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2010 DIGILAW 475 (KAR)

Kadamma v. Gowramma

2010-04-05

A.S.PACHHAPURE

body2010
Judgment : The plaintiffs have approached this Court in appeal challenging the judgment and decree passed by the lower Appellate Court allowing the appeal of the respondents and setting aside the judgment and decree of the Trial Court by modifying the same and reducing the share of the appellants in the properties to 1/8th. 2. The facts relevant for the purpose of this appeal are as under: I will be referring to the parties as peer their rank in the Trial Court for the purpose of convenience. The appellants are the plaintiffs whereas the respondents are the defendants in the Trial Court. The plaintiffs instituted the suit for declaration, possession and mesne profits basing their claim on the ground that they are the legal representatives of deceased Kenchegowda and also on the basis of the Will executed by him dated 10-11-1980 produced at Ex.P.5. 3. So far as the genealogy is concerned, there is no dispute. One Chowdegowda had two sons, the eldest by name Thimme Gowda alias Karigowda and the second was Kenche Gowda i.e., the father of the plaintiffs and father-in-law of first defendant who died on 28-5-1983 leaving behind his only son Thimmaiah the husband of first defendant and 3 daughters i.e., plaintiffs 1 to 3. The eldest brother Thimmagowda alias Karigowda died without any legal representative and in his life-time, he had given this property to his younger brother Kenchegowda. It is averred in the plaint that Kenche Gowda the father of the plaintiffs during his lifetime i.e., on 10.11.1980 executed a Will bequeathing his share in the suit properties to the plaintiffs who are sisters of the husband of the first defendant. The husband of the first defendant was of unsound mind. He had two wives Parvathi who dies long back and the first defendant was the second wife. Though his wedlock Thimmaiah and Gowramma the first defendant have a daughter by name Lakshmi the second defendant. The plaintiffs relied upon a Will-Wx.P.5 dated 10-11-1980 whereas the defendants relied upon the Will Ex.D.3 said to have been executed by Smt.Chennamma wife of Kenche Gowda who had also died on 25.9.1980, after the death of her husband. In the circumstances, the plaintiffs sought for declaration of their ownership over the suit property and for possession. 4. The plaintiffs relied upon a Will-Wx.P.5 dated 10-11-1980 whereas the defendants relied upon the Will Ex.D.3 said to have been executed by Smt.Chennamma wife of Kenche Gowda who had also died on 25.9.1980, after the death of her husband. In the circumstances, the plaintiffs sought for declaration of their ownership over the suit property and for possession. 4. The defendants have relied upon a Will-Ex.D.3 said to have been executed by Chennamma and disputed the Will executed by the deceased Kenche Gowda under Ex.P.5 and also denied any interest of the plaintiffs in the suit property. On this ground, the defendants have sought for dismissal of the suit. On the basis of these pleadings, the Trial Court has framed the following issues and additional issues: 1. Whether the plaintiff prove that Thimmaiah their brother predeceased his father Kenchegowda? 2. Whether the plaintiff prove that their father Kenchegowda has duly executed his last Will dated 10-11-1980? 3. Whether the plaintiff prove that by virtue of the registered Will dated 10-11-1980 they have become the absolute owners in respect of suit schedule properties? 4. Whether the plaintiffs prove that the decree obtained by the 1st defendant Gowramma in O.S.No.179 of 1982 is not binding on them? 5. Whether the defendants prove that they are the absolute owners in possession of suit schedule properties at contended in para 8 of their written statement? 6. Is this suit barred under the principles of res judicata? 7. Whether the plaintiffs are entitled for the relief of declaration and possession as prayed for? 8. Are they entitled for mesne profits? 9. What decree or order? Additional issues: 1. Whether the suit is bad for non-joinder of necessary party? 2. Whether the defendants prove that the suit properties are ancestral and joint family properties of late Kenchegowda and that he had no authority to dispose of the suit properties? 5. It is thereafter that the first plaintiff was examined as P.Ws.1, 2 and 6 the witnesses with regard to the custody of the Will and P.Ws.3 and 4 the attesting witnesses to the Will-Ex.P.5 and P.W.5 the scribe. In their evidence, the documents-Exs.P.1 to P.16 were marked. The first defendant was examined as D.W.1 and the witnesses D.Ws.2 and 3 the attesting witnesses to the Will-Ex.D.3 and the scribe and in their evidence, the documents-Exs.D.1 to D.3 were marked. 6. In their evidence, the documents-Exs.P.1 to P.16 were marked. The first defendant was examined as D.W.1 and the witnesses D.Ws.2 and 3 the attesting witnesses to the Will-Ex.D.3 and the scribe and in their evidence, the documents-Exs.D.1 to D.3 were marked. 