G Jeevanraj vs Balasubramanya
2023 Latest Caselaw 301 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JANUARY, 2023

                          BEFORE

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

                   R.S.A.NO.833 OF 2020

BETWEEN:

G.JEEVANRAJ,
B.BHASKAR BABU,
AGED ABOUT 21 YEARS,
GENERAL HOSTEL ROAD,
MUDIGERE ROAD, BELUR TOWN,
BELUR.
HASSAN DISTRICT - 573 201.
                                                ...APPELLANT
             (BY SRI. PRASANNA B.R, ADVOCATE)

AND:

1 . BALASUBRAMANYA,
    S/O. T. GOVINDARAJU,
    AGED ABOUT 56 YEARS,
    R/AT HARSHA ANANDA NILAYA,
    KALIDASA EXTENSION,
    2ND CROSS, SIDDARUDA NAGAR,
    BHADRAVATHI TOWN,
    SHIVAMOGGA DISTRICT - 577 301.

2 . G. BHASKAR BABU,
    S/O. T. GOVINDARAJU,
    AGED ABOUT 48 YEARS,
    GENERAL HOSTEL ROAD,
    MOODIGERE ROAD,
    BELUR TOWN, BELURU,
    HASSAN DISTRICT - 573 115
                                        2



3 . G. MEENAKSHI,
    W/O. LATE RAJENDRA,
    AGED ABOUT 50 YEARS,
    SDA TALUK OFFICE,
    SHIVAMOGGA CITY,
    SHIVAMOGGA - 577 201.
                                                            ....RESPONDENTS

           (BY SRI. MOHAN KUMAR T., ADVOCATE FOR R1
                SRI RAJKUMAR R, ADVOCATE FOR R3
                 R2-SERVED AND UNREPRESENTED)

    THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DATED: 16.10.2019
PASSED IN RA.NO.22/2018 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED: 31.01.2018 PASSED IN O.S.NO.19/2015
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., BELUR.

    THIS R.S.A., COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

      This       matter          is        listed          for        admission

today.


      2.     Heard     the   learned       counsel        appearing    for    the

appellant, the learned counsel appearing for respondent No.1

and the learned counsel appearing for respondent No.3.

Respondent No.2 is served and unrepresented.

3. This appeal is filed challenging the judgment and

decree dated 16.10.2019 passed in R.A.No.22/2018 on the file of

the III Additional District & Sessions Judge, Hassan.

4. Defendant No.3 is the appellant before this Court,

who was minor represented through his natural guardian, father-

G. Bhaskar Babu-defendant No.1 in O.S.No.19/2015.

5. The factual matrix of the case of the plaintiff before

the Trial Court is that the original propositus Govindaraju was

having his wife namely Jayalakshmamma. The said couple was

having their children namely plaintiff and defendant Nos.1 and 2.

The said Govindaraju was not having any ancestral properties

and similarly the said Jayalakshmamma was also not having any

properties from her parental side. The said Govindaraju was a

carpenter by profession and he has purchased the suit properties

in the name of Jayalakshmamma out of the income that derived

from the said profession with an intention that his children

should not give any trouble to his wife in future and her children

should treat her very well. The said Jayalakshmamma was not

having any avocation and she was a housewife and led the

family out of the income earned by her husband. The defendant

No.1's marriage was solemnized during the year 2001. After his

marriage, he started to reside separately from his parents. The

plaintiff was looking after his parents as he is eldest son and the

responsibility was shouldered on him. On 15.12.2008, the said

Govindaraju was paralyzed and he was under treatment for

three months and on 25.03.2009, he has called all his children

and told that he is not going to make any division in respect of

the said suit properties and asked his children to get division of

the suit properties consequent upon his death, and handed over

all the original documents to the plaintiff, and on 18.12.2010 he

died leaving behind his wife and children. The plaintiff was

looking after his mother and defendant No.2. On 21.12.2013,

the said Jayalakshmamma also passed away. He has performed

all the death rituals. Defendant No.1 has requested the plaintiff

to reside in the house, wherein, his parents were residing, as the

plaintiff was residing at Bhadravathi, hence permitted defendant

No.1 to stay in the house as the said house will not be

destroyed. After six months, the plaintiff has requested

defendant Nos.1 and 2 to make division of the suit properties,

but he has postponed on one pretext or the other. On

11.03.2015, the plaintiff has called defendant No.1 telephonically

to make division of the properties, for that also, defendant No.1

kept mum. Therefore, on 02.06.2015, the plaintiff has convened

panchayath with elderly persons including his cousin Chelvaraj to

division the suit properties, at that time, defendant No.1 has

stated that his mother has bequeathed the suit properties in

favour of defendant No.3 i.e., defendant No.1's son namely

Jeevanraj by way of Will and expressed that he was not ready to

divide the suit properties. Under the circumstances, without

having any other alternative remedy, the plaintiff has

approached the Trial Court by filing a suit seeking the relief of

partition and contended that the alleged will is created and

concocted.

