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2001 DIGILAW 62 (KAR)

GANGAVVA BALAPPA HADIMANI v. LAKSHMIBAI

2001-01-16

V.GOPALA GOWDA

body2001
GOPALA GOWDA, J, J. ( 1 ) THESE Second Appeals are filed by the defendants aggrieved of the common Judgment and Decrees passed by the Civil Judge Court, bagalkot, in R. A. Nos. 49 and 50 of 1992 dated 2nd September, 1994 confirming the Judgment and Decree dated 23. 3. 1992 passed in O. S. No. 177/1989 and O. S. No. 333/1989 by the learned Munsiff, hungund, contending that there are substantial questions of law in these appeals, urging various grounds in support of their Case. ( 2 ) IN this Judgment, the rank of the parties is described in this Judgment as described in the trial Court for the sake of Convenience. ( 3 ) BRIEFLY necessary and relevant facts for the purpose of examining and considering and answering the rival contentions urged by the learned Counsel on behalf of the parties with reference to the substantial questions of law framed by this Court are stated as hereunder. The plaintiff filed Original Suit (Old) No. 33/1986 before the Munsiff court Hungund claiming half share of the suit schedule property in pursuant to the will dated 24-4-1980 said to have been executed in her favour by late Balappa, her uncle, in respect of the suit schedule property bearing survey No. 144/1 measuring 7 acres 21 guntas of dry land of Hire-Malagavi village and another Original Suit was also instituted by her in respect of the very same property claiming half share of the property in question for partition of the half share of the property in question along with defendants-1 to 5 who is the mother and brothers of the plaintiff respectively contending that it is the joint ownership property of the plaintiffs father and her uncle late sangappa and Balappa in the Original Suit No. 333 of 1989. Both the suits were clubbed together at the instance of the parties as the subject-matter of the suit schedule property and the parties are one and the Same. Both the suits were clubbed together at the instance of the parties as the subject-matter of the suit schedule property and the parties are one and the Same. The first and second defendants in O. S. No. 177/1989 and defendant No. 6 and 7 in O. S. No. 333/1989 who are Appellants in these Appeals have filed their written statement denying the claim of the plaintiff and other defendants inter alia contending that deceased Balappa has not executed the will Deed in favour of the plaintiff and alternatively it is contended that the will said to have been executed under the suspicious circumstances and further contended that by reading recitals of Exhibit P. 6, it is jn the nature of a Gift Deed or a Settlement Deed but not the testamentary document and by careful reading of the will at Exhibit P. 6, unlimited right is acquired by the first defendant under Section 14 (1) of the hindu Succession Act, 1956, and therefore no right was derived by the plaintiff in respect of the half share of the property in question and further it is contended that the plaintiff is not entitled for the judgment and Decree in respect of half share of the property in question on the basis of will at Exhibit P. 6. ( 4 ) IT is the case of the defendants - 1 and 2 and defendants-6 and 7 in O. S. No. 333/1989 that late Sangappa the father of the plaintiff has executed the Relinquishment Deed dated 3-1-1944 in respect of his haif share of the property in favour of late Balappa, his brother who is also the husband of the first defendant in both the original suits after receiving a sum of Rs. 400/- for relinquishing his right upon the property in question. ( 5 ) BOTH the original suits were tried together by the trial Court at the instance of the parties. The plaintiff in support of her case she has examined 4 witnesses as P. Ws. 1 to 4 and produced six documents and marked them as Exhibits P. 1 to P. 6 and the defendants examined D. Ws. ( 5 ) BOTH the original suits were tried together by the trial Court at the instance of the parties. The plaintiff in support of her case she has examined 4 witnesses as P. Ws. 1 to 4 and produced six documents and marked them as Exhibits P. 1 to P. 6 and the defendants examined D. Ws. 1 to 3 and produced and marked 8 documents as Exhibits D. 1 to D. 8 and the trial Court after trial determined the rights of the parties and after considering and the appreciating the evidence on record passed a common Judgment and Decrees in the said original suits granting reliefs in favour of the plaintiff accepting her case. ( 6 ) DEFENDANTS-6 and 7 in O. S. No. 333/1989, defendants-1 and 2 in O. S. No. 177/1989 were aggrieved of the common Judgment and decrees filed Regular Appeals in R. A. Nos, 50/1992 and 49/1992 before the Civil Judge, Bagalkot, questioning the legality