit schedule property deserved to be decreed and consequently the Appellate Court passed a decree for declaration of title in respect of Smt.Kempamma’s half share in respect of the suit schedule property.
19. It is contended by the learned counsel on behalf of the appellants that the lower appellate Court committed a serious error of law in decreeing the suit in respect of Smt.Kempamma’s half share in the suit schedule properties without there being any amendment to the plaint filed by Smt.Kempamma. In other words, learned counsel submitted that the plaintiff Smt.Kempamma having sought for declaration of her absolute title over the entire suit schedule property, in the face of a concurrent finding of fact recorded by both Courts that she was only entitled to half share in the suit schedule properties by virtue of the gift deed at Ex.P.1 of the year 1944, the lower appellate Court committed an error in declaring that Smt.Kempamma was the owner of half share without there being any prayer in this regard nor there being any amendment to the original plaint filed by Smt.Kempamma.
20. Per contra, learned counsel for Respondent No.1- Smt.Indiramma contends that it was open for the lower appellate Court to mould the relief in accordance with the provisions contained in Order VII Rule 7 CPC. It is his specific contention that the plaintiff Smt.Kempamma having sought for a higher/larger share, i.e., full share in respect of the suit schedule property and the Courts below having come to the conclusion that she was entitled to a lesser/lower half share in the properties, the lower appellate Court was fully justified in moulding the relief and granting a lesser/smaller half share in favour of Smt.Kempamma, thereby declaring her ownership over her half share in respect of the suit schedule property.
21. The question when a larger/higher relief is sought for by a party and the Court comes to the conclusion that the party is entitled to only a smaller/lower relief and not to the larger/higher relief, whether the Court would be justified in moulding the relief by taking recourse to Order VII Rule 7 CPC and thereby grant a lesser/lower relief is no longer res integra in the light of the decision of the Division Bench of this Court in Rangappa vs. Jayamma 1 In the said case, this Court held as under:
1. ILR 1987 KAR 2889 “6. In this background, the point that arises for consideration is, whether in these circumstances, the trial Court is justified in law in refusing to pass a preliminary decree for partition only on the ground that it is not one of the reliefs sought for in the suit and the suit is only for a declaration of title and injunction :
7. Order VII Rule 7 C.P.C. reads thus :
"Relief to be specifically stated : Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
The words "and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such relief as the plaintiff is entitled to, on the facts established on the evidence on record, even if such relief has not been specifically prayed for.
8.1. The provisions of Order VII Rule 7 of the C.P.Code are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the shares of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception, Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.
8.2. No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove that he is entitled to a half share in the suit properties. When a party claims exclusive title to the suit property and is able to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property. When a larger relief is claimed and what is established is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore in the instant case, nothing prevented the Court to pass a decree for partition, in order to avoid another suit for partition and to give relief to the party in conformity with the right he had established.
8.3. The Supreme Court in Kedarlal v. Harilal, has observed that :
"The Court would be slow to throw out a claim on a mere technicality of pleading when the substance of a thing is there and no prejudice is caused to the other side and it is always open to a Court to give the plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs."
In the instant case, as already pointed out, even the defendant herself requested the Court to pass a decree for partition to avoid another suit for partition. Hence there is no question of any prejudice being caused to the defendant.
8.4. In Gangaram Ramachandra v. Buthru Sao and Ors., AIR 1952 Nagpur 202 a Division Bench consisting of Bose and Hidayathulla, JJ. (as they were then) did not see any reason as to why "a suit for exclusive possession of 16 Annas cannot be turned into a suit for partition and possession of such share as may be determined to belong to the plaintiff, if the defendants, contend or it is found that the plaintiff is not entitled to the whole but only to a part".
8.5 A Division Bench of the High Court of Patna in Katiar Jute Mills Ltd., v. Calcutta Match Works, has observed that the phrase "general or other relief" occurring in Order VII Rule 7 C.P.C is an omnibus phrase wide enough to cover all such reliefs as are consistent with the averments made in the plaint.
8.6 Coming nearer, in M. Lingappa v. Chennabasappa, (1917) 22 Mysore Chief Court Reports, 293, a Division Bench of the former Mysore Chief Court held as valid a decree for partition and separate possession passed by the Trial Court to the extent of the share of the plaintiff-coparcener in a suit filed by him to set aside the alienation made during his minority by his undivided brother and mother of a specific portion of the whole of the family property and to eject the alienee from the entire lands alienated, on a finding that the alienation was not binding on the plaintiff's share. It was further observed that :
"In these eases one object of the parties and the Courts must be to prevent unnecessary litigation so far as may be ; the position of a purchaser from a member of a joint family is somewhat anomalous (Gurulingappa v. Nandappa (1896) ILR XXI Bom. 797) and in working out his rights as between himself and members of the family who are not responsible for the sale to him, we must bear in mind on the one hand the fact that his purchase is valid and on the other the fact that the members of the family are not to be prejudiced. It will therefore, be right to deal with each case on its own merits and not to try to lay down a hard and fast rule applicable to all cases. The question will be how can the rights of the contending parties be settled with the least inconvenience and without injustice to any of them."
