Karnataka High Court
K G Chandramouli vs K G Nagabhushana on 3 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:25328
RSA No. 424 of 2023
C/W RSA No.421 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.424 OF 2023 (PAR/DEC)
CONNECTED WITH
REGULAR SECOND APPEAL NO.421 OF 2023 (PAR/DEC)
IN R.S.A.No.424/2023
BETWEEN:
K G CHANDRAMOULI
S/O LATE K GOPALA SHASTRY,
AGED ABOUT 59 YEARS,
R/O PATTALAMANE VILLAGE,
THIRTHAHALI TALUK-577432
Digitally signed SHIVAMOGGA DISTRICT.
by DEVIKA M ...APPELLANT
Location: HIGH
COURT OF (BY SRI P N HARISH, ADVOCATE)
KARNATAKA
AND:
1. K G NAGABHUSHANA
S/O K GOPALA SHASTRY,
AGED ABOUT 64 YEARS,
R/O KELKERE VILLAGE, MELIGE POST,
THIRGHAHALLI TALUK-577432.
SHIVMOGGA DISTRICT.
2. K G NARAYANASWAMY
S/O LATE K GOPALA SHASTRY,
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NC: 2024:KHC:25328
RSA No. 424 of 2023
C/W RSA No.421 of 2023
AGED ABOUT 62 YERS,
R/O THONACHI KOPPA,
LAKSHMI TEMPLE, T BEGUR POST,
NELAMANGALA TALUK-562123,
BENALURU DISTRICT.
3. GIRIJAMMA, W/O LATE K GOPALA SHASTRY,
AGED ABOUT 80 YEARS,
R/O PATTALAMANE VILLAGE,
THIRTHAHALLI TALUK-577 432.
SHIVMOGGA DISTRICT.
4. K G PRASANNA, S/O LATE K GOPALA SHASTRY,
AGED ABOUT 57 YEARS,
R/O PATTALAMANE VILLAGE,
THIRHTAHALLI TALUK-577 432,
SHIVAMOGGA DISTRICT-577201.
5. K G RAMESH SHASTRY
S/O LATE K GOPAL SHASTRY,
AGED ABOUT 55 YEARS,
EMPLOYEE PRAGATHI GRAMEENA BANK
SAGAR BRANCH,
SAGAR TALUK-577401
SHIVAMOGGA DISTRICT.
6. K G SUDHAMANI
D/O LATE K GOPAL SHASTRY,
W/O H N DATTATHREYA,
AGED ABOUT 53 YEARS,
R/O NO.20, 3RD CROSS,
YOGA NARSIMHA
NEAR SOMANNA GARDEN,
DURGAPARAMESHWARI LAYOUT,
VIDYARANYAPURAM
BENGALURU -560097.
...RESPONDENTS
(BY SRI PRASAD B S, ADVOCATE FOR C/R2)
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NC: 2024:KHC:25328
RSA No. 424 of 2023
C/W RSA No.421 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022
PASSED IN R.A.No.71/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
IN R.S.A.No.421/2023
BETWEEN:
K G CHANDRAMOULI
S/O LATE K.GOPALA SHASTRY,
AGED ABOUT 59 YEARS,
R/O PATTALAMANE VILLAGE,
THIRTHAHALLI TALUK-577 432.
SHIVAMOGGA DISTRICT.
...APPELLANT
(BY SRI P N HARISH, ADVOCATE)
AND:
1. K G NAGABHUSHANA
S/O K.GOPALA SHASTRY,
AGED ABOUT 64 YEARS,
R/O KELKERE VILLAGE, MELIGE POST,
THIRTHAHALLI TALUK-577 432,
SHIVAMOGGA DISTRICT.
2. K.G.NARAYANAMURTHY
S/O LATE K.GOPAL SHASTRY
AGED ABOUT 62 YEARS,
R/O THONACHI KOPPA
LAKSHMI TEMPLE, T.BEGUR POST,
NELAMANGALA TALUK-562 123
BENGLAUR DISTRICT.
