IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.76 OF 2014 BETWEEN:
K. GAJENDRA HATWAR S/O LATE KOTESHWARA HATWAR AGED ABOUT 52 YEARS R/O KALPAVA KOTESHWARA VILLAGE AND POST KUNDAPURA TALUK UDUPI DISTRICT – 578 001 … APPELLANT (BY SRI VIGHNESHWAR S. SHASTRI, ADV.) AND:
1. SRI K.S.SREEKANTH AGED ABOUT 26 YEARS R/O NO.105, GAYATHRI NILAYA 12TH B MAIN, 6TH BLOCK RAJAJINAGAR BANGALORE – 560 003 2. SRI K.S. SREENATH AGED ABOUT 24 YEARS R/O NO.105, GAYATHRI NILAYA 12TH B MAIN, 6TH BLOCK RAJAJINAGAR BANGALORE – 560 003 3. SMT.INDIRAMMA W/O LATE KOTESHWARA HATWAR AGED ABOUT 69 YEARS R/O KALPAVA KOTESHWARA VILLAGE AND POST KUNDAPURA TALUK UDUPI DISTRICT – 578 101 4. SRI K.SURENDRA RAO S/O LATE KUPPAYYA ALIAS SRINIVASA RAO AGED ABOUT 46 YEARS C/O A.S.MANOHAR HOTEL ABHIRUCHI BAZAR ROAD, HUNSUR MYSORE DISTRICT – 570 001 ... RESPONDENTS (BY SRI M.E.NAGESHA, ADV. FOR R1 & R2;
SRI RAGHAVENDRA RAO GPA HOLDER FOR R3 (ABSENT) R3 AND R4-SERVED UNREPRESENTED) THIS MSA IS FILED UNDER ORDER 43, RULE-1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 7.11.2014 PASSED IN R.A.93/2006 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 9.10.2006 PASSED IN O.S.212/1996 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (JR.DN.), KUNDAPURA, REMITTING THE MATTER TO THE TRIAL COURT TO GIVE FINDINGS ON ISSUE FRAMED IN POINT NO.1.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This defendant’s second appeal arises out of the judgment and decree dated 07.11.2014 in R.A.No.93/2006 passed by the Senior Civil Judge, Kundapura. The First Appellate Court took R.A.No.93/2006 and R.A.No.99/2006 together for disposal and passed common judgment and decree.
2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the plaintiffs reversing the judgment and decree dated 09.10.2006 passed by the II Additional Civil Judge (Jr.Dn.) & J.M.F.C., Kundapura in O.S.No.212/1996, where under the suit of the plaintiffs for partition and separate possession of their 1/3rd share was dismissed.
3. Respondents 1 & 2 were the plaintiffs.
Respondent No.3 was the first defendant and the appellant was second defendant & fourth respondent was third defendant in the said suit. For the purpose of convenience parties will be referred to henceforth with their ranks before the trial Court.
4. Aggrieved by the judgment and decree of the Trial Court the first defendant also filed appeal before the First Appellate Court in R.A. No.99/2006 which was heard and decided with R.A.No.93/2006.
5. Defendants 2 & 3 are the sons of first defendant. Plaintiffs are the sons of third defendant.
6. The subject matter of the suit were the lands bearing Sy. Nos.280/1 measuring 1.73 cents, 280/2 measuring 0.25 cents, 281/3 measuring 2.14 cents, 281/5 measuring 0.45 cents with the building situated thereon. The lands originally belonged to Udupi Pejavara Mutt and Kuppayya @ Srinivasa Rao, who was also known as Devibhaktha Srinivas Rao, was cultivating those lands as tenant.
7. Netravathiamma was the wife of Srinivasa Rao.
Srinivasa Rao and Netravathiamma had no issues. Defendant No.1 was the daughter of sister of Netravathiamma. Srivinavasa Rao and Netravathiamma had fostered defendant No.1 as their daughter.
8. Srinivasa Rao under the registered Will dated 15.09.1967 (certified copy Ex.P4) bequeathed life interest in the suit property in favour of Netravathiamma and after her life interest to defendant No.1. The house property as per the Will on death of Netravathiamma devolves on defendant No.3. So far as the lands after the death of Netravathiamma they shall devolve on defendant Nos.2 & 3.
