Kum Harshada S vs Sri Mariyappa
2023 Latest Caselaw 2331 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF APRIL, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              R.S.A.NO.760/2018 (DEC/INJ)

BETWEEN:

KUM. HARSHADA S
D/O SHIVALINGEGOWDA
AGED ABOUT 26 YEARS
R/AT NO.153, 2ND CROSS
KSRTC LAYOUT
UTTARAHALLI MAIN ROAD
BENGALURU-560 061
                                              ... APPELLANT

             (BY SRI NISHANTHA A V , ADVOCATE)
AND:

SRI MARIYAPPA
S/O LATE HONNEGOWDA
AGED ABOUT 60 YEARS
R/AT NUNNUR VILLAGE
VIRUPAKSHIPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT - 562160
                                            ... RESPONDENT

        (BY SRI M C CHANDRAIAH, ADVOCATE [ABSENT])

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 10.01.2018
PASSED IN R.A.NO.2/2015 ON THE FILE OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, RAMANAGARA AND ETC.
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    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    10.04.2023, THIS DAY  THE   COURT
PRONOUNCED THE FOLLOWING:


                        JUDGMENT

Heard the learned counsel appearing for the appellant and

the counsel for the respondent is absent.

2. This appeal is filed challenging the judgment and

decree dated 10.01.2018 passed in R.A.No.2/2015 on the file of

the I Additional District and Sessions Judge, Ramanagara.

3. The factual matrix of the case of the appellant-

plaintiff before the Trial Court is that the suit schedule property

was originally belonged to her grandfather by name Nunnuru

Honnegowda who had acquired the same under registered sale

deed dated 01.05.1974. Thereafter, her grandfather executed a

registered Will in her favour on 22.09.2010 and her grandfather

died on 28.02.2011. It is contended that after the death of her

grandfather, she became an absolute owner of the suit schedule

property as per the Will. The defendant being her paternal uncle

acquired wrongful possession of the suit schedule property by

illegal means and forcibly put up construction of a building and

that the defendant has refused to accept her title and handover

the possession of the suit schedule property. Hence, the suit is

filed for the relief of declaration, possession and for mandatory

injunction.

4. In pursuance of suit summons, the defendant

appeared and filed the written statement contending that the

suit schedule property though was purchased in the name of his

father Honnegowda, the same has been joint family property and

as such his father had no absolute right to bequeath the same in

favour of the plaintiff by executing any Will and that he has

raised 40 coconut trees and put up pump-shed and that he has

been in a possession and enjoyment of the suit schedule

property since his childhood and that his father has suffered

from paralytic stroke on his right side of the body and he was

not able to speak and was not having good eye sight and hearing

since from 16 years prior to his death and that the father of the

plaintiff by inducing his father Honnegowda to taking him to the

hospital might have taken to the Sub-Registrar office and

fraudulently got executed the Will to grab the suit schedule

property and that he has put up the construction about eight

years back and hence, the suit is not maintainable.

5. Based on the pleadings of the parties, the Trial Court

framed the Issues No.1 and 2 shifting the burden on the plaintiff

to prove that whether she is the absolute owner of the suit

schedule property and whether the defendant has illegally

constructed a building in the suit schedule property without her

consent and the Trial Court has framed Issue No.3 shifting the

burden on the defendant to prove that the suit schedule property

is an ancestral property. The plaintiff in order to prove her case,

examined herself as PW1 and two attesting witnesses as PW2

and PW3 and got marked the documents at Ex.P1 to P24. On

the other hand, the defendant examined himself as DW1 and

also examined three more witnesses as DW2 to DW4 and got

marked the documents at Ex.D1 to D40. The Trial Court after

considering both the oral and documentary evidence answered

Issue Nos.1 and 2 as affirmative in coming to the conclusion that

the plaintiff has proved that she is the absolute owner of the suit

schedule property and the defendant has illegally constructed

the building in the said property without her consent and

answered Issue No.3 as negative in coming to the conclusion

that the suit schedule property is not an ancestral property as

contended by the defendant and granted the relief of declaration

declaring that the plaintiff is the absolute owner of the suit

schedule property and she is entitled for the possession of the

same and directed the defendant to handover the vacant

possession of the suit schedule property within one month and

also directed the defendant to get the building situated in the

suit schedule property demolished by way of mandatory

injunction.

