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2019 DIGILAW 1319 (KAR)

Erabhadrabhovi @ Veerabhadrabhovi v. Arasabhovi

2019-06-18

K.S.MUDAGAL

body2019
JUDGMENT : K.S.Mudagal, J. This appeal of the defendants arises out of judgment and decree dated 19.08.2014 passed by the Additional Senior Civil Judge & JMFC, Hunsur sitting at Periyapatna in Regular Appeal No.110/2013. 2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the defendants partly and modified the judgment and decree of the trial Court with regard to item Nos.1 & 3 of the suit schedule properties and dismissed the suit in respect of item No.1 property and granted = share in 11 guntas in item No.3 of the suit schedule properties. Rest of the decree of the trial Court in O.S.No.122/2008 passed by the Civil Judge & JMFC, Periyapatna was confirmed. 3. Appellant No.1 and respondent are sons of one Eerabhovi. Appellant No.2 is wife of appellant No.1. 4. Respondent filed O.S.No.122/2008 against the appellants claiming that himself, defendant No.1 and their father constituted joint Hindu Family and the suit schedule properties were ancestral joint family properties. He further contended that on 03.03.2008, he sought for partition and separate possession of his = share in the suit schedule properties which was declined by defendant No.1. 5. Defendants contended that suit schedule item No.6 property was self acquired property of grandmother of plaintiff and she bequeathed the said property in favour of defendant No.1 under registered Will dated 28.03.1994. Defendants further contended that out of income of the said property, he developed plaint schedule item No.4 by constructing tobacco barn on the same which is shown as item No.9 property. He further contended that plaint schedule item Nos.7 to 9 are also his self acquired properties. Therefore, plaintiff is not entitled to any share in plaint schedule item Nos.4, 6 to 9. He conceded for partition of item Nos.2, 3, 5 and 10. 6. On the basis of such pleadings, the trial Court framed the following issues: (1) Whether the plaintiff proves that, the suit schedule properties are undivided ancestral and joint family properties consisting of himself and 1st defendant? (2) Whether the plaintiff proves that he is entitled for = share in all the suit schedule properties? (3) What order or Decree? Additional issue: Whether the defendants No.1 & 2 prove that, the plaintiff has included self-acquired property of the defendants as contended in para No.7 of the written statement? 7. Parties adduced evidence. Plaintiff was examined as PW.1. (2) Whether the plaintiff proves that he is entitled for = share in all the suit schedule properties? (3) What order or Decree? Additional issue: Whether the defendants No.1 & 2 prove that, the plaintiff has included self-acquired property of the defendants as contended in para No.7 of the written statement? 7. Parties adduced evidence. Plaintiff was examined as PW.1. On his behalf, Ex.P1 to Ex.P11 were marked. Defendant No.1 was examined as DW.1 and one K.C.Annaiah alleged attesting witness was examined as DW.2 and Ex.D1 to Ex.D22 were marked. 8. The trial Court after hearing the parties decreed the suit granting = share to the plaintiff in suit schedule properties holding that: (i) Defendant No.1 (DW.1) in his cross-examination has unequivocally admitted that suit schedule properties were ancestral joint family properties; (ii) The Will set up by defendants is not proved; & (iii) The alleged testator was not competent to execute the said Will as the properties were ancestral joint family properties. 9. Defendants challenged the said judgment and decree before the First Appellate Court in R.A.No.110/2013. The First Appellate Court by impugned judgment and decree held that as per records produced by plaintiff himself, one Hanumaboyi also has the some interest in item No.1 property and in his absence, no decree could be granted in respect of item No.1 property. So far as item No.3, the First Appellate Court held that in the said property only 11.08 guntas is available for partition. Therefore, the First Appellate Court modified decree only in respect of item Nos.1 and 3 properties and confirmed rest of the decree. 10. Plaintiff has not challenged the decree of the First Appellate Court with regard to item Nos.1 and 3 of the suit schedule properties. 