Again in Ramaiah v. Siddalingappa, (1943) 48 Mysore High Court Reports, 317 following the aforesaid decision in Lingappa's case in a suit, brought by the purchasers of specific plots in a particular property belonging to a Hindu Joint Family owning extensive property, for possession of what they had purchased and in the alternative for partition of that particular property, on being found that the plots sold to the plaintiffs were less than the share of the vendor at the time of the sale, it was held that the suit was maintainable though it was not for a general partition ; that in the circumstances of the case, the plaintiffs were entitled to a decree for partition of a particular item of the joint family property they had purchased.
8.7 In Rame Gowda v. Kuntalinge Gowda and Ors., (1950) 55 Mysore High Court Reports, 240, a Division Bench following the aforesaid two decisions in Lingappa and Ramaiah's cases held thus :
"Though this is a suit for declaration of title and possession only, there is nothing unusual in giving relief to the parties by directing a partition of the properties as has been done in other cases of this kind in order to avoid unnecessary litigation and waste of time of Courts ; vide Lingappa v. Chennabasappa (1917) 22 Mys. C.C.R. 293) and Ramaiah v.
Siddalingappa (1942) 48 Mys. H.C.R. 317)."
Thus, apart from the fact that the view taken by us is quite in conformity with the provisions contained in Order VII Rule 7 of C.P.C. which are in very wide terms, it also receives support from the several authorities referred to above. For the reasons stated above, we hold that the Trial Court is not justified in refusing to pass a preliminary decree for partition and separate possession of the plaintiff's half share in the suit properties. Point No. 2 is accordingly answered in the negative and in favour of the plaintiff-appellant.
9. For the reasons stated above, the appeal is allowed in part. In modification of the decree of the Trial Court, there shall be a preliminary decree for partition and separate possession of the plaintiff's half share in the suit properties. The house property shall be partitioned through a Court Commissioner and the landed properties assessed to revenue shall be partitioned in accordance with the preliminary decree as per Section 54 of the C.P. Code. There shall be an enquiry into future mense profits under Order XX Rule 18(2) of the C.P. Code. In this appeal, there will be no order as to costs.”
22. As held by this Court in Rangappa’s case supra, in a suit for declaration of title over the suit schedule property, if the Court comes to the conclusion that the plaintiff has not been able to establish absolute and exclusive title over the suit schedule property and was able to establish that he was entitled only to half share in the suit schedule property, the Court acting under the provisions of order VII Rule 7 CPC, is empowered to mould the relief and pass a decree for partition and separate possession of the plaintiff’s half share in the suit schedule property.
23. In view of the law laid down by this Court in Rangappa’s case supra, I am of the opinion that the lower appellate Court was fully justified in coming to the conclusion that though the plaintiff Smt.Kempamma had not established her absolute and exclusive title over the entire suit schedule property. In view of the concurrent finding of fact recorded by both the Courts coupled with the undisputed fact that Smt.Kempamma had become the absolute owner by virtue of the gift deed Ex.P.1, the lower appellate Court was fully justified in passing a decree for declaration in respect of her half share over the suit schedule property. Under these circumstances, the contention of the learned counsel for the appellant that in the absence of a prayer for declaration of half share and without there being any amendment to the plaint filed by Smt.Kempamma, the lower appellate Court could not have passed a decree for declaration in respect of Smt.Kempamma’s half share is devoid of merit and the same is hereby rejected.
Substantial Question of Law No(i) is accordingly answered against the appellants and in favour of Respondent No.1.
