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2023 DIGILAW 437 (KAR)

L V Narasimhamurthy v. Ganganarasamma

2023-03-14

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission. Heard the learned counsel appearing for the appellant and the learned counsel appearing for C/R1(a), R2 and R3. 2. This second appeal is filed against the concurrent finding of the Trial Court and also the First Appellate Court. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that one Chindagiraiah is the propositus of the family and he had a son by name Mudlagiraiah and Mudlagiraiah married Boramma, who is the first wife and the said Boramma having a daughter by name Thimmakka. After the death of Boramma i.e., first wife, the said Mudlagiraiah married one Chikkamma, who is the second wife of the said Mudlagiraiah. Plaintiff No.1 is the daughter of Thimmakka, plaintiff No.2 is the daughter of second wife of Mudlagiraiah and plaintiff No.3 is the grand son of Chikkamma through Venkatalakshmamma, who is the first daughter of Chikkamma. Defendant No.1 is the daughter of Chikkamma and defendant No.2 is the grand son of Chikkamma. 4. The claim of the plaintiffs before the Trial Court is that the suit schedule properties are the undivided Hindu Joint Family and they are the members of the Joint Hindu family. The suit schedule properties are contended to have been enjoyed by the parties to the suit as co-owners and in joint possession as the joint family properties. The second defendant is alleged to have interfered with the plaintiffs' joint possession and enjoyment of the suit schedule properties. For the past six months the plaintiffs were being so interfered with and thereafter the plaintiffs had demanded a partition in the family and they did not partitioned the property. Hence, a legal notice was issued on 6/9/2001 to which the second defendant had sent an evasive reply. Hence, the suit was filed. 5. The plaintiffs No.2 and 3 subsequently transposed as defendants. Defendant Nos.1 and 2 in the written statement admitted that Mudlagiraiah was the son of Chindagiraiah. Mudlagiraiah had enjoyed the suit schedule properties during his life time. However, these defendants deny that Mudlagiraiah had another wife by name Boramma. It is contended that after the death of Mudlagiraiah, the revenue records in respect of suit schedule properties were changed to the name of his wife Chikkamma. The date of death of Chikkamma is also admitted. Mudlagiraiah had enjoyed the suit schedule properties during his life time. However, these defendants deny that Mudlagiraiah had another wife by name Boramma. It is contended that after the death of Mudlagiraiah, the revenue records in respect of suit schedule properties were changed to the name of his wife Chikkamma. The date of death of Chikkamma is also admitted. The pedigree of the family of Mudlagiraiah through Chikkamma is admitted by these defendants. However, it is contended that Thimmakka is a stranger to their family. 6. The Trial Court having considered the pleadings of the parties framed the issues that whether the suit schedule properties are the joint family properties, whether the plaintiffs are having half share in the suit schedule properties and whether defendant No.2 proves that the earlier suit schedule property was self-acquired properties of Chikkamma. The said Chikkamma has executed the Will on 2/6/2000 in favour of the second defendant; as a result, he became the absolute owner of the suit schedule property. 7. The plaintiffs in order to prove their case examined the witnesses as PWs.1 to 3. P.W.1 is the Special Power of Attorney holder of the plaintiffs examined by way of affidavit. The third plaintiff is examined as P.W.2. P.W.3 is a member of the family of Patel in Lakkenahalli and he is also related to one Sri.Ashwathegowda and got marked the documents as Exs.P1 to P14. On the other hand, two witnesses have examined as D.Ws.1 and 2. The second defendant has been examined by way of affidavit as D.W.1. The oral evidence of D.W.1 is expunged as the witness failed to turn up and tender himself for cross-examination. The power of attorney holder of the first defendant is examined as D.W.2 and marked the documents as Exs.D1 to D33. 8. The Trial Court having considered both oral and documentary evidence available on record answered issue No.1 as affirmative that the suit schedule properties are the joint family properties and answered issue No.2 as partly in the affirmative. Issue Nos.3 and 4 are answered as negative disbelieving the contention of the defendants and granted 1/4th share in respect of the suit schedule properties. Issue Nos.3 and 4 are answered as negative disbelieving the contention of the defendants and granted 1/4th share in respect of the suit schedule properties. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed in R.A.No.273/2016, wherein, the defendants took the contention that there was a Will and the defendants become an absolute owner of the property in view of the Will executed by Chikkamma. 9. The First Appellate Court after considering the grounds urged in the appeal memo formulated the points that whether the additional evidence is necessary to decide the appeal effectively as prayed in I.A.No.V, whether the plaintiffs prove that the deceased Boramma is the first wife of deceased Mudlagiraiah and the deceased Thimmakka is her daughter through deceased Mudlagiraiah, whether defendant No.2 proves that the deceased Chikkamma had testamentary right to execute the alleged Will in respect of suit schedule properties in his favour, whether the Trial Court has committed an error in appreciating the evidence on record and wrongly decreed the suit and whether it requires interference. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record dismissed the appeal and confirmed the judgment and decree of the Trial Court. Hence, the second appeal is filed before this Court. 10. Learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in not considering the material on record. Even the First Appellate Court also committed an error in not allowing the plaintiffs to examine the attesting witnesses and both the Courts failed to look into the true facts that the appellant is in possession and enjoyment of the suit schedule properties in accordance with law and also failed to take note of the Will executed by Smt. Chikkamma during her life time on 2/6/2000. Hence, committed an error. 