IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.809/2017 (DEC) BETWEEN:
1. SMT.BUDDAMMA W/O LATE HANUMAIAH AGED ABOUT 69 YEARS 2. SRI T.H.SATHAYANARAYANA S/O LATE K.HANUMAIAH AGED ABOUT 46 YEARS 3. SRI T.H.KEMPEGOWDA S/O LATE K.HANUMAIAH AGED ABOUT 34 YEARS APPELLANTS 1 TO 3 ARE R/AT JODITHIMMASANDRA VILLAGE MADHURE HOBLI DODDABALLAPUR TALUK – 561 203 4. SMT.KEMPACHANNAMMA W/O KUMAR AGED ABOUT 50 YEARS R/AT VELADAHALLI VILLAGE KANNAMANGALA POST – 561 203 MADURE HOBLI DODDABALLAPUR TALUK 5. SMT.LAKSHMIDEVAMMA W/O SUBBANNA AGED ABOUT 48 YEARS 6. SMT.CHANNAMMA W/O BYLEGOWDA AGED ABOUT 46 YEARS APPELLANTS 5 AND 6 ARE R/AT JODITHIMMASANDRA VILLAGE MADHURE HOBLI – 561 203 DODDABALLAPUR TALUK …APPELLANTS (BY SRI V.F.KUMBAR, ADV.) AND:
1. SRI T.H.RAMAMURTHY S/O LATE K.HANUMANTHAIAH AGED ABOUT 47 YEARS 2. SRI T.H.MANJUNATH S/O LATE K.HANUMANTHAIAH AGED ABOUT 44 YEARS 3. SRI T.H.KEMPEMAREGOWDA S/O LATE K.HANUMANATHAIAH AGED ABOUT 47 YEARS RESPONDENTS 1 TO 3 ARE R/AT JODITHIMMASANDRA VILLAGE MADHURE HOBLI DODDABALLAPUR TALUK – 561 203 …RESPONDENTS (BY SRI RAGHAVENDRA V., ADV. C/R1) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:17.12.2016 PASSED IN R.A.NO.10057/2016 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DODDABALLAPURA, BENGALURU RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.04.2013 PASSED IN O.S.NO.178/2017 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, DODDABALLAPUR, BANGALORE RURAL DISTRICT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the defendants arises out of the judgment and decree dated 17.12.2016 in Regular Appeal No.10057/2016 passed by the IV Additional District & Sessions Judge, Doddaballapura.
2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the defendants and confirmed the judgment and decree dated 03.04.2013 in O.S.No.178/2007 passed by the Addl.Civil Judge & J.M.F.C., Doddaballapur.
3. By the said judgment and decree, the Trial Court decreed the suit of the plaintiffs for partition and separate possession of their half share in the suit schedule properties.
4. Defendants are the wife and children of one Hanumaiah. Plaintiffs are the children of K.Hanumanthaiah, the elder brother of said Hanumaiah. The father of said K.Hanumanthaiah and Hanumaiah was one Maraiah. He had an elder brother by name Kempahanumaiah.
5. Subject matter of the suit was land bearing Sy.No.57 measuring 1 acre 29 guntas situated at Thimmasandra Village, Madhure Hobli, Doddaballapur Taluk.
6. Admittedly the said land was granted to Kempahanumaiah under the Mysore (Personal & Miscellaneous) Inams Abolition Act, 1954. Out of the said land, Kempahanumaiah gifted 1 acre 31 guntas in favour of defendant Nos.4 and 5 under Ex.P10, the gift deed dated 12.5.1967.
7. Plaintiffs claimed that the entire property bearing Sy.No.57 was the ancestral joint family property of Hanumaiah, Kempahanumaiah and Mariaah. They further contended that in an oral partition, the suit schedule property had fallen to the share of Maraiah, remaining half of the land was allotted to the share of Kempahanumaiah and whatever was gifted to defendant Nos.4 and 5 constituted the said half share of Kempahanumaiah. They claimed that as the legal representatives of Maraiah, they are entitled to half share in the suit schedule property.
