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2015 DIGILAW 452 (KAR)

Laxmamma v. Mallamma

2015-04-17

A.V.CHANDRASHEKARA

body2015
JUDGMENT : A.V. Chandrashekara, J. 1. The present appeal is filed under Section 100 of CPC challenging the divergent finding passed by the Court of the District Judge, Mandya on 24.8.2005 in R.A. 167/2004. The appellants are defendant Nos. 3 and 4 of an original suit bearing O.S. 169/1990 which was pending on the file of Court of Munsiff at Nagamangala. 2. Respondent Nos. 1 to 6 herein were plaintiffs, respondent No. 7 was defendant No. 1, respondent No. 8 was defendant No. 2 and respondent No. 9 was defendant No. 5 in the said suit. Respondent Nos. 7 and 9 died during the pendency of this appeal and hence, their legal representatives have been brought on record. 3. Facts leading to filing to the suit is as follows: "One person by name Boregowda had wife by name Nanjamma. Both of them are no more. They were survived by 8 daughters. Out of them, daughter Boramma is no more and she is survived by defendant No. 5-Jayaramegowda and plaintiff Nos. 6 and 7 namely, Thayamma and Jayamma. According to the plaintiffs, their father Boregowda @ Gangadharagowda died in the year October 1956 leaving behind his wife Nanjamma, 8 daughters and one son. Nanjamma passed away 3 years ago and daughter Boramma died 10 years back prior to filing of suit leaving behind plaintiff Nos. 6, 7 and defendant No. 5. According to the plaintiffs, after the death of Boregowda @ Gangadharagowda, the defendants wrongly advised Nanjamma and obtained registered settlement deed dated 30.6.1965. Though, Boregowda died on 10.10.1956, according to plaintiffs, the said settlement deed could not have been executed and such settlement deed does not bind on them." 4. Defendant Nos. 1, 2 and 5 have remained ex parte. Defendant Nos. 3 and 4 chose to file written statement. According to them, Boregowda died in the year 1952 prior to coming into force the Hindu Succession Act, 1956 and entire property devolved upon Nanjamma being the widow as per the Mysore Hindu Law Women's Rights Act, 1933. According to them, Nanjamma was competent to execute the settlement deed by virtue of Section 14 of Hindu Succession Act. She is stated to have been executed the registered settlement deed in favour of her daughter, defendant No. 3-Lakshmamma, whose husband is defendant No. 4. Venkataramegowda. Defendant No. 3 is stated to be the absolute owner conveyed under the settlement deed. 5. She is stated to have been executed the registered settlement deed in favour of her daughter, defendant No. 3-Lakshmamma, whose husband is defendant No. 4. Venkataramegowda. Defendant No. 3 is stated to be the absolute owner conveyed under the settlement deed. 5. On the basis of the above pleadings, following issues came to be framed by the Trial Court: "1) Do the defendant Nos. 3 and 4 prove that the plaint B schedule properties are not the self acquired properties of the defendant No. 4? 2) Whether the plaintiffs are entitled to call for accounts? If so from whom? 3) To what share the parties are entitled and in which of the properties? 4) What order or decree?" 6. On behalf of the plaintiffs, Malamma is examined as PW-1 and 26 exhibits have been marked as Exs. P-1 to 26. On behalf of the defendants, defendant Nos. 4 and 3 have been examined as D.W.-1 and 2 and one more witness has been examined as D.W.-3 and has got marked 45 exhibits as Exs. D-1 to 45. Ultimately, the learned Judge of the Trial Court has chosen to answer issues 1 in the affirmative and issues 2 and 3 in the negative and has consequently dismissed the suit. As against which an appeal was filed under Section 96 of CPC before the Court of Senior civil Judge, Mandya in R.A. 41/1996 and later it was withdrawn and transferred to Court of District Judge, Mandya and renumbered as R.A. 167/2004. The said appeal has been allowed in its entirety and suit was decreed as prayed for. Being aggrieved by the finding of the First Appellate Court, present appeal has been filed. 7. The present appeal has been admitted on 16.4.2007 by framing following substantial question of law for consideration: "Whether the Lower Appellate Court was justified in holding that the settlement deed, Ex. D-1 dated 30.6.1995 is not proved when it was not disputed by the plaintiff and in granting the decree of partition as it has done?" 8. Heard the learned counsel for the parties and perused the records. 9. The learned Judge of the Trial Court had held that Boregowda @ Gangadharagowda died prior to Hindu Succession Act came into force. Admittedly, the properties were self acquired properties as per the provisions of Mysore Hindu Law Women's Rights Act, 1933. Heard the learned counsel for the parties and perused the records. 9. The learned Judge of the Trial Court had held that Boregowda @ Gangadharagowda died prior to Hindu Succession Act came into force. Admittedly, the properties were self acquired properties as per the provisions of Mysore Hindu Law Women's Rights Act, 1933. If a Hindu male dies intestate, prior to coming into force the Hindu Succession Act, the properties would devolve upon his widow/widows to the exclusion of his daughters. The Trial Court has given a factual finding about this aspect. Therefore, the Trial Court has held that Nanjamma had become the absolute owner of the property on devolution of the properties in her favour pursuant to 1933 Act. 10. Several grounds had been urged in an appeal filed under Section 96 of CPC. One of the grounds urged is that the Trial Court has failed to consider that the plaintiffs have not proved that Boregowda @ Gangadharagowda died prior to coming into force the Hindu Succession Act, 1956. Therefore, Mysore Hindu Law Women's Rights Act, 1933 was the proper Act about the devolution of the properties of his wife Nanjamma. Infact, the entire controversy revolves around the approximate year in which Boregowda died. The Trial Court has come to the conclusion that he died prior to coming into force the Hindu Succession Act. Therefore, Mysore Hindu Law Women's Rights Act, 1933 was applicable. The learned Judge of the First Appellate Court has framed following points for consideration: "a) Whether Ex. D-1 is proved in accordance with law? b) Whether defendant No. 4 proves that out of his contract business he has acquired items mentioned in the B schedule properties and they are his properties? c) What order?" 