R S RAJANNA Vs. BASAVAIAH

JUDGEMENT

(1.) This is a review application under O. 47, R. 1 of the Code of Civil Procedure read with S. 114 thereof. This review application has been filed from the judgment and decree dated September 5, 1991 passed by the Honble Mr. Justice B. Jagannatha Hegde in Regular Second Appeal No. 616/ 1983, allowing the appeal of the present opposite party No. 1 taking the view that Smt. Lingegowda (Smt. Nanjamma) succeeded to the suit properties or inherited the suit properties of her husband Sri Lingegowda by virtue of and under the Will dated 12-5-1948 which had been executed by Sri Lingegowda in favour of his wife Smt. Nanjamma.

(2.) The admitted position between the parties is that Sri Lingegowda died on 23-2-1956. As stated by the applicant's counsel, his death took place prior to the coming into force of Hindu Succession Act. No doubt, Smt. Nangamma is alleged to have executed the Will relating to the suit property on 10-6-1973 in favour of the applicant, the question involved in the case was whether Smt. Nanjamma was the absolute owner of the property and entitled to execute the Will in favour of respondent No. 1 or did she become the absolute owner under S. 14 of the Act. The Hon'ble Mr. Justice B. Jagannatha Hegde while allowing the appeal of the appellant, who is the opposite party No. 1 in this application, held that Smt. Nanjamma succeeded to the property or inherited the property by virtue of Exhibit D-I dated 12-5-1948 and she did not have any interest pre-existing in the suit property on the date the Will was executed or the Will came into operation i.e., the date o death of Sri Lingegowda. The present Case was covered by sub-sec.(2) of S. 14 of the Hindu Succession Act, 1956, which provides that,"14(2):- Nothing contained in sub-sec. (1) shall apply to any property acquired by way of gift or under a Will or any other intrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument of the decree, order of award prescribed a restricted estate in such property."The Hon'ble Mr. Justice B. Jagannatha Hegde applying the principles of law laid down in the case of Karmi v. Amru, AIR 1971 SC 745 opined and held as in the present case only life estate was conferred on (sic) under the Will, the lady i.e., Smt. Nanjamma's right over the suit property did not enlarge into an absolute estate, the Will (Exhibit D-1) executed by Smt. Nanjamma in favour of respondent No. 1 could not confer any title interest or right in favour of respondents in the suit properties and with this finding allowed the Regular Second Appeal filed by the present oppposite party No. 1 who was the appellant in the Regular Second Appeal.

(3.) Having felt aggrieved with the judgment/decree passed by the learned Single Judge (the Hon'ble Mr. Justice B. Jagannatha Hegde), Sri R. S. Rajanna, who is one of the respondents i.e. respondent No. 1 in the Regular Second Appeal, filed this petition. The application for review has been filed delayed by 50 days and along with the application for review and application for condonation of delay had also been filed.