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NC: 2024:KHC:25328
RSA No. 424 of 2023
C/W RSA No.421 of 2023
3. GIRIJAMMA
W/O LATE K.GOPALA SHASTRY
AGED ABOUT 80 YEARS,
R/O PATTALAMANE VILLAGE,
THIRITHAHALLI TALUK-577432
SHIVAMOGGA DISTRICT.
4. K.G.PRASANNA
S/O LATE K.GOPAL SHASTRY.
AGED ABOUT 57 YEARS,
R/O PATTALAMANE VILLAGE,
THIRITHAHALLI TALUK-577432
SHIVAMOGGA DISTRICT.
5. K.G.RAMESH SHASTRY
S/O LATE K.GOPAL SHASTRY
AGED ABOUT 55 YEARS,
EMPLOYEE: PRAGATHI GRAMEENA BANK,
SAGAR BRANCH,
SAGAR TALUK-577 401,
SHIVAMOGGA DISTRICT.
6. K.G.SUDHAMANI
D/O LATE K.GOPAL SHASTRY
W/O H.N.DATTATHREYA
AGED ABOUT 53 YEARS,
YOGA NARASIMHA
NEAR SOMANNA GARDEN,
DURGAPARAMESHWARI LAYOUT,
VIDYARANYAPURAM,
BENGALURU-560 097.
...RESPONDENTS
(BY SRI PRASAD B S, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022
PASSED IN R.A.No.70/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
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NC: 2024:KHC:25328
RSA No. 424 of 2023
C/W RSA No.421 of 2023
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are taken up together since the parties are one and the same and both the second appeals are arising out of the common judgment and decree passed by the First Appellate Court.
2. These appeals are listed for admission. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiffs before the Trial Court that defendant Nos.2 to 5 are the children of late K Gopala Shastri and defendant No.1 is the wife of said K Gopala Shastri. The said Gopala Shastri originally hailed from Somavarasanthe, Tudur hobli of Thirthahalli taluk and subsequently he went to Pattalamane village to Thirthahalli taluk. After that he has separated from his brother Rama Shastri and settled in Pattalamane village in the year 1960. The plaintiffs and defendants are the legal heirs of late Gopala Shastri. The -6- NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 late Gopala Shastri after separated from his brother Rama Shastri, filed a declaration before the Land Tribunal Thirthahalli and got confirmation of occupancy rights in his favour on behalf of the joint Hindu family as head and Manager or Kartha of the family. As such, after enquiry, the said authorities have issued Form No.10 in favour of joint Hindu family. Some of the properties are purchased by late Gopala Shastri out of the joint family funds and hence, they are also joint family properties. It has come to the knowledge of the plaintiffs that defendant No.2 has secretly created a Will and on that basis, he applied for khata before Tahasildar and same has been opposed by the plaintiffs and defendant No.5. The Tahasildar, Thirthahalli has registered the dispute in R.R.T.S.H.R.14/2005-06 and holding enquiry, mutated the khata in favour of defendant No.2 and the said order was challenged by defendant Nos.1 and 4 before the Assistant Commissioner, Shivamogga in two appeals i.e., in P.D.A.Nos.140/06-07 and 187/07-08 and Assistant Commissioner held an enquiry on 30.08.2011 passing -7- NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 order and set aside the order passed by the Tahsildar, Thirthahalli. In terms of the order of the Assistant Commissioner, the properties were mutated in the joint names of plaintiffs and defendants. It is contended that defendant No.2, on the basis of alleged Will has filed probate in P&SC No.11/2011 before the Principal Civil Judge (Sr. Dn.), Shivamogga and the same is pending for consideration. It is also contended that alleged Will dated 15.12.2004 and the alleged gift deed dated 23.07.2004 are illegal, void and unenforceable and not binding on the plaintiffs' share in the suit schedule properties. Hence, sought for the relief of declaration and partition.