11. The learned counsel appearing for the appellant also would vehemently contend that this Court has to frame the substantial question of law that both the Courts came to the conclusion that the registered Will dtd. 2/6/2000 was not proved; wrongly decreed the suit and they are entitled for the relief of partition. 12. Hence, committed an error. 11. The learned counsel appearing for the appellant also would vehemently contend that this Court has to frame the substantial question of law that both the Courts came to the conclusion that the registered Will dtd. 2/6/2000 was not proved; wrongly decreed the suit and they are entitled for the relief of partition. 12. Per contra, the learned counsel appearing for C/R1(a), R2 and R3 would vehemently contend that both the Courts have taken note of the material available on record and came to the conclusion that Papamma had no exclusive right to execute the Will in favour of the second defendant and admittedly, the property belongs to Mudlagiraiah, who is the son of Chindagiraiah though denied the relationship between the parties that the plaintiff's mother Boramma was not married Mudlagiraiah, but considered the material on record, particularly, documents - Exs.P11 and P12 and also the evidence of P.W.3, who spoken about Exs.P11 and P12 and also the Trial Court and the First Appellate Court came to the conclusion that the Will has not been proved. Apart from that, the executant was not having any exclusive right to execute the Will when the property belongs to the joint family. Hence, the learned counsel would submit that there are no grounds to entertain the second appeal. 13. Having heard the respective counsel and also on perusal of the material available on record, both the Courts have given the finding that the suit schedule properties belongs to the joint family and also accepted that Thimmakka is the daughter of Boramma and the first plaintiff is the daughter of Thimmakka and in order to come to such a conclusion the Trial Court considered the material on record, particularly, the documents - Exs.P11 and P12. In paragraph Nos.18, 19 and 20 had taken note of the document - Ex.P11, wherein, the husband name of Boramma is mentioned as wife of Mudlagiraiah and also produced the document - Ex.P12. In order to prove the same examined P.W.3, who has spoken in respect of Mudlagiraiah had a wife by name Boramma and thereafter Mudlagiraiah had married a person called Chikkamma. In the cross-examination of P.W.3 nothing is elicited with regard to the evidence of P.W.3 in respect of document - Ex.P11 and came to the conclusion that the plaintiffs have established the relationship between the parties. In the cross-examination of P.W.3 nothing is elicited with regard to the evidence of P.W.3 in respect of document - Ex.P11 and came to the conclusion that the plaintiffs have established the relationship between the parties. In respect of the Will is concerned in paragraph No.22 discussed in detail that after the death of Boramma, Mudlagiraiah married Chikkamma and also no dispute with regard to the said fact. 14. In paragraph Nos.23, 24, 25 and 26 in detail discussed that Chikkamma was not having exclusive right in respect of the properties to execute a Will. Admittedly, the property belongs to Mudlagiraiah and both the parties have admitted that the property belongs to Mudlagiraiah. It is contended that only after the death of Mudlagiraiah, the property was transferred in favour of Chikkamma, the same is also discussed by the First Appellate Court. With regard to the relationship between the parties is concerned, particularly in paragraph Nos.24, 25, 26 and 27 discussed with regard to the evidence of P.W.2 and another independent witness - P.W.3 and the said Mudlagiraiah died in the year 1953 and Boramma died prior to the death of Mudlagiraiah. Hence he contracted the marriage with Smt. Chikkamma. 15. In paragraph No.27, the First Appellate Court in detail discussed with regard to the documents - Exs.P11 to P13, the same has been spoken by P.W.3. Hence, came to the conclusion that the plaintiffs have established the relationship between the parties. The First Appellate Court also while considering the material on record with regard to execution of the Will is concerned taken note of the fact that after the death of Mudlagiraiah property was transferred as inheritance i.e., 'Pavathivarasu' and also observed that it is not disputed that the said Chikkamma was the elder member of her family. It is also observed that just because, the revenue entries got changed in her name, she will not acquire any exclusive right to execute a Will. It is also observed that just because, the revenue entries got changed in her name, she will not acquire any exclusive right to execute a Will. Under these circumstances, the second defendant will not derive any exclusive right over the suit schedule property as claimed by the second defendant since the very Chikkamma was not having any exclusive right to execute the Will and the same has been discussed in paragraph No.33 and also discussed in paragraph No.34 with regard to the relationship between the parties and in detail both the Trial Court as well as the First Appellate Court considered the material on record and given anxious consideration to both oral and documentary evidence placed on record. 16. When such being the case, the very contention of the learned counsel for the appellant that this Court has to frame the substantial question of law that both the Courts have not considered the Will dtd. 2/6/2000 and the said Will is a registered document but the same has not been proved in compliance with Sec. 63 of the Hindu Succession Act and also under Sec. 68 of the Indian Evidence Act. No doubt, an attempt is made before the First Appellate Court to prove the same by examining the attesting witness. When both the Courts have came to the conclusion that the said Chikkamma was not having any exclusive right to bequeath the property and non-examination of the witnesses also will not come to the aid of the appellant herein since Chikkamma was not having any exclusive right to execute the Will. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in not accepting the Will propounded by defendant No.2. Hence, I do not find any substantial question of law to frame. In order to invoke Sec. 100 of CPC., when there was a concurrent finding there must be a perverse finding by both the Trial Court and also the First Appellate Court. I do not find any such perverse finding in the judgment of the Trial Court as well as the First Appellate Court. 17. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.