and validity of the Judgment and Decrees passed by the trial Court urging various legal grounds. The learned Appellate Judge after considering the rival contentions urged on behalf of the parties with reference to the issues framed by the learned trial Judge in the original suit proceedings, has formulated the points for his consideration at paragraph-10 of the impugned Judgement and on the basis of the rival contentions and material evidence on record, he has recorded his finding concurring with the findings of the trial Court by recording his own reasons at paragraphs-12 to 35 of the impugned Judgement in respect of point Nos. 1 to 4 framed in R. A. No. 49/1992 and point no. 1 framed in R. A. No. 50/1992 and for the reasons recorded by him in the aforesaid paragraphs on the points referred to above, he has answered the point No. 5 in R. A. No. 49/1992 and point No. 2 in r. A. No. 50/1992 at paragraph No. 37 of the impugned Judgement concurring with the findings of the trial Court and he has dismissed the Regular appeals. The defendants-6 and 7 in O. S. No. 333 of 1989, defendants-1 and 2 in O. S. No. 177/1989 are aggrieved of the impugned Judgment and Decrees passed both by the trial Court as well as by the First Appellate Court have filed these Second Appeals contending that there are substantial questions of law have arisen in these appeals for exercise of the appellate jurisdiction and power by this Court. This Court at the time of the admission of these appeals on 28. 11. 1997 and 28. 3. 2000 has framed the following questions of law for the purpose of consideration of these appeals and answer the substantial questions framed by this Court. Learned counsel Mr. Jayavittal Rao, Kolar appearing on behalf of the appellant in support of the substantial questions of law framed by this Court addressed arguments with reference to the substantial questions of law framed in respect of R. S. A. No. 282/1995, he has strongly placed reliance under Section 14 (1) of the Hindu Succession act 1956 with reference to the material documentary evidence namely the will Deed dated 24. 4. 1980 Exhibit P. 6 alleged to have been executed by late Balappa in favour of the plaintiff contending that by reading the recitals of the said document without admitting the said document was executed by the executant the right of maintenance of the first defendant Smt. Gangawwa wife of late Balappa has been given in respect of the property in question. Therefore, the nature of right acquired by the first defendant is unlimited and therefore the plaintiff has not acquired either right or title upon the property in question based on Exhibit P. 6. In support of this submission, he has placed strong reliance upon the Judgment of the Apex Court reported in C. MASILAMANI MUDALIAR AND OTHERS vs THE IDOL OF sri SWAMMATHASWALM SWAMMATHA SWAMI THIRUKOLI AND others at paragraphs-26, 27 and 28. Elaborating his submissions, learned Counsel for the defendants/appellants in both the Appeals has vehemently submitted that this important Segal aspect of the matter has not been considered by both the Courts below. Therefore, the finding recorded by both the Courts in the impugned common judgement without interpreting the terms and conditions of Exhibit p. 6 by wrongly construing the right of maintenance given by the testator in Exhibit P. 6 in favour of the first defendant is a life estate. Therefore, the finding recorded by both the Courts in the impugned common judgement without interpreting the terms and conditions of Exhibit p. 6 by wrongly construing the right of maintenance given by the testator in Exhibit P. 6 in favour of the first defendant is a life estate. Therefore, the interpretation given to the terms and conditions of the testamentary document at Exhibit P. 6 is an erroneous one as both the Courts below contrary to the recitals of the document without understanding the object and intention on the part of the testator in executing Exhibit P. 6 and granting the land in question in favour of the first defendant for her maintenance which is a statutory duty conferred upon him under the Hindu Law as she being a legally wedded wife of the testator and therefore the right given in the testamentary document by the testator would amounts to acquiring an unlimited right by the first defendant in respect of the land in question. Therefore, learned Counsel submits that the entire approach of both the Courts below both on law and on facts and material evidence on record have committed an illegality in rendering the impugned common Judgment and Decree in favour of the plaintiff. Therefore, learned Counsel for the defendants has submitted that a substantial questions of law framed by this Court on 28. 11. 