9. Srinivasa Rao during his life time filed Form No.7 on 09.11.1974 as per Ex.P.6 claiming occupancy rights. Pending that application he died on 20.03.1977. Netravathiamma as the legal representative of Srinivasa Rao came on record in those proceedings and prosecuted the matter. The Land Tribunal vide order dated 29.11.1980 as per Ex.P.7 granted occupancy rights to her.
10. Netravathiamma died on 04.01.1990. After her death defendants 1 to 3 entered into partition on 24.04.1995 under the registered partition deed Ex.P.17. In that partition, the house property bequeathed to defendant No.1 was allotted for her enjoyment till her life time and other properties were divided amongst defendants No.2 & 3.
11. Plaintiffs contended that during the life time of Srinivasa Rao, he adopted defendant No.3 on 02.06.1972.
They contended that by virtue of such adoption they become members of the family of Srinivasa Rao and properties in the hands of third defendant become ancestral properties. Therefore they contended that defendants 1 & 2 wielding the undue influence on defendant No.3 effected partition prejudicial to their interest, though defendant No.2 had no right in the properties. They claimed that they have 1/3rd share in the suit properties.
12. As plaintiffs were minors, in the suit they were represented through their mother, the next friend. Defendant No.3 despite service of summons did not appear in the suit and remained ex-parte.
13. Defendant No.1 filed her written statement admitting the right of Srinivasa Rao in the properties, relationship between the parties and granting of occupancy rights in favour of Netravathiamma. She further admitted the adoption of defendant No.3. She contended that since the occupancy rights were granted in the name of Netravathiamma, Will of Srinivasa Rao ceased to operate. So far as the partition deed Ex.P.17, she contended that defendants 2 & 3 took her to Kundapura representing that her signature is required for raising loan and obtained her signature in the office of the Sub-Registrar.
14. Defendant No.2 though admitted the relationship and acquisition of the property by Srinivasa Rao and his wife denied the case of adoption of defendant No.3 set up by the plaintiffs. He further contended that by virtue of the Will executed by Srinivasa Rao himself and defendant No.3 have become the owners of the property and that they effected partition in those properties on 24.04.1995 and thereafter they are in exclusive possession and enjoyment of their respective share.
15. On the basis of such pleadings, the Trial Court framed the following issues:
ISSUES FRAMED ON 4.11.1999 1. Whether the plaintiff proves that the 3rd defendant is the member of the family of the Kuppayya @ Srinivasa rao?
2. Whether the plaintiff proves that they are entitled to a right of 1/3rd share in the suit “A” schedule properties and the suit “A” schedule properties are subjected to partition?
3. Whether the defendants No.2 proves that the suit “A” schedule properties devolved upon the defendants by virtue of Will dated 15.9.1967 and the suit properties are partitioned among the defendants as per the partition deed dated 4.5.1995?
4. Whether the plaintiff is entitled to the relief’s as sought for?
5. What order or decree?
16. The Trial Court records reveal I.A.No.5 filed by the defendant No.2, the Trial Court recasted the issues as follows:
ISSUES RECASTED AS PER ORDER PASSED ON I.A.5 ON 16.8.2001 1. Whether the plaintiffs prove that the suit schedule properties were originally the family properties of late Devibakta Srinivasa Rao?
2. Whether the plaintiffs prove that the 3rd defendant is the adopted son of Devibakta Srinivasa Rao?
3. Whether the plaintiff proves that the 3rd defendant was devolved upon the suit properties after the death of Srinivasa Rao and Nethravathiyamma?
4. Whether the 2nd defendant proves that registered partition deed dated 24.4.1995 between the 2nd and 3rd defendant is correct and came into force?
5. Whether the suit is bad for partial partition?
6. Whether the plaintiffs are entitled to 2/3rd shares in the suit properties?
7. What order or decree?
17. On behalf of the plaintiffs their next friend/ mother was examined as P.W.1. They got examined P.W.2 and 3 and got marked Exs.P.1 to P.27. On behalf of the Defendants, defendant No.2 was examined as D.W.1.
D.W.2 is the daughter and G.P.A. holder of defendant No.1.
Satishchandra Shetty was examined as D.W.3 and defendants got marked Exs.D.1 to D.55.
