Karnataka High Court
Chinnamani Since Deceased By Lrs C ... vs M Shivashakti W/O M Govindan on 21 November, 2023
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RSA No. 5209 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.5209 OF 2008 (PAR)
BETWEEN:
CHINNAMANI
SINCE DECEASED BY LR'S
C. RAMESH S/O CHINANMARAJU
AGE: MAJOR, OCC: KSRTC EMPLOYEE
R/O: KAMPLI SUGAR FACTORY AREA,
KAMPLI, TALUK HOSAPET.
... APPELLANT
(BY SRI. ARUN L. NEELOPANT, ADVOCATE)
AND:
Digitally signed
by VISHAL
VISHAL NINGAPPA
PATTIHAL 1. M. SHIVASHAKTI W/O M. GOVINDAN
NINGAPPA Date:
PATTIHAL 2023.12.04 AGE: MAJOR, OCC: AGRICULTURE,
12:47:18
+0530 R/O: KAMPLI SUGAR FACTORY AREA,
KAMPLI, TALUK HOSPET.
2. MADHAVARUPPU YARADENEYAKONDAYYA
S/O. M. NARASAIAH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NO 10, MUDDAPUR VILLAGE,
TALUK HOSPET, DIST: BELLARY.
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RSA No. 5209 of 2008
3. S. RAMU S/O. CHINNAIAH GOUNDAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KAMPLI SUGAR FACTORY,
KAMPLI, TALUK HOSPET
DIST: BELLARY.
4. SMT. KALIYAMMA S/O. CHINANMARAJU
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KAMPLIL SUGAR FACTORY AREA,
KAMPLI, TALUK HOSPET.
... RESPONDENTS
(BY SRI. HARSH DESAI, ADVOCATE FOR R1 TO R3;
SRI. S. S. BAWAKHAN, ADVOCATE FOR R4)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGEMENT & DECREE DATED 2/8/2008 PASSED
IN R.A.NO.23/2006 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE (SR.DIVISION), HOSPET, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 3/1/2006
PASSED IN OS.NO.221/1999 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (JUNIOR DIVISION) & JMFC, HOSPET.
THIS REGULAR SECOND APPEAL, COMING ON FOR
FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 5209 of 2008
JUDGMENT
The present Regular Second Appeal by the legatee of
the plaintiff - Chinnamani assailing the concurrent findings
of the Courts below, whereby, the suit seeking partition and
separate possession by the original plaintiff - Chinnamani
was dismissed by the Courts below.
2. The parties herein are referred to as per their
ranking before the Trial Court, for the sake of convenience.
3. This Court, while admitting the appeal, on
10.03.2010, has framed the following substantial question
of law:
"Whether the Courts below were justified in
dismissing the claim of the plaintiff for the share in
the properties in the absence of any deed of partition
or document evidencing the partition, though it was
contended that there is an unregistered deed of
partition which was not admitted in evidence before
the Trial Court?"
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4. This Court at the time of hearing the appeal on
09.11.2023, has framed the following additional substantial
questions of law:
"(i) Whether the Trial Court was justified in holding
that the registered Will executed by the
deceased plaintiff dated 28.02.2000 is not
proved in accordance with Section 63 of the
Indian Succession Act and also Section 68 of
the Indian Evidence Act and whether the First
Appellate Court was justified in holding that
the legatee ought to file separate suit for
declaration?
(ii) Whether the First Appellate Court was justified
in holding that regular appeal is not
maintainable without challenging the judgment
and decree passed in O.S.No.10/2000?"
5. Sri Arun L.Neelopant, learned counsel appearing
for the appellant, Sri Harsh Desai, learned counsel
appearing for respondent Nos.1 to 3 and Sri S.S.Bawakhan,
learned counsel appearing for respondent No.4 have been
heard on the substantial questions of law framed by this
Court on 10.03.2010 and on 09.11.2023.
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6. Suit seeking partition and separate possession
by Chinnamani, wife of Marimuttu against defendant Nos.1
& 2, who are the children of Marimuttu. The plaintiff
contended that the suit schedule properties were the
properties of late Marimuttu and on his death on
30.12.1998, the plaintiff and defendant Nos.1 and 2 being
the children have succeeded to the properties jointly. Since
the defendants made hurried attempt to sell the suit
properties, the plaintiff was constrained to file the suit for
partition.