4. In pursuance of the suit summons, the defendants appeared and filed the written statement. Defendant Nos.1, 3 and 5 contend that during the lifetime of K Gopala Shastri, the plaintiffs have received their share and have executed the documents to that extent and have also executed the bond for having received their share and cash and hence they are not entitled for any share in the -8- NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 suit schedule properties. The suit is only filed to harass the aged mother and there is no cause of action to file the suit. There is no document adduced to show that the suit schedule properties are the joint family properties and the same are a self-acquired properties of K Gopala Shastri. Hence, the plaintiffs are not entitled for share in the suit properties.
5. Defendant No.4 has filed written statement admitting the plaint averments and he contend that he was working as a peon at Salur. Defendant Nos.1 to 3 by colluding with each other created the documents to defeat the share of defendant No.4 as well as plaintiffs. The deceased K Gopala Shastri did not have right to execute Will dated 15.12.2004 since the properties shown in the Will are the joint family properties. The deceased Gopala Shastri did not have any intention to execute such type of documents. The gift deed executed is not binding on defendant No.4. Defendant No.4 is not having any independent possession. Defendant No.4 is living in a -9- NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 rented house and he is not having source of income. Defendant Nos.1 to 3 are enjoying the suit schedule properties. Hence, prayed the Court to grant the relief.
6. Defendant No.2 also filed the written statement contending that the said K Gopala Shastri has executed a registered Will dated 15.12.2004 by bequeathing the properties in favour of his surviving family members and also made declaration in the Will itself that shares are given in favour of the plaintiffs to the tune of Rs.2,20,000/- each in cash as they were not staying in the house of the deceased Gopala Shastri and prayed the Court to dismiss the suit.
7. The Trial Court considering the pleadings of the parties framed the Issues and Additional Issue and allowed the parties to lead their evidence. The Trial Court after considering both oral and documentary evidence placed on record comes to the conclusion that occupancy rights granted in favour of the father of the plaintiffs K Gopala Shastri would enure to the benefit of entire family and did
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 not accept the contention of the defendants regarding execution of the Will and the plaintiffs have received Rs.2,20,000/- towards their share and executed the relinquishment deed since there is no material placed before the Court to substantiate the same. Hence, the suit of the plaintiffs is decreed and granted 1/7th share each in favour of the plaintiffs in the suit schedule properties by effecting partition and also declared that the Will dated 15.12.2004 executed in respect of the suit schedule property is void, illegal and not binding on the plaintiffs' share in the suit schedule properties and also held that defendant No.4 is also entitled for 1/7th share in the suit schedule properties. Being aggrieved by the judgment and decree of the Trial Court, three appeals are filed in R.A.Nos.70/2018, 71/2018 and 77/2018.
8. Defendant Nos.1, 3 and 5 have filed R.A.No.77/2018 and defendant No.2 has filed R.A.Nos.70/2018 and 71/2018. The First Appellate Court considered all the appeals together since the same are
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 arising out of the common judgment passed by the Trial Court. The First Appellate Court having considered the grounds urged in the respective appeals formulated the points and having reassessed both oral and documentary evidence placed on record comes to the conclusion that the grant made in favour of Gopala Shastri is for the benefit of the family and Will propounded by defendant Nos.1, 3 and 5 have not been proved and payment of Rs.2,20,000/- each to the plaintiffs also not proved since no documents are placed before the Court to accept the contention that a reference is made in the Will by the father of the plaintiffs i.e., Gopala Shastri. Hence, the First Appellate Court confirmed the judgment and decree of the Trial Court. Being aggrieved by the said concurrent finding of both the Courts, the present second appeals are filed before this Court by defendant No.2.