18. The Trial Court after hearing the parties dismissed the suit holding that:
(i) The Execution of the Will is admitted by the parties and only validity is disputed.
(ii) In view of the judgments of this Court in 1. Sangappa Kalyanappa Bangi –vs- L.T. Jamkhandi [ILR 1999 KAR 863];
2. C.C. Devasia –vs- The Karnataka Appellate Tribunal [ILR 1998 KAR 2473] and 3. N. Ramaiah –vs- Nagaraj S. [2001 (4) KLJ 12 (DB)].
Will does not operate as a transfer of property and do not act therefore bequeath his interest under such Will is not violative of Sections 21, 24 & 61 of the Karnataka Land Reforms Act. Therefore, Will does not become invalid.
(iii) Adoption was not proved since defendants No.1 & 3, the alleged parties to adoption did not enter into the witness box and other evidence adduced by the plaintiffs did not inspire the confidence and is not trustworthy.
(iv) The partition deed dated 24.04.1995 was not challenged by the parties to the partition deed. If the partition fails, plaintiffs did not get any right in the suit properties.
19. Aggrieved by the said judgment and decree, plaintiffs preferred R.A. No.93/2006 and defendant No.1 preferred R.A.No.99/2006. Defendant No.3 was respondent No.3 in those appeals. There also he did not contest the appeals.
20. The First Appellate Court after hearing plaintiffs and defendants, by the impugned judgment and decree allowed the appeal of the plaintiffs and dismissed the appeal of the first defendant holding since there was no decree against her, appeal was not maintainable.
21. The First Appellate Court allowed the appeal of the plaintiff and remanded the matter to the Trial Court on the following grounds:
(i) The Trial Court relying only on the pleadings of defendant No.2 held that the Will is admitted document and therefore did not raise any issue regarding execution of the Will which is in-correct;
(ii) The Trial Court erroneously recasted the issues, thereby framing issue only with regard to the validity of the Will;
(iii) The First Appellate Court framed the following issue:
“Whether the defendant No.2 proves that the suit schedule property devolved upon the defendant by virtue of Will dated 15.09.1967 and suit schedule properties partitioned among the defendants as per partition deed dated 04.05.1995” and directed the Trial Court to record the evidence on such issue and give findings on the said issue;
(iv) In view of recasting of the issue regarding validity of the Will further findings on adoption of defendant No.3 are not required.
22. Thus, the First Appellate Court set aside the judgment and decree of the Trial Court and remanded the matter to record the findings on such issue and it was further directed that, if Trial Court finds it necessary to record the evidence, shall record the evidence and give findings and dispose of the suit.
23. Sri Vigneshwar S. Shastri learned counsel for the appellant seeks to assail the judgment and decree of the First Appellate Court on the following grounds:
i) There are admission in the plaint and written statement of defendant No.1 themselves about the execution of the Will and partition deed. Plaintiffs and defendant No.1 only challenged the validity of the Will. Therefore, the First Appellate Court committed error in holding that issue regarding the Will is improperly framed.
ii) The First Appellate Court failed to exercise its jurisdiction as required under Section 96 and 107 of C.P.C. Remanding the matter is violative of Order 41 Rule 25 of C.P.C.
iii) The pleadings and evidence of the parties themselves show that Will and partition deed were admitted and only the validity of those documents were challenged. No relief was sought with regard to the registered partition deed Ex.P.17.
iv. Suit was the out come of collusion of the plaintiffs and defendant No.3. To prove the adoption, plaintiffs neither examined defendant No.1 nor defendant No.3, the alleged adopted son or his biological father. There was evidence on record to show that biological father of defendant No.3 pleaded his ignorance about adoption. There could not have been an adopted in the absence of both biological parents of defendant No.3.
v. Since adoption was not proved, the Trial Court was justified in dismissing the suit of the plaintiffs. But First Appellate Court did not appreciate the pleadings and evidence of the parties or merits of the judgment of the Trial Court and passed impugned judgment without considering any of these aspects in a hasty manner.
24. In support of his contention he seeks to rely on the judgment of this Court in Shanthaveerappa –vs- K.N. Janardhanachari, ILR 2007 KAR 1127.