7. Pursuant to the suit summons issued by the Trial
Court, defendant No.1 appeared and filed the written
statement supporting the claim of the original plaintiff.
Defendant No.1 contended that defendant No.2 without
having any exclusive right has executed a sale deed in
favour of defendant Nos.3 and 4 and the same is not
binding on the plaintiff and defendant No.1. Defendant No.1
contended that she has no objection to decree the suit
granting 1/3rd share in the suit schedule properties.
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8. Defendant No.2, inter alia, contended that the
suit properties were partitioned during the lifetime of
Marimuthu by virtue of document dated 10.12.1998 and
that defendant No.2 acquired right and interest over the
properties allotted to his share by virtue of partition and
she has sold the properties to defendant No.3.
9. Defendant No.3 filed written statement inter alia
contending that he has purchased the plaint schedule
properties from defendant Nos.2 and defendant No.3 is the
absolute owner of the suit properties as per the registered
sale deed and he is in possession and enjoyment of the suit
schedule properties.
10. The original plaintiff died during pendency of the
suit and the legatee of the original plaintiff, appellant herein
son of defendant No.1 came on record by virtue of the Will.
The Trial Court held that the Will at Ex.P-18 is not proved,
while giving finding on additional issue No.1. Purchaser-
Defendant No.3 in O.S.No.221/1999 filed O.S.No.10/2000
against the plaintiff in O.S.No.221/1999 claiming to be in
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possession of the suit schedule properties on the basis of
the registered sale deed dated 14.10.1999 alleged to have
been executed by defendant No.2. Both the suits were
clubbed together and a common judgment was delivered.
The suit in O.S.No.221/1999 came to be dismissed and the
Trial Court held that the Will at Ex.P-18 is not proved.
O.S.No.10/2000 also came to be dismissed, the legatee
under the Will of plaintiff and defendant No.1 preferred
appeal before the First Appellate Court.
11. The First Appellate Court, while reconsidering
and re-appreciating the material on record, oral and
documentary evidence concurred with the judgment and
decree of the Trial Court and held that, since no appeal is
filed against O.S.No.10/2000, the present appeal only,
against the judgment and decree passed in
O.S.No.221/1999 is not maintainable. The appellate Court,
however, set aside the finding of the Trial Court on
additional issue No.1 and held that legatee has to file
separate suit, claiming right under the Will. Aggrieved by
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the judgment and decree of the First Appellate Court, the
legatee has preferred the present second appeal.
12. This Court has carefully considered the rival
contentions urged by the learned counsel appearing for the
parties and perused the material on record including the
original records.
13. Learned counsel for the appellant would contend
that the partition reduced to writing as alleged by
defendant No.2 on 10.02.1988, was not even marked in
evidence and the only reliance placed by defendant No.2 to
substantiate that there was a partition, was the mutation
entry at Ex.D1, which is said to be have been effected after
the death of Marimuttu, based on an alleged partition.
Learned counsel for the appellant would contend that the
deceased propositus Marimuttu, effecting a partition in
respect of the properties is unbelievable, since no share has
been allotted to his daughter, his wife Chinnamani and not
any property was retained for himself. Learned counsel
would contend that defendant No.2 has failed to
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substantiate by leading sufficient evidence, to prove the
alleged partition. Further it is contended that, during the
the pendency of the suit, the plaintiff died and the
appellant, son of the defendant No.1 has been brought on
record as legatee under the Will. The Trial Court has not
considered the evident of attesting witnesses, who were
examined as PW5 & PW6 and categorically stated about the
instructions given by the deceased plaintiff - Chinnamani,
to draft the will and the contents of the Will were read over
to the plaintiff in the presence of witnesses and also again
before the Sub-Registrar and the deceased - plaintiff has
signed the Will in the presence of the attesting witnesses
and attesting witnesses have subscribed to their signature
to the Will and would contend that the Will has been proved
in accordance with Section 63 of the Indian Succession Act,
and Section 68 of the Indian Evidence Act.
14. Learned counsel for the appellant would contend
that the First Appellate Court being the last fact finding
Court ought to have reconsidered the entire oral and
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documentary evidence in proper perspective and the
reasoning accorded by the First Appellate Court, while
setting aside the finding on additional issue Nos.1 & 2, was
not justified in holding that the plaintiff, legatee under the
Will has to file a separate suit. In support of his contention,
learned counsel has relied upon the following decisions.