6. The Trial Court on appreciation of the material on record and after hearing the Counsel for the parties held that the Will-Ex.P.3 has been proved and that the plaintiffs have ½ share in the suit properties and in the circumstances, granted a decree to that effect. Aggrieved by the judgment and decree, the defendants approached the Civil Judge (Senior Division) in R.A.No.11 of 2004 and the lower Appellate Court in para 8 of its judgment stated that after hearing the arguments of the learned Counsel for the parties and as by that time the lower Court records were not received and both the Counsel prepared to argue the matter on the ground that it involves the question of law and submitted their arguments. In such circumstances, it heard the matter and allowed the appeal of the defendants answering Points 1 and 2 in negative i.e., with regard to the execution of the Will-Ex.P.5 holding that the Will has not been proved and that the plaintiffs have not become the absolute owners of the property on the basis of the Will dated 10-11-1980 and in these circumstances, allowed the appeal and granted 1/8th share to the plaintiffs and aggrieved by the judgment and decree, this appeal has been preferred. At the time of admission, this Court framed the following substantial question of law: “Whether the finding of the First Appellate Court that the Will executed by Kenche Gowda is not valid on the ground that he had no right to Will away the joint family property is perverse and arbitrary as Kenche Gowda has share in the joint family property in view of the provisions of Section 30 of the Hindu Succession Act, 1956?” 7. It is later the additional substantial question of law had been raised by this Court in view of the fact that the lower Appellate Court had not called for the LCR and though the Trial Court had held that the Will-Ex.P.5 has been proved, the lower Appellate Court in the absence of the records or the paper book held that the Will has not been proved and in such circumstances, the following additional substantial question of law was raised: “Whether the findings of the lower Appellate Court holding that the Will is not valid, in the absence of either the paper book containing deposition, documents, etc, or records of the Trial Court is legal and valid?” 8. I have heard the learned Counsel for the appellants and also the respondents. At the time of hearing of this appeal, both the Counsel submitted that in case if the additional substantial question of law is answered, questioning of considering the first substantial question of law may not arise for consideration. It is in these circumstances that both the Counsels have submitted their arguments. 9. It is the contention of the learned Counsel for the appellants that as the matter is completely dependent upon the facts particularly the execution of the Will-Ex.P.5 and its proof, it was necessary for the lower Appellate Court to call for the records and decide the matter on reappreciation of the material placed on record by the parties in the Trial Court. The learned Counsel also submitted that the Trial court had granted a decree for ½ shares in the suit properties and the same was reduced to 1/8th share by the lower Appellate Court solely because the lower Appellate Court held and reversed the finding with regard to the Will-Ex.P.5. In the circumstances, it is her submission that either in the absence of paper book or the lower Court records, the Appellate Court could have heard the matter and decided the case holding that the Will has not been proved. Per contra, it is the submission of the learned Counsel for the respondents that there was a consent by both the Counsels that the records are not necessary and in such circumstances, the Appellate Court has heard the matter and rightly decided the appeal dispensing with the records and on the basis of the judgment of the Trial Court. Per contra, it is the submission of the learned Counsel for the respondents that there was a consent by both the Counsels that the records are not necessary and in such circumstances, the Appellate Court has heard the matter and rightly decided the appeal dispensing with the records and on the basis of the judgment of the Trial Court. On this ground, he has sought for the dismissal of the appeal. 10. I have scrutinized the material placed on record in the context of the submissions made by the learned Counsel. It is relevant to note that Section 107 of the Civil Procedure Code, 1908, it reads as under: “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 this Code on Courts of original jurisdiction in respect of suits instituted therein”. So under the above said provisions, 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 this Code on Courts of original jurisdiction in respect of the suits instituted therein. So it is relevant to note that the Trial Court has got the discretion to peruse the evidence, scan the same, assign its reasons and come to a finding with regard to the proof of the facts alleged by the parties. So under the said provisions, even the lower Appellate Court has got the same powers like that the Trial Court. Furthermore, as could be seen from the provisions of Order 41, Rule 31 of the CPC it reads: “31. The judgment of the Appellate Court shall be in writing and shall state.- (a) the points for determination; (b) the decision thereon; (c) the reason for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein”. and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein”. 11. So the Appellate Court under the above said provision has to state the points for determination, it has to assign reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled shall also be stated and then it has to grant the relief to which the appellant is entitled. So the perusal of this provision as well-provides that it is necessary for the lower Appellate Court to look into the evidence reappreciate the same, assign its reasons and then come to a just conclusion. 