8. Defendants contended that the entire Sy.No.57 was the absolute property of Kempahanumaiah and he gifted half of the said property to defendant Nos.4 and 5 and remaining half i.e., suit schedule property was bequeathed by him to Hanumaiah, the husband of defendant No.1 and father of defendant Nos.2 to 5 under the Will Ex.D12 dated 18.5.1970. The plaintiffs disputed the execution of the said Will.
9. On the basis of such pleadings, the trial court framed the following issues:
1. Whether plaintiff proves that they are in possession of the schedule property as on the date of the suit?
2. Whether the plaintiffs prove that they are entitled for equal share in the suit property?
3. Whether the plaintiffs prove that the partition deed registered as per Register No.9376/2006-07 is null and void?
4. Whether the plaintiffs prove that they are entitle for the partition and separate possession of the suit schedule property?
5. Whether the plaintiff proves that they are entitled for the mesne profits as contended by them?
6. What order or decree?
10. The parties adduced evidence. The trial court after hearing the parties held that entire land bearing Sy.No.57 in all measuring 3 acres 32 guntas was granted in favour of Kempahanumaiah and he was the absolute owner of the said property. The trial court decreed the suit awarding half share in the suit schedule property on the ground that as Class-II heirs of Kempahanumaiah, plaintiffs’ father K.Hanumanthaiah was entitled to half share in the suit schedule property. The trial court rejected the claim of the defendants under the Will Ex.D12 on the ground that none of the attesting witnesses to the Will were examined.
11. The plaintiffs did not challenge the finding that the suit schedule property was the absolute property of Kempahanumaiah.
12. The defendants challenged the judgment and decree of the trial court in R.A.No.10057/2016 as aforesaid. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
13. This being a Regular Second Appeal under Section 100 CPC, can be admitted for hearing only if the matter involves a substantial question of law for consideration.
14. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 has held that on the question of fact, the first appellate court is the last court unless some perversity is shown in the judgments of the courts below. It was further held that to be a question of law, there must be first a foundation laid to it in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts.
15. Therefore, in the light of the aforesaid judgment, on the question of fact, the first appellate court is the last court. This court has to see whether there is any substantial question of law in the case.
16. The defendants themselves contended that Kempahanumaiah was the uncle of Hanumaiah and K.Hanumanthaiah, who were full brothers. The father of the plaintiffs was K.Hanumanthaiah. Kempahanumaiah admittedly died issueless and was not survived by any Class-I heirs.
17. Having regard to Section 8 of the Hindu Succession Act, K.Hanumanthaiah and Hanumaiah were entitled to equal share in the estate of Kempahanumaiah as Class-II heirs. But defendants set up the Will of Kempahanumaiah in favour of their ancestor Hanumaiah. The plaintiffs denied the said Will. Section 68 of the Indian Evidence Act requires that whenever a document is compulsorily attestable by law, it cannot be received in evidence unless one of the attesting witnesses to the document is examined. Section 63 of the Indian Succession Act, 1925 requires the Will to be compulsorily attested by minimum two attesting witnesses.
18. In the case on hand, the appellants did not examine the attesting witnesses. They did not adduce any evidence to show that the attesting witnesses were not available for their examination. It was not even stated that the attesting witnesses are dead or not available. No attempt was made to invoke Section 69 of the Indian Evidence Act, 1872.
Under such circumstances, the courts below rightly rejected the theory of testamentary succession.
19. If the case of Will fails, then the plaintiffs were entitled to half share by virtue of Section 8 of the Hindu Succession Act. Therefore, the trial court granted decree for half share. It was rightly concurred by the first Appellate court.
This court does not find any substantial question of law to admit the appeal. Therefore, the appeal is dismissed.
In view of disposal of the appeal, I.A.No.2/2017 does not survive for consideration and disposed of accordingly.
Sd/- JUDGE KNM/-