(i) Ramabai Padmakar Patil (dead) Through
LRs. And others Vs. Rukinibai Vishnu
Vekhande and others1.
(ii) PPK Gopalan Nambiar Vs. PPK
Balakrishnan Nambiar and others2.
(iii) Rabindra Nath Mukherjee and another Vs.
Panchanan Banerjee (dead) by L.Rs., and
others3
(iv) Sri Chinnappa Vs. Corporation of the City
of Bangalroe4
15. Per contra learned counsel appearing for the
respondents would justify the judgment and decree of the
Courts below and would contend that the Courts below
1 (2003) 8 SCC 537
AIR 1995 SC 1852
AIR 1995 SC 1684
AIR 2005 Karnataka 70
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have rightly considered the oral and documentary evidence
and has arrived at a conclusion that the plaintiff is not
entitled for share in the suit schedule properties. Learned
counsel for the respondents would submit that the evidence
of DW.1 needs to be considered as DW.1 has admitted
about the partition having effected and the property have
been fallen to the share of defendant No.2. Learned counsel
for the respondents would contend that the substantial
questions of law framed by this Court needs to be answered
against the appellant.
16. The undisputed fact is that the plaintiff is the
mother of defendant Nos.1 and 2. The suit properties are
the self acquired properties of late Marimuttu, husband of
the plaintiff and father of defendant Nos.1 and 2. Defendant
No.2 has set up a defence of partition, partition dated
10.12.1998 is relied, which is an un-registered document,
the document evidencing partition taken place on
10.12.1998 is not even marked in evidence. Defendant
No.2 resisted the claim of partition and separate possession
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of 1/3rd share of the plaintiff in the suit schedule properties
on the ground that, 20 days prior to the date of death of
Marimuttu the original propositus, there was a partition
which was reduced in writing on 10.12.1998, wherein the
suit properties were allotted to defendant No.2. Partition
deed is invariably an unregistered document, which is not
admissible in evidence. The said document having not even
marked in evidence cannot be looked into. Under the said
circumstances, it has to be held that the plea of defendant
No.2 is that of an oral partition, which is said to have been
effected during the lifetime Marimuttu and whether the
material on record were sufficient to arrive at a conclusion
that there was a partition in respect of the suit schedule
properties. Other than the mutation entry, which is at
Ex.D.1 no other material finds place to establish the
contention of oral partition. The alleged partition which
according to defendant No.2, is without allotting any share
to the plaintiff, without retaining any property Marimuttu
and not allotting any share to defendant No.1. The other
relevant fact that needs to be considered is that the original
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propositus died on 30.12.1998, ME.No.40/1998-99 was
effected showing the name of defendant No.1 and 2 on the
basis of the alleged partition dated 10.12.1998 in respect of
the suit land. The wife of Marimuttu, Chinnamani has filed a
suit for partition claiming 1/3rd share in the suit land.
Defendant No.2 executed a sale deed in suit Sy.Nos.490/A,
490/A/A part measuring 1 acre 15 guntas in favour of
defendant No.3 by way of two registered sale deeds and
Sy.No.490/A/1 part measuring 91 cents in favour of
defendant No.3 on 13.10.1999 and again on 14.10.1999.
17. Defendant No.2 executed the sale deed in
respect of Sy.No.490/A/3 in favour of defendant No.3 and
subsequently, the other suit in O.S.No.10/2000 was filed by
defendant No.3 seeking permanent injunction in respect of
the suit schedule properties. The Trial Court while
dismissing the suit of the plaintiff has given a finding that
the partition deed though not registered and not marked,
the same can be said to have been executed by the
aforesaid Marimuttu. The Trial Court has also held that if an
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unregistered partition deed is acted upon the presumption
is as the partition by metes and bounds.
18. Mere entry in the Record of Rights was reason
for the Trial Court to arrive at a conclusion that there was a
partition effected between the defendants and Marimuttu.
