Karnataka High Court
K G Chandramouli vs K G Nagabhushana on 3 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 424 of 2023
C/W RSA No.421 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.424 OF 2023 (PAR/DEC)
CONNECTED WITH
REGULAR SECOND APPEAL NO.421 OF 2023 (PAR/DEC)
IN R.S.A.No.424/2023
BETWEEN:
K G CHANDRAMOULI
S/O LATE K GOPALA SHASTRY,
AGED ABOUT 59 YEARS,
R/O PATTALAMANE VILLAGE,
THIRTHAHALI TALUK-577432
Digitally signed SHIVAMOGGA DISTRICT.
by DEVIKA M ...APPELLANT
Location: HIGH
COURT OF (BY SRI P N HARISH, ADVOCATE)
KARNATAKA
AND:
1. K G NAGABHUSHANA
S/O K GOPALA SHASTRY,
AGED ABOUT 64 YEARS,
R/O KELKERE VILLAGE, MELIGE POST,
THIRGHAHALLI TALUK-577432.
SHIVMOGGA DISTRICT.
2. K G NARAYANASWAMY
S/O LATE K GOPALA SHASTRY,
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RSA No. 424 of 2023
C/W RSA No.421 of 2023
AGED ABOUT 62 YERS,
R/O THONACHI KOPPA,
LAKSHMI TEMPLE, T BEGUR POST,
NELAMANGALA TALUK-562123,
BENALURU DISTRICT.
3. GIRIJAMMA, W/O LATE K GOPALA SHASTRY,
AGED ABOUT 80 YEARS,
R/O PATTALAMANE VILLAGE,
THIRTHAHALLI TALUK-577 432.
SHIVMOGGA DISTRICT.
4. K G PRASANNA, S/O LATE K GOPALA SHASTRY,
AGED ABOUT 57 YEARS,
R/O PATTALAMANE VILLAGE,
THIRHTAHALLI TALUK-577 432,
SHIVAMOGGA DISTRICT-577201.
5. K G RAMESH SHASTRY
S/O LATE K GOPAL SHASTRY,
AGED ABOUT 55 YEARS,
EMPLOYEE PRAGATHI GRAMEENA BANK
SAGAR BRANCH,
SAGAR TALUK-577401
SHIVAMOGGA DISTRICT.
6. K G SUDHAMANI
D/O LATE K GOPAL SHASTRY,
W/O H N DATTATHREYA,
AGED ABOUT 53 YEARS,
R/O NO.20, 3RD CROSS,
YOGA NARSIMHA
NEAR SOMANNA GARDEN,
DURGAPARAMESHWARI LAYOUT,
VIDYARANYAPURAM
BENGALURU -560097.
...RESPONDENTS
(BY SRI PRASAD B S, ADVOCATE FOR C/R2)
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RSA No. 424 of 2023
C/W RSA No.421 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022
PASSED IN R.A.No.71/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
IN R.S.A.No.421/2023
BETWEEN:
K G CHANDRAMOULI
S/O LATE K.GOPALA SHASTRY,
AGED ABOUT 59 YEARS,
R/O PATTALAMANE VILLAGE,
THIRTHAHALLI TALUK-577 432.
SHIVAMOGGA DISTRICT.
...APPELLANT
(BY SRI P N HARISH, ADVOCATE)
AND:
1. K G NAGABHUSHANA
S/O K.GOPALA SHASTRY,
AGED ABOUT 64 YEARS,
R/O KELKERE VILLAGE, MELIGE POST,
THIRTHAHALLI TALUK-577 432,
SHIVAMOGGA DISTRICT.
2. K.G.NARAYANAMURTHY
S/O LATE K.GOPAL SHASTRY
AGED ABOUT 62 YEARS,
R/O THONACHI KOPPA
LAKSHMI TEMPLE, T.BEGUR POST,
NELAMANGALA TALUK-562 123
BENGLAUR DISTRICT.
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RSA No. 424 of 2023
C/W RSA No.421 of 2023
3. GIRIJAMMA
W/O LATE K.GOPALA SHASTRY
AGED ABOUT 80 YEARS,
R/O PATTALAMANE VILLAGE,
THIRITHAHALLI TALUK-577432
SHIVAMOGGA DISTRICT.
4. K.G.PRASANNA
S/O LATE K.GOPAL SHASTRY.
AGED ABOUT 57 YEARS,
R/O PATTALAMANE VILLAGE,
THIRITHAHALLI TALUK-577432
SHIVAMOGGA DISTRICT.
5. K.G.RAMESH SHASTRY
S/O LATE K.GOPAL SHASTRY
AGED ABOUT 55 YEARS,
EMPLOYEE: PRAGATHI GRAMEENA BANK,
SAGