Karnataka High Court

Mrs Kempamma vs Mr G Somashekhar on 14 February, 2024

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                                                           NC: 2024:KHC:6401
                                                       RFA No. 1745 of 2013




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 14TH DAY OF FEBRUARY, 2024

                                          BEFORE
                            THE HON'BLE MR JUSTICE C M JOSHI
                    REGULAR FIRST APPEAL NO. 1745 OF 2013 (PAR/DEC)
                   BETWEEN:

                   1. MRS. KEMPAMMA,
                      W/O LATE B.GAVISIDDAIAH,
                      AGED ABOUT 82 YEARS.
                      SINCE DEAD BY HER LRS,
                      WHO ARE ALREADY ON RECORD AS
                      AS APPELLANTS 2 TO 6 AS HEREUNDER.

                   2. MRS.UMADEVI,
                      D/O LATE B.GAVISIDDAIAH.
                      SINCE DEAD BY HER LRS.

                      2(a) SRI P PURUSHOTHAMA,
                           S/O LATE K PUTTASWAMY,
                           AGED ABOUT 41 YEARS.

Digitally signed      2(b) SMT. P HEMALATH,
by                         D/O LATE K PUTTASWAMY,
ANNAPURNA G                AGED ABOUT 38 YEARS.
Location: High             R/AT NO.9, 5TH MAIN,
Court of
Karnataka                  AISHWARYA LAYOUT,
                           DODDAKALLASANDRA,
                           BANGALORE-62

                      2(c) SRI P ASHWATH,
                           S/O LATE K.PUTTASWAMY,
                           AGED ABOUT 36 YEARS.

                      THE RESPONDENT NO. 2(a) & 2(c)
                      ARE R/AT NO.232, 7TH CROSS,
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                                          NC: 2024:KHC:6401
                                       RFA No. 1745 of 2013




     7TH MAIN, RPC LAYOUT,
     VIJAYANAGARA IInd STAGE,
     BANGALORE-40.

3. MRS. SATHYASHEELA,
   D/O LATE B.GAVISIDDAIAH,
   SINCE DEAD BY HER LRS.

     3(a) SRI H KRISHNAIAH,
          S/O HONNEGOWDA,
          H/O LATE SATHYASHEELA,
          AGED ABOUT 74 YEARS.

     3(b) SMT. NITHYAYANI.K,
          D/O H KRISHNAIAH,
          AGED ABOUT 27 YEARS.

     BOTH R/AT NO. 246, 9TH 'A'
     MAIN ROAD, VIJAYANAGARA,
     BANGALORE- 560 040.

4. MRS. PARVATHAMMA,
   D/O LATE B.GAVISIDDAIAH,
   AGED ABOUT 48 YEARS.

5. MRS. ARUNDATHI,
   D/O LATE B.GAVISIDDAIAH,
   AGED ABOUT 45 YEARS.

6.   MRS. CHAYADEVI,
     D/O LATE B.GAVISIDDAIAH,
     AGED ABOUT 42 YEARS.
     APPELLANTS 3 TO 6 ARE R/AT
     NO.8, 7TH CROSS, VINAYAKANAGAR,
     OLD GUDDADAHALLI,
     BANGALORE-560 026.
                                              ...APPELLANTS
(BY SRI T SESHAGIRI RAO, ADVOCATE)
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                                                    NC: 2024:KHC:6401
                                                 RFA No. 1745 of 2013




AND:

MR. G SOMASHEKHAR,
S/O LATE B.GAVISIDDAIAH,
AGED ABOUT 62 YEARS,
R/AT NO.42, 3RD CROSS,
ANUBHAVANAGAR,
NAGARBHAVI ROAD,
BANGALORE-560 072.
                                                       ...RESPONDENT
(BY SRI HARIPRASAD M.B, ADVOCATE)

     THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 19.9.2013 PASSED IN
O.S.NO.6695/2008 ON THE FILE OF THE V ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR
PARTITION, SEPARATE POSSESSION, DECLARATION.

     THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

Heard the learned counsel appearing for the

appellants. There is no representation for the respondents

on the last occasion when the appeal was heard and also

today when the appeal is heard.

2. Being aggrieved by the judgment and decree

passed in OS No.6695/2008 by the learned V Additional

City Civil and Sessions Judge, Bangalore, dated

NC: 2024:KHC:6401

19-09-2013, the defendants are in appeal before this

Court.

3. The brief facts are as below:

The plaintiff, who is the sole respondent herein filed

a suit for partition of his 1/7th share in the suit schedule

properties by metes and bounds and to declare the

partition deed dated 29-08-2009 entered into between

defendant Nos. 1 to 6 is not binding on him. According to

the plaintiff, he is the son of B. Gavisiddaiah and

defendant Nos. 1 to 6 are the daughters of B.

Gavisiddaiah. The suit schedule properties are the

ancestral and joint family properties of plaintiff and

defendants. It was contended that suit schedule Item No.1

was purchased by B. Gavisiddaiah, the father of the

plaintiff when he was in Government Service in the name

of his second wife Gopamma. Thereafter, out of the joint

family funds a building was constructed in the said

property and the plaintiff as well as defendants have

succeeded to the estate of B. Gavisiddaiah and Gopamma.

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It was stated that B. Gavisiddaiah and Gopamma died

intestate. The said Gopamma died issueless and

therefore, the plaintiff and defendant Nos. 1 to 6 have

succeeded to the suit schedule properties and as such, the

plaintiff is entitled for 1/7th share in the same. It was

further contended that a demand for legitimate share was

refused by the defendants and therefore, he was

constrained to file the suit.

4. On issuance of summons, the defendants

appeared and defendant No.1 Kempamma, who is the first

wife of B. Gavisiddaiah filed the written statement and the

same was adopted by the remaining defendants.

5. The defendants contended that the plaintiff is

not the son of B. Gavisiddaiah either born through

defendant No.1 or through second wife Gopamma. In

fact, the plaintiff is the son born to one Huchaiah, who was

the brother of B. Gavisiddaiah. It was contended that

since B. Gavisiddaiah had no sons, he fostered the

plaintiff and in school records the name of B. Gavisiddaiah

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was mentioned as father of the plaintiff. The said B.

Gavisiddaiah was not the natural/biological father of the

plaintiff and there was no legal adoption. It was further

contended that the suit schedule item No.1 was purchased

by Gopamma out of her own income as she was also a

Government Servant. During her life time, Gopamma

executed a registered Will dated 26-07-2007, bequeathing

the entire property to defendant Nos. 2 to 6. Therefore,

by virtue of the said Will, defendant Nos. 2 to 6 have

become absolute owner and the plaintiff has no locus

standi to question the said Will of Gopamma. It was also

contended that defendant Nos. 2 to 6 have entered into a

mutual partition among themselves under a registered

partition deed and the plaintiff did not question the same

till the life time of Gopamma. Therefore, the defendants

have sought for dismissal of the suit.

6. On the basis of the above pleadings, the

following issues were framed by the trial Court:

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1. Whether the plaintiff proves that the suit schedule property is the joint and ancestral property of plaintiff and defendants?

2. Whether the first defendant proves that the plaintiff is not the son of Gavisiddaiah and the suit property does not belong to Gavisiddaiah?

3. Whether the first defendant proves that the suit property belong to Mrs. Gopamma and she has bequeathed the same under the registered Will dated 26.7.2007 in favour of defendant No.2 to 6?

4. Whether the suit schedule property is properly valued and court fee paid is proper and correct?

5. Whether plaintiff is entitled for relief claimed in the suit?

6. What order or decree?

7. Plaintiff entered into witness box and deposed

as PW1 and Exhibits P1 to P16 were marked on his behalf.

Defendant No.3 entered into the witness box and deposed

as DW1 and the attesting witness to the partition deed i.e.

Shivalingaiah was examined as DW2 and Exhibits D1 to D7

were marked on behalf of defendants.

8. After hearing the arguments, the trial Court

answered issue Nos. 1, 4 and 5 in the affirmative and

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issue Nos. 2 and 3 in the negative and decreed the suit.

Being aggrieved by the said judgment, defendants No. 2

to 6 are before this Court in appeal.

9. During the pendency of this appeal, appellant

No.1 Kempamma and appellant Nos. 2 and 3 have died

and their legal representatives were brought on record.

Sathyasheela who was DW1 and defendant No.3 is also no

more.

10. On issuance of notice, respondent/plaintiff

appeared through his counsel. On admitting the Appeal,

the trial Court records have been secured.

11. In this appeal, the learned counsel for

appellants has filed an application under Order 41 Rule 27

CPC i.e. IA No.1/2014 seeking production of additional

evidence.

12. The respondent/plaintiff though had appeared

through his counsel has not filed any objections to the said

application.

NC: 2024:KHC:6401

13. The learned counsel appearing for the

appellants would submit that defendant No.1 who is the

mother of defendant Nos. 2 to 6 has categorically denied

in her written statement that the plaintiff was the son of B.

Gavisiddaiah. She had stated that plaintiff was the son of

Huchaiah, but B. Gavisiddaiah brought him up since he

did not have any male child. It is submitted that the

contention of the plaintiff that the suit schedule properties

were acquired by Gopamma through the income of B.

Gavisiddaiah was also not established by the plaintiff. But

however, the trial Court by relying on the School Transfer

Certificate produced by plaintiff at Ex.P7 came to the

conclusion that the plaintiff is the son of B. Gavisiddaiah

and therefore, decreed the suit. The said reliance by the

trial Court on Ex.P7 is not justifiable since Ex.P7 is not

proved as required under law. He submits that except

Ex.P7, there is nothing else which would show that the

plaintiff was the son of B. Gavisiddaiah and Kempamma

or Gopamma. When Kempamma had categorically denied

in her written statement that plaintiff was not her son and

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NC: 2024:KHC:6401

also that Gopamma had categorically mentioned in her Will

that she do not have any children, it was incumbent upon

the plaintiff to prove Ex.P7 by examining the author and

producing the necessary school records. Therefore, the

reliance placed by the trial Court on Ex.P7 is not

sustainable in law.

14. The second prong of the arguments by the

learned counsel for appellants is that, Gopamma had

acquired item No.1 of the suit schedule property out of

her own income and it was standing in her name. When

there is no iota of evidence to show that the property was

acquired in the name of Gopamma by B. Gavisiddaiah,

even otherwise, the property acquired by a female hindu

would be her absolute property and therefore, the plaintiff

could not find any fault with the same. It is submitted that

the said Will executed by Gopamma was not traceable by

the present appellants. Unfortunately, Kempamma was not

examined before the trial Court though she has filed the

written statement. The Will executed by Gopamma, the

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NC: 2024:KHC:6401

partition deed and such other documents were in the

custody of Kempamma and she died during the pendency

of this appeal on 07-02-2014. It is submitted that

Kempamma being aged, could not handover those

documents to the counsel who was dealing her case. It is

submitted that remaining appellants came across these

original documents when they were searching the

belongings of Kempamma and immediately after they can

lay hands on the same, it was handed over to their

counsel and they have filed the present application under

order 41 Rule 27 CPC. It is submitted that the documents

in the form of partition deed and Will executed by

Gopamma, go to the root of the case and they are the

documents that are essential for the Court to come to a

proper conclusion. When there is oral testimony which

show that the plaintiff is not the biological son of either B.

Gavisiddappa, Kempamma or Gopamma, Ex.P7 alone

could not have been a clinching document to establish the

relationship. Therefore, he submits that the documents

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NC: 2024:KHC:6401

which are now sought to be produced as additional

evidence are essential for just decision in the matter.