The mutation entry effected on the basis of the partition,
which invariably is an unregistered document and more
over not marked in evidence. The Trial Court could not have
been taken into consideration the said document to arrive
at a conclusion that there was a oral partition. Ex.D.1 which
is the basis for the Trial Court and the First Appellate Court
to come to the conclusion that there was a partition, is not
acceptable and the said revenue entries in the Record of
Rights though may carry presumptive value is only to the
extent of revenue but not to establish the title or partition
in respect of the suit schedule properties.
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19. The Apex Court in the case of Vineeta Sharma
and Rakesh Sharma and others5 has held that in view of
the rigor of provisions of Explanation to Section 6(5) of the
Act of 1956, a plea of oral partition cannot be accepted as
the statutory recognized mode of partition effected by a
deed of partition duly registered under the provisions of
the Registration Act, 1908 or effected by a decree of a
court. However, in exceptional cases where plea of oral
partition is supported by public documents and the partition
is finally evinced in the same manner as if it has been
affected by a decree of a court, it may be accepted. A plea
of partition based on an oral evidence alone cannot be
accepted and to be rejected outrightly.
20. The Trial Court has last sight of the said aspect
and has erroneously arrived at a conclusion that there was
a partition effected in respect of the suit schedule
properties as contended by defendant No.2. The First
Appellate Court on the other hand went to an extent of
ILR 2020 KAR 4370
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holding that the single appeal against the judgment and
decree passed in O.S.No.221/1999 has been filed and the
appeal filed without challenging the dismissal of
O.S.No.10/2000 is not maintainable. It is relevant to note
that O.S.No.10/2000 was filed by defendant No.3-the
purchaser, for permanent injunction against the plaintiff
and defendant No.1 in O.S.No.221/1999. The suits came to
be dismissed by common judgment and admittedly the
plaintiff in O.S.No.10/2000 was lis pendens purchaser. In a
suit for permanent injunction, the question of title of the
plaintiff is not involved and only question is lawful
possession and the incidental finding on the question of
possession does not come in the way in the comprehensive
suit seeking for declaration of title. O.S.No.221/1999 was
filed by deceased plaintiff which is a comprehensive suit for
partition and non filing of an appeal against the findings
recorded in O.S.No.10/2000 cannot be a ground to hold
that the single appeal challenging the judgment and decree
in O.S.No.221/1999 is not maintainable. This Court under
similar circumstances in the case of Chinnappa (stated
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supra) has held at paragraph Nos.5 and 7 which reads as
under:
"5. The Trial Court has thoroughly erred in
understanding the facts and evidence and in drawing
legal inferences. The earlier suit was filed only for
permanent injunction. The question of plaintiffs title
was not in issue in that suit. Only the question of
lawful possession was involved. Incidentally the
plaintiff had relied on the title to prove lawful
possession in the earlier suit. The finding in the
earlier suit on the question of possession does not
come in the way of the plaintiff in the present
comprehensive suit to seek declaration of title. The
defendant categorically admits existence of asbestos
sheet structure and possession of the plaintiff. May be
in the latter portion of the written statement, there is
a general denial of possession but such general denial
cannot take away the legal effect of admission of
possession.
7. The Trial Court in O.S. No. 2252 of 1982
holds that the plaintiff has not proved the title of the
vendor of Ex. P. 2. The pleadings and the issues
perhaps did not warrant any indepth exercise on the
part of plaintiff to prove the title of the vendor of Ex.
P. 2. The facts and pleadings also did not warrant an
issue to that effect. There was no issue regarding title
in the earlier suit. Therefore, the findings in the
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earlier suit filed for bare injunction cannot operate as
res judicata"
21. The suit properties are the self acquired
properties of Marimuttu and hence after his death the
succession takes place by virtue of Section 8 of the Hindu
Succession Act, 1956 and the deceased plaintiff being the
widow and defendant Nos.1 and 2 being the daughters of
Marimattu are entitled for 1/3rd share each in the suit
schedule properties. Since the original plaintiff has
bequeathed her share by virtue of a registered Will, the
appellant is entitled for 1/3rd share in the suit schedule
properties.