24. Substantial Question No(ii):
As stated above, it is an undisputed fact that upon the death of Smt.Smt.Kempamma on 21.07.2002 during the pendency of the appeal before the lower appellate Court, Smt.Indiramma-Respondent No.1 herein filed an application to come on record and for permission to prosecute the appeal as the legal representative of Smt.Kempamma. In the first instance, though both Indiramma as well as the appellant herein adduced both oral and documentary evidence in support of their respective claims, the lower appellate Court allowed the application filed by Indiramma to the limited extent of permitting her to prosecute the appeal as the legal representative of Smt.Kempamma. While passing the said order dated 24.01.2005, the lower appellate Court did not either consider or appreciate the oral and documentary evidence of the parties qua the execution, genuineness and validity of the Will and finding recorded by the lower appellate Court in the order dated 24.01.2005 was limited/restricted to permit Smt.Indiramma to come on record for the limited purpose of prosecuting the appeal as the L.R of Smt.Kempamma. In other words, the lower appellate Court in its order dated 24.01.2005 did not adjudicate upon the genuineness or validity of the Will dated 23.03.2002 propounded by Smt.Indiramma. However, at the time of disposal of the appeal, by the impugned judgment and decree, the lower appellate Court after considering and appreciating the entire oral and documentary evidence on record qua the Will dated 23.03.2002 propounded by Smt.Indiramma, came to the conclusion that Smt.Indiramma had successfully proved the execution, genuineness and validity of the Will executed in her favour by Smt.Kempamma. While doing so, the lower appellate Court recorded a categorical finding of fact that the evidence of Smt.Indiramma, the attesting witnesses and the scribe examined in proof of the Will had been established by Smt.Indiramma. At Para Nos.27 and 28 of its judgment, the lower appellate Court held as under:
“27.The learned Counsel for the 1st defendant appellant submits vehemently that the L.R.Indiramma has come on record only for the limited purpose of prosecuting this appeal and she cannot seek for the relief of possession from the 1st defendant. Per contra, the learned Counsel for the plaintiff Sri Malliah submitted vehemently that Indiramma the sole legatee of deceased plaintiff has come on record after proving the testamentary succession as required under Sec.63 of Indian Succession Act, 1925.The evidence also goes to show that Indiramma has let in evidence on the will and examined the scribe and the attestor and all legal requirement to prove the testamentary circumstances has been let in by Indiramma as such, her entitlement to succeed to the property of deceased Smt.Kempamma as legatee is not affected by order of the Court. This Court holds that when the plaintiff has been contesting the suit against the 1st defendant denying his right, title and interest over the suit property and has been unsuccessful before the trial Court to get a decree in her favour, it can be well inferred that there exists a circumstances for Smt.Kempamma to dispose of her property during her life time according to her wish. Smt.Indiramma is no other than the daughter-in-law of the plaintiff herself. Hence, this Court accept that the evidence as let in by Smt.Indiramma to come on record as L.R.as per Ex.P.1 will is sufficient to hold that she is the sold legatee of plaintiff.
28. The L.R.Indiramma has let in evidence in support of her application filed under O.22 Rule 3 C.P.C by producing the will at Ex.P.1 in the said evidence on I.A. and has examined P.Ws. 1 to 3 i.e., attesting witnesses and got marked documents and the 1st defendant has also examined as R.W.1 resisting the will. However, nothing has been elicited through the mouth of P.Ws. 1 to 3 in their cross-examination to show that plaintiff Smt.Kempamma had not executed the will at Ex.P.1 and she was not having sound disposable state of mind at the time of execution of the will. The 1st defendant’s contention that she was not keeping good health as such Ex.P.1 has been created by the claimant Indiramma and her husband who is no other than his brother, has not been established. No. independent evidence has been let in by the 1st defendant to show the status of mind of plaintiff Smt.Kempamma at the time of executing Ex.P.1, was not stable. The circumstances, consistent litigation by Smt.Kempamma against the 1st defendant goes to show her conscious and willful act in bequeathing her property during her life time according to her wish. Ex.P.1 is also a registered document drawing the presumption as to the execution of the document by deceased Smt.Kempamma. Therefore, the interim order passed by my learned Predecessor in office dt: 24.01.2005, has been made absolute b this Court, now by accepting the evidence of legatee Indiramma and two independent witnesses and I hold that Indiramma established that plaintiff has executed a will in favour of Indiramma, bequeathing the said property.
25. A perusal of the reasoning of the lower appellate Court and the findings recorded by it in the aforesaid paragraphs will clearly establish that the lower appellate Court came to the definite conclusion and recorded a categorical finding of fact that Indiramma had proved the execution, genuineness and validity of the Will executed in her favour by Smt.Kempamma. The said finding with regard to the execution, genuineness and validity of the Will executed by Smt.Kempamma in favour of Smt.Indiramma after considering and appreciating the oral and documentary evidence on record by the lower appellate Court is a finding of fact which does not warrant interference at the hands of this Court in exercise of its jurisdiction under Section 100 CPC. Under these circumstances, I am of the opinion that the first appellate Court was justified in coming to the conclusion that Respondent No.1-Smt.Indiramma had proved the alleged Will-Ex.P.1 dated 23.03.2002 executed in her favour of Smt.Kempamma. Accordingly, substantial question of law No(ii) is answered against the appellant and in favour of the respondent No.1.
