IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Mrs. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2001 OF 2015 (PAR) Between:
1. Sri.Hanumanth Reddy, S/o. Gangireddy, Aged about 72 years, R/at Surapalli Village, Robertsonpet Hobli, Bangarpet Taluk, Kolar District, Pin-563 114.
2. Smt.Seethamma, W/o. Hanumanthareddy, Dead by her LRs.
2(a). Sri.Ananda Reddy, S/o. Hanumantha Reddy, Aged about 53 years, 2(b). Sri.Ramachandra Reddy, S/o. Hanumantha Reddy, Aged about 51 years, 2(c). Sri.Keshava Reddy, S/o. Hanumantha Reddy, Aged about 49 years, R/at D.No.10, Nagananthapura, Hosa Road, Bengaluru, Pin:560 073.
2(d). Smt.Gowramma, W/o. Keshav Reddy, Aged about 47 years, R/at Bynapalli Village, Bangarpet Taluk-563 114, Kolar District.
2(e). Sri.Manjunatha Reddy, S/o. Hanumantha Reddy, Aged about 45 years, 2(f). Sri.Karunakara Reddy, S/o. Hanumantha Reddy, Aged about 43 years, Appellants 2(a)(b)(e) & (f) are Residing at Soorapalli Village, Bangarpet Taluk, Kolar District, Pin: 563 114.
2(g). Smt. Sugunamma, W/o. Chengalaraya Reddy, Aged about 41 years, R/at Samanahally Village, Kamasamudram Hobli, Bangarpet Taluk, Pin No.563 114.
(By Sri. S.P.Kulkarni, Advocate) And:
1. Sri.K.Raghavareddy, S/o. Late. Krishnareddy, Aged about 35 years, … Appellants 2. Smt. Pushpavathi, W/o. Narayanareddy, Aged about 32 years, R/at Kambampalli Village, Near Rabertsonpet Post, Bangarpet Taluk-563 114, Kolar District.
3. Sri.K.Prabhakarareddy, S/o. Late. Krishnareddy, Aged about 30 years, 4. Sri.K.Srinivasareddy, S/o. Late. Krishnareddy, Aged about 27 years, 5. Sri.K.Ravikumar, S/o. Late. Krishnareddy, Aged about 25 years, 6. Sri.K.Sudhakar, S/o. Late Krishnareddy, Aged about 23 years, 7. Smt.Yeshodamma, W/o Late Krishnareddy, Aged about 52 years, Respondents No.1, 3 to 7 are R/at Bangagiri Majara, Gollhalli (B.Gollahalli), Andersonpet Post, Kysamballi Hobli, Bangarpet Taluk, Kolar District, Pin No.563 114.
8. Thimmareddy, S/o. Late Gangireddy, Aged about 67 years, R/at Surapalli Village, Robertsonpet Hobli, Bangarpet Taluk, Kolar District, Pin-563 114.
9. Jayaramareddy, S/o. Late Gangireddy, Aged about 57 years, R/at Jayaramareddy Clinic, Bayapalli Village Road Circle, Mulbagal Town-563 131, Kolar District.
10. Sri. Venkataramareddy, S/o. Late. Gangireddy, Aged about 52 years, Since dead, Rep. by L.Rs 10(a). Smt.Kanthamma, W/o. Late Venkaramareddy, Aged about 56 years, 10(b). Jaganath Reddy, S/o. Late Venkataramareddy, Aged about 33 years, 10(c). Bhavani, D/o. Late Venkataramareddy, Aged about 36 years, Respondent Nos.10(a) to 10(c) are the residents of No.501, Populamma Compound, Dhanushpuram, K.G.F., Kolar District.
11. Smt.Jayamma, W/o. Sampangireddy, Aged about 62 years, R/at Geetha Road Extension, Opp. Reddy Choultry, Robertsonpet Post, K.G.F-563 114, Kolar District. …Respondents (By Sri.M.V.Chandrashekar Reddy, Advocate for R1-R7; R8, R9, R10(a), R10(b), R10(c) & R11 are served) This Regular Second Appeal is filed under Section 100 of CPC., against the judgment and decree dated 30.09.2015 passed in R.A.No.208/2013 on the file of the III Additional District Judge, Kolar (sitting at KGF), dismissing the appeal and confirming the judgment and decree dated 23.10.2013 passed in O.S.No.234/2006 on the file of the Principal Senior Civil Judge, K.G.F.