9. The main contention of the counsel appearing for the appellant/defendant No.2 that both the Courts have committed an error in holding that the suit schedule
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 properties are the joint family properties of the plaintiffs and defendants and deceased K Gopala Shastri filed declaration for conferment of occupancy rights not as an individual but for the family. The learned Trial Judge failed to notice that in the declaration made by deceased K Gopala Shastri marked as Ex.P2, he has categorically made a statement that for the past twenty years, he has been cultivating this land personally and in the column mentioned for narrating details of his family members, he has mentioned the names of his wife, sons and daughter. This itself does not give an indication that he made declaration for the benefit of family and not as an individual. The counsel further would vehemently contend that both the Courts have failed to take note of important admissions made by PW1 with regard to the factum of individual cultivation by his father and he having migrated without any nucleus by working hard cultivated personally as a tenant. It is also contend that the Trial Court committed an error in coming to the conclusion that Will has not been proved. The counsel also submit that an
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 attempt is made before the First Appellate Court to examine the attested witnesses but the First Appellate Court not allowed the appellant to lead evidence and prayer was rejected. The counsel also would vehemently contend that when the property is the absolute property of Gopala Shastri, the plaintiffs are not entitled for any share. The counsel also submits that in terms of the Will, provision is made to all the children and also reference was made in respect of the plaintiffs that an amount of Rs.2,20,000/- each was given to them and not disinherited any of the family members even after executing the Will. Hence, this Court has to admit the appeal and frame the substantial questions of law for reconsideration of the second appeal since the very approach of both the Courts is erroneous.
10. Per contra, the learned counsel appearing for the respondent No.2/plaintiff would vehemently contend that the plaintiffs have relied upon the documents particularly the document at Ex.P2 i.e., Form No.7. In
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 Form No.7, specific details are given with regard to the family. The order of the Land Tribunal is at Ex.P3 and the same is also very clear that though grant was made in the name of K Gopala Shastri, the same is for the benefit of the family and Ex.P4 is the certified copy of Form No.10. The counsel also would vehemently contend that Ex.P5 and P6 are the mutations and though an attempt was made to grab the property based on the Will, the same was also challenged. The counsel contend that though the Tahsildar confirmed keeping the revenue records in the name defendant No.2 and the said order was set aside by the Assistant Commissioner and also relies upon the documents at Ex.P7 to P14 i.e., RTC extracts and Ex.P15 to P18 i.e., the demand register extracts. The counsel would vehemently contend that when the grant is made in favour of Gopala Shastri for the benefit of family and other properties are also purchased that is item No.3 out of the joint nucleus hence, father was not having any absolute right to execute the Will as well as gift and the same is not binding on the plaintiffs. Hence, the Trial Court as well as
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 the First Appellate Court rightly held that grant made in favour of the father of the plaintiffs i.e., Gopala Shastri would enure to the benefit of entire family and not committed any error in passing such an order.
11. Heard the learned counsel appearing for the respective parties and perused the material available on record. The counsel for the appellant also brought to notice of this Court with regard to Form No.7 which was filed before the competent authority for granting of the property. When he filed Form No.7 before the authority he had mentioned that Yajamana of family is Gopala Shastri and his wife name is also mentioned and also he has given the details of all the family members including the children who are the minors and particulars are given stating that family is consisting of 8 persons and also declaration was made that family is not having any other property and information what he has given are true and correct. Hence, it is very clear that he has given all details of family members as well as property. Hence, it is clear that
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 the very application though filed in the individual capacity, details are furnished and no dispute with regard to the granting of property by the Land Tribunal.
12. The counsel for the appellant also brought to notice of this Court to the pleadings made in the plaint by furnishing the certified copies before the Court while arguing the matter wherein, in paragraph 2 it is stated with regard to the relationship between the parties and produced genealogical tree. It is also stated in the plaint that Gopala Shastri originally hailed from Somavarasanthe, Tudur hobli of Thirthahalli taluk and he has separated from his brother Rama Shastri and settled in Pattalamane village in the year 1960. It is also stated that he died leaving behind the plaintiffs and defendants on 05.11.2005 and all of them succeeded to his estate as class I heirs under Hindu Succession Act. The plaint 'A' and 'B' schedule properties are the immovable properties and 'C' schedule property is movable property and specific averment is made that the suit schedule properties are the
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 joint family properties and it was Moolageni tenancy lands enjoyed as joint Hindu family acquisitions.