1997 would arise in the second appeal R. S. A. No. 282/1995 and further learned counsel submits alternatively that the Courts below have committed illegality in not considering the material evidence on record by misconstruing the terms and conditions of exhibit P. 6 and recorded the finding holding that the right given to the first defendant is only a life estate, is contrary to the material evidence on record and further the material evidence on record in support of the defendants-1 and 2 has not been properly considered while recording their findings in the impugned Judgement. Therefore, it is urged that the findings of both the Courts below are erroneous in law and therefore it is contended that the same are liable to be setaside. ( 7 ) THE learned Counsel further alternatively submits that execution of Exhibit P. 6 by the testator is not proved as required in law. Therefore, it is urged that the findings of both the Courts below are erroneous in law and therefore it is contended that the same are liable to be setaside. ( 7 ) THE learned Counsel further alternatively submits that execution of Exhibit P. 6 by the testator is not proved as required in law. In view of the specific denial of the execution of the document particularly the thumb impression of late Balappa has been denied in the written statement by the defendants. The plaintiff neither has taken the steps to refer the document to the hand writing expert nor the Courts below have made efforts to compare the disputed left thumb impression of the testator with that of the undisputed LTM of the testator in exercise of their power under Section 73 of the Indian evidence Act, 1963. Further, it is contended that there is abundant material evidence on record from the admission of P. W. 1 with regard to the execution of the will at Exhibit P. 6 is in the suspicious circumstances could have been gathered on the basis of the pleadings and the evidence adduced by the plaintiff and she has categorically admitted in her evidence she was very much present at the time of alleged execution of the will deed, is one more strong circumstance should have been taken into consideration by the trial court and first Appellate Court to record a finding in favour of defendants-1 and 2. That she was present at the time of the alleged execution of the will vitiates the execution of the will as law declared by the Madras High Court A. C. AYYATHURAI CHETTIAR AND another vs MUNICIPAL COUNCIL, KUMBHAKONAM AND others and further submitted that the undisputed place of residence of P. W. 1 was Amaravathi, the place of the alleged execution of alleged Exhibit P. 6 is at Hungund which is a Taluka headquarter, the Sub-Registrar's Office is situated there. Non-registration of the alleged testamentary document would goes to show that when the testator had the opportunity to register the document, not registered, which would be another circumstance for the Courts below to scrutinise the legality and validity of the document as held by the Madras High Court in the case cited supra. Non-consideration of this relevant legal aspect of the case by the Courts below has vitiated the impugned Judgments ana Decree. Non-consideration of this relevant legal aspect of the case by the Courts below has vitiated the impugned Judgments ana Decree. Hence he has prayed for setting aside the impugned Judgements and Decrees of dismissal of the suit O. S. No. 177/1989. ( 8 ) THE submission of the learned Counsel on behalf of the Appellants/defendants 6 and 7 in R. S. A. No. 319/1995 with regard to the prayer sought for in the said original suit is with reference to the judgment and Decree passed. It is contended by the learned counsel on behalf of the Appellants the tne Courts below have committed an illegality having accepted the execution of the relinquishment Deed Exhibit D. 1 dated 3,1. 1944 executed by the father of the plaintiff in respect of relinqument of his half share of the property in question in favour of late Balappa who is his brother after receiving Rs. 400/- towards the consideration of his half share property. The finding recorded by the Courts below though they have come to the right conclusions that the execution of Exhibit D. 1 relinquishment deed is proved. They neve wrongly recorded a finding holding that said document has not been acted upon by the parties which finding is contrary to the material evidence on record. Therefore, learned Counsel for the Appellants submits that this appeal the substantial questions of law framed at 1 and 2 by this Court on 23. 3. They neve wrongly recorded a finding holding that said document has not been acted upon by the parties which finding is contrary to the material evidence on record. Therefore, learned Counsel for the Appellants submits that this appeal the substantial questions of law framed at 1 and 2 by this Court on 23. 3. 