Suresh Hanamappa Talwar vs Hanumappa Kanakappa Talwar
2022 Latest Caselaw 3289 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

           DATED THIS THE 25TH DAY OF FEBRUARY 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     RSA.NO.2143/2006 (INJ)
                 C/W RSA.NO.2117/2006(DEC/INJ)

IN RSA NO.2143/2006

BETWEEN

1.    HANAMAPPA KANAKAPPA TALWAR
      DIED & APPELLANT NO.2 TREATED AS LR.

2.    SURESH HANUMAPPA TALWAR
      AGE: 40 YEARS, OCC: AGRICULTURE
      R/O. BANAHATTITALUK NARGUND

                                                   ... APPELLANTS
(BY SRI.A.P.MURARI, ADV.)

AND

1.    SMT.HANAMAWWA W/O. YALLAPPA KADALIKAOPPA
      AGE 57 YEARS, OCC: AGRICULTURE
      R/O. BANAHATTI, TALUK NARGUND

2.    SMT.LAXMAWWA W/O. LAXMAPPA PUJAR
      AGE 55 YEARS, OCC: AGRICULTURE
      R/O. BANAHATTI, NARGUND

3.    SMT YALLAWWA W/O. RAMAPPA TAPRESHIAGE
      MAJOR, OCC: HOUSEHOLD
      R/O. BANAHATTITALUK NARGUND

                                                 ... RESPONDENTS
(BY SRI.S.Y.SHIVALLI, ADV. FOR R1 & R3,
SRI.GOPAL KRISHNA R.KOLLI ADV, FOR R2)
                               2




      THIS APPEAL IS FILED U/S 100 CPC AGAISNT THE JUDGMENT
AND DECREE DATED:18.4.2006 PASSED IN RA.NO. 150/2000 ON THE
FILE OF THE ADDL.CIVIL JUDGE (SR.DN.), GADAG, DISMISSING THE
APPEAL   AND   CONFIRMING     THE   JUDGMENT    AND   DECREE
DATED:11.10.2000 PASSED IN OS.NO.11/1995 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) & JMFC, NARGUND. TRIAL COURT DECREED
THE SUIT APPELLATE COURT DISMISSED THE APPEAL SUIT FOR
DECLARATION

IN RSA NO.2117/2006

BETWEEN

SURESH HANAMAPPA TALWAR
AGE 40 YEARS, OCC AGRICULTURE
R/AT BANAHATTI, TQ NARGUND
                                                ... APPELLANT
(BY SRI.A.P.MURARI, ADV.)

AND

1.    HANUMAPPA KANAKAPPA TALWAR
      DECEASED AND APPELALNT IS TREATED AS LR

2.    SMT HANAMAWWA
      W/O YALLAPPA KADALIKAOPPA
      AGE 57 YEARS, OCC HOUSEHOLD WORK
      R/AT BANAHATTI, TQ NARGUND

3.    SMT LAXMAWWA W/O LAXMAPPA PUJAR
      AGE 55 YEARS, OCC HOUSEHOLD WORK AND AGRICULTURE
      R/AT BANAHATTI NARGUND
      NOW R/AT C/O LAXMAPPA BHIMAPPA PUJAR
      KRFCAMP KHANAPUR BELGAUM DIST

4.    SMT YALLAWWA W/O RAMAPPA TAPRESHIAGE
      DECEASED, R2 AND R3 ARE TREATED AS LRS.

                                            ... RESPONDENTS
(BY SRI.S.Y.SHIVALLI, ADV. FOR R1 & R2,
SRI.GOPAL KRISHNA R.KOLLI ADV, FOR R3)
                               3




      THIS APPEAL IS FILED UNDER U/S 100 CPC AGAINST THE
JUDGMENT     AND    DECREE   DATED:    18.4.2006  PASSED   IN
RA.NO.151/2000 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.),
GADAG, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED: 11.10.2000 PASSED IN OS.72/1993 ON THE
FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, NARGUND. TRIAL COURT
DISMISSED THE SUIT APPELLATE COURT DISMISSED THE APPEAL
SUIT FOR PERMANENT INJUNCTION

     THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.02.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

These captioned regular second appeals are filed

questioning the concurrent judgment and decree passed in

O.S.No.72/1993 and O.S.No.11/1995.