26.Substantial Question Nos.(iii) and (iv):
It is the specific contention of the learned counsel for the appellant that having regard to the provisions contained in order 22 Rule 5 CPC, the lower appellate Court committed an error in recording oral and documentary evidence on the question of the alleged Will of Smt.Kempamma which was propounded by Smt.Indiramma instead of Smt.Kempamma. It is contended by the learned counsel that having regard to the undisputed fact that the Will was produced before the appellate Court during the pendency of the appeal when Smt.Kempamma had expired, it was incumbent upon the lower appellate Court to direct the trial Court to try the question and return a finding together with evidence by conducting a trial with regard to the validity of the Will and thereafter, determine whether Smt.Indiramma was the legal representative of Smt.Kempamma. In this context, he invites my attention to the proviso contained under Order 22 rule 5:
5. Determination of question as to legal representative. – Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.”
27. It is therefore contended that the very act of the lower appellate Court directing an enquiry into the Will was opposed to law and consequently, the finding with regard to the Will was liable to be set aside.
28. Per contra, learned counsel for Respondent No.1 submits that it is not in dispute that the appellant not only filed his objections to the application filed by Respondent No.1 for permission to come on record as the L.R of deceased Smt.Kempamma, the appellant also participated in the enquiry conducted on the said application by the lower appellate Court. He also contended that having participated in the enquiry by cross-examining Smt.Indiramma and her witnesses, the appellant was subsequently estopped from now contending that the enquiry contemplated under order XXII Rule 5 could not have been conducted by the lower appellate Court and that the matter had to be referred to the trial Court for a finding in that regard. Secondly, learned counsel for Respondent No.1 contends that the order dated 24.01.2005 passed by the lower appellate Court permitting Smt.Indiramma to come on record for the limited extent of prosecuting the appeal had not been challenged by the appellant herein and the same having attained finality, the appellant was estopped on this ground also from putting forth any challenge to the said order in the present second appeal.
29. I have given my careful consideration to the rival submissions and perused the material on record.
30. In this context, it is relevant to refer to the provisions contained in Section 107 of CPC which reads as follows:
“107. Powers of Appellate Court. - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
31. A perusal of Section 107(1)(d) and Section 107(2) will indicate that an appellate Court shall have power to either take additional evidence or to require such evidence to be taken. Section 107(2) contemplates that the appellate Court shall have all the powers of a trial Court as permitted by the CPC. It is therefore clear that as per the powers conferred upon the Appellate Court under Section 107 of CPC, the lower appellate Court had two options upon Smt.Indiramma filing an application for permission to come on record as the L.R of Smt.Kempamma.
i) The lower appellate Court could have referred the matter to the trial Court for a finding on the Will.
ii) The lower appellate Court was entitled to record evidence by permitting the parties to adduce both oral and documentary evidence as contemplated under Section 107(1)(d) referred to above.
32. It is therefore clear that having regard to the aforesaid statutory provisions, the lower appellate Court was fully justified in conducting an enquiry by itself recording the oral and documentary evidence of both sides on the Will without having to refer the same to the trial Court.
33. In this context, it is also relevant to note the proviso to order XXII Rule 5 CPC wherein the word “may” is used instead of ‘shall’ clearly indicates that the provision is directory and not mandatory and it is in the discretion of the appellate Court to either call for a finding from the trial Court or to record evidence itself. Under these circumstances, I am of the opinion that the lower appellate Court was fully justified in exercising powers conferred on it under Section 107 CPC and recording evidence on the Will by giving opportunity to both sides. As rightly contended by the learned counsel for Respondent No.1, the appellant having participated in the enquiry and having not challenged the order dated 24.01.2005, he is estopped from subsequently contending that the lower appellate Court could not have conducted an enquiry in respect of the Will of Smt.Kempamma relied upon by Smt.Indiramma.
34. It is contended on behalf of the appellant that the enquiry contemplated under Order XXII Rule 5 CPC is only a summary enquiry and any finding recorded therein is for the limited purpose of permitting a party to come on record as an L.R of a deceased party and consequently, even assuming a person is permitted to come on record as the L.R of the deceased party to a suit/appeal, the right title or possession of the legal representative cannot be decided while allowing an application under order XXII Rule 5 CPC. In so far as this contention is concerned, it is relevant to note that there are two orders passed by the lower appellate Court. Firstly, after recording evidence, the lower appellate Court passed an order on 24.01.2005 permitting Smt.Indiramma to come on record for the limited purpose of prosecuting the appeal. Subsequently, the lower appellate Court passed the final judgment and decree wherein the execution, genuineness and validity of the Will was upheld by the lower appellate Court after a full fledged trial and a formal enquiry and which has been confirmed by this Court while answering substantial question of law No(ii) stated above.