2000 do arise for consideration of this case in this case for the reason that the Courts below were not justified in holding that Exhibit d. 1 has not been acted upon without there being no evidence in support of the case of the plaintiff but on the other hand, there is a positive and substantive material evidence on record to show that during the life time of late Balappa after Exhibit D. 1, he has been in possession and enjoyment of half share of the property along with his share of the property upon which the right of the father of the plaintiff was relinquished and after his death, the first defendant has been in possession of the property in question is the evidence adduced by the defendants-1 and 2 end detendants-6 and 7 namely the Record of Rights which have got a presumlive value under section 132 of the Karnataka Land Revenue Act, 1964 and there is no rebuttal evidence rebutting the presumptive value to be attached to the said document by adducing reburta evidence, evidencing the fact in justification of the claim of the piatitiff that after Exhibit D. 1 was executed by late Sangappa her father during his life time, after his demise the plaintiff or any other person threugh whom they have been in possession and enjoyment and eultivetion of the land in question. Therefore, learned Counsel submits tnst non-consideration of this material and substantive unrebutted evidence which is in support of the contesting defendants, contrary to this evidence the courts below have recorded a finding of fact in favour of the plaintiff though there is no material evidence with regard to the factnm of possession of half share of the property of her lather late Sangappa who has executed the Relinquishment Deed at Exhibit D. 1 in support of her contention that after execution of Exhibit D. 1 the relinquishment Deed, parties have not acted upon and therefore the Courts below have not considered this documentary evidence in favour of the defendants. Therefore, learned Counsel for the defendants/appellants submits that the subsiectial questions of law framed by this Court do arise and on the material evidence on record, the findings recorded by the trial Court in the common judgment particularly having regard to the fact execution of Exhibit D. 1 is established it has wrongly held that the same was not acted upon by the parties is patently an erroneous finding as the said finding is contrary to the pleadings and material evidence on record. Therefore, learned Counsel for the Defendants/appellants submits that the findings recorded in respect of O. S. No. 333/1989 granting Judgment and Decree by both the Courts are liable to be set aside. ( 9 ) LEARNED Counsel appearing on behait ot the respondents-1, 2and 4 to 6 Mr. R. P. Somasekhar sought to justify the impugned common Judgment and Decrees of the Courts below contending that they have taken into consideration of the material evidence on record exercising their power and rightly recorded their findings by assigning valid and cogent evidence thougn it may be possible for a prudent person to take a different view in tne matter on appreciation of material evidence on record, this Court should not exercise its appellate power and Jurisdiction under Section 100 CPC as there are no substantial questions of law muchless as framed by this Court, as stated supra, would arise for consideration of this Court as required under proviso to sub-section (5) ot Section 100 CPC. Therefore, learned Counsel for the plaintiff/respondent would submits that the appeals are liable to be dismissed. Learned Counsel further subnets that the findings and the conclusions are recorded and arrived at by the Courts below on proper appreciation of evidence on record. Though they are wrong on taets no appreciation of evidence, still this Court cannot exercise seconed Appellate Courts jurisdiction and power in exercise of its power under Section 100 cpc. Therefore, the learned Counsel for the plaintiff submits that the impugned Judgment and Decree of the Courts below in the original Suit No. 333/1989 shall not be interfered with by this Court in exercise of its appellate jurisdiction and power. Therefore, the learned Counsel for the plaintiff submits that the impugned Judgment and Decree of the Courts below in the original Suit No. 333/1989 shall not be interfered with by this Court in exercise of its appellate jurisdiction and power. ( 10 ) AFTER hearing the learned Counsel appearing on behalf of the parties, the Court proceeds to examine the substantial questions of law framed in respect of R. S. A. No. 282/1995, with reference to rival contentions urged by the learned Counsel appearing on behalf of the parties to find out the submissions made on behalf of the defendants/appellants in this appeal particularly with reference to exhibit P. 6, the testamentary will alleged to have