6. In pursuance of the suit filed by the plaintiff,

defendant No.1 had appeared and filed the written statement,

admitting the death of the parents and also admitting the

relationship between the parents but contended that his parents

were having 4 children namely Girija, plaintiff and defendant

Nos.1 and 2. But the said Girija was no more. The plaintiff has

not averred in the plaint about the said Girija and the genealogy

is not correct. The suit properties were purchased in the name

of Jayalakshmamma during her life time, which is self acquired

properties, either plaintiff or defendants are not having any right

over the suit properties. Defendant No.1 also contended that

when the Will was executed in favour of defendant No.3, the

plaintiff and other defendants are not having any right in respect

of the suit schedule properties. Hence, the Trial Court has

framed the issues and recorded the evidence.

7. The plaintiff in order to substantiate his case

examined himself as P.W.1 and also examined two witnesses as

PWs.2 and 3 and got marked the documents as Exs.P1 to P9. On

the other hand, defendant No.1 has examined himself as D.W.1

and also examined two witnesses as D.Ws.2 and 3 and not

marked any documents.

8. The Trial Court after considering both oral and

documentary evidence available on record dismissed the suit by

answering issue Nos.1 to 6, as negative. Hence, the appeal was

filed before the First Appellate Court by the plaintiff. The First

Appellate Court having considered the material available on

record and on re-appreciation, reversed the findings of the Trial

Court and granted the relief in favour of the plaintiff and also

granted share in respect of other children, who are the children

of Jayalakshmamma and Govindaraju, by granting 1/4th share in

respect of the suit schedule properties. Hence, the present

second appeal is filed before this Court.

9. The main contention of the learned counsel

appearing for the appellant in the present appeal is that the First

Appellate Court has committed an error in granting share in

favour of one of the daughter of Jayalakshmamma and

Govindaraju, who is not a party to the proceedings. The learned

counsel also would vehemently contend that the First Appellate

Court failed to appreciate the provision under Order 32 Rule 3A

of CPC., and protect the interest of the minor, who is the

appellant herein. Though the minor represented through his

father, the father has not protected the interest of the minor

even though there was a Will in favour of him. The said Will

though placed before the Trial Court, the same was not marked.

When the judgment and decree passed against the interest of

the minor, the substantial question of law arises for

consideration of this Court. Hence, the matter requires to be at-

least remanded by the First Appellate Court in order to prove the

Will, which was claimed by defendant No.1 executed in favour of

defendant No.3. The plaintiff has not disproved the Will dated

14.09.2012 executed in favour of defendant No.3. Hence, it

requires interference and the substantial question of law has to

be framed.

10. Per contra, learned counsel appearing for the

respondent/plaintiff would contend that the Trial Court has

committed an error in answering all the issues as negative. It is

the case of the plaintiff before the Trial Court that the suit

schedule properties are the self-acquired properties of his father,

the same was purchased in the name of the plaintiff's mother

Smt. Jayalakshmamma. Though it is contended that the

Stridhana properties of their mother Smt. Jayalakshmamma and

there was a Will dated 14.09.2012 in favour of third defendant,

the same has not been proved. The said Will is not marked.

Though contended that their mother Smt. Jayalakshmamma had

executed a registered will on her absolute self-acquired

properties in favour of her grand son by name G. Jeevanraj, who

is the third defendant, the same also not been proved. Even

though answered issue Nos.3 and 4 as negative, the Trial Court

dismissed the suit and committed an error. Hence, an appeal is

filed before the First Appellate Court.

11. The learned counsel would submit that the First

Appellate Court on re-appreciation of both oral and documentary

evidence available on record and coming to the conclusion that

the property belongs to Smt. Jayalakshmamma. Smt.

Jayalakshmamma and Govindaraju were having four children

and no dispute with regard to the fact that they were having four

children and even though one of the daughter is not a party to

the proceedings, granted 1/4th share in respect of the suit

schedule properties since the Will also not been proved by

defendant No.1, who is a natural guardian of defendant No.3.

The learned counsel also would submit that though it is

contended that it is a Stridhana property, the same is also not

been proved. The First Appellate Court on re-appreciation of the

material available on record rightly came to the conclusion that

when the property belongs to Smt. Jayalakshmamma, who is the

mother of defendant Nos.1 and 2 and also the mother of the

plaintiff and not committed any error in granting the relief

reversing the judgment and no substantial question of law arises

for consideration of this Court. Hence, it requires to be

dismissed.