12. It is not in dispute that the Trial Court depended on the Will-Ex.P.5 and it held on the basis of the evidence of P.Ws. 1, 3, 4 and 5 that the Will has been proved. It scanned the evidence of these witnesses and also looked into Ex.P.5 the Will and thereafter assigning the reasons for its conclusion held that the Will has been proved. So also, it look into consideration the evidence of the witnesses for the defendants with regard to the proof of Ex. D.3 the Will said to have been executed by Chennamma the mother of the plaintiffs and on appreciation of the same, it came to the conclusion that the Will has not been proved. Aggrieved by this judgment of the Trial Court, the appeal was preferred and in such circumstances, the Appellate Court had to look into the proof of execution of the Will, its validity etc. It was also necessary for the lower Appellate Court to call for the records or to secure the paper the lower Appellate Court to call for the records or to secure the paper book and thereafter go through the evidence and appreciate the same, assign its reasons in case, if it has to disagree with the finding of the Trial Court and then take a decision. On this aspect of the matter, if the provisions of Rule 165-A of the Karnataka Civil Rules of Practice, 1967 are perused, it reads: “165-A. (1) Except in cases referred to in sub-rules (2) and (3) of this rule, there shall be prepared in every appeal, a paper book as hereinafter provided. On this aspect of the matter, if the provisions of Rule 165-A of the Karnataka Civil Rules of Practice, 1967 are perused, it reads: “165-A. (1) Except in cases referred to in sub-rules (2) and (3) of this rule, there shall be prepared in every appeal, a paper book as hereinafter provided. (2) No paper book need be prepared in miscellaneous appeals against interlocutory orders. (3) The Appellate Court may, in any appeal, either suo motu in the interest of speedy disposal of appeal, or on an application made by the appellant, dispense with the preparation of the paper book”. (emphasis supplied) 13. So far as the first appeals are concerned, under the above said provision, it is the requirement of the said provision that in every appeal, the paper book has to be furnished by the appellants. The only exceptions are in case of appeals against interlocutory orders or under sub-rule (3), the Appellate Court can dispense with the preparation of paper book either suo motu or in the interest of the speedy disposal of the appeal or on an application made by the appellants. So the perusal of para 8 of the judgment reveals that a request was made by the Counsel that the records are not necessary but any how it was necessary for the lower Appellate Court either to dispense with the records by assigning the reasons as to the necessity to dispense with the same and then take a decision as to whether the lower Court records were necessary or not. But the lower Appellate Court has not considered this aspect. 14. Furthermore, it is relevant to note that when the matter was depending upon only the facts, the execution of the Will, its proof etc., on the basis of the evidence led by the parties and when the lower Appellate Court was to reverse the finding of the Trial Court, then it was incumbent upon the Trial Court to look into the evidence, the documents produced by the parties and then come to a decision. Unfortunately, though the lower Appellate Court has reversed the finding of the Trial Court, it has not taken any pain to get the records or to secure the paper book and in the absence of the same, has reversed the finding of the Trial Court holding that the Will which is said to have been proved in the Trial Court has been held to have not been proved and in the circumstances, I am of the opinion that the lower Appellate Court has committed a grave error in not calling for the records and reversing the judgment of the Trial Court only on the basis of the judgment of the Trial Court. It is necessary to note that though the judgment contains the facts, the full facts are not available for reappreciation and therefore, the fact that the lower Appellate Court has merely looked into the judgment of the Trial Court is itself not sufficient to say that it has perused the facts which were brought on record by the parties in the Trial Court through the oral evidence and also the documents. So taking into consideration all these circumstances, I am of the opinion that the judgment and decree passed by the lower Appellate Court is illegal and the same has to be set aside by answering the additional substantial question of law in the negative and that the first substantial question of law does not arise for consideration at this stage. Hence, I proceed to pass the following: ORDER The appeal is allowed. The judgment and decree of the lower Appellate Court in R.A.No.11 of 2004, dated 26-5-2004 is set aside. The matter is remitted back to the Appellate court with a direction to get the records of the Trial Court and dispose of the appeal in accordance with law in the context of the observations made above. As the suit is of the year 1988, the lower Appellate Court shall make all endeavour to dispose of the appeal preferably by the end of August 2010. To avoid the delay, both the parties are directed to appear before the lower Appellate Court on 24-4-2010. The office is directed to send the records and the paper books forthwith to the lower Appellate Court.