This Regular Second Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT This regular second appeal of Defendant No.1 and L.Rs of Defendant No.6 arises out of the Judgment and Decree dated 30.09.2015 in R.A.No.208/2013 passed by the III Addl. District Judge, Kolar, sitting at K.G.F. By the impugned order, the First Appellate Court dismissed the appeal of the appellants and confirmed the Judgment and Decree dated 23.10.2013 passed by the Principal Civil Judge, K.G.F in O.S.No.234/2006.
2. Respondent Nos.1 to 7 were the plaintiffs in O.S.No.234/2006. Respondent Nos.8 to 11 were defendant Nos.2 to 5 and the appellants were Defendant Nos.1 and 6 in the said suit. Henceforth, the parties will be referred to with their ranks before the Trial Court.
3. The subject matter of the suit were the lands bearing Survey No.30, 2 acres 7 guntas of Surapalli village and site bearing Village Panchayath Khata No.12 measuring 60’ x 82’ with a structure on the same situated in Surapalli village.
4. Defendant Nos.1 to 5 and one Krishnareddy were the children of one Gangireddy. Defendant No.6 is the wife of the first defendant. Plaintiff Nos.1 to 6 are children and Plaintiff No.7 is the wife of said Krishnareddy. Gangireddy died during 1997. His wife Muniyamma died on 07.02.2001. Krishnareddy died on 14.11.2005.
5. Plaintiffs filed the suit claiming that the suit property was the ancestral property of Gangireddy which was allotted to him in the oral family partition in the year 1984, therefore, Krishnareddy had 1/6th share in the suit properties and on his death, the plaintiffs are entitled to his share.
6. Defendant Nos.1 to 6 alone contested the suit contending that the suit schedule properties were the self-acquired properties of Gangireddy and during his lifetime, he bequeathed the said property in favour of Defendant Nos.1 and 6 by executing Will dated 11.03.1985 as per Ex.D.2.
7. On the basis of such pleadings, the Trial Court framed the following issues:
i) Whether the plaintiffs prove that the plaintiffs and defendants are the members of Hindu undivided joint family and owning joint family properties?
ii) Whether the plaintiffs prove that the schedule property has not been divided among the parties at the time of oral partition?
iii) Whether the plaintiffs prove that they are entitled for a share in the suit schedule property?
iv) Whether the defendants prove that Gangireddy has executed a will in their favour for the reasons stated in the written statement?
v) What order or decree? Additional Issue:
i) Whether the defendant No.4 proves that the alleged Will in favour of defendant Nos.1 and 6 is concocted, created and fabricated one as contended in para 44 and 45 of his written statement?
8. The parties adduced evidence. The plaintiffs got examined P.Ws.1 to 3 and got marked Exs.P.1 to P.10. Defendants got examined D.Ws.1 to 5 and got marked Exs.D1 to D8.
9. The trial Court, after hearing the parties, decreed the suit holding that Krishnareddy, Gangireddy and defendants constituted the Joint Hindu Family and the suit properties were the joint family properties. The trial Court further held that Defendant Nos.1 and 6 failed to prove the Will since they did not examine one of the attesting witness to the Will who are alive and the propounder of the Will did not enter the witness.
10. Defendant Nos.1 and 6 challenged the said Judgment and Decree before the III Addl. District and Sessions Judge, Kolar in R.A.No.208/2013. Before the First Appellate Court, they filed I.A.No.III under Order VI Rule 17 of CPC to amend the written statement to raise the contention that the subject matter of the suit exceeded the pecuniary jurisdiction of the trial Court.
11. The First Appellate Court, on hearing both sides, concurred with the findings of the trial Court regarding the property being ancestral joint family property and failure of the Defendant Nos.1 and 6 to prove the Will. Further, the First Appellate Court rejected the application for amendment on the ground that the same is filed at a belated stage and no such plea was taken in the written statement at the first instance and Section 21(2) of CPC bars the First Appellate Court to allow such plea for the first time in the appeal.
12. Sri.S.P.Kulkarni, learned counsel for the appellants submits that the trial Court permitted Defendant Nos.2 to 5 to file written statement which was counter to the claim of Defendant Nos.1 and 6 regarding Will and on that basis, additional issue No.1 was framed. He further contends that this Court in Writ Petition No.5393-5394/2011 (GM-CPC) by order dated 19.03.2013, quashed the order of trial Court recording the written statement of Defendant Nos.2 to 5. Therefore, the additional Issue No.1 did not survive for consideration. He further submits that however, the trial Court considered that issue and gave a finding in favour of Defendant Nos.2 to 5 which is illegal and that amounts to substantial question of law. He further submits that the First Appellate Court, without noticing that, held that Judgment and Decree of the trial Court is confirmed which is an illegality and that amounts to substantial question of law.
13. Sri.M.V.Chandrashekar Reddy, learned counsel for respondent Nos.1 to 7 submits that though the trial Court took up Additional Issue No.1 for consideration, in the Judgment, it is no where said that the Will is forged one. It was said that Additional Issue No.1 is held in affirmative. He further submits that the First Appellate Court did not formulate any point for consideration with regard to Additional Issue No.1 and it consciously formulated the point only regarding proof of the Will. He submits that since the attesting witness though alive was not examined and the propounder of the Will was not examined, the First Appellate Court concurred with the finding of the trial Court. Therefore, the case does not involve any substantial question of law.
14. What amounts to a substantial question of law is propounded by Hon’ble Supreme Court in its Judgement in SANTOSH HAZARI v/s.PURUSHOTTAM TIWARI (AIR 2001 SC 965). It was held that on the question of fact, the First Appellate Court is the last Court unless it is shown that the findings of the First Appellate Court and the trial Court are perverse. It is further held that all questions of law do not amount to substantial question of law and to be called as substantial question of law that must be debatable and unsettled and must have same bearing on the case.
15. The parties did not dispute that defendants were the wife and children of Krishnareddy and he was the son of Gangireddy and plaintiffs are the heirs of Krishnareddy. There was no dispute that the suit properties were standing in the name of Gangireddy. It was even admitted that property had fallen to the share of Gangireddy in the family partition. But it was contended that Gangireddy retained that property for his maintenance during his life-time. Thus, it becomes his self-acquired property.
16. Even that be held so, on the death of Gangireddy, the property devolves upon his wife and sons by virtue of Section 8 of the Hindu Succession Act. However, no positive evidence was adduced to show that Gangireddy had retained the property for maintenance during his life-time. The trial Court granted 1/6th share to the plaintiffs together. That means to say, the trial Court granted equal share to all the children of Gangireddy. Apparently that is as per Section 8 of the Hindu Succession Act. None of the other defendants have challenged the allotment of the said shares.
17. So far as the Will, Section 68 of the Evidence Act requires the propounder of the Will to prove the Will by examining at least one attesting witness. Only if none of the attesting witnesses are alive, the propounder of the Will can prove the Will by examining the persons who were acquainted with the hand-writing of such witnesses.
18. The evidence on record shows that one of the attesting witness to the Will was alive. Despite that he was not examined. Thus, the legal requirement of proof of Will was not satisfied. Therefore, the Courts below sustainably held that the Will was not proved. For the reasons best known to the propounders of the Will, even they did not enter the witness box to afford opportunity to the adversaries to cross-examine them. That aspect also weighed with the Courts below.
19. After this Court quashing the order of receiving the written statement of Defendant Nos.2 to 5, the additional issue was not deleted and that was taken up for consideration. However, Courts below no where held that the Will is forged one or the Will was executed under undue influence, coercion etc. The First Appellate Court consciously did not formulate any point for consideration in that regard. Non-deletion of that issue in no way affected the validity of the Judgments of the Courts below. This Court does not find any substantial question of law to admit the appeal.
20. Therefore, the Appeal is dismissed.
bnv* Sd/- JUDGE