executed by late balappa, the husband of the first defendant whelher the first defendant wife of late Balappa has acquired unlimited right or not in respect of the property in question purported to have been bequeathed in favour of the plaintiff as legatee of the will is required to be considered keeping in view the provision of sub-section (1) of section 14 with the explanation given to the said provision of the act of 1956 and also considering the recitals of Exhibit P. 6 the will deed. To answer the above said question, it is necessary for this court to extract Section 14 (1) (2) of the Hindu Succession Act, 1956 to answer and record its finding whether the facts of this case are applicable to the provisions of Section 14 (1) or not. "14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation:- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order ot a civil Court or under an award where the terms of the gift, will or other instrument of the decree, order or award prescribe a restricted estate in such property. " i have examined carefully the document at Exhibit P. 6 the will. Undisputedly, there is a recital in the said document, The testator of the said document has created right of maintenance of the first defendant during her life time in respect of the property in question. The said right of the first defendant is unequivocally can be gathered from reading the entire document as a whole. Undisputedly the first defendant is a wife of the testator. She is enbtied for maintenance by her husband who is the Testator of the document Exhibit P. 6 under the provisions of the Hindu Law. Having regard to the nature of the relationship between the testator and the first defendant the intention of the testator is very clear that the right of maintenance has been given to the first defendant in respect of the land in question, is the intention of the testator at the time of execution of exhibit P. 6. By reading sub-section (1) of Section 14 along with the explanation given to that Section, it makes it very clear that at Exhibit p. 6 the right of maintenance upon the property in question has been given in favour of the first defendant which is an unlimited right upon the property in question. Upon this unlimited right of the first defendant, the right given in favour of the plaintiff in pursuant to the will deed as contended by the plaintiff as per Exhibit P. 6. This claim of the plaintiff is wholly untenable in law in view of the law laid down by the Madras High Court in the case of PAVANI SUBBAMMA and ANOTHER vs ANUMALA RAMANAIDU AMD OTHERS. This claim of the plaintiff is wholly untenable in law in view of the law laid down by the Madras High Court in the case of PAVANI SUBBAMMA and ANOTHER vs ANUMALA RAMANAIDU AMD OTHERS. In the said case, the similar question fell for consideratiion of the Madras high Court, wherein the said Court has laid down the law in the said case holding that the testator creating limited interest in favour of a widow followed by gift over to grandchildren, the limited jnterest and right in favour of a widow can be regarded as a women's estate under Hindu law and not strict life-interest as understood in English law and further held that alienations by a widow for her legal necessity are binding on the reversioners. The ratiio laid down in the aforesaid case with all force applicable to the tects of this case for the undisputed fact that the life-interest creaged in favour of the first defendant, wife of the testator, and thereafer the property must go to the plaintiff is the recital of the testimenrary document Exhibit P. 6. Therefore, this important aspect of the mixed question Of fact and iaw with reference to Exhibit P. 6 and the provisions under Section 14 (1) proviso and explanation to that Section have not been considered by the Courts below while answering the contentions/ issues raised by the parties. Further the Apex Court in the case of c Masilamani Mudaliar and others, vs The Idol of Sri swammathaswalm-Swammatha Swami Tnirukoli and others, referred to supra (AIR 1996 SUPREME COURT 1697) at paragraphs 26 and 28 overruling the earlier Judgment of the GUMPHA (SMT) AND others vs JAIBAI4 case with reference to the right accrued in favour of the persons upon which the tesumentary document is relied upon with reference to the Adoption of Maintenance Act of 1956. Considering Section 37 of the Transfer of Property Act with regard to the charge created over the property for the realisation of maintenance interpretting the provisions under Section t4 (1) and (2) after the death of the testator, the wife will inherit the property as she being a class-1 heir of the Testaior and therefore the first defendant is entitled to succeed as an absoiute owner of the property in question with reference to the circumstances of