22. It is also relevant to consider at this stage that
the First Appellate Court while confirming the judgment and
decree of the Trial Court has set aside the order on
additional issue No.1 and directed the legatee to file a
separate suit. The appellant in order to prove the Will has
examined the attesting witnesses PWs.5 and 6, who have
categorically stated about the instructions given by
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deceased plaintiff Chinnamani to the advocate, to draft the
Will and after getting the Will typed, the contents of the Will
were handed over to the testator in the presence of
witnesses and again the sub-registrar also read over the
contents of the Will before whom the testator admitted the
contents of the Will and testator has signed the Will in the
presence of attesting witnesses, who have subscribed the
signatures to the Will. The aspect has been totally
overlooked by the Courts below.
23. The Apex Court in the case of Ramabai
Padmakar Patil (stated supra), has held at paragraph
Nos.8 to 10 as under:
8. A Will is executed to alter the mode of
succession and by the very nature of things it is
bound to result in either reducing or depriving the
share of a natural heir. If a person intends his
property to pass to his natural heirs, there is no
necessity at all of executing a Will. It is true that a
propounder if the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either
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been excluded or a lesser share has been given to
them, by itself without anything more, cannot be
held to be suspicious circumstance especially in a
case where the request has been made in favour of
an offspring. In PPK Gopalan Nambiar v. PPK
Balakrishan Manbiar and Ors., AIR (1995) SC 1852 it
has been held that it is the duty of the propounder of
the Will to remove all the suspected features, but
there must be real, germane and valid suspicious
features and not fantasy of the doubting mind. In
this case, the fact that the whole estate was given to
the son under the Will depriving two daughters was
held to be not a suspicious circumstance and the
finding to the contrary recorded by the District Court
and the High Court was reversed. In Pushpavati and
Ors. v. Chandraja Kadanba and Ors., AIR (1972) SC
2492, it has been held that if the propounder
succeeds in removing the suspicious circumstance,
the Court would have to give effect to the Will, even
if the Will might be unnatural in the sense that it has
cut off wholly or in part near relations. In Rabindra
Nath Mukherjee and Anr. v. Panchanan
Banerjee (dead) by Lbs. and Ors., [1950] 4 SCC 459,
it was observed that the circumstance of deprivation
of natural heirs should not raise any suspicion
because the whole idea behind execution of the Will
is to interfere with the normal line of succession in
and so, natural heirs would be debarred in every
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case of Will. Of course, it may be that in some cases
they are fully debarred and in some cases partly. The
concurrent finding recorded by the District Court and
the High Court for doubting the genuineness of the
Will on the aforesaid ground was reversed.
9. The learned District Judge has observed that
Smt. Yamunabai was very old when she executed the
Will and she was hard of hearing and was unable to
walk. He further observed that Chhaya Dighe who
typed the Will and one Shri Tiwari, Advocate, who
was present at the time of preparation and execution
of the Will, were not examined and these facts
together created a doubt regarding the authenticity
of the Will. As discussed earlier, in view of Section
63 of Indian Succession Act the proviso to Section
68 of the Evidence Act, the requirement of law would
be fully satisfied if only one of the attesting witness
is examined to prove the Will. That this had been
done in the present case by examining PW2
Raghunath Govind Sogale cannot be disputed. No
infirmity of any kind had been found in the testimony
of this witness. Chhaya Dighe merely typed the Will
and she is not an attesting witness nor it is
anybody's case that Smt. Yamunabai had put her
thumb impression on the Will in her presence,
therefore, her examination as a witness was wholly
redundant. The mere non examination of the
Advocate who was present at the time of preparation
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or registration of the Will cannot, by itself, be a
ground to discard the same. The fact that Smt.
Yamunabai was hard of hearing or that she was
unable to walk does not lead to an inference that her
mental faculties had been impaired or that she did
not understand the contents of the document which
she was executing. It is important to note that Smt.
Yamunabai personally came to the office of the Sub-
Registrar and her death took place after a
considerable period i.e. 3 years and 9 months after
the execution of the Will. No evidence has been
adduced by the defendants to show that at the time
of the execution of the Will she had been suffering
from any such ailment which had impaired her
mental faculties to such an extent that she was
unable to understand the real nature of the
document which she was executing. We are,
therefore, clearly of the opinion that the finding
recorded by the learned District Judge, which has
been affirmed by the High Court in second appeal, is
not based upon a correct application of legal
principles governing the proof and acceptance of Will
and the same is completely perverse. The aforesaid
finding is accordingly set aside. The finding recorded
by the trial Court that Will is genuine is hereby
restored.
