Susheelamma W/O. Shivaputrappa ... vs K Chandra Gouda
2022 Latest Caselaw 2214 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 11TH DAY OF FEBRUARY 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

         R.S.A.CROB.NO.100001 OF 2014 (PAR & POS)

BETWEEN:
SUSHEELAMMA
W/O. SHIVAPUTRAPPA TIMMALAPURAD
AGE: 35 YEARS,
R/O. UTTANGI VILLAGE,
TQ: HUVINAHADAGALI, DIST: BELLARY
                                       ... CROSS-OBJECTOR

(BY SRI. T BASAVANA GOUD, ADVOCATE)

AND
      K. CHANDRA GOUDA
      SINCE DECEASED BY HIS LRS

1.    K. GURUBASAVARAJ
      S/O. K SHANKARA GOUDA
      AGE: 15 YEARS, MINOR,
      REPRESENTED BY HIS FATHER
      AND NATURAL GUARDIAN
      K. SHANKARA GOUDA S/O. CHANDRA GOUDA
      AGE: 37 YEARS, OCC: AGRICULTURE
      R/O. UTTANGI VILLAGE,
      TQ:HUVINAHADAGALI, DIST: BELLARY
      PIN : 583 219.

2.    K. TATANA GOUDA
      S/O. K. CHIDANANDA GOUDA
      AGE: 13 YEARS, MINOR
                              2




     REPRESENTED BY HIS FATHER
     AND NATURAL GUARDIAN
     K. CHIDANANDA GOUDA
     S/O. K. CHANDRA GOUDA,
     AGE: 37 YERS, R/O. UTTANGI VILLAGE,
     TQ: HADAGALI, DIST: BELLARY.
     PIN : 583219

2.   K. CHIDANANDA GOUDA
     S/O. K. CHANDRA GOUDA
     AGE : 40 YEARS,
     R/O. UTTANGI VILLAGE,
     TQ: HADAGALI, DIST: BELLARY
     PIN : 583219

3.   K. SHANKARA GOUDA
     S/O. CHANDRA GOUDA
     AGE : 38 YEARS, OCC: AGRICULTURE
     R/O. UTTANGI VILLAGE,
     TQ: HUVINAHADAGALI, DIST: BELLARY,
     PIN : 583219

4.   K. SHEKARA GOUDA
     S/O. CHANDRA GOUDA
     AGE: 42 YEARS,
     OCC: AGRICULTURE
     R/O. UTTANGI VILLAGE,
     TQ: HUVINAHADAGALI, DIST: BELLARY,
      PIN : 583219
                                           .... RESPONDENTS

(BY SRI. J. S. SHETTY, ADV., FOR R1-R4,
SRI. M B JOGARISHETTAR, ADV., FOR R5)

     THIS RSA CROB IN RSA NO. 6135/2012 IS FILED UNDER
ORDER XLI RULE 22 OF CPC PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE IN R.A.NO.48/2011 DATED 10.02.2012
PASSED BY THE CIVIL JUDGE (SR.DN) AND JMFC, HOSPET WITH
RESPECT TO DECEASED K. CHANDRA GOUDA'S SHARE IS
CONCERNED AND etc.,
                                  3




    THIS RSA CROB COMING ON FOR FINAL HEARING, THIS
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

The captioned cross-objection is filed by the plaintiff

questioning the finding recorded by the First Appellate Court

wherein it held at paragraph 24 of its judgment that Will

executed by deceased appellant No.1 before the First

Appellate Court in favour of his grandsons stands proved as

the same is not at all disputed by the contesting parties. The

family tree of defendant No.1 would be relevant to cull out,

which is as under:

K. Chandragouda (Propositus) (Deft No.1)

Bullamma (Wife) (died)

K.Shekaragouda Sushilamma K. Chidanandagouda K Shankaragouda (Deft No.2) (Plaintiff) (Deft No.3) (Deft No.4)

2. The facts leading to the case are as under;

The present cross-objector, who is plaintiff, filed a suit

for partition and separate possession in O.S.No.57/2010. The

present cross-objector is the daughter of K. Chandra Gouda,

who was arrayed as defendant No.1 in the suit. The suit filed

by the present cross-objector/plaintiff came to be decreed

granting 1/5th share in the suit schedule properties.

Questioning the same, the respondents-defendants preferred

an appeal. The cross-objector's father K. Chandra Gouda, who

was arrayed as defendant No.1 was appellant No.1 before the

First Appellate Court in R.A.No.48/2011 and pending appeal,

he died. The present respondents 1 and 2 by claiming that

they are legatees of said K. Chandra Gouda filed an

application and sought leave of the Court so as to enable them

to prosecute the appeal. It appears that they also produced a

copy of the Will. The present cross-objector/plaintiff seriously

disputed the Will and objections were also filed on

27.08.2011. A true copy of the objections filed by the present

cross-objector herein is produced before this Court. However,

on perusal of paragraph 24 of the judgment of the First

Appellate Court it shows that the First Appellate Court has

come to the conclusion that there is no contest to the Will and

it is in this background the First Appellate Court has accepted

the Will and has proceeded to award share of deceased

defendant No.1 in favour of present respondents 1 and 2 as

they are legatees. This finding is under challenge.

3. Heard the learned counsel for the cross-objector

and the learned counsel appearing for the respondents. The

finding recorded by the First Appellate Court at paragraph 24

reads as under;

"24. Now the question that has to be resolved by me at this stage is that, since the appellant No.1 is died during pendency of the appeal, whether share of the co- parceners has to be modified to the extent of 1/4th share. It is matter of record that, the appellant No.1's counsel has filed registered Will deed executed by the deceased appellant No.1 in favour of his grandsons. The deceased appellant No.1 has bequeathed his share to his grandsons. Neither the plaintiff nor the defendant No.2 to 4 have expressed any dissatisfaction or doubts about the Will. Execution of the Will has been admitted by both side. This Court is not supposed to decide the correctness of the Will unless it is disputed. Therefore, it is needless to state that, since the appellant No.1 died

on 7.7.2001, i.e., during pendency of the appeal, according to his Will deed dated 13.6.2011, the share of the deceased appellant No.1 has to be succeeded by the legatees, his grandsons, in whose favour, the Will was executed. In the light of the above stated reasons, I have no any other go except to hold that, the impugned judgment and decree under challenge is right and correct in all respects and therefore, it needs no interference. As such, point No.1 for consideration is answered in the Negative.

4. If the observations made by the First Appellate

Court are examined, this Court is of the view that the finding

recorded by the First Appellate Court is palpably erroneous.

Firstly, the observation made by the First Appellate Court that

there is no contest to the Will is factually incorrect. The

present cross-objector has filed detailed objections. Dehors

the objections, it is a trite law that when a person asserts

right and title based on a Will, then same needs to be proved

in the manner known to law. Without relegating the legatees

to prove due execution of the Will and also mandatory

requirement under the provisions of Section 68 of the Indian

Evidence Act and Section 67 of the Hindu Succession Act, the

First Appellate court has straightaway proceeded to hold that

the Will stands proved, which is perverse and palpably

erroneous. A person who propounds the Will or produces the

Will before the Court and wants the Court to rely upon the

same, has to prove the Will in question is the legal

declaration of the intention of the deceased and testator was

in sound and disposing state of mind and has executed the

Will out of his own free will. If appellant, have disputed the

Will, Section 68 of Evidence Act come into play and is totally

applicable to the present case on hand. The mandatory

requirement is that the preponderant of the Will has to prove

due execution of the Will by examining one of attesting

witnesses and therefore, unless the legatees lead evidence

and prove the Will in terms of section 68 of the Indian

Evidence Act and Section 63 of the Indian Succession Act, the

First Appellate Court was not at all justified in declaring the

rights of the legatees i.e. respondents 1 and 2. The Co-

ordinate Bench of this Court in the case of Shanthaveerappa

v. K.N. Janardhanachari1 has laid down a principle that it is

well within the jurisdiction of the Appellate Court to amend the

ILR 2007 KAR 1127

pleadings, frame issues, resettle issues, delete issues, receive

evidence by way of additional evidence, record evidence,

summon witnesses and documents, order for commission,

pass interim orders. In addition to the power of trial Court, it

has been vested with the power of remand, power to set

aside, modify, reverse and affirm the judgment of the trial

Court. It also has the power to entertain Cross Appeal and

power to grant relief to a party to the proceedings who has

not preferred appeal and set aside the findings recorded

against the respondent in the appellant's appeal. Therefore, in

the light of the principles laid down by the Co-ordinate Bench

of this Court in the judgment cited supra, the Appellate Court

ought to have relegated the legatees to prove the alleged Will

set up by them. Without affording opportunity to other family

members, whose rights would be invariably affected, the First

Appellate Court has straightaway proceeded to declare the

rights of the legatees and the said findings suffers from

serious infirmity and there is a substantial error of procedure

adopted by the First Appellate Court. Therefore, substantial

question of law framed on 03.02.2022 is answered in the

affirmative and I proceed to pass the following;

ORDER

The cross-objection is allowed.

The judgment and decree dated 10.02.2012 in R.A.No.48/2011 passed by the Principal Civil Judge and JMFC, Hospet insofar as declaring that respondents 1 and 2 are entitled to the share of deceased defendant No.1 as legatees, is hereby set aside with a direction to the First Appellate Court that it shall relegate the parties to lead evidence in accordance with law. The mode of recording of evidence and permitting the parties to lead evidence shall be in accordance with the principles laid down by the Co-ordinate Bench of this Court in the case of Shantaveerapa (supra).

After recording evidence on disputed Will, the First Appellate Court shall decide the rights of the parties and quantify the share. The quantification of shares of the parties will be subject to outcome of the Will.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

SD/-

JUDGE yan