IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL R.S.A.NO.1749/2017 (PAR) C/w R.S.A.NO.1750/2017 (PAR) BETWEEN SRI C.R. THIMMEGOWDA, S/O LATE RANGEGOWDA, AGED ABOUT 77 YEARS, R/AT CHIKKAKONDAGULA VILLAGE, KASABA HOBLI - 573103 HASSAN TALUK AND DISTRICT. ... APPELLANT (COMMON) (BY SRI VIGHNESHWAR S SHASTRI, ADV.) AND 1. ADUVAMMA W/O LATE BILIGIRIGOWDA, AGED ABOUT 78 YEARS, NEAR OLD POST OFFICE, NORTHERN EXTENSION, HASSAN - 573103.
2. M. THIBBEGOWDA AGED ABOUT 44 YEARS, PROP: M/S ENGINEERING SYNDICATE NO.296, 1ST CROSS, 1ST PHASE, 5TH STAGE, BEML LAYOUT, RAJARAJESHWARI NAGAR, BANGALORE - 560098. ... RESPONDENTS (COMMON) (BY SRI A S GIRISH, ADV. FOR C/R1.) THESE REGULAR SECOND APPEALS ARE FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.04.2017 PASSED IN R.A.NO.168/2013 & R.A.NO.63/2013 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN BY MODIFYING THE JUDGMENT AND DECREE DATED 16.04.2013 PASSED IN O.S.NO.74/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, HASSAN.
THESE REGULAR SECOND APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT These two appeals of the appellant arise out of the common judgment and decree dated 25.04.2017 passed in R.A. No.63/2013 and R.A. No.168/2013 by the 5th Addl. District & Sessions Judge, Hassan. In turn, those appeals arose out of the judgment and decree dated 16.04.2013 passed by the Addl. Senior Civil Judge, Hassan in O.S. No.74/2009.
2. The first respondent Aduvamma filed O.S. No.74/2009 against the appellant (defendant No.1) and the second respondent M. Thibbegowda (defendant No.2) claiming partition and separate possession of ½ share in the suit schedule properties.
3. For the purpose of convenience the parties will be referred to henceforth with their ranks before the trial court.
4. The subject matter of the suit were house property situated in Hassan Town and 13 lands shown in the schedule 1 and 2 to the plaint. The plaintiff and defendant No.1 are the daughter and son of one Rangegowda. Rangegowda died in the year 1988. Prior to his death, suit schedule properties were standing in his name.
5. Plaintiff contended that plaint schedule Item No.1 was the self acquired property and plaint schedule Item No.2 were the ancestral joint family properties of Rangegowda and on his death, she is entitled to equal ½ share in all those properties. She further contended that defendant No.1 is trying to alienate plaint schedule item No.2 to the second defendant denying her share in the suit schedule properties.
6. The first defendant alone contested the suit and defendant No.2 did not turn up despite service of summons to contest the suit. The first defendant admitted the relationship and contended that suit schedule properties are the ancestral properties of his father Rangegowda. He further contended that his father bequeathed the suit schedule properties in his favour under a Will dated 31.12.1960, therefore, the plaintiff is not entitled to any share in the said properties.
7. On the basis of such pleadings, the trial court framed the following issues:-
1. Whether plaintiff proves that suit properties are ancestral joint family properties and are in joint possession and enjoyment of plaintiff and defendant?
2. Whether plaintiff further proves that he has ½ share in suit properties?
3. Whether defendant proves that his father late Rangegowda has executed Will dated 31.12.1960 bequeathing suit item No.1 and 2 bearing Sy. No.121/5, 122/6, 135/2, 142/3, 147/1, 147/3 and 147/5 to him as contended?
4. Whether plaintiff proves that he is entitled for partition of his ½ separate possession in the suit properties?
5. What Order or Decree?
8. The parties adduced evidence, on behalf of the plaintiff PW-1 to 3 were examined and Ex.P1 to P20 were marked. The first defendant was examined as DW.1 and on his behalf, he got marked Ex.-D1 to D4.
9. The trial court after hearing the parties held that suit schedule item No.2 were ancestral properties and the plaintiff was married long before the coming into force of Hindu Succession (Amendment) Act, 2005 and that she was not entitled for a share in those properties. The trial court further held that plaint schedule item No.1 was the self acquired property of Rangegowda and the first defendant failed to prove the Will set up by him and thus awarded ½ share to the plaintiff in plaint schedule item No.1 property.
10. Aggrieved by the said judgment, the plaintiff filed R.A. No.63/2013 and the first defendant filed R.A. 168/2013 before the 5th Addl. District and Sessions Judge, Hassan. The first appellate court on hearing the parties by the impugned judgment and decree allowed the appeal of the plaintiff and dismissed the appeal of the first defendant. The first appellate court held that even assuming that plaint schedule properties are the ancestral properties of Rangegowda, a notional partition has to be effected and as per Section 6 of the Hindu Succession Act, 1956 and the plaintiff is entitled to a share in the share of her father Rangegowda allotted to him in such notional partition.