35. A perusal of the application under order XXII Rule 3 CPC filed by Smt.Indiramma, statement of objections filed by the appellant herein as well as the oral and documentary evidence adduced by both parties will clearly establish that the enquiry conducted in respect of the Will of Smt.Kempamma was not a summary enquiry but was a formal enquiry by way of a full-fledged trial after giving equal opportunity to both sides. The pleadings and evidence on record with regard to the Will embarked upon by the lower appellate Court will clearly establish that the said enquiry by no stretch of imagination can be termed as a summary enquiry, but the same was in fact a full fledged trial or a formal enquiry. Under these circumstances, the contention of the learned counsel for the appellant that the enquiry on the Will was only a summary enquiry as contemplated under order XXII Rule 5 is liable to be rejected.
36. At this stage, it is necessary to refer to decision of this Court relied upon by the learned counsel for the appellant in the case of Bheemappa Ramachandrappa Amate vs. Shrikant Maruthi Mirajkar and others2.
37. It is contended by him that this Court has clearly held that the enquiry contemplated under order XXII Rule 5 is only a summary enquiry and based on such summary enquiry the declaration in favour of the legatee under a Will could not have been granted.
38. I have perused the judgment relied upon by the learned counsel for the appellant. In the facts of that case, this Court came to the conclusion that the enquiry contemplated under order XXII Rule 5 CPC being a summary enquiry, the question of declaring the rights of parties by virtue of the summary enquiry did not arise. However, as held by me herein before, the enquiry conducted by the lower appellate Court culminating in the finding that the Will of Smt.Kempamma had been proved 2. (2005)1 KCCR 137 in accordance with law by Smt.Indiramma was not a summary enquiry but a full-fledged formal enquiry. As a result of the formal enquiry conducted by the lower appellate Court, the Court came to the conclusion that the Will of Smt.Kempamma had been established in accordance with law. Under these circumstances, having regard to the facts involved in the present case, the said judgment in Bhimappa’s case supra has no application to the facts of the instant case.
39. In view of my findings recorded above that the lower appellate Court was fully justified in conducting an enquiry regarding the Will of Smt.Kempamma itself without referring the same to the trial Court and in view of my finding that the enquiry conducted by the lower appellate Court while coming to the conclusion that Smt.Indiramma was a legatee of Smt.Kempamma was a former/full-fledged enquiry, I am of the opinion that the substantial questions of law (iii) and (iv) are to be answered against the appellant.
Substantial questions of law (iii) and (iv) are hereby answered accordingly against the appellant and in favour of Respondent No.1.
40. Having come to the conclusion that Smt.Kempamma was the owner of half share in the suit schedule property and having held that Smt.Indiramma had acquired the said half share as a legatee of Smt.Kempamma under Will dated 23.03.2002 executed by Smt.Kempamma in favour of Smt.Indiramma in respect of her half share in the suit schedule property, the only question that now remains to be considered in the present appeal is whether this Court can grant any relief in the present appeal in favour of Respondent No.1 by virtue of the findings recorded by me earlier in this judgment that Respondent No.1 is entitled to half share in the suit schedule property.
41. Before I deal with the powers of the Appellate Court as contemplated in order 41 Rule 33 CPC read with provisions contained in Section 107 CPC and order 7 Rule 7 CPC, it is necessary to take note of one contention urged on behalf of the appellant. It is specifically contended by the learned counsel that no appeal or cross objections have been preferred by the respondent No.1- Smt.Indiramma before this Court challenging the non- grant of any relief in her favour. It is therefore contended that in the absence of any challenge made by Smt.Indiramma to the non-grant of any relief in her favour by the lower appellate Court, the question of granting any relief in favour of Smt.Indiramma by this Court in the present appeal filed by Shivaramegowda did not arise. In other words, it is contended on behalf of the appellant that the present appeal is restricted to whether the judgment and decree of the lower appellate Court passed against Shivaramegowda is correct or not and whether Smt.Indiramma is entitled to any relief at the hands of this Court can not be adjudicated upon by this Court particularly when Smt.Indiramma has neither filed cross- objections nor preferred a separate appeal against the impugned judgment and decree passed by the lower Appellate Court.
