D. Kousalya vs Narayanappa
2022 Latest Caselaw 13102 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF NOVEMBER, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.1885 OF 2016 (PAR)

BETWEEN:

1. D. KOUSALYA
D/O LATE DEVARAJ,
AGED ABOUT 41 YEARS,
R/AT KONDARAJANAHALLI VILLAGE,
MADERAHALLI POST,
KASABA HOBLI,
KOLAR TALUK AND DISTRICT - 563 101.

2. D SAVITHA
D/O LATE DEVARAJ,
AGED ABOUT 38 YEARS

3. D MURTHY
S/O LATE DEVARAJ,
AGED ABOUT 36 YEARS

4. D ANITHA
D/O LATE DEVARAJ,
AGED ABOUT 34 YEARS

5. D BALAJI
S/O LATE DEVARAJ,
AGED ABOUT 32 YEARS

APPELLANT NO.2 TO 5 ARE
R/AT DOOR NO.2322, 2ND MAIN,
2ND CROSS, VIVEKANANDA NAGAR,
                             2


BANGARPET TOWN,
KOLAR DISTRICT - 563 114.

                                             ...APPELLANTS

(BY SRI.S VISWESWARAIAH, ADVOCATE)

AND:

1. NARAYANAPPA
S/O LATE KA. MUNISHAMY @ MUNISHAMYBOVI
AGED ABOUT 65 YEARS

2. JAGADAMMA
W/O LATE JAYARAMA @ JAYARAMAPPA
AGED ABOUT 45 YEARS

3. PRASANNA
S/O LATE JAYARAMA @ JAYARAMAPPA
AGED ABOUT 23 YEARS

4. PRATHIBA
D/O LATE JAYARAMA @ JAYARAMAPPA
AGED ABOUT 20 YEARS

5. C SHIVAKUMAR
S/O LATE CHANDRAPPA AND LATE MUNIYAMMA
AGED ABOUT 35 YEARS

RESPONDENT NO.1 TO 5 ARE
R/AT GAJAGA VILLAGE, MAGUNDI POST,
BANGARPET TALUK, KOLAR DISTRICT - 563 114

                                            ...RESPONDENTS

(BY SRI.T SRINIVASAN, ADVOCATE FOR R2-R4;
R1 & R5 ARE SERVED & UNREPRESENTED)
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     THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.7.2016 PASSED IN
R.A.NO.63/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND
PRINCIPAL   JUDICIAL  MAGISTRATE   FIRST  CLASS,    K.G.F.,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 10.8.2015 PASSED IN O.S.NO.194/2006 ON THE
FILE OF ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, BANGARPET.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 26.09.2022, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The captioned second appeal is filed by unsuccessful

plaintiffs who have questioned the concurrent findings of the

Courts below wherein suit for partition filed by the plaintiffs is

partly decreed and is dismissed in respect of item Nos.3 and

4.

2. For the sake of brevity, the parties are referred to

as per their rank before the Trial Court.

3. The family tree of the parties is as under:

ERAPPA P16/PW7 Of Appellate Court |

----------------------------------------------------------------

    |                          |                        |
Munishami                 Chinappiah              Venkatamma
       |

---------------------------------------------------

  |                    |                    |
Narayanappa        Devaraja           Jayarama
D1                 (Pltff)               |
                                      Jagadamma(Wife)
                                            D2
                                            |
                               ----------------------------------
                               |                        |
                          Prasanna (D3)           Prathiba (D4)

4. The plaintiffs represent the branch of Devaraj who

is the second son of propositus Munishamy. The present suit

is filed by the plaintiffs by asserting that suit schedule

properties are joint family ancestral properties and they

constitute undivided joint Hindu family along with defendants.

The grievance of the plaintiffs was that defendant No.2 in

collusion with revenue officials has got his name mutated to

item No.4. It is also alleged that defendant No.2 is asserting

exclusive right over item No.4 and claiming that it is absolute

property of her late husband Jayarama. Plaintiffs specifically

contended that insofar as item Nos.3 and 4 are concerned,

both the lands are also joint family ancestral properties.