10. The next question which requires
consideration is whether the plaintiff-appellant would
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become the owner of the entire property which
belonged to Madhav. The learned Civil Judge (Jr.
Divn.) has held that as Madhav died on 6.6.1956,
Smt. Yamunabai after coming into force of Hindu
Succession Act became owner of entire property. The
learned District Judge has reversed this finding and
has held that Madhav died sometime in the year
1957 i.e. after 17.6.1956 when Hindu Succession
Act had come into force and consequently Smt.
Yamunabai and all her daughters would get equal
share in the property. The High Court did not go into
this question at all and dismissed the second appeal
after expressing agreement with the finding of the
learned District Judge regarding the character of the
Will. We have carefully perused the judgment of the
trial Court and also of the first appellate Court on
this point and we are of the opinion that the finding
recorded by the learned District Judge to the effect
that Madhav died sometime after enforcement
of Hindu Succession Act is based upon a correct and
proper appraisal of evidence and no exception can be
taken to the same. In this view of the matter, Smt.
Yamunabai will have only l/8th share in the estate
left by Madhav which alone would go to the plaintiff
on the basis of the Will executed in her favour.
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24. The Apex Court in the another decision in the
case of PPK Gopalan Nambiar (stated supra) at
paragraph No.4 has held as under:
"4. On appeal, the subordinate Judge has
given various reasons to accept the validity of the
Will. One of the reasons is that it is a registered Will
and the endorsement by the Registrar would show
that the testator was in a sound disposing state of
mind and that it was executed out of her free will
and that, therefore, the discrepancy in the evidence
of DW-2, an attestor does not vitiate the validity of
the Will. On appeal, the learned single Judge without
going into the evidence has stated in one sentence
that he agrees with the reasoning of the trial Court
and does not agree with the reasoning of the
appellate Court. We are at a loss to appreciate the
view taken by the learned Judge. The High Court
also stated that the whole of the estate given to the
son under the Will would itself generate suspicious
circumstance. It is difficult to accept the reasoning
of the learned Judge. Admittedly, the Will was
executed and registered on 1.11.1955 and she died
8 years thereafter in the year 1963. When the
appellant had propounded the Will in his written
statement, nothing prevented either the respondent
or any of the contesting defendants to file a
rejoinder i.e. additional written statement with leave
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of the Court under Order VIII, Rule 9 pleading the
invalidity of the Will propounded by the appellant.
Nothing has been stated in the pleadings. Even in
the evidence when the appellant was examined as
DW-1 and his attestor was as DW-2, nothing was
stated with regard to the alleged pressure said to
have been brought about by the appellant to
execute the Will. In the cross-examination by the
first respondent, no attempt was even made to
doubt the correctness of the Will."
25. The testator executed registered Will in her
sound disposing state of mind as spoken to by the attesting
witnesses and the legatee has dispelled the suspicious
circumstances surrounding the Will and the attestation of
the Will as envisaged under Section 63 of the Indian
Succession Act and Section 68 of the Indian Evidence Act.
26. The deceased plaintiff was entitled to 1/3rd share
in the estate of Marimuttu, which alone would go to the
legatee though under the Will the entire suit schedule
properties were bequeathed. This Court having held that
the Will has been proved, the legatee under the Will would
be entitled to the share that the deceased plaintiff was
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entitled to. The findings recorded by the Trial Court and the
First Appellate Court on additional issue No.1 warrants
interference by this Court.