15. The provisions of order 41 Rule 27 CPC lay

down that only in the circumstances enumerated in Sub

Rule (1), the additional evidence can be permitted to be

adduced. The three circumstances are:

(a) The trial Court should have refused to admit the evidence which ought to have been admitted;

(b) The party seeking to produce additional evidence establish that despite due diligence, it was not possible for him/her to produce it;

(c) The appellate court requires the documents to be produced or witness to be examined to enable it to pronounce an effective judgment.

16. When the present application under order 41

Rule 27 CPC is examined in the light of the above

mentioned three conditions available in Sub Rule 1 of Rule

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27, it is evident that the appellants herein were the

children of Kempamma. Now Kempamma is no more.

Kempamma should have produced these documents

before the trial Court as it was her categorical defence that

the plaintiff was not the son of B. Gavisiddaiah. For the

reasons not known, she did not produce the same before

the trial Court. Now the available evidence show that

Kempamma die don 07-02-2014. The present application

under order 41 Rule 27 CPC has been filed on 17-10-2014.

This shows that the applicant / 6th appellant apparently

searched the belongings of Kempamma and she came

across the material documents which are in support of

their case. For the wrong committed by Kempamma, the

present appellants cannot be penalised. Sofar as the

applicants and the present appellants are concerned, they

have shown due diligence and obviously when it was in the

custody of Kempamma, they could not have lay hands on

the same whatever may be the diligence expected by

them.

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NC: 2024:KHC:6401

17. Secondly, as argued by learned counsel for

appellants, the material question is, whether the plaintiff is

a biological son of B.Gavisiddaiah?

18. The two wives of B. Gavisiddaiah have denied

that plaintiff was the son of B. Gavisiddaiah. They have

stated that the plaintiff was not born to them. Therefore,

their contention and the evidence available on record goes

against Ex.P7 which is relied by the plaintiff. To clinch as

to whether Ex.P7 is reliable or, Will of Gopamma during

her life time would be acceptable, it is necessary that the

application filed by applicants through 6th appellant needs

to be allowed and the documents sought to be produced at

present are necessary in order to ascertain the contentions

taken up by defendants in their written statement. It is

relevant to note that when the suit was filed by the

plaintiff in the year 2008, Kempamma was aged 77 years.

The Court also takes note of this fact while considering

what amount of diligence could have been exercised by

Kempamma during her life time. For these reasons, the

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application deserves to be allowed and accordingly, it is

allowed.

19. It is evident that, the documents now sought to

be produced are the two Wills executed by Gopamma,

deed of cancellation of the Will, the partition deed entered

into between the defendants, sale deed executed in favour

of Gopamma and the sale deed of her vendor. Obviously,

in order to establish these documents, there would be

necessity of the oral testimony also. It is not known

whether the attesting witnesses of the Will of Gopamma

are alive or not. Unfortunately, Kempamma was not

examined though she was an attesting witness. Therefore

it would be proper to remand the matter to the trial Court

with a direction to consider those documents sought to be

produced by the appellants and to allow the oral evidence

to be adduced by them and then alone the finding on the

question of relationship of plaintiff and B. Gavisiddappa be

given. Hence, the following:

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                                                 NC: 2024:KHC:6401





                            ORDER


     (i)     The appeal is allowed.


     (ii)    The impugned judgment and decree passed by

the trial court in OS No.6695/2008 on 19-09-2013 is

hereby set aside.

(iii) Matter is remanded to the trial Court with a

direction to permit the appellants/defendants and the

plaintiff/respondent to adduce evidence in the matter

concerning the documents which are part of the

application filed under Order 41 Rule 27 CPC and then

render its judgment.

(iv) Matter being of the year 2008, it is expected that

the trial Court to complete the entire exercise within a

period of six months from the date of receipt of trial Court

records.