6. Being aggrieved by the judgment and decree of the

Trial Court, an appeal was filed before the First Appellate Court

in R.A.No.2/2015. The grounds urged in the appeal that the Trial

Court has committed an error in coming to the conclusion that

the suit schedule property is not an ancestral property and also

fails to take note of the material contradictions found in the

evidence of the plaintiff witnesses and the Trial Court fails to

take note of the admission of the plaintiff and the findings of the

Trial Court is erroneous. Based on these grounds, the First

Appellate Court also formulated the point that whether the

appellant proves that the impugned judgment and decree passed

by the Trial Court is contrary to the law, facts, evidence and

committed an error in evaluating the evidence of the parties and

whether it requires interference. Having reconsidered the

material on record found that the Trial Court has committed an

error and answered Point No.1 as affirmative and reversed the

finding of the Trial Court by allowing the appeal and set aside

the judgment and decree of the Trial Court. Hence, the present

appeal is filed before this Court.

7. This Court, having considered the grounds urged in

the second appeal and also on perusal of the material available

on record, framed the following substantial questions of law:

(i) Whether the Lower Appellate Court was justified in

holding that the suit schedule property is joint family

property of Late Honnegowda on the ground that the

Plaintiff has not proved that the suit schedule

property is self acquired property of Late

Honnegowda?

(ii) Whether the Lower Appellate Court was justified in

holding that the suit schedule property is the joint

family property in spite of the Defendant having not

discharged his burden to prove as required under

law?

(iii) Whether the Lower Appellate Court was justified in

holding that the Plaintiff has failed to establish the

due execution of the Will (Ex.P4) by Honnegowda

and further, failed to prove due attestation of the

same as contemplated under Section 68 of the

Indian Evidence act?

(iv) Whether the Lower Appellate Court was justified in

allowing the appeal of the Defendant and thereby

setting aside the judgment and decree of the

Hon'ble Trial Court and consequently, dismissing the

suit of the Plaintiff in spite of admission of the

D.W.1 (Defendant) in his cross examination that the

suit schedule property is the self acquired property

of Honnegowda?

This Court having considered the grounds urged in the appeal as

well as the substantial questions of law framed by this Court has

to consider the material available on record since there is a

divergent finding.

8. The counsel for the appellant in his arguments

vehemently contend that no dispute that the property was

purchased on 01.05.1974 by one Honnegowda in terms of Ex.P5.

It is also the case of the plaintiff that a Will was executed in

favour of the plaintiff and in order to substantiate the same, PW2

and PW3 who are the attesting witnesses were also examined

and proved the Will in terms of Section 63 of the Hindu

Succession Act and Section 68 of the Evidence Act. The counsel

would submit that the executant passed away on 28.02.2011

and suit was filed on 13.09.2012. The main contention of the

defendant in the written statement that the suit schedule

property is the joint family property and executant has no

absolute right to execute the Will and the other defence taken in

the written statement is that the executant was not having

stable mind and he had suffered paralytic stroke since from 16

years prior to his death. The beneficiary is a granddaughter that

is a son's daughter. It is the case of the appellant that the suit

schedule property is the self-acquired property of the said

Honnegowda. DW1 categorically admitted in the cross-

examination that the suit schedule property is a self-acquired

property and inspite of it, the First Appellate Court has not

discussed the evidence of DW1 and DW2 though they denies the

photograph of their father Honnegowda. The witness of

defendant i.e., DW3 identified the photograph of the said

Honnegowda. The Trial Court also given the finding that it is a

self-acquired property and no material is placed before the Court

with regard to the unsound mind of executant and that he was

suffering from stroke and extracted the admission of DW1 in

paragraph 7(d) of the judgment of the Trial Court that the suit

schedule property is a self-acquired property of his father

Honnegowda and reasoned order has been passed. But the First

Appellate Court has committed an error in reversing the finding

without any material and finding given in paragraph 21 of its

judgment is not correct even though photograph of Honnegowda

was identified by DW3 and it is evident that the property is a

self-acquired property of the executant since the same was

purchased in the year 1974 and revenue entries are found in the

name of the Honnegowda till this death. The counsel also would

submit that no defence was taken in the written statement that

the suit schedule property was purchased out of joint family

income hence, the First Appellate Court committed an error in

allowing the appeal ignoring the admission. The counsel submits

that the very contention that it is a joint family property, the

same has not been proved and defendant has not produced any

document to show that the executant was not keeping well at

the time of the execution of the Will.

9. This Court also having noticed that the counsel for

the respondent did not appear before the Court inspite of

sufficient opportunity was given to address his arguments and

after hearing the learned counsel for the appellant also one more

opportunity was given to him but he failed to address his

arguments. Hence, his argument is taken as nil and the matter is

reserved for judgment.