2. RSA No.2143/2006 is filed by defendant Nos.1

and 2 in O.S.No.11/1995 questioning the concurrent

judgment and decree passed by the courts below in

O.S.No.11/1995 and R.A.No.150/2000 whereas RSA

No.2117/2006 is filed by the plaintiff in O.S.No.72/1993

questioning the judgment and decree passed in

O.S.No.72/1993 and R.A.No.151/2000.

3. Brief facts of the case are that:

4. Appellant No.2/defendant No.2 in RSA

No.2143/2006 filed suit for declaration and injunction in

O.S.No.72/1993 by specifically contending that he is the

absolute owner of the suit schedule property. The present

appellant No.1 claimed that property was originally owned

by one Smt.Nagamma and that she had no issues. The

appellant claims that said Nagamma bequeathed the suit

land bearing Sy.No.97/1A measuring 3 acres 20 guntas

situated at Banahatti village in favour of deceased

appellant No.1 who is none other than father of appellant

No.2 under Will dated 05.11.1974. Appellant No.2 further

contended that there was family arrangement and in the

family arrangement, the father of the present appellant

who was arrayed as defendant No.1 allotted the suit land in

favour of the present appellant and the same was reported

to the revenue officials by submitting a varadi to the village

accountant. The present appellant further contended that

mutation was also effected on 12.08.1982 by showing his

mother as a minor guardian. The appellant specifically

alleged in the plaint that on 12.11.1993

respondents/defendants inter se alleged that there was a

compromise and under the compromise, they claim that a

portion of the properties were allotted to their share.

Appellant's claim is that this compromise is without the

consent of appellant herein and therefore, the appellant

claiming absolute owner of the suit property filed the

present suit for declaration and injunction.

5. The connected suit in O.S.No.11/1995 came to

be filed by one Hanamawwa, Laxmawwa and Yellawwa

against the present appellant and his father i.e., deceased

defendant No.1 in O.S.No.72/1993. The plaintiffs in

O.S.No.11/1995 specifically averred and contended that

suit schedule property was originally owned by one

Nagavva w/o Bhimappa Talawar. However, the plaintiffs in

O.S.No.11/1995 specifically contended that this property

was allotted to Smt.Nagavva in terms of the decree dated

07.01.1948 passed in suit No.1/1948. The plaintiffs

specifically contended that in terms of decree, Nagavva

was given limited right and the decree clearly

contemplated that after the death of Nagavva, the property

would revert back to Ramappa. The plaintiffs in

O.S.No.11/1995 claim that the wife and children of said

Ramappa died on 14.07.1991. The plaintiffs further

contended that they are in exclusive possession and

enjoyment over the suit schedule property and the present

appellant who is arrayed as defendant No.1 in

O.S.No.11/1995 based on a false Will dated 05.11.1974

tried to interfere and therefore, they have filed the suit for

injunction to restrain the present appellant and his father

from interfering with the plaintiffs' possession and

enjoyment over the suit schedule property.

6. Both the suits were clubbed and common

evidence was recorded. The trial court having assessed

ocular and documentary evidence dismissed the suit filed

by the appellant in O.S.No.72/1993 and decreed the suit

filed in O.S.No.11/1995. The trial court on examination of

material on record held that present appellant No.2 who is

asserting right and title on the basis of Will executed by

Nagavva, however, has come to the conclusion that

appellant No.2 herein has failed to establish the due

execution of the Will. The trial court having examined the

evidence of P.Ws.2 to 4 has come to the conclusion that

testator Nagavva was admittedly an illiterate lady. The

witnesses examined by the profounder i.e., appellant No.2

herein clearly indicates that Will deed was written by one

Hanamappa Gaddi and she has affixed LTM on the Will vide

Ex.P2. But however, the trial court found that there is

absolutely no evidence indicating that recitals in the Will

deed were read over and contents of the Will were

explained to the testator. The trial court was also found

that there is no evidence indicating that testator has signed

the document only after understanding the contents of the

Will. The trial court has also drawn adverse inference

having taken note of the admission given by P.W.2 in the

cross-examination wherein the attesting witness has

specifically pleaded his ignorance in regard to good health

of the testator. The trial court has also recorded a

categorical finding that profounder has failed to establish

that testator was in sound state of mind. The trial court has

taken judicial note of the fact that alleged Will deed is

executed by Nagavva on 05.11.1974 and she died on

31.12.1974. It is in this background, the trial court has

come to the conclusion that Will prepared in the present

case on hand raises suspicion and the recitals in the Will

deed would not express the mind of the testator and the

profounder has failed to remove these material suspicions.