42. In this context, it is necessary to refer to the provisions contained in order 41 Rule 33 CPC which reads as under:
“ 33. Power of Court of Appeal – The Appellate Court Shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decree Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”
43. A perusal of the provisions contained in order 41 Rule 33 CPC would indicate that the same specifically enjoins that notwithstanding that the appeal is filed only to a part of the decree by Shivaramegowda, it is open for this Court being an appellate Court to pass such further or other decree or order in favour of the respondent No.1- Indiramma although she may not have filed any appeal or objection. In other words, in the present appeal filed by Shivaramegowda, notwithstanding the fact that Smt.Indiramma has not challenged the judgment and decree of the lower appellate Court not granting any relief in her favour, this Court being an appellate Court is entitled to mould the relief and pass such appropriate orders in her favour and thereby decide the case finally in order to do full, complete and total substantial justice. It is relevant to note that as stated above, the lower appellate Court has come to the conclusion that Smt.Kempamma was the owner of half of the suit schedule properties. The lower appellate Court also came to the conclusion that the Will in favour of Smt.Indiramma by Smt.Kempamma had been proved in accordance with law. As a consequence of the finding that Smt.Kempamma was the absolute owner of half share and that Smt.Indiramma succeeded to Smt.Kempamma’s half share by virtue of the Will, Smt.Indiramma has become the owner of half share over the suit schedule properties. I have already confirmed all the said findings as stated hereinbefore while answering the substantial questions of law. Having recorded such a finding, the question is whether any relief can be granted in favour of Smt.Indiramma or whether she has to be driven to file a separate suit for partition and separate possession of her half share on the sole and simple ground that she has not preferred an appeal or cross-objections against impugned judgment and decree of the appellate court.
44. One relevant and material factor which would have to be taken into consideration to answer this question is the undisputed fact that the suit has been filed in the year 1991 by Smt.Kempamma. Upon her death, Smt.Indiramma filed an application in the year 2002. The lower appellate Court comes to the conclusion that the Will has been proved in the year 2006. After having come to the conclusion that Smt.Kempamma was the owner and that Smt.Indiramma was a legatee in respect of the half share of Smt.Kempamma, it would be a travesty of justice to drive Smt.Indiramma to another round of litigation for getting the decree for partition and separate possession of her undisputed half share over the suit schedule property. The scope and ambit of the powers of the Appellate Court to do complete and substantial justice under the provisions contained in Order 41 Rule 33 CPC has been reiterated in the following judgments of the Apex Court:
1) Mahant Dhangir and another vs. Shri Madan Mohan and others 3 2) K.Muthuswami Gounder vs. Palaiappa Gounder 4 3) Banarasi and others vs. Ram Phal 5 4) Samundra Devi and others vs. Narendra Kaur and others 6 5) Prahlad and others vs. State of Maharashtra and others 7 45. In the case of K.Muthuswami Gounder case supra, the Apex Court held as under:
“No hard and fast rules can be laid down as to the circumstances under which the power can be exercised under O.41, R.33, C.P.C., and each case must depend upon its own facts. The rule enables the appellate Court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it unitl it is set aside in appropriate proceedings, ordinary the appellate Court must not vary or reverse a decree/order 3. AIR 1988 SC 54 4. AIR 1998 SC 3118 5. (2003)9 SCC 606 6. (2008)9 SCC 100 7.(2010)10 SCC 458 in favour of a party who has not preferred any appeal and this rule holds good notwithstanding O.41, R.33, C.P.C. However, in exceptional cases the rule enables the appellate Court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals.”
46. In the of Banarasi’s case supra, the Apex Court has held as under:
15 [Ed.: Para 15 corrected as per Official Corrigendum No. F.3/Ed.B.J./ 65/2003] . Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above said provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.
16.Panna Lal v. State of Bombay [AIR 1963 SC 1516 : (1964) 1 SCR 980] so sets out the scope of Order 41 Rule 33 in the widest terms:
The wide wording of Order 41 Rule 33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as ‘the case may require’. If there was no impediment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff-respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the Illustration puts the position beyond argument.
The suit was filed by the plaintiff impleading the State Government and the Deputy Commissioner seeking recovery of compensation for the work done under a contract and the price of the goods supplied. The trial court held that the State was liable as it had beyond doubt benefited by the performance of the plaintiff. The suit was decreed against the State. The State preferred an appeal in the High Court. The plaintiff and other defendants including the Deputy Commissioner were impleaded as respondents. Disagreeing with the trial court, the High Court held that the contract entered into by the Deputy Commissioner was not binding on the State Government; that the Deputy Commissioner signed the contract at his own discretion; and further, that the contract not having been entered into in the form as required under Section 175(3) of the Government of India Act, 1935, was not enforceable against the State Government. The High Court also held that the Government could not be held to have ratified the action of the contract entered into by the Deputy Commissioner. The State was held also not to have benefited by the performance of the plaintiff. On this finding, the High Court set aside the trial court's decree passed against the State Government. In an appeal to this Court, the Constitution Bench held that it was a fit case for the exercise of jurisdiction under Order 41 Rule 33 CPC. On the findings arrived at by the High Court, while setting aside the decree against the State, the High Court should have passed a decree against the Deputy Commissioner. It was not necessary for the plaintiff to have filed any cross- objection and the Illustration appended to Order 41 Rule 33 was enough to find solution.