11. Sri. A.S. Girish, learned counsel for defendant No.1/appellant seeks to assail the impugned judgment and decree of the courts below on the ground that father Rangegowda had gifted one property in favour of the plaintiff and she did not include that property in the suit nor she challenged his competence to bequeath the properties.
12. He further contends that the plaint schedule item No.2 properties were alienated to the second defendant and they have lost the nature of agricultural lands and the subsequent purchasers were the necessary parties. He submits that the appreciation of the evidence by the courts below with regard to the Will is unsustainable. According to him, the aforesaid contentions constitute the substantial question of law.
13. Learned counsel for the plaintiff contends that in both the courts the defendant himself admitted that the properties were the ancestral properties, therefore, on the death of father, plaintiff is entitled to a share at least in the share of her father which is awarded by the first appellate court.
14. He further submits that regarding Will both the courts have concurrently held that the Will is not proved, therefore, re-appreciation of the evidence on the said Will is not open in this second appeal.
15. What is the substantial question of law is explained by the Hon’ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (Dead) by Lrs. Reported in AIR 2001 Supreme Court 965. In the said judgment it was held that on questions of fact the first appellate court is the last court and it is not open to the High Court to re-appreciate the evidence in the second appeal unless the same found to be perverse. It is further held that the questions of law are not the substantial questions of law. To call it as a substantial question of law that should be debatable and unsettled and which goes to the root of the matter.
16. In the written statement itself the first defendant admitted that the suit schedule properties were the ancestral properties of himself and his father. His only contention was that his father has bequeathed the property to him under the Will Ex.D3. If the case of the defendant regarding the Will fails, the plaintiff will certainly be entitled to a share.
17. Even the stand of the defendant regarding nature of the property is self contradictory; because if the properties were the ancestral properties then, Rangegowda had no absolute right to bequeath those properties to the first defendant.
18. Similarly, he did not challenge the gift deed executed in favour of the plaintiff on 15.02.1960 till 2009 i.e. filing of this suit or even thereafter.
19. By setting up a Will the first defendant himself imputed to the said properties the character of self acquired property of Rangegowda. However, the courts below concurrently held that suit schedule item No.2 properties were the ancestral properties and the first appellate court held that suit schedule item No.1 property is also the ancestral property. The plaintiff did not challenge those findings and those findings attained finality.
20. Then the only question is whether the appreciation of evidence by the courts below regarding execution of the Ex.D3 suffers any perversity. The Will said to have been executed on 31.12.1960. Father Rangegowda died in the year 1988. Till the suit was filed in the year 2009, the Will did not see the light of the day.
21. The trial court has observed that on the death of Rangegowda the changing of the Khatha of properties in the name of first defendant also was not on the basis of said Will, but that was on the basis of inheritance. If there was a Will, then certainly the first defendant could have produced that before the revenue authorities seeking change of Khatha on that basis.
22. Further, referring to the evidence of defendant No.1 the trial court says that he was incapable of stating who wrote the Will and he said that the Will was misplaced and later he brought and produced that. So far as the evidence of DW-2 one of the attestors, the trial court observes that DW-2 the alleged attestor to the Will deposed that he has not signed the Will, he has not filed the affidavit produced in lieu of chief examination before the court. The trial court observes that DW-2 deposed that he has signed a gift deed not a Will. The trial court further observes that DW-2 deposed that he does not know in which paper the Will was written and he signed a gift deed near the temple and after the gift deed was ready, he was asked to subscribe his signature and he subscribed his signature accordingly.
23. Regarding another attestor DW-3 the trial court observes that DW-3 deposed that there were two documents, one was written in Hassan and another was written in a temple of their village and he could not say which document was written in Hassan and which document was written in the temple. The trial court further observes that DW-3 deposed that he has not read the document and he was asked to sign the document and he has signed it.
24. The observations of the trial court clearly show that both the attesting witnesses evidence was not as required for attestation of testamentary document. To prove the execution and attestation, the attestor should have spoken that the testator executed the document in a sound state of mind in his presence and he subscribed his signature on the Will as per testator’s instructions in his presence.
25. Even the evidence of the scribe was found doubtful by the courts below for the reason of his deposition that he had not seen any document before drafting the Will and he could not explain the corrections in the Will and he said they were not initialed by him.
26. Having regard to such quality of evidence, this court is not able to accept the contention that appreciation of the evidence with regard to the execution of the Will set up by the defendant No.1 was perverse.
27. Though it was argued before this court that defendant No.2 has alienated the property to others and they were necessary parties to the case, defendants did not plead so before the Courts below. If pending proceedings the properties are alienated, such purchasers pending the litigation do not become the necessary parties. The judgment and decrees bind them in view of Section 52 of the Transfer of Property Act.
28. This court does not find any substantial questions of law to admit these appeals. When no case is made out, issuing notice on the application for condonation of delay in R.S.A. No.1750/2017 does not serve any purpose.
Therefore, both the appeals and I.A. No.1/2019 in R.S.A. No.1750/2017 are dismissed.
In view of disposal of appeals, I.A. No.1/2017 in both appeals do not survive for consideration and disposed of accordingly.
Chs* CT-HR Sd/- JUDGE