Plaintiffs claimed that their paternal aunt namely Venkatamma

had no issues and item No.3 which was granted to their

paternal aunt is also joint family ancestral property and

therefore, claimed legitimate share in the suit schedule

property. While item No.3 was also claimed to be joint family

ancestral property by the plaintiffs. The plaintiffs contended

that though it was granted in the name of second defendant's

husband Jayarama, plaintiffs claimed that the grant made in

favour of the second defendant would enure for the benefit of

the plaintiffs also and therefore, item No.3 has to be presumed

to be joint family ancestral property and hence claimed share

in the suit schedule property.

5. Defendant Nos.2 to 4, on receipt of summons,

contested the proceedings and stoutly denied the entire

averments made in the plaint. The defendant Nos.2 to 4

claimed that Venkatamma who had no issues had in fact

fostered second defendant's husband Jayarama as her son

since childhood. The defendant No.2 claimed that her

husband Jayarama @ Jayaramappa was in fact under the care

and custody of said Venkatamma. Defendant No.2 further

claimed that Venkatamma out of love and affection in fact

during her lifetime submitted a vardhi and mutated the name

of Jayarama and the present defendant No.2 to the revenue

record pertaining to item No.4. She further during her lifetime

bequeathed item No.4 in favour of the defendant No.2 herein

as she was taken care of by defendant No.2 and her family

members. Therefore, asserted that item No.4 is her absolute

property and therefore, contended that item No.4 is not

available for partition. Insofar as item No.3 is concerned,

second defendant contended that item No.3 was exclusively

granted to her husband by the competent authority vide order

dated 22.09.1994. Therefore second defendant contended

that the grant was in his individual capacity and therefore,

contended that item No.3 is also not available for partition.

6. Plaintiffs and defendants to substantiate their claim

let in oral and documentary evidence. The defendant Nos.2 to

4 by way of rebuttal evidence relied on Ex.D-16 which is a Will

executed by Venkatamma wherein she bequeathed item No.4

in favour of defendant No.2. The defendant Nos.2 to 4 also

produced rebuttal evidence indicating that item No.3 was

granted in favour of defendant No.2's husband in his individual

capacity.

7. The Trial Court having examined oral and

documentary evidence answered issue No.1 in the negative.

While answering issue No.2, Trial Court held that defendant

No.2 has succeeded in proving that item Nos.3 and 4 were

exclusive properties of second defendant's husband and

deceased Venkatamma. However, while dealing with

additional issue No.1 relating to Will dated 19.04.2007 in

favour of defendant No.2, the same was answered in negative.

Trial Court held that defendant No.2 has failed to prove the

Will. Trial Court on examining the material on record held that

item Nos.1, 2 and 5 were the self acquired properties of

propositus Munishamy and therefore, plaintiffs and defendants

being Class-I heirs have inherited the properties left behind by

Munishamy. However, the claim of plaintiffs in respect of item

Nos.3 and 4 was rejected by the Trial Court. Consequently,

suit was decreed only in respect of item Nos.1, 2 and 5 and

the plaintiffs claim in respect of item Nos.3 and 4 was

rejected. Consequently, suit was dismissed insofar as item

Nos.3 and 4 are concerned.

8. Plaintiffs feeling aggrieved by the judgment and

decree of the Trial Court preferred an appeal in

R.A.No.63/2015. The Appellate Court being final fact finding

authority has independently assessed oral and documentary

evidence. While determining the controversy in regard to the

nature of item Nos.3 and 4, Appellate Court was also of the

view that item No.3 was granted to the husband of defendant

No.2 and therefore, Appellate Court was also of the view that

the husband of defendant No.2 vide grant certificate dated

22.09.1994 vide Ex.D-2 acquired absolute right over item

No.3. Therefore, Appellate Court was also of the view that

after death of Jayarama, it is only the defendant No.2 who is

the widow and children would inherit item No.3. Appellate

Court was also of the view that plaintiff though claimed that

item No.3 was also joint family ancestral property, was of the

view that plaintiff to substantiate their claim that grant in

favour of Jayarama was in fact for the benefit of joint family is

not corroborated and substantiated by the plaintiffs.

Therefore, the claim of plaintiffs insofar as item No.3 is

concerned was negatived.