7. While examining the claim of the plaintiffs in

O.S.No.11/1995, the trial court having examined the

compromise decree as per Ex.D4 which the certified copy

of the decree in Suit No.1/1948 has concluded that

Nagavva had a limited right in the suit schedule property

and she had only right of enjoyment during her lifetime

and after death, the terms of the decree clearly

contemplates that it should be revert back to Ramappa s/o

Balappa Taparashi. Therefore, while dealing with issue

Nos.4 to 6 in O.S.No.11/1995, the trial court has recorded

a categorical finding that the decree passed in suit

No.1/1948 would create only life interest in the suit land

and therefore, Nagavva was not at all absolute owner of

the suit schedule property.

8. On these set of reasoning, the trial court has

dismissed the suit filed by the appellant in O.S.No.72/1993

and decreed the suit filed by the respondents/plaintiffs in

RSA No.2143/2006.

9. The present appellant feeling aggrieved by the

judgment and decree passed in O.S.No.11/1995 preferred

an appeal before the first appellate court in

R.A.No.150/2000. The appellant also preferred an appeal in

R.A.No.151/2000 questioning the judgment and decree

passed in O.S.No.72/1993. The first appellate court

clubbed both the appeals and being final fact finding

authority has independently assessed the evidence on

record has concurred with the finding recorded by the trial

court in regard to the claim of the appellant herein based

on Will dated 05.11.1974. The first appellate court on re-

appreciation of material on record has held that though

there is compliance of provisions Section 68 of Indian

Evidence Act, but the first appellate court found that there

is absolutely no proof as to the execution and attestation of

the alleged Will dated 05.11.1974. The first appellate court

was also of the view that there is absolutely no convincing

evidence which would enable the profounder to remove the

suspicious circumstances.

10. The first appellate court while examining the

right of Nagavva has also concurred with the finding of the

trial court and has come to the conclusion that compromise

decree passed in suit No.1/1948 would create limited right

and therefore, the rights of Nagavva in terms of

compromise decree would clearly fall under Section 14(2)

of the Hindu Succession Act and not under Section 14(1) of

the Hindu Succession Act. The first appellate court was also

of the view that restriction imposed in the compromise

decree on Nagavva would bind the Nagavva. If Nagavva

had agreed for limited interest, then the first appellate

court was of the view that she is bound by the decree

passed in Suit No.1/1948. Hence, Nagavva did not become

absolute owner and therefore, after her death, in terms of

the compromise decree the property would revert back to

Ramappa who is none other than husband of plaintiff No.1

in O.S.No.11/1995. The first appellate court while

dismissing the appeals has concurred with the finding of

the trial court that Nagavva had only life interest and

therefore, even otherwise, she could not have bequeathed

the suit land in favour of father of the present appellant

herein.

         11.   Learned             counsel      appearing     for

appellants/plaintiffs         in     RSA     No.2143/2006   would

vehemently argue and contended that judgment and

decree of the courts below are palpably erroneous and

contrary to clinching evidence on recorded adduced by the

appellants herein.

12. He would submit to this court that, parties to

the appeal are admittedly governed under the Bombay

School of Law. Placing reliance on the judgment rendered

by the Privy Council in the case of Kisan Tukaram Takle

and Others Vs Bapu Tukaram Ghadling and Others1

would submit to this court that, Privy Council re-iterating

the principles laid down in the case of Vithappa BIN

Kasha Hegde and Others V. Savitri KOM Ganapbhatta

and Another would submit to this court that, daughter

under Hindu Law inheriting from their father take an

absolute interest and if there is no division, they take

tenants in common and not as joint tenants. He would

1925 SCC OnLine Bom 205

further submit to this court that present appellants' father

who was arrayed as defendant No.3 in Suit No.1/1948 has

succeeded on the basis of the Will executed by Nagavva.

He would submit to this court that property admittedly is

owned by Nagavva and therefore, by way of testamentary

succession she was equally competent to bequeath in

favour of present appellants' father who was arrayed as

defendant No.1 in O.S.No.72/1993 and defendant No.3 in

Suit No.1/1948. Attacking Ex.D4, which is a decree in Suit

No.1/1948 based on pancha award, he would submit to

this court that, Nagavva was allotted suit land and the said

limited right if any, would blossom in terms of Section

14(1) of the Hindu Succession Act. To buttress his

arguments that the right created in favour of Nagavva

pursuant to decree passed in Suit No.1/1948 would stand

enlarged, reliance is placed on judgment rendered by the

Apex Court in the case of V.Tulasamma and Others Vs

Sesha Reddy (dead) by L.Rs2; in the case of Santosh

and Others Vs Saraswathibai and Another3.