17. In Rameshwar Prasad v. Shambehari Lal Jagannath [AIR 1963 SC 1901 : (1964) 3 SCR 549] the three-Judge Bench speaking through Raghubar Dayal, J. observed that:
“Rule 33 really provides as to what the appellate court can find the appellant entitled to. It empowers the appellate court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or order insofar as it affects the rights of the appellant. It further empowers the appellate court to pass or make such further or other decree or order as the case may require. The court is thus given a wide discretion to pass such decrees and orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties.”
18. In Harihar Prasad Singh v. Balmiki Prasad Singh [(1975) 1 SCC 212] the following statement of law made by Venkatarama Aiyar, J. (as His Lordship then was) in the Division Bench decision in Venukuri Krishna Reddi v. Kota Ramireddi [AIR 1954 Mad 848 : (1954) 2 MLJ 559] was cited with approval which clearly brings out the wide scope of power contained in Rule 33 and the Illustration appended thereto, as also the limitations on such power: (SCC p. 236, para 36) “Though Order 41 Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41 Rule 33.
But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which courts could interfere under Order 41 Rule 33. Such an enumeration would neither be possible nor even desirable.”
19. In the words of J.C. Shah, J. speaking for a three-Judge Bench of this Court in Nirmala Bala Ghose v. Balai Chand Ghose [AIR 1965 SC 1874 : (1965) 3 SCR 550] the limitation on discretion operating as bounds of the width of power conferred by Rule 33 can be so formulated: (AIR p. 1884, para 22) “The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of the parties. Where in an appeal the court reaches a conclusion which is inconsistent with the opinion of the court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from.”
20. A Division Bench decision of the Calcutta High Court in Jadunath Basak v. Mritunjoy Sett [AIR 1986 Cal 416 : (1986) 2 CHN 44] may be cited as an illustration. The plaintiff filed a suit for declaration that the defendant had no right or authority to run the workshop with machines in the suit premises and for permanent injunction restraining the defendant from running the workshop. The trial court granted a decree consisting of two reliefs: (i) the declaration as prayed for, and (ii) an injunction permanently restraining the defendant from running the workshop except with the terms of a valid permission and licence under Sections 436 and 437 of the Calcutta Municipal Act, 1951 from the Municipal Corporation. The defendant filed an appeal. The Division Bench held that in an appeal filed by the defendant, the plaintiff cannot challenge that part of the decree which granted conditional injunction without filing the cross- objection. The Division Bench drew a distinction between the respondent's right to challenge an adverse finding without filing any appeal or cross- objection and the respondent seeking to challenge a part of the decree itself without filing the cross- objection. The Division Bench held that the latter was not permissible. We find ourselves in agreement with the view taken by the High Court of Calcutta.
47. So also in the case of Samudra Devi supra and in the case of Prahlad and others vs. State of Maharashtra 8, the Apex Court held in Para 18 as under:
“18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may 8. (2010)10 SCC 458) require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying “the court may pass such further or other order as the case may require”. This expression “case” would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.”
48. While considering the powers of the Appellate Court to mould the reliefs and to do complete justice by invoking the provisions contained in order 41 Rule 33 CPC, the Apex Court said that the power is to be exercised subject to four limitations:
i) The power cannot be exercised to the prejudice of a person who is not a party before the appellate Court.
ii) The appellate Court cannot exercise such a power in favour of such a party who has given up or lost his claim.
iii) The power cannot be exercised in favour of respondent when the part of the decree to be reversed has become final as against such a respondent by occurrence of some event.
iv) The power cannot be exercised ignoring a legal intradict.
49. Now coming to the facts of the instant case, it is not in dispute that the lower appellate Court came to the definite conclusion that Smt.Kempamma was the owner of the half share in the suit schedule property. It is also not in dispute that the lower appellate Court came to the conclusion that the Will in favour of Smt.Indiramma by Smt.Kempamma was a genuine and valid document which entitles Smt.Indiramma to half share in the suit schedule properties. I have affirmed both the findings while answering the subsyantial questions of law hereinbefore. It follows therefrom that by virtue of my findings recorded hereinbefore, the half share of Smt.Kempamma is straight away succeeded to by Smt.Indiramma who has become the owner of the half share in the suit schedule properties. Thus Smt.Indiramma has become entitled to partition and separate possession of her half(1/2) share over the suit schedule properties by virtue of the judgment and decree passed by me in the present appeal.