9. The controversy relating to the Will executed by

Venkatamma in favour of defendant No.2 was also

exhaustively dealt by the Appellate Court. Appellate Court

while re-appreciating the entire evidence on record relating to

Will, however, did not concur with the findings and conclusions

recorded by the Trial Court. Appellate Court was of the view

that the Trial Court erred in doubting the Will vide Ex.D-16

only on the premise that the property was in fact transferred

by way of vardhi by Venkatamaa in favour of second

defendant's husband during her lifetime and therefore, she

had no competency to bequeath the Will. The said finding was

held to be palpably erroneous by the Appellate Court.

Appellate Court while meticulously examining the evidence of

DW.3 who happens to be the attesting witness to the Will vide

Ex.D-16, was of the view that he has clearly deposed

regarding the execution of Will by Venkatamma. The

contention of plaintiffs that Venkatamma was ailing and was

not of sound mind was not substantiated by the plaintiffs

during trial. Though plaintiffs who have questioned the

credibility of the Will vide Ex.D-16 by contending that stamp

duty was paid through franking, Appellate Court was of the

view that plaintiffs cannot place reliance on the news report

published in Hindu news paper dated March 3, 2010.

Appellate Court was of the view that such a contention cannot

be accepted by placing reliance on a news report. The

Appellate Court was of the view that even the facility relating

to franking was in fact available even before March 2010 with

the Sub-Registrar office at Gandhinagar, Bengaluru. Appellate

Court while examining the seal affixed on Ex.D-16 was

however convinced in regard to the validity and genuineness

of the Will.

10. It is in this background, Appellate Court was of the

view that genuineness of the Will vide Ex.D-16 cannot be

doubted by placing reliance on isolated news report which

does not carry any evidentiary value. Appellate Court was of

the view that propounder of the Will has succeeded in

dispelling the suspicious circumstances surrounding the Will.

It is in this background, Appellate Court has come to

conclusion that defendants have clearly established that

Venkatamma has bequeathed item No.4 in favour of defendant

No.2 on the basis of Will dated 19.04.2007 vide Ex.D-16. On

these set of grounds, appeal was dismissed by the Appellate

Court.

11. These concurrent findings are under challenge by

the plaintiffs.

12. Learned counsel appearing for the plaintiffs would

vehemently argue and contend that that the findings recorded

by both Courts on item No.3 is palpably erroneous and

therefore, would warrant interference at the hands of this

Court. He would contend that the plaintiffs have succeeded in

placing on record sufficient material indicating that the family

possessed sufficient nucleus and therefore, contended that the

grant made by the authority in favour of second defendant's

husband would enure for the benefit of the joint family and

therefore, he would contend that both the Courts erred in

declining a share in item No.3. To buttress his arguments, he

has placed reliance on the judgment rendered by the Apex

Court in the case of N.Padmamma and Others vs.

S.Ramakrishna Reddy and Others1. Placing reliance on the

said judgment, he would contend that suit for partition in

respect of an inam land inherited by members of joint family

which is found to be in exclusive possession of one member

would not deprive the legitimate rights of other co-heirs in

seeking share in the granted land. Referring to the principles

laid down by the Apex Court in the above cited judgment, he

would contend that the conclusions recorded by both the

Courts runs contrary to the dictum laid down by the Apex

Court in the judgment cited supra. Therefore, he would

contend that the concurrent findings recorded by both the

Courts in declining a share in item No.3 warrants interference

and therefore, the appeal needs to be admitted.

13. While addressing his arguments on item No.4 which

was granted to Venkatamma, he would contend that the

Appellate Court erred in reversing the finding of the Trial Court

(2015) 1 SCC 417

on Will. He would vehemently argue and contend that finding

on additional issue No.1 was not at all challenged by the

defendant No.2 and therefore, Appellate Court had no

jurisdiction to revisit the conclusions and findings recorded on

additional issue No.1 and therefore, he would contend that the

findings recorded by the Appellate Court on additional issue

No.1 relating to Will executed by Venkatamma in favour of

second defendant's husband was one without jurisdiction and

therefore, he would contend that the finding recorded by the

Appellate Court on additional issue No.1 also suffers from

perversity and therefore, would warrant interference at the

hands of this Court. On these set of grounds, he would

contend that the captioned second appeal deserves to be

admitted and the substantial questions of law framed in the

appeal memo needs consideration at the hands of this Court.