10. Having heard the learned counsel for the appellant

and also on perusal of the material on record and also in keeping

the substantial questions of law framed by this Court while

admitting the appeal and this Court while admitting the appeal

mainly focused on whether the suit schedule property is a self-

acquired property of Honnegowda and whether the defendant

has discharged his burden to prove that the suit schedule

property is the joint family property and whether the First

Appellate Court has committed an error in coming to the

conclusion that the plaintiff fails to prove due attestation of he

same as contemplated under Section 68 of the Indian Evidence

Act and also whether the First Appellate Court ignored the

answer elicited from the mouth of DW1 in his cross examination

that the suit schedule property is a self-acquired property of

Honnegowda. All the substantial questions of law are based on

the findings of the First Appellate Court since First Appellate

Court reversed the finding.

11. The main contention of the plaintiff before the Trial

Court that the suit schedule property is the self-acquired

property of Honnegowda. On the other hand, it is the contention

of the defendant that same is the joint family property and also

it is the contention of the defendant that the executant was not

having sound state of mind since he has suffered from paralytic

stroke from 16 years prior to his death. With regard to the first

aspect is concerned, whether it is a self-acquired property or

joint family property, there is an admission in the cross-

examination of DW1 wherein he categorically admitted that the

suit schedule property is the self-acquired property of the

executant. The same is also extracted in the judgment of the

Trial Court in paragraph 7(d). It has to be noted that when DW1

categorically admitted that it is a self-acquired property of his

father, in paragraph 7(e) held that no need to prove the

admitted fact in view of Section 58 of the Indian Evidence Act.

The First Appellate Court has committed an error in going

beyond the admission of DW1 and the same is a futile exercise

made by the First Appellate Court while reversing the finding of

the Trial Court in coming to the conclusion that the same is a

joint family property. The admitted fact need not be proved. It

is clear that the property is a self-acquired property, it cannot be

considered as it is a joint family property and once there is an

admission that is it is a self-acquired property, the same cannot

be considered as the joint family property and the First Appellate

Court made its futile effort considering the evidence of PW1

wherein she has stated that other properties were also their to

the family and also committed an error in extracting Section 228

of Hindu Law and also Section 231 of Hindu Law and the same is

against the admitted fact. The First Appellate Court ought not to

have gone beyond the admission when there is a categorical

admission on the part of DW1 that it is a self-acquired property

of his father. Hence, it is very clear that the First Appellate Court

has committed an error in coming to the conclusion that the

plaintiff has not proved that the suit schedule property is a self-

acquired property of late Honnegowda inspite of the admission of

DW1. The first appellate court has committed an error in coming

to the conclusion that the suit schedule property is a joint family

property inspite of defendant has not discharged his burden to

prove as required under law. Hence, substantial question of law

Nos.1, 2 and 4 has to be answered as negative that first

appellate court committed an error in setting aside the judgment

of the Trial Court and very dismissing of the suit requires to be

set aside in view of the admission of DW1 that the suit schedule

property is a self-acquired property of his father Honnegowda as

regards to the suit schedule property is a self-acquired property

of the father of DW1.

12. The other grounds urged by the defendant in the

written statement that the executant was not having good health

and the father of the plaintiff fraudulently obtained the Will and

Will also has not been proved. It is the contention that PW2 and

PW3 evidence is contrary to each other. Having perused the

material available on record it has to be noted that DW1 in his

cross-examination though denied the execution of Will which is

marked as Ex.P4, he has gone to the extent of unidentifying the

photograph of his father. The defendant has examined one more

witness i.e., his sister as DW2. DW2 who is the daughter of said

Honnegowda also did not identify the photograph even though

the executant is her father. But it is important to note that DW3

who has been examined before the Trial Court in support of the

evidence of defendant, he identified the photograph of the father

of DW1 and DW2. It is also important to note that DW3 also

admitted that the said executant Honnegowda even three to

fourth months prior to his death was also talking and having

good health and this evidence is also contrary to the evidence of

DW1 and DW2 and the same is also taken note of by the Trial

Court. It is also important to note that the Will is a registered

Will and PW2 and PW3 categorically deposed before the Court

that both of them have put their signatures in the office of the

Sub-Registrar and no doubt, PW2 says that only on the say of

PW3, he came to the Sub-Registrar office to sign the document.

His evidence is very clear that in his presence only the executant

has signed the document and minor contradictions were

magnified by the First Appellate Court while appreciating the

same. The main contention of the defendant is that it was an

ancestral property but as against the said contention, DW1

himself admits in the cross-examination that it is a self-acquired

property. But he claims that he was cultivating the property and

purchased the property. But he has not produced any documents

to show that he has given the money to his father to purchase

the property. He categorically admits that when he started

managing the affairs of the family, he cannot tell how much he

was earned.