11. Infact, no ground is urged in regard to the authenticity of Ex. D-1 registered settlement deed executed by Nanjamma in favour of her daughter defendant No. 3. Such being the case, it is ununderstandable as to how the First Appellate Court could deal with the proof of Ex. D-1. Infact, the First Appellate Court has lost sight of important ground raised the appeal in regard to the year in which Boregowda died since it would be decisive in deciding the entire scope of the suit. 12. Such being the case, it is ununderstandable as to how the First Appellate Court could deal with the proof of Ex. D-1. Infact, the First Appellate Court has lost sight of important ground raised the appeal in regard to the year in which Boregowda died since it would be decisive in deciding the entire scope of the suit. 12. Order 41 Rule 31(a) of CPC mandates the First Appellate Court to frame proper points on the basis of the grounds urged in the appeal memo and grounds urged at the time of submitting the arguments on merits. First appeal is a valuable right vested under Section 96 of CPC. The First Appellate Court is expected to formulate proper points as per the mandate of provisions Order 41 Rule 31(a) of CPC. Unless proper points for consideration are formulated, the First Appellate Court will not be in an advantageous position to reassess the entire evidence on record. 13. In the case of B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 ], the Hon'ble Apex Court has held that framing of proper points for consideration is a vital aspect in an appeal filed under section 96 of CPC. Without framing proper points for consideration, the First Appellate Court cannot reassess the oral and documentary evidence on record. Relying on the decision of Santosh Hazari v. Purushottam Tiwari (Dead) by L.Rs. (2001) 3 SCC 179 ] and the decision of Madhukar and Others v. Sangram and Others, (2001) 4 SCC 756 ], the Hon'ble Apex Court in the case of B.V. Nagesh (supra) has reiterated that in view of mandate of Order 41 Rule 31(a) of CPC, the First Appellate Court is expected to formulate relevant points for consideration. 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. 14. On going through the judgment of the First Appellate Court, it is evident that Ex. D-1 is the registered sale deed stated to have been executed by Nanjamma in favour of her daughter on 30.6.1965 i.e., 25 years prior to filing of the suit. On the basis of execution of Ex. D-1, name of defendant No. 3 appeared in all the revenue records in the subsequent years. D-1 is the registered sale deed stated to have been executed by Nanjamma in favour of her daughter on 30.6.1965 i.e., 25 years prior to filing of the suit. On the basis of execution of Ex. D-1, name of defendant No. 3 appeared in all the revenue records in the subsequent years. Even on the question of limitation, the First Appellate Court has not properly analyzed the same. The learned Judge of the First Appellate Court has come to the conclusion that Ex. D-1 must have been proved in accordance with Section 61 of Evidence Act. This aspect of the matter has been well dealt in the case of Mrs. Devaki and Another v. Mrs. Lingamma ILR 2002 KAR 2125). It is specifically made clear that "Settlement" means a Non Testamentory disposition of property by a settler for the purpose of distributing it among his family or for the purpose of providing some person, dependant on him. Therefore, it is specifically held that rigor of proving the Gift Deed or Will is not required in the case of settlement. 15. The main contention of the plaintiff was that the mother was not competent to execute settlement deed on the ground that she had not become the owner. If the Trial Court's finding in regard to the year of death of Boregowada has to be accepted, then she would have become the owner by way of devolution. This aspect has not been dealt with by the First Appellate Court in reassessing the evidence. Hence, the matter needs to be sent back to the Trial Court. The substantial question of law is answered in the negative. 16. Apart from that, the Judge of the First Appellate Court has not adopted right approach to the real state of affairs and it has not looked into the grounds raised in the first appeal. It has proceeded on the assumption that Ex. D-1 has not been proved though parties had not seriously disputed the authenticity of the documents. Hence, the appeal is liable to be allowed by remanding the matter to the First Appellate Court. ORDER Appeal is allowed. The judgment and decree dated 24.8.2005 passed by the First Appellate Court in R.A 167/2004 is set aside. The matter is remanded to the First Appellate Court to decide the matter in accordance with law keeping in mind the decision rendered in the case of Mrs. ORDER Appeal is allowed. The judgment and decree dated 24.8.2005 passed by the First Appellate Court in R.A 167/2004 is set aside. The matter is remanded to the First Appellate Court to decide the matter in accordance with law keeping in mind the decision rendered in the case of Mrs. Devaki and Another v. Mrs. Lingamma ILR 2002 KAR 2125) and B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 ], Since many of the parties are dead and their legal representatives have remained unrepresented, the First Appellate Court to issue notice to all the parties and dispose of the matter as expeditiously as possible without any undue delay. In view of remanding the matter, the entire court fee shall be refunded to the appellants. Parties shall cooperate with the learned Judge in disposing of the matter. Parties to bear their own costs.