14. Learned counsel appearing for defendant Nos.2 to 4

would counter the arguments canvassed by the learned

counsel appearing for plaintiffs. Insofar as finding on Will is

concerned, he would contend that defendant Nos.2 to 4 had

no occasion to file an appeal questioning the findings of the

Trial Court as the suit was dismissed insofar as item Nos.3 and

4 are concerned. The grievance of plaintiffs that Appellate

Court could not have reversed the finding on additional issue

No.1 was also countered by the learned counsel appearing for

defendant Nos.2 to 4. He would contend that the Appellate

Court while examining an appeal under Section 96 has to

independently reassess the entire evidence on record and

therefore, he would contend that even in absence of cross

appeal, the defendant No.2 had every right to question the

findings on additional issue No.1 and therefore, the Appellate

Court has rightly as a final fact finding authority has dealt with

additional issue No.1 and the finding recorded on Will by the

Appellate Court is in accordance with law and in absence of

clinching evidence let in by defendants. He would further

submit that Appellate Court has rightly appreciated and has

come to conclusion that Will set up by defendant No.2 is valid,

genuine and is free from suspicious circumstances. Therefore,

he would contend that the finding recorded by the Appellate

Court on Ex.D-16 pertaining to item No.4 is in accordance with

law and no substantial question of law would arise for

consideration.

15. While addressing his arguments on item No.3, he

would contend that admittedly second defendant's husband

was the youngest son and therefore, the grant made by an

authority was in his individual capacity. He would further

contend that the principles laid down by the Apex Court in the

judgment cited by the plaintiffs has no application to the

present case on hand. That was a case where lands involved

were inam lands and therefore, the holders of the family had a

pre-existing right and therefore, re-grant made in favour of

one individual would not deprive the other co-heirs from

seeking share in the properties as the re-grant would enure

for the benefit of the entire family. The principles cited in the

above judgment have no application as in the present case on

hand, the land was granted under the Karnataka Land

Revenue Rules and the family had no pre-existing right in item

No.3 and therefore, the concurrent findings recorded by the

courts below on item No.3 is in accordance with law and would

not warrant any interference at the hands of this Court and

hence, prayed for dismissal of the appeal.

16. Heard the learned counsel appearing for plaintiffs

and learned counsel appearing for defendant Nos.2 to 4.

Perused the concurrent findings of the Courts below on item

No.3 and divergent finding on item No.4 relating to Will.

17. Insofar as item No.4 is concerned, plaintiffs are

asserting that the grant made in favour of Venkatamma is also

joint family ancestral property and therefore, they are entitled

for a share. Both the Courts have concurrently held that item

No.4 which was granted to Venkatamma is her self acquired

property. On bare perusal of the family tree, this Court would

find that Venkatamma cannot be assumed to be a joint family

member of plaintiffs and defendant Nos.2 to 4. Admittedly,

she is the paternal aunt of plaintiff Devaraj. Therefore, the

grant made in favour of Venkatamma would not enure for the

benefit of the joint family member. This Court is of the view

that the concurrent findings recorded by the Courts below in

holding that item No.4 is self acquired property of

Venkatamma is based on cogent and clinching evidence let in

by defendants. If item No.4 is self acquired property of

Venkatamma, then the question that needs to be examined is

as to whether Appellate Court was justified in reversing the

finding of the Trial Court on additional issue No.1.

18. On examining the material on record, this Court

would concur with the findings recorded by the Appellate

Court. This Court is of the view that Trial Court has virtually

misread the entire evidence relating to Will vide Ex.D-16.