the case. The question arose for consideration of the Supreme Court after interpretation of the said provisions cf the Act of 1956 the Apex court has held that the will envisaged in respect of the properties in recognition of the Will properties of her pre-existing right of maintenance. It is not a right acquired for the first time under the instrument of that will but it is the reflection of the pre-existing right under the Sastric Clause which has blossemed into an absolute ownership after 1956 under Section 14 (1) and explanation to the said Section of the Act. Therefore, the Supreme Court after considering the Settled legal position har clearly laid down the law in the case of Tulasamma's case which case referred to in the case of C. Masalamani Mudaliar and other, referred to supra reported in (1977) 3 SUPREM5 COURT CASES 99'. I has been held that right acquired under the will is in recogiton of pre-existing right of maintenance known under the Sastric claues and was transformed into an absolute right under Section 14 (1) with explanation part thereunder has wiped out restrictive estategiven to the women under the Sastric clause, is the view taken by the Supreme Court. The law propounded in the said case by the Apex Court with all fours applicable to the facts of the present case. The submission of the learned Counsel for the Defendants/appellants Mr. Jayavittal Kolar with reference to Exhibit P. 6 in the appeal No. 282 of 1995 is well founded and his submissions that the substantial questions of law in this Appeal has arisen and he has rightly made his legal submissions based on legal evidence on record and the case law on the questions of law cited supra and he has satisfied this Court that the substantial questions framed by this Court do arise in this appeal. For the reasons stated supra this Court has to exercise its jurisdiction and power in this Appeal and set aside the impugned judgments and Decrees. Apart from the non-consideration of the material evidence on record and law enunciated on the above said points with regard to the suspicious circumstances in which, the alleged will at Ex. For the reasons stated supra this Court has to exercise its jurisdiction and power in this Appeal and set aside the impugned judgments and Decrees. Apart from the non-consideration of the material evidence on record and law enunciated on the above said points with regard to the suspicious circumstances in which, the alleged will at Ex. P. 6 alleged to have been executed by the first defendant's husband and the evidence placed on record by the defendants-1 and 2 in this regard showing that the legatee the plaintiff was very much present at the time of execution of the alleged will exhibit P. 6. This material evidence is very much available in the examination-in-chief of P. W. 1 as she has spoken to the execution of the will by the testator putting his L. T. M. to the document, the scribe has written the document as per the instructions given by the testator after the L. T. M. was put by the testator, the testator's signature was made. This material evidence on record would clearly go to show that she was very much present at the time of execution of the testimentary deed Exhibit P. 6 by the husband of the first defendant and further contrary to the material evidence, one more suspicious circumstances namely though late Balappa was living at Gudur in the house of his brother-in-law, it has been wrongly described in the document at Ex. P. 6 that he was residing along with P. W. 1 and further stated he had deserted: his wife the first defendant herein. Despite the admitted evidence on;record, that contention of the plaintiff has been shown to be factually incorrect in the evidence of the defendants and further the permanent residence of Balappa hiremalagavi, the residence of P. W. 1 the plaintiff was Amaravathi, execution of alleged document is at Hungund. The material evidence on record would clearly show that deceased Balappa was residing along with his brother-in-law at Gudur. These circumstances are the suspicious circumstances is the material evidence placed on record on behalf of the defendants. This material evidence has not been taken into consideration by the Courts below at the time of passing the impugned Judgment and Decrees. The material evidence on record would clearly show that deceased Balappa was residing along with his brother-in-law at Gudur. These circumstances are the suspicious circumstances is the material evidence placed on record on behalf of the defendants. This material evidence has not been taken into consideration by the Courts below at the time of passing the impugned Judgment and Decrees. Therefore, this Court has to record a finding that non-consideration of the positive susbstantive and material evidence on record rendered the findings recorded in the impugned Judgments by the Courts below are erroneous in law. Therefore, the submissions made on behalf of tne Defendants/ appellants in this appeal addressing arguments with regard to the question of law formulated by this Court is well founded and therefore, the same must be accepted by this Court tor the reasons stated supra on both the grounds namely the first defendant had acquired, unlimited right as contemplated under sub-section (1) of Section 14 and explanation to the said provision. Therefore, no right has been acquired by the plaintiff for institution of the suit dated 17. 