Savithramma Vs. Puttegowda
EmailAppeal: Civil Appeal No. 642 of 1999
Petitioner: Savithramma
Respondent: Puttegowda
Apeal: Civil Appeal No. 642 of 1999
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Mar 01, 2001
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Section 100 with Constitution – Article 136 – Second appeal – Facts in issue tried by lower court about validity of second marriage of settlor and of adoption of ~4~ Both decided against respondent – In first appeal, only issue of second mar-riage raised and decided against him – In second appeal, High Court upheld the findings of validity of second marriage but also decided his adoption to be valid – Fact of second marriage being valid not claimed as incorrectly decided – In SLP by plaintiff, if it is open to respondent to urge against said finding in absence of cross appeal. Held that it was not open to High Court to entertain plea of validity of adoption. Further, in absence of cross appeal, respondent cannot urge about validity of second marriage in SLP. Appeal allowed. (Paras 4, 5)
JUDGEMENT:
ORDER
1. This appeal is directed against the judgment of the High Court of Karnataka allowing the second appeal filed by the defendant-respondent.
2. One Nanjegowda had two wives, both with the same name Savith-ramma. It is alleged that on 22nd May, 1963 Nanjegowda, by a registered adoption deed, adopted the defendant-respondent as his son. It is further alleged that subsequently by a registered deed dated 21st July, 1967 Nanjegowda revoked the said adoption deed. On 6th March, 1981 Nanjegowda executed a settlement deed in favour of both of his wives towards their maintenance. On 7th May, 1981 Nanjegowda died.
3. After the death of Nanjegowda, his two wives filed a suit for declaration as well as injunction against the defendant-respondent. The defendant-respondent contested a suit by filing a written statement. In the written statement it was, inter alia, pleaded that the defendant-respondent is an adopted son of Nanje-gowda and, therefore, he is entitled to half share in the proper-ty and that the marriage of second wife of Nanjegowda is void as it was contracted during the life time of the first wife and, therefore, she is not entitled to any share in the property. The trial court framed two issues; first issue was as to whether the defendant-respondent is an adopted son of Nanjegowda and the second issue was as to whether the marriage of plaintiff no. 2 with Nanjegowda is void and thus, she is not entitled to any share in the property. The parties led their evidence on those two issues. The trial court after considering the evidence on record came to the conclusion that defendant-respondent was not an adopted son of Nanjegowda and that the marriage of second wife of Nanjegowda is not void. Consequently, the suit for declaration as well as for injunction was decreed. The defendant-respondent thereafter preferred first appeal. Before the First Appellant Court the only argument advanced on behalf of the defendant-respondent was that the marriage of plaintiff no. 2 is void as same was contracted during the life time of plaintiff no. 1. The First Appellant Court rejected the said argument and affirmed the finding of the trial court. Consequently, the appeal was dis-missed by the First Appellant Court. Defendant-respondent there-after preferred a second appeal before the High Court. The High Court even after recording a finding that the second wife is a legally wedded wife of Nanjegowda, held that the defendant-respondent is an adopted son of Nanjegowda and, therefore, he is entitled to half share in the property. In view of the matter, the second appeal was partly allowed. Consequently the suit was partly decreed and partly dismissed. It is against the said judgment the plaintiff is in appeal before us.
4. Learned Counsel appearing for the appellant, urged that in view of the fact that the respondent who was appellant before the First Appellate Court has not advanced any arguments in respect of the correctness of the finding of the trial court regarding his adoption before the First Appellant Court, it was not permis-sible for the High Court to entertain the said argument. We have gone through the judgment of the First Appellant Court and found that the First Appellant Court has stated in its judgment that only argument raised on behalf of defendant-respondent was in relation to the validity of marriage of plaintiff no. 2 with Nanjegowda. We have also looked into the memo of second appeal filed before the High Court, but we do not find anything to show that the statement of fact recorded in the judgment of the First Appellant Court that only argument advanced was in respect of validity of marriage of plaintiff no. 2 is incorrect. Under such facts and circumstances, it was not open to the High Court to entertain the argument regarding the validity of adoption of defendant-respondent and record finding in that respect. We therefore, find merit in the contention of learned Counsel for the appellant.