Trial Court has doubted the competency of the testator

Venkatamma only on the premise that she had already given

vardhi to the revenue officials and defendant No.2 and her

husbands name was mutated to the revenue records. The

Trial Court also erred in placing reliance on the news report

published in Hindu newspaper indicating that franking was not

permissible at the relevant point of time. Appellate Court was

not convinced with the said finding recorded by the Trial

Court. On re-appreciation of entire evidence relating to Will,

Appellate Court was of the view that the propounder of the

Will has succeeded in proving the Will in terms of Section

63(c) of Indian Succession Act read with Section 68 of Indian

Evidence Act. Referring to evidence of DW.3, Appellate Court

has come to conclusion that Will is proved and any suspicious

circumstances surrounding the Will are rightly dispelled by the

propounder of the Will. Referring to the material on record,

Appellate Court also found that merely because Venkatamma

by way of a vardhi had mutated the name of defendant No.2

and her husband, would not in itself create a doubt regarding

the genuineness of the Will.

19. This Court on examining the material on record and

also the findings recorded by both the Courts would concur

with the finding recorded by the Appellate Court. If

Venkatamma during her lifetime had decided to mutate the

name of defendant No.2 and her husband Jayarama, it would

rather strengthen the genuineness of the Will in the present

case on hand. Admittedly, Venkatamma had no issues and

therefore, the evidence on record would clearly indicate that

she had more inclination and affection towards defendant No.2

and her husband. Therefore, the finding recorded by the

Appellate Court on item No.4 and reversal of the findings on

additional issue No.1 is based on clinching rebuttal evidence

let in by the defendant Nos.2 to 4. The finding of the

Appellate Court that defendant No.2 has succeeded in proving

that there was a bequeath by Venkatamma is found to be

legal, just and the conclusions arrived at by the Appellate

Court is based on clinching rebuttal evidence let in by

defendant Nos.2 to 4 and therefore, I do not find any

infirmities in the finding recorded by the Appellate Court on

additional issue No.1 relating to Will set up by defendant No.2.

20. Now coming to item No.3, plaintiffs claim that item

No.3 is also ancestral property. They contend that grant made

in favour of second defendant's husband Jayarama in respect

of item No.3 would also enure for the benefit of the plaintiffs

family. To buttress their claim, the plaintiffs have placed

reliance on the judgment rendered by the Apex Court in the

case of K.Padmamma vs. S.Ramakrishna Reddy (supra).

Insofar as inam lands are concerned, holders family invariably

would have a pre-existing right. Therefore, after abolition of

inam, if the holder seeks re-grant, it is a trite law that re-grant

would enure for the benefit of the entire family. Similarly in

respect of a private land which is a tenanted land and if the

said tenanted land is cultivated by ancestor, on his death

before coming into force of Land Reforms Act, if a elder son

were to file Form-7, he cannot set up a individual tenancy and

therefore, occupancy rights granted by the Land Tribunal

under the provisions of lands Tribunal Act would also enure for

the benefit of the other brothers who are also in joint

possession.

21. The doctrine of enuring for the benefit of family can

be extended only in those cases where a family has a pre-

existing right. If the land is a tenanted land and if the original

tenant dies, all the sons inherit the tenancy rights under

Section 24 of Land Reforms Act and therefore, a co-heir in

whose favour occupancy rights is granted cannot exclude the

other co-heirs and cannot assert exclusive right. These

principles cannot be extended to those cases where land is

granted by a competent authority under the Karnataka Land

Grant Rules. In such cases, the family does not possess any

pre-existing right over the land. The authorities are also not

bound to grant land in favour of an applicant. The grant of

land in favour of an applicant is totally discretionary.

Therefore, the grant made by the authority in favour of second

defendant's husband would in no way enure to the benefit of

plaintiffs. If second defendant's husband was unauthorizedly

cultivating the land in question, and if a grant is made by an

authority, that in itself would not create a right in favour of

plaintiffs only on the premise that they are also related to the

defendants. Therefore, the concurrent findings recorded by

the Courts below on item No.3 does not suffer from any

infirmities. The grant made in favour of second defendant's

husband would not enure for the benefit of the plaintiffs and

therefore, both the Courts were justified in declining to grant

any share in item No.3. The principles laid down by the Apex

court in the judgment cited supra has no application to the

present case on hand.

22. Therefore, this Court is of the view that no

substantial question of law arises for consideration.

Accordingly, second appeal is dismissed.

Sd/-

JUDGE CA