11. Sri Basavaraju.P., learned Counsel for the appellants challenges the impugned judgment and decree on the following grounds: (i) That Will was registered Will; (ii) Plaintiff though contended that suit schedule properties were ancestral joint family properties did not adduce any evidence to show that plaint schedule item Nos.4, 6 to 9 were inherited by them from their ancestors; (iii) Courts below did not frame an issue with regard to proof of Will. Therefore, they were not justified in holding that execution of the Will is not proved; & (iv) The findings regarding execution of the Will constitute substantial question of law. 12. Therefore, they were not justified in holding that execution of the Will is not proved; & (iv) The findings regarding execution of the Will constitute substantial question of law. 12. Per contra, Sri Suneel S.Narayan, learned Counsel for respondent seeks to support the impugned judgment and decree on the following grounds: (i) Based on unequivocal admission of defendant No.1, trial Court decreed the suit; (ii) Additional issue No.1 relating to the defence of defendants in para No.7 of the written statement covered the Will set up by them. Therefore, there was no need to frame a distinct issue with regard to Will; (iii) Original Will was not produced. Therefore, Courts below were right in holding that execution of the Will is not proved; & (iv) On the question of facts, the First Appellate Court is the last Court and case does not involve any substantial question of law to admit the appeal. 13. This being second appeal under Section 100 of CPC can be admitted for hearing, only if it is shown that case involves substantial question of law. What is substantial question of law is explained by Hon'ble Supreme Court in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 ] which reads as follows: "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."(Emphasis supplied) 14. Thus, it is clear that on the question of fact, the First Appellate Court is the last Court, unless the appellant is able to show that judgments of the Courts below suffer perversity. 15. In this case, there was no dispute with regard to relationship of the parties. Appellants even admitted that suit schedule item Nos.2, 3, 5 to 10 were ancestral joint family properties. It was contended that defendants grandmother acquired suit schedule item No.6 from her parental family and she was the absolute owner of that. It was further contended that she bequeathed the said property in favour of defendant No.1 under the Will dated 28.03.1994. Said defence was set up in para 7 of the written statement. Additional issue No.1 was framed with regard to the defence taken in para 7 of the written statement. 16. When defendants set up the Will, initial burden of proving the said Will was on them irrespective of plaintiff not filing rejoinder to dispute the Will. The very fact of plaintiff contending that they were ancestral joint family properties and claiming share in them, amounts to claiming interest or rights in those properties. 17. Even assuming that item No.6 was acquired by grandmother of the parties from her parental family, if Will is not proved that becomes partible between plaintiff and defendant No.1 as that devolves on the father of plaintiff and defendant No.1 on her death. 18. First of all, defendants did not produce the original Will to prove the same. They did not comply the requirement of Section 65 of the Indian Evidence Act, 1872 for adducing secondary evidence. Therefore, Courts below were justified in holding that Ex.D1 Will is not proved. 19. 18. First of all, defendants did not produce the original Will to prove the same. They did not comply the requirement of Section 65 of the Indian Evidence Act, 1872 for adducing secondary evidence. Therefore, Courts below were justified in holding that Ex.D1 Will is not proved. 19. Deposition of defendant No.1 (DW.1) extracted in the judgment of the trail Court, shows that in unequivocal terms he admitted that all the suit schedule properties were ancestral joint family properties and he has not acquired any property by his own funds. Though, before this Court it was argued that he developed tobacco barn out of his own funds, no such evidence was adduced before the trial Court to substantiate such contention. 20. The First Appellate Court on sound appreciation of the evidence and pleadings passed the impugned judgment and decree. This Court does not find any perversity in the judgment of the First Appellate Court or any substantial question of law to admit the appeal. Therefore, appeal is dismissed with costs. In view of dismissal of the appeal, IA No.1/2018 filed for interim stay does not survive for consideration and stands disposed of accordingly.