25. Per contra, Sri M.E. Nagesha, learned counsel for respondents 1 & 2 submits that when a Will was set up, it is for the propounder of the will to prove the same even in the absence of any denial of the same. He further submits that defendant No.2 failed to prove the Will and alleged bequeath is violative of Sections 21, 24 and 65 of the Karnataka Land Reforms Act.
26. The plaintiffs’ claim for partition and possession of their share was based on the contention that defendant No.3 is the adopted son of Srinivasa Rao and as his lineal descendents they have share in the properties. Therefore, that was the prime issue in the case. It is the settled principle of law that the person, who comes to the court, has the burden of proving his case. Only if he discharges his burden, the question of considering the defence or the other contentions of the defendant arises.
27. Denying the case of adoption, defendant No.2 contended that the properties were bequeathed to himself and defendant No.3 under the Will Ex.P4. Therefore, the question of considering the proof or validity of the Will was arising only on the plaintiffs establishing that defendant No.3 was the adopted son of Srinivasa Rao, who was the owner of the properties.
28. The trial court, as already pointed out, held that adoption is not proved. The first appellate court without considering the issue of adoption, first considered the issue of validity of the Will and said that the said issue is defective and framed the issue casting burden of proof of Will on the second defendant and remanded the matter without considering the claim set up by the plaintiffs regarding adoption of their father.
29. The first appellate court was exercising its power under Section 96 read with 107 of CPC. Section 107 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 the Code on Courts or original jurisdiction in respect of suits instituted therein.”
A perusal of the above Section shows that the appellate court has to try first to determine the case finally. That means the first appellate court has to appreciate the pleadings and evidence of the parties and the merits of the judgment of the trial court in its entirety. Only if the first appellate court feels that the matter cannot be decided for want of any additional evidence or framing of proper issues, necessary pleadings, etc., then it has to proceed to exercise power under Section 107(1)(b) to (d) CPC. In this regard, this Court and the Hon’ble Supreme Court have frequently held that the appellate court shall not resort to remand the matters on lighter grounds.
30. The Hon’ble Supreme Court in State of Punjab and Others –vs- Bakshish Singh (1998) 8 SCC 222 at para-10 held as follows:
“10. The powers of the appellate court are also indicated in Section 107 of the Code of Civil Procedure which provides that the appellate court shall have the same powers as are conferred on the original court. If the trial court could dispose of a case finally, the appellate court could also, by virtue of clause (a) of sub-section (1) of Section 107, determine a case finally. In R.S.Lala Praduman Kumar v. Virendra Goyal (1969) 1 SCC 714: AIR 1969 SC 1349 it was held that the appellate court could even relieve against forfeiture in a case under the Transfer of Property Act, 1882. This too was based on the principle that the power which was available to the original court, could be exercised by the appellate court also.”
31. The Hon’ble Supreme Court in Laliteshwar Prasad Singh and Others –vs- S.P.Srivastava (Dead) through legal representatives (2017) 2 SCC 415 in this regard at para-13 held as follows:
“13. An appellate court is the final court of facts. The Judgment of the appellate court must, therefore, reflect the court’s application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of the first appellate court, in Vinod Kumar v.
Gangadhar (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521, it was held as under:
“12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under:
‘15. .... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.’ The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.”
(Emphasis Supplied) This Court in Shanthaveerappa –vs- K.N.Janardhanachari ILR 2007 KAR 1127 in regard to the above, at para-11 held as follows:
“11. . . . . . . . . . . . . . .
Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the Trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case, it should see first whether it can dispose of the case itself under order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real Trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gap is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice.”
(Emphasis supplied) Thus, it is clear that the duty of the first appellate court is to assess the pleadings and evidence on record and the merits of the judgment of the trial court and to try to determine the case finally and only if that is not possible then resort to remand the case.
32. In this case, the first appellate court did not try to appreciate the pleadings and evidence with regard to the issue of adoption of defendant No.3, but took up the issue of validity/proof of the Will first, which was inconsequential if the plaintiff’s claim of adoption was not proved. Therefore, the order of remand is unsustainable.