27. The Apex Court in the case of Santosh Hajari
Vs. Purushottam Tiwari6 has laid down as to how the
First Appellate Court has to conduct the appeal under
Section 96 of CPC. The Apex Court at paragraph No.15 has
held as under:
"15. A perusal of the judgment of the trial
court shows that it has extensively dealt with the
oral and documentary evidence adduced by the
parties for deciding the issues on which the parties
went to trial. It also found that in support of his plea
of adverse possession on the disputed land, the
defendant did not produce any documentary
evidence while the oral evidence adduced by the
defendant was conflicting in nature and hence
unworthy of reliance. The first appellate court has, in
a very cryptic manner, reversed the finding on
question of possession and dispossession as alleged
by the plaintiff as also on the question of adverse
possession as pleaded by the defendant. The
appellate court has jurisdiction to reverse or affirm
(2001) 3 SCC 179
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the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted by
law, the whole case is therein open for rehearing
both on questions of fact and law. The judgment of
the appellate court must, therefore, reflect its
conscious application of mind and record findings
supported by reasons, on all the issues arising along
with the contentions put forth, and pressed by the
parties for decision of the appellate court. The task
of an appellate court affirming the findings of the
trial court is an easier one. The appellate court
agreeing with the view of the trial court need not
restate the effect of the evidence or reiterate the
reasons given by the trial court; expression of
general agreement with reasons given by the court,
decision of which is under appeal, would ordinarily
suffice (See Girijanandini Devi v. Bijendra Narain
Choudhary8). We would, however, like to sound a
note of caution. Expression of general agreement
with the findings recorded in the judgment under
appeal should not be a device or camouflage
adopted by the appellate court for shirking the duty
cast on it. While writing a judgment of reversal the
appellate court must remain conscious of two
principles. Firstly, the findings of fact based on
conflicting evidence arrived at by the trial court must
weigh with the appellate court, more so when the
findings are based on oral evidence recorded by the
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same Presiding Judge who authors the judgment.
This certainly does not mean that when an appeal
lies on facts, the appellate court is not competent to
reverse a finding of fact arrived at by the trial Judge.
As a matter of law if the appraisal of the evidence by
the trial Court suffers from a material irregularity or
is based on inadmissible evidence or on conjectures
and surmises, the appellate court is entitled to
interfere with the finding of fact. (See Madhusudan
Das v. Narayanibai9) The rule is -- and it is nothing
more than a rule of practice -- that when there is
conflict of oral evidence of the parties on any matter
in issue and the decision hinges upon the credibility
of witnesses, then unless there is some special
feature about the evidence of a particular witness
which has escaped the trial Judge's notice or there is
a sufficient balance of improbability to displace his
opinion as to where the credibility lie, the appellate
court should not interfere with the finding of the trial
Judge on a question of fact. (See Sarju Pershad
Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh10)
Secondly, while reversing a finding of fact the
appellate court must come into close quarters with
the reasoning assigned by the trial court and then
assign its own reasons for arriving at a different
finding. This would satisfy the court hearing a further
appeal that the first appellate court had discharged
the duty expected of it. We need only remind the
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first appellate courts of the additional obligation cast
on them by the scheme of the present Section 100
substituted in the Code. The first appellate court
continues, as before, to be a final court of facts;
pure findings of fact remain immune from challenge
before the High Court in second appeal. Now the first
appellate court is also a final court of law in the
sense that its decision on a question of law even if
erroneous may not be vulnerable before the High
Court in second appeal because the jurisdiction of
the High Court has now ceased to be available to
correct the errors of law or the erroneous findings of
the first appellate court even on questions of law
unless such question of law be a substantial one."
28. The Apex Court has held that the task of the
Appellate Court affirming the findings of the Trial Court is
an easier one and the First Appellate Court being the last
fact finding Court in the sense, that its decision on question
of law even if erroneous, may not be vulnerable before the
High Court in the second appeal because the jurisdiction of
the High Court has now been ceased to be available to
correct the errors of law or erroneous findings of the First
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Appellate Court even on questions of law, unless such
question of law be a substantial one.
29. The First Appellate Court being the last fact
finding Court ought to have re-appreciated and
reconsidered the entire oral and documentary evidence
indecently in proper perspective. The said consideration
having not been exercised by the First Appellate Court, the
same warrants interference by this Court. Accordingly, the
substantial question of law framed by this Court needs to
be answered in favour of the appellant holding that the
Courts below were not justified in dismissing the suit of the
plaintiff for partition and separate possession, in the
absence of any deed of partition or document evidencing
partition though it was contended that there is an
unregistered deed of partition which was not marked in
evidence before the Trial Court and the legatee under the
Will has proved the execution and attestation of the Will as
required under Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act. In the said
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circumstances substantial question of law are answered
accordingly.
30. In the result this Court pass the following;
ORDER
i) The Regular Second appeal is hereby
allowed.
ii) The impugned judgment and decree of the
Courts below are set aside, the suit of the
plaintiff is decreed and plaintiff and
defendant Nos.1 and 2 are entitled for 1/3rd
share in the suit schedule properties.
Sd/-
JUDGE
VNP & EM / CT: UMD