12. Having heard the respective counsel and also on

perusal of the material available on record, it is not in dispute

that the properties stand in the name of Smt. Jayalakshmamma,

who is the mother of the plaintiff and defendant Nos.1 and 2. It

is also the claim of the plaintiff that the property belongs to

Smt.Jayalakshmamma and the plaintiff is entitled for 1/3rd

share. The records also reveal that the plaintiff while filing the

suit, not arrayed one of his sister Smt. Girija, as party to the

proceedings but during the course of the evidence, it has

emerged that one more daughter by name Girija was also born

to Smt. Jayalakshmamma and Govindaraju. The said fact has

not been disputed by both the plaintiff as well as the first

defendant. The Trial Court also while on appreciation of the

material available on record, in the absence of the Will, which

has been claimed by defendant No.1 contending that the same is

executed by Smt. Jayalakshmamma in favour of his son, who

has been arrayed as third defendant. Hence, answered the issue

as negative. Though produced the Will, not marked the

document and proved the execution of the Will. When the Will is

propounded, the same has to be proved by the person, who

propound the Will and the same should be proved without any

suspicion. The learned counsel appearing for the appellant would

vehemently contend that the Will was produced before the Trial

Court, but the same was not marked. The learned counsel

appearing for the appellant also would vehemently contend that

the minor interest cannot be defeated on account of his father

has not conducted the case properly. The fact that the first

defendant, who is the father of the minor viz., first defendant

himself has filed the written statement before the Trial Court and

he contested the matter that there was a Will. It is also

important to note that when he had the knowledge about the

Will was not produced before the Trial Court, when the appeal

was also filed by the appellant - plaintiff before the First

Appellate Court and not made any efforts to even seeking for

permission to mark the document of Will before the First

Appellate Court or place the original Will before the Court and

not made any attempt to prove the Will by examining the

witnesses, but only took the defense that the Will was executed

in favour of the third defendant, who is a minor. Admittedly, no

doubt, he was a minor. At the time of filing the suit, he was

aged about 15 years. But father was represented as natural

guardian to minor and he himself has been examined as DW.1

before the Trial Court. Hence, the very contention of the learned

counsel for the appellant that the minor interest has not been

protected cannot be accepted for the reason that the natural

guardian father led his evidence by examining himself as DW.1

but not produced the Will.

13. The other contention of the learned counsel

appearing for the appellant is that he is also a beneficiary in view

of the judgment and decree. No doubt, while appointing a

guardian, the guardian should not have any interest. Here is a

case of the father is a natural guardian, who contested the

matter before the Trial Court by filing the written statement and

he himself has been examined as D.W.1 and no document was

placed before the Court, even though took the defense that the

property is a Stridhana property and also the property belongs

to Smt. Jayalakshmamma and she had executed the Will. No

effort was made before the Trial Court or before the First

Appellate Court to place and mark the document by seeking

permission of the First Appellate Court. The First Appellate Court

also on re-consideration of both oral and documentary evidence

available on record, formulated the point that whether the Trial

Court has committed an error in dismissing the suit and

answered point No.1, having considered the material available

on record i.e., the property belongs to Smt. Jayalakshmamma

and the same was purchased in the name of Smt.

Jayalakshmamma. When the Will was not proved, Smt.

Jayalakshmamma died intestate, the legal heirs are entitled for

share and the legal heirs are the plaintiff and defendant Nos.1

and 2. Apart from that, when the material discloses that Smt.

Jayalakshmamma and Govindaraju were having a daughter by

name Girija, which has not been disputed by both the plaintiff as

well as defendants; taking note of the said fact into

consideration, the First Appellate Court reversed the finding of

the Trial Court in coming to the conclusion that when the will has

not been proved, the legal heirs of the original owner-Smt.

Jayalakshmamma granted the decree. I do not find any error

committed by the First Appellate Court in reversing the finding

and the material is very clear that the Will has not been proved

though it is propounded that the Will was executed in favour of

the third defendant. Hence, the reasoning given by the First

Appellate Court that the Will has not been proved and also the

property belongs to Smt. Jayalakshmamma and she died

intestate. Hence, her children are class-1 heirs and they are

entitled for share. The First Appellate Court discussed Section 14

of the Hindu Succession Act, 1956 with regard to Stridhana

property in paragraph Nos.16 and 17 and also given the

reasoning for granting the share as the same is not proved as

Stridhana property. When such being the material on record, I

do not find any error committed by the First Appellate Court and

no substantial question of law arises before the Court. Even

though one of the daughters is not a party to the proceeding,

the First Appellate Court taken note of the interest of the other

daughter, granted the share. In a suit for partition also even if a

party is not made as a party, she can be arrayed in the final

decree proceedings while drawing up of the same. Hence, the

very contention of the learned counsel appearing for the

appellant that when the daughter Girija is not a party to the

proceedings, granted share, cannot be accepted and granting of

share is in accordance with law. There is no dispute with regard

to the relationship between the parties. Hence, no ground is

made out to invoke Section 100 of CPC., to frame any

substantial question of law.

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

following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, I.A.No.1/2020 for stay

does not survive for consideration, the same stands disposed of.

Sd/-

JUDGE

cp*