POOJARI CHANDRAPPA Vs. NINGAMMA

JUDGEMENT

(1.) The captioned regular second appeal is filed by the unsuccessful defendant No.1 questioning the judgment and decree of both the Courts below declaring that respondent No.1-plaintiff is absolute owner of the suit schedule property and consequently restraining the present appellant and other defendants from interfering with plaintiff's peaceful possession and enjoyment over the suit schedule property.

(2.) The facts leading to the case are as under: Respondent No.1-plaintiff filed a suit for declaration and injunction by specifically contending that one Poojari Rangappa, who is maternal-uncle of respondent No.1- plaintiff, executed a maintenance deed on 14/9/1956 in favour of plaintiff's mother namely Smt.Poojari Hanumantavva. Respondent No.1-plaintiff further contended that Poojari Rangappa bequeathed the suit land in favour of the mother of plaintiff on 16/10/1992 and therefore, she claimed that after the death of her mother, the present respondent No.1-plaintiff being daughter has succeeded to the property as her mother became absolute owner by virtue of maintenance deed and Will executed by said Poojari Rangappa. The present appellant and other defendants, on receipt of summons, contested the proceedings and stoutly denied the entire averments made in the plaint. The defendants specifically contended that Poojari Rangappa was not the absolute owner of the suit schedule property and therefore, he had no locus-standi to execute maintenance deed. Even otherwise, the said Rangappa under the maintenance deed has created limited right whereby the mother of respondent No.1- plaintiff was only entitled to enjoy the property in lieu of her maintenance and therefore, after the death of Poojari Hanumantavva, the property would revert back to the defendants. The present appellant, who was arrayed as defendant No.7, also contended that there was family partition on 23/11/1997 and in terms of partition, the present suit land was also subject matter of the said partition and both brothers shared it equally. The Trial Court having assessed oral and documentary evidence, answered issue No.1, 3 and 4 in affirmative thereby recording a finding that the plaintiff has succeeded in proving that Poojari Rangappa executed a maintenance deed on 14/9/1956 in respect of survey No.69/A/C totally measuring 6.64 acres and therefore the mother of respondent No.1-plaintiff in terms of sub-sec. 1 to Sec. 14 of the Hindu Succession Act, 1956 (for short 'the Act') became absolute owner as the limited right under the maintenance deed stood blossomed and therefore, the defendants cannot assert right and title over the property in question. The trial Court however negatived the contention of respondent No.1-plaintiff insofar as Will is concerned. The Trial Court having answered issue No.1, 3 and 4 in affirmative, however answered additional issue No.1 in affirmative, which is in conflict with issue No.1 and 3. However, the suit filed by respondent No.1-plaintiff came to be decreed by the Trial Court by declaring that she is the absolute owner of the suit schedule property and consequently injunction is granted. The said judgment and decree is confirmed by the First Appellate Court in R.A.No.38/2018.

(3.) The learned counsel appearing for the appellant would vehemently argue and contend that under a maintenance deed, the mother of respondent No.1-plaintiff had only limited right. He would submit to this Court that Rangappa, who is ancestor of defendants had no absolute right to execute the maintenance deed in favour of the mother of respondent No.1-plaintiff namely Hanumanthavva, who is his sister. He would submit to this Court that the brother had no corresponding duty to maintain a sister and therefore, even if both the Courts have held that the maintenance deed is held to be proved, in the present case on hand, limited right will not get enlarged as there was no corresponding duty on the brother to maintain a sister. Therefore, sec. 14(1) of the Act would not come into play. In this background, he would submit to this Court that the concurrent findings of the Courts below in declaring the mother of respondent No.1-plaintiff as absolute owner on the premise that the limited right would get enlarged under Sec. 14 of the Act is perverse and contrary to the clinching evidence on record. He would also submit to this Court that the additional issue No.1 framed was in fact answered in affirmative and therefore, he would submit to this court that the Trial Court having answered additional Issue No.1 in affirmative ought to have proceeded to dismiss the suit. On these grounds, he would submit to this Court that substantial question of law would arise in the present appeal.