33. Section 107 CPC empowers this Court also to determine the case finally. The evidence with regard to the adoption is already on record. Since plaintiffs set up the case of adoption, it was for them to prove the same. The parties are governed by Hindu Law. Defendant No.1 and one Koteshwar Hathwar were the biological parents of defendant Nos.2 and 3. Defendant No.2, who is the other party to the suit, denied the adoption. Therefore, the burden of proving the adoption was on the plaintiff.
34. Though defendant no.1 in her written statement contended that herself and her husband gave defendant No.3 in adoption to Srinivasa Rao on 2.6.1972, at one breath she said that her husband had neglected her and at another breath she said that he joined her in giving defendant No.3 in adoption. Defendant Nos.1 and 3 did not enter the witness box to speak about the adoption and to afford opportunity to defendant No.2 to cross-examine them with reference to the adoption. Therefore, an adverse inference in that regard has to be drawn against them.
35. The plaintiffs in proof of the adoption produced Ex.P3 a pamphlet said to be issued by the Managing Committee of Sree Rama Mandira where an appreciation was allegedly recorded regarding the charities made by Srinivasa Rao on the eve of Upanayana of defendant No.3 and in that defendant No.3 was referred as adopted son of Srinivasa Rao. As rightly pointed out by the trial court, the persons, who got issued Ex.P3 or the temple authorities were not examined to prove the said document.
36. Though it was contended that on adoption defendant No.3 was named as “Sheshagiri” as observed by the trial court, no document was produced to show that thereafter he was called as “Sheshagiri” or in any records, he was shown as Sheshagiri. That is one of the grounds. PW-3 the uncle of PW-1 though spoke about the adoption, he himself admitted that he was not a witness to the said adoption. He said that on the basis of statement of one Bhagirathamma, he deposed that DW-3 is the adopted son of Srinivasa Rao. Therefore, whatever evidence the plaintiffs adduced regarding adoption was only hearsay.
37. First defendant’s daughter DW-2 was examined as her Power of Attorney Holder. In her cross-examination, she stated that on 2.6.1972 there was no adoption of defendant No.3 by Srinivas Rao. Therefore, the giving of adoption by the biological parents to the adopted parents was not proved by legally acceptable evidence.
38. Ex.P17 was registered partition deed effected between defendant Nos.1 to 3. Defendant No.3 did not appear and file written statement to challenge that. Though defendant No.1 contended that the said deed was obtained by misrepresentation and undue influence, she did not choose to enter the witness box to speak to the alleged misrepresentation and undue influence. When a party pleads undue influence or fraud or misrepresentation, burden is on such party to prove the same.
39. It was not discharged by defendant No.1 in this case. The document of 1975 was sought to be assailed by the plaintiffs and defendant No.1 in the year 2008 in the suit on hand. That was not open to the plaintiffs as defendant No.3, who was the party to the said document through whom they claim, did not question that all along on any of such grounds. In Ex.P17, defendant Nos.2 and 3 were shown as the sons of Koteshwar Hathwar. Defendant No.3 was not shown as adopted son of Srinivasa Rao. As against that, in Ex.P17, it was said that they acquired the properties under the Will of Srinivasa Rao and they are partitioning that. There is no whisper in Ex.P17 about the alleged adoption of defendant No.3 by Srinivasa Rao at any time.
40. Under these circumstances, the trial court was wholly justified in rejecting the claim of adoption of defendant No.3 by Srinivasa Rao. If the said adoption fails, the plaintiffs do not get any right as they claimed it only on the basis that their father was the adopted son of Srinivasa Rao and therefore, the property in his hands became ancestral property. At the cost of repetition, it has to be said that once plaintiffs’ case of adoption fails, the question of considering the Will or its validity does not arise. Thus, the judgment and decree of the trial court dismissing the suit does not warrant any interference. The first appellate court failed to exercise the jurisdiction vested in it in remanding the matter with considering the merits of the case.
41. For the aforesaid reasons, the appeal is allowed.
The impugned judgment and decree dated 7.11.2014 in R.A.No.93/2006 passed by the Senior Civil Judge at Kundapura, is hereby set aside.
42. The judgment and decree dated 9.10.2006 in O.S.No.212/1996 passed by the II Additional Civil Judge (Jr.Dn.) & JMFC., Kundapura, dismissing the suit of the plaintiffs is hereby confirmed.
Sd/- JUDGE HR/KNM/-