13. He would also submit to this court that Section

14 of the Hindu Succession Act, 1956, subject to certain

qualification, confers full heritable capacity on a female heir

in respect of entire property acquired by her, whether

before or after the commencement of the 1956 enactment.

He would conclude his arguments by citing the latest

judgment of the Apex Court in the case of Arunachala

Goundar (dead) by Lrs. Vs. Ponnusamy and Others4.

Placing reliance on para 70 of the judgment, he would

contend that legislative intent of enacting Section 14(1) of

the Act was to remedy the limitation of a Hindu woman

who could not claim absolute interest in the properties

inherited by her but only had a life interest in the estate so

inherited. On these set of grounds, he would submit to this

court that substantial question of law framed by this court

(1977) 3 SCC 99

(2008) 1 SCC 465

2022 SCC OnLine SC 72

has to be answered in favour of the appellants in RSA

No.2143/2006.

14. Learned counsel for the respondents contended

that though counsel for the appellants has placed reliance

on the judgment relating to Section 14 of the Hindu

Succession Act, however would submit to this court that his

arguments and the judgments produced relating to Section

14 of the Hindu Succession Act would be of no

consequence. He would submit that whether Nagavva is

limited right blossoms under Section 14(1) of the Hindu

Succession Act could be looked into get only if the legate is

able to establish that Nagavva bequeathed properties in

question. There is concurrent findings of the courts below

which is based on exhaustive discussions of entire evidence

thereby negativing the alleged Will set up by appellant and

his father question of application of Section 14(1) of the

Hindu Succession Act to the present case on hand would

not arise.

15. Counsel for the respondents has countered the

arguments and has also placed reliance on the judgment

rendered by the Apex Court in the case of Ramesh Verma

(dead) Through Legal Representatives Vs Lajesh

Saxena (dead) by Legal Representatives and

Another5 and another judgment rendered by the Apex

Court in the case of Dhannulal and Others Vs

Ganeshram and Another6. Placing reliance on these two

judgments, he would submit to this court that proof of Will

always stands on a higher pedestal and therefore, there

has to be clear evidence of attesting witnesses and the

evidence needs to be satisfactory to establish that the

contents of the Will were read over to the executant and

he/she after admitting same to be correct has put

signatures in the presence of the witnesses.

16. This court while admitting the appeals has

formulated common substantial question of law in both the

appeals, which reads as under:

(2017) 1 SCC 257

(2015) 12 SCC 301

"Whether the lower appellate court was

right in holding that the property held by

Nagawwa was not her absolute property by

virtue of Sec.14(2) of the Hindu Succession Act,

and not held by her as absolute property under

Section 14(1) of the Act?"

17. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

judgments under challenge.

18. The appellant has filed a suit in O.S.No.72/1993

and the relief sought in the said suit would be relevant in

the context of substantial question of law framed by this

court. The prayer sought in O.S.No.72/1993 is as under:

a) A decree may please be passed by declaring the compromise deed dated 12.1.1993 by the defendants is null and void and is not binding on the plaintiff.

b) Consequently the defendants should be restrained permanently from doing any act which obstruct the plaintiff for his peaceful enjoyment of the suit property.

c) Costs for this suit may please be awarded to the plaintiff.