13. Having considered the pleadings of the plaintiffs, though the counsel contend that not specifically pleaded with regard to the joint occupation and confirmation of title for the family, a specific pleading is made and also pleading is made with regard to the filing of probate petition before the Court and hence, not suppressed anything. Having taken note of the material available on record, no doubt, there is a Will executed in favour of defendant Nos.1 to 3 and 5 and the Trial Court also comes to the conclusion that Will has not been proved since none of the attesting witnesses have been examined before the Court. No doubt, the counsel for the appellant brought to notice of this Court that an averment is made in the Will that an amount of Rs.2,20,000/- each was paid to the plaintiffs and they have received their share and relinquished their right. But in order to comes to such a conclusion, no material is placed before the Court. Both
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 the Courts rightly come to the conclusion that in the absence of any documentary evidence for having made the payment and relinquishment of right, relief sought by the appellant cannot be granted.
14. In paragraph 7 of the plaint given the details of family members and it is also stated that the plaintiffs and defendants are minors at the time of giving an application and also declare that the family is not having any other property except seeking the conferment of occupancy right. It is stated that subsequent purchase is also made with the joint nucleus and no other independent income was having by the father. Such being the material available on record, it is clear that Will was not proved under Section 68 of the Indian succession Act as well as 63 of the Indian Evidence Act by examining the attesting witnesses. No doubt, the counsel for the appellant brought to notice of this Court that the properties are given to all of them that is house property and other properties but no provision is made in favour of the
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 plaintiffs except stating in the Will that an amount of Rs.2,20,000/- was paid and for having made the payment also, no document is placed and none of the witnesses were also examined to support the case of the defendants for having made payment of Rs.2,20,000/- towards share of the plaintiffs. When such materials are not available before the Court, I do not find any error committed by both the Courts in coming to the conclusion that the property is available for partition.
15. The counsel would vehemently contend that an application is filed before the First Appellate Court seeking permission to examine the attesting witnesses. First Appellate Court formulated the point in this regard but answered the same as negative in coming to the conclusion that taking into note of the affidavit accompanying I.A.No.3 does not disclose any sort of reason which is acceptable by this Court. As per the provisions of Order 41 Rule 27(a) of CPC, the parties to the appeal can be permitted to lead additional evidence
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 only upon satisfying appellate Court the conditions mentioned therein wherein it has been stated that the applicant must establish that despite his due diligence he could not adduce said evidence or that the said evidence was not available at the state of trial before the Trial Court and the same is of recent origin. Absolutely none of the reasons are assigned in the application, as such, in view of the absence of satisfactory reasons assigned by the appellant in I.A.No.3 cannot be entertained and the First Appellate Court also given the reason while rejecting the application when the certified copy is produced before the Trial Court as Ex.D11. When the original is in the custody of the appellant ought to have been produced the original and examined the attesting witnesses. But the fact that he also filed a probate petition before the Principal Civil Judge is also not in dispute. But no such attempt was made before the Trial Court. Hence, the First Appellate Court taking into note of the grounds envisaged under Order 41 Rule 27(aa) of CPC comes to the right conclusion that no such effort was made before the Trial Court to
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NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023 produce the document and nothing is prevented him to adduce the evidence to prove the Will and the document is not of recent origin and detailed order has been passed by the First Appellate Court. When reasons are assigned stating that mere filing of an application under Order 41 Rule 27 of CPC not enough and the appellant has to satisfy the grounds urged in the said application. Thus, I do not find any ground to come to other conclusion and hence, the matter does not require any reconsideration and there is no grounds to admit the appeal and frame substantial questions of law invoking Section 100 of CPC.
16. In view of the discussions made above, I pass the following:
ORDER The regular second appeals are dismissed.
Sd/-
JUDGE SN