7. 89 in respect of half portion of the property in question. Hence the suit is misconceived. The Judgments and Decrees passed by the Courts below are liable to be dismissed. Consequently, the suit also is dismissed. ( 11 ) THIS Court is answering to the substantla questions of law framed with regard to Exhibit D. 1 in respect of the Judgment and decree passed by the Courts below in O. S. No. 333/89 which is the subject matter of R. S. A. No. . 319/95. The execution of Exhibit D. 1 the Relinquishment Deed by late Sangappa, who :s the brother of balappa, the father of the plaintiff, is dated 3. 1. 1944. The execution of the said document is not disputed. Apart from this, both the trial court as well as the first Appellate Coirt have recorded a material finding of fact on the basis of pleadings and material evidence on record holding that the document is mora than 30 years old, under section 90 of the Indian Evidence Act, presurnptive value is attached to the document Exhibit D. 1 with regard in the execution of the document by the executant. Therefore, both the Courts below have rightly recorded a fining in the impugned Judgments and Decree, having recorded such a finding, the Courts below have ignored the material evidence on record and recorde a firding of fact holding that said document Exhibit D. 1 has nort been acted upon by the parties is wholly contrary to the matetia and substantive evidence on record. Learned Counsel Mr. Jayavitta Kolar on behalf ot the appellant has extensively taken me with regard to the evidence adduced by the parties in the original suit. I have carefully gone through the same. It is an admitted fact that plaintiff was not residing in the village Hiremalagavi where the land is situated, she was working as a Nurse. It is not her case that after Exhibit D. 1 was executed, her father was in possession during his fife time after his death, she has come into possession of the suit property and she has been cultivating the same personally either by her personally or engaging agricultural labourers but on the other hand, the unchallenged evidence on record is that Exhibit D. 1 has been acted upon by the parties, Late Balappa was in possession of the property even prior to Exhibit D. 1 as his brother late Sangappa was a Military personnel. After Exhibit D. 1 was executed. Mr. late Baiappa has been in possession of the property. After his demise the first defendant the wife has been in possession and cultivating the same, to evidence this fact, the defendants have produced R. T. C. records exhibit P. 1 which has got presumptive value attached under Section 132 of the Land Revenue Act which presumption had not been rebutted by the plaintiff by producing rebuttal evidence. This material evidence should have been taken into consideration properly by the courts below and recorded a finding in favour of the defendants in this case but on the other hand, though there is no material evidence on record finding has been recorded by the courts below in favour of the plaintiff holding that as per Exhibit D. 1, the same has hot been acted upon by the parties which finding in my considered view is an erroneous finding. Therefore, the impugned Judgments and decree passed by the Courts below are wholly unsustainable in law. Hence the same are liable to be set aside. Therefore, the impugned Judgments and decree passed by the Courts below are wholly unsustainable in law. Hence the same are liable to be set aside. As the learned counsel for the Appellant has made out a case contending that the questions of law as framed by this Courts on 23. 3. 2000 does not arise in this appeal for exercise of jurisdiction and power by this court under Section 100 CPC by this Court. ( 12 ) FOR the reasons stated supra, the submission made on behalf of the plaintiff in both the appeals are wholly untenable in law, cannot be accepted by this Court. Hence the same is rejected. ( 13 ) ACCORDINGLY, the Defendants/appellants must succeed in both the appeals. The appeals are allowed. The impugned Judgments and Decrees passed by the first Appellate Court and the trial Court are hereby set aside and the Original Suits filed by the plaintiff are dismissed.