5. Learned Counsel appearing for the respondent, then urged that in any case it is now open to the respondent to urge before this Court that the marriage of plaintiff no. 2 was void having been contracted during the lifetime of plaintiff no. 1. So far as this argument is concerned, the defendant-respondent has not preferred any cross appeal before this Court and in the absence of such an appeal the said argument is not available to the respondent.
6. For the aforesaid reasons, this appeal deserves to succeed. We, therefore, set aside the judgment under appeal. The appeal is allowed there shall be no order as to costs.
1. This appeal is directed against the judgment of the High Court of Karnataka allowing the second appeal filed by the defendant-respondent.
2. One Nanjegowda had two wives, both with the same name Savith-ramma. It is alleged that on 22nd May, 1963 Nanjegowda, by a registered adoption deed, adopted the defendant-respondent as his son. It is further alleged that subsequently by a registered deed dated 21st July, 1967 Nanjegowda revoked the said adoption deed. On 6th March, 1981 Nanjegowda executed a settlement deed in favour of both of his wives towards their maintenance. On 7th May, 1981 Nanjegowda died.
3. After the death of Nanjegowda, his two wives filed a suit for declaration as well as injunction against the defendant-respondent. The defendant-respondent contested a suit by filing a written statement. In the written statement it was, inter alia, pleaded that the defendant-respondent is an adopted son of Nanje-gowda and, therefore, he is entitled to half share in the proper-ty and that the marriage of second wife of Nanjegowda is void as it was contracted during the life time of the first wife and, therefore, she is not entitled to any share in the property. The trial court framed two issues; first issue was as to whether the defendant-respondent is an adopted son of Nanjegowda and the second issue was as to whether the marriage of plaintiff no. 2 with Nanjegowda is void and thus, she is not entitled to any share in the property. The parties led their evidence on those two issues. The trial court after considering the evidence on record came to the conclusion that defendant-respondent was not an adopted son of Nanjegowda and that the marriage of second wife of Nanjegowda is not void. Consequently, the suit for declaration as well as for injunction was decreed. The defendant-respondent thereafter preferred first appeal. Before the First Appellant Court the only argument advanced on behalf of the defendant-respondent was that the marriage of plaintiff no. 2 is void as same was contracted during the life time of plaintiff no. 1. The First Appellant Court rejected the said argument and affirmed the finding of the trial court. Consequently, the appeal was dis-missed by the First Appellant Court. Defendant-respondent there-after preferred a second appeal before the High Court. The High Court even after recording a finding that the second wife is a legally wedded wife of Nanjegowda, held that the defendant-respondent is an adopted son of Nanjegowda and, therefore, he is entitled to half share in the property. In view of the matter, the second appeal was partly allowed. Consequently the suit was partly decreed and partly dismissed. It is against the said judgment the plaintiff is in appeal before us.
4. Learned Counsel appearing for the appellant, urged that in view of the fact that the respondent who was appellant before the First Appellate Court has not advanced any arguments in respect of the correctness of the finding of the trial court regarding his adoption before the First Appellant Court, it was not permis-sible for the High Court to entertain the said argument. We have gone through the judgment of the First Appellant Court and found that the First Appellant Court has stated in its judgment that only argument raised on behalf of defendant-respondent was in relation to the validity of marriage of plaintiff no. 2 with Nanjegowda. We have also looked into the memo of second appeal filed before the High Court, but we do not find anything to show that the statement of fact recorded in the judgment of the First Appellant Court that only argument advanced was in respect of validity of marriage of plaintiff no. 2 is incorrect. Under such facts and circumstances, it was not open to the High Court to entertain the argument regarding the validity of adoption of defendant-respondent and record finding in that respect. We therefore, find merit in the contention of learned Counsel for the appellant.
5. Learned Counsel appearing for the respondent, then urged that in any case it is now open to the respondent to urge before this Court that the marriage of plaintiff no. 2 was void having been contracted during the lifetime of plaintiff no. 1. So far as this argument is concerned, the defendant-respondent has not preferred any cross appeal before this Court and in the absence of such an appeal the said argument is not available to the respondent.
6. For the aforesaid reasons, this appeal deserves to succeed. We, therefore, set aside the judgment under appeal. The appeal is allowed there shall be no order as to costs.