50. It is nobody’s case that the power under order 41 Rule 33 is being exercised against to the prejudice of a person who is not a party to this appeal. It is also not in dispute that Smt.Indiramma has neither lost nor given up her claim over the suit schedule properties so as to prevent application of order 41 rule 33 CPC to the facts of the instant case. On the other hand, her right over half share in the suit schedule properties has been recognized and upheld by the lower appellate Court as well as by this Court. It is also not in dispute that no part of the decree to be reversed has become final as against the Respondent No.1-Indiramma by occurrence of any event which prohibits this Court from invoking Order 41 Rule 33 CPC. On the other hand, her absolute right over half share in the suit schedule property has stood confirmed and has attained finality by the findings recorded by this Court supra. Under these circumstances, there is absolutely no impediment for this Court to invoke its jurisdiction under order 41 Rule 33 CPC so as to pass a preliminary decree for partition and separate possession of the half share of Smt.Indiramma in respect of the suit schedule properties. As stated supra, this power is being exercised to give a quietus and finality to the lis between the parties as well as to prevent multiplicity of proceedings and to prevent the parties from embarking upon a second round of litigation in respect of their dispute which commenced in the year 1991. This power is also being exercised keeping in mind the well known maxim, “actus curiae neminem gravabit” – “the act of the Court shall prejudice no one”.
51. It is well settled that rules of procedure as well as technicalities/hyper technicalities are designed to facilitate justice and further its ends. It is equally well settled that rules of procedure are not penal provisions for imposing punishment and penalties and the same should not be used as a tripping mechanism to deprive parties of their valuable legal rights. Rules of procedure ought to be used in furtherance of justice and not be used to frustrate it.
52. In the instant case, as stated above, having come to the conclusion that Smt.Kempamma was the owner of half share in the suit schedule properties and also having come to the conclusion that Smt.Indiramma succeeded to the said half share by virtue of the Will executed by Smt.Kempamma, it would be doing complete injustice to all parties to drive Smt.Indiramma to another round of litigation for the unnecessary purpose of enabling her to get partition and separate possession of her half share in the suit schedule property which has also stood concluded by this judgment.
53. Under these circumstances, I am of the opinion that instead of driving Smt.Indiramma to file a separate suit for partition, I hereby invoke the provisions contained in Section 107 CPC read with Order 41 rule 33 CPC and order 7 Rule 7 CPC and pass a preliminary decree declaring that the respondent No.1 is entitled to partition and separate possession of her half share in the suit schedule properties together with all consequential reliefs flowing therefrom.
54. After having come to the conclusion that Indiramma is entitled to a preliminary decree for partition and separate possession of her half share over the suit schedule properties, it would be necessary to quantify the shares of all parties in this preliminary decree only. In this context, it is relevant to state that it is not in dispute that Javaregowda died intestate. It is also not in dispute that Javaregowda acquired half share in the suit schedule properties in the year 1944 and that his half share was his separate property. Accordingly, half share of Javaregowda would have to be divided by granting equal share to Smt.Kempamma and their three sons. Accordingly, applying Section 8 of the Hindu Succession Act to the half share of Javaregowda, the respective shares of the parties during the lifetime of Smt.Kempamma would have been quantified as hereunder:
55. Upon the death of Smt.Kempamma and by virtue of her Will in favour of Smt.Indiramma, Smt.Indiramma would succeed to the 5/8th share of Smt.Kempamma. Thus, as on the date of passing this preliminary decree for partition and separate possession of the suit schedule properties, the shares of the parties would have to be quantified as hereunder:
56. In view of the aforesaid discussion, I pass the following order:
ORDER i) Both the Regular Second Appeals are hereby dismissed.
ii) Respondent No.1-Indiramma is declared as being entitled to 5/8th share over the suit schedule properties.
iii) Similarly, each of the defendants in O.S.No.81/1991 including Shivaramegowda or their respective legal representatives are entitled to 1/8th share each in the suit schedule properties.
iv) Respondent No.1-Indiramma is entitled to partition and separate possession of her 5/8th share in the suit schedule properties together with all consequential reliefs/benefits flowing therefrom.
v) Respondent No.1-Indiramma is granted four weeks time to pay requisite Court fee from the date of receipt of a copy of this order.
vi) Draw preliminary decree accordingly.
Sd/- JUDGE bnv*