19. Though relief of declaration is sought by the

appellant to declare the compromise decree dated

12.11.1993 as null and void, however, no relief is sought

by the appellant to demonstrate that his father who was

arrayed as defendant No.1 in O.S.No.72/1993 acquired

valid right and title pursuant to Will dated 05.11.1974

executed by Nagavva. What is questioned is, interse

compromise dated 12.11.1993 between the defendants in

O.S.No.72/1993. The present appellant has set up Will in

the connected suit bearing O.S.No.11/1995. The dispute

revolving Will is covered under issue Nos.4 to 6 in

O.S.No.11/1995. The trial court on meticulous examination

on material on record has answered issue Nos.4 to 6 in the

negative, thereby has recorded a categorical finding that

the present appellant along with his father have failed to

prove the Will dated 05.11.1974. Learned counsel for the

respondents during course of arguments has taken this

court to the evidence of attesting witness who are

examined as P.Ws.3 and 4. On meticulous examination of

the evidence of P.Ws.3 and 4, both the courts have come

to the conclusion that present appellant has failed to

discharge the onus of proof and also has failed to remove

suspicious circumstances surrounding its execution. Both

courts have concurrently held that proof of testamentary

capacity and the sound state of mind of the testator are

not established by the present appellant herein. Both the

courts below have concurrently held that suspicious

circumstances are found to exist and the profounder of the

Will has failed to explain and dispel all suspicion to the

satisfaction of the court. This court cannot examine those

concurrent findings of both the courts below under Section

100 of CPC. The finding of fact recorded by both the courts

below is based on exhaustive discussion of the entire

evidence led by the parties and its opinion not having been

demonstrated to be vitiated in law cannot be re-examined

in a second appeal. Both the courts have come to the

conclusion that evidence let in by the defendants is not

convincing and the deposition of P.Ws.3 and 4 does not

satisfy the requirement under Section 68 of the Indian

Evidence Act. The probabilities that found expression from

the circumstances, attending the execution of the Will are

important factors that should be kept in view. Both the

courts below have taken judicial note of the fact that

alleged Will is dated 05.11.1974 and the testator died on

31.12.1974. Therefore, having taken note of the alleged

date of execution of Will and the date of death, both the

courts have adopted realistic approach and found that Will

is shrouded with suspicious circumstances. This cumulative

effect of circumstances brought out in evidence is tested by

both the courts and its probabilities in a realistic manner.

In the absence of satisfactory evidence to indicate that Will

was not signed by the testator and at the relevant point of

time was in sound and disposal state of mind and that she

understood nature and effect of disposition and that it is a

free Will, both the courts were justified in declining to grant

any relief to the present appellant and his father and the

claim of the appellant was rightly declined by both the

courts below.

20. The finding of fact recorded by the courts below

is based on clinching rebuttal evidence and in the absence

of satisfactory evidence led by the legatee and therefore, I

am of the view that appellants have failed to demonstrate

as to who the judgment under challenge stands vitiated in

law. Therefore, I am of the view that judgment under

challenge cannot be reviewed in second appeal. When

there is a concurrent finding on the Will set up by the

appellants' father, both the courts below have concurrently

held that profounder of the disputed Will has failed to show

by satisfactory evidence that the Will was signed by

testator, and the testator at the relevant time was in sound

and disposing state of mind. If the both the courts below

have held that the profounder has failed to prove not only

due execution of the Will but also attestation and that it is

not genuine, this court under Section 100 of CPC cannot

venture into finding that whether at the relevant time of

execution of alleged Will, testator was sound disposing

state of mind. The evidence on record has not inspire the

courts below and there is no clinching evidence indicating

that testator who has already departed overt has clear

intention in transferring her right in the property by way of

testamentary succession.

21. In the finding recorded by the courts below on

Will cannot be examined by this court, then I find some

force in the submission made by the learned counsel for

the respondents. As rightly argued by learned counsel for

respondent, there is absolutely no foundation as to how

Nagavva succeeded to the property in question. There are

absolutely no pleadings in regard to consequence that

would follow from the compromise decree which was

passed between Nagavva and defendant No.1 in Suit

No.1/1948.

22. More emphasis is laid by placing reliance on Will

and therefore, as rightly argued by learned counsel for the

respondents/plaintiffs, even otherwise, the question as to

whether Nagavva's right stood blossomed under Section

14(1) of the Hindu Succession Act cannot be considered for

want of pleadings and issue to that effect. As rightly

argued, even otherwise, the question of examining the

right of Nagavva would arise only if the appellant and his

father had succeeded in establishing due execution of the

Will. If appellant and defendant No.1 had succeed under

Will, then the next question that would have been required

to be examined by the courts was whether Nagavva had a

right to bequeath. When both the courts below have

concurrently held that Will not is not proved, and in the

absence of any independent right of appellant and his

father in the suit land, the arguments advanced by the

learned counsel for the appellant in regard to operation of

Section 14(1) of Hindu Succession Act are rendered

academic, and therefore, does not warrant any interference

at the hands of this court.

23. For the forgoing reasons, the substantial

question of law is answered in the affirmative and the

appeals are dismissed.

Sd/-

JUDGE MBS/-