13. I have already pointed out that DW2 is none other

than the elder daughter of Honnegowda. It is clear that she got

married her daughter with the defendant and hence, DW2 is an

interested witness. But she claims that her father also had

suffered Paralytic stroke but she categorically admits that her

father was not taken to the Government hospital for treatment

and no document is placed before the Court either by the

defendant or by the witnesses that treatment was provided to

their father as he was suffering from paralytic stroke. I have

already pointed out that DW3 categorically deposed that

Honnegowda was talking even three to four months prior to his

death and the Will was executed in the month of September

2010 itself and he died in the month of February 2011 and suit

was filed in the year 2012 and hence, the very contention of the

defendant that he was not having good health and he had

suffered stroke was not been substantiated by the defendant and

the same has been considered by the Trial Court while

appreciating both oral and documentary evidence placed on

record. The Trial Court in detail discussed the evidence available

on record. No doubt, in the evidence of PW1 she claims that the

executant was not staying along with her. But reason given in

the Will that the executant was having love and affection

towards her and also says that she is taking care of him and

except the same, nothing is found in the evidence of PW1 and to

take care of him need not be residing along with him. But the

First Appellate Court committed an error in not believing the

evidence of PW2 while considering the minor contradictions with

regard to presence of the beneficiary. PW2 categorically says

that except the attesting witnesses and said Honnegowda, no

other were found in the Sub-Registrar office and the First

Appellate Court given more credence to the evidence of PW3

considering the minor contradictions and the very finding of the

First Appellate Court is erroneous and even not discussed the

evidence of defendant witnesses except discussing the evidence

of PW1 to PW3 and First Appellate Court without analyzing the

evidence of witnesses of defendant and without considering the

admission given by DW1, DW3, DW4, reversed the finding of the

Trial Court. The First Appellate Court even not touched upon the

evidence of DW1 to DW4 and only relied upon the evidence of

PW2 and PW3 that too only for magnifying the minor

contradictions of PW2 and PW3 and erroneously comes to the

conclusion that Will has not been proved. The Court has to take

note of the conduct of DW1 and DW2, who are the son and

daughter of executant Honnegowda, who have gone to the

extent of denying the photograph of their father which was found

in the registered Will. But other witness i.e., DW3 identified the

photograph of the executant Honnegowda and thus, the First

Appellate Court committed an error in only discussing the

evidence of PW1 to PW3 and ought to have exercised the

statutory right of appeal in considering both the question of law

and question of fact and both question of law and fact are not

properly considered by the First Appellate Court while re-

appreciating the material available on record and committed an

error. Hence, the First Appellate Court not justified in holding

that the plaintiff has not established the due execution of the

Will at Ex.P4 and erroneously comes to the conclusion that the

plaintiff fails to prove the due attestation of the same and in

terms of Section 63 of the Hindu Succession Act and in terms of

Section 68 of the Indian Evidence Act, the attestators have been

examined before the Court and their evidence is consistent

except minor contradictions and the same does not goes to the

very root of the execution of the Will. Admittedly, the suit

schedule property is the self-acquired property of the executant

and he has absolute right to execute the Will in favour of his

granddaughter and the same is also proved by the plaintiff

examining PW2 and PW3 and though the defendant/respondent

defence that the executant was not having sound mind, same is

not established. Thus, the First Appellate Court committed an

error in reversing the finding without considering the evidence of

DW1 to DW4 and even failed to consider the admission of DW1

that the suit schedule property is a self-acquired property and as

against the material available on record, the First Appellate

Court committed an error in coming to the conclusion that the

suit schedule property is a ancestral and joint family property

and the same amounts to perversity and hence, the appeal

requires to be allowed and the judgment and decree of the First

Appellate Court requires to be set aside.

14. In view of the discussions made above, I pass the

following:

ORDER

(i) The second appeal is allowed.

(ii) The judgment and decree passed by the First Appellate Court in R.A.No.2/2015 dated 10.01.2018 is hereby set aside. Consequently, the judgment and decree of the Trial Court passed in O.S.No.217/2012 is restored.

(iii) The defendant is directed to demolish the constructed portion made in the suit schedule property and handover the vacant possession of the same in favour of the plaintiff within a period of two months from the date of this order. If the respondent-defendant failed to do so within a period of two months, the plaintiff is at liberty to take possession in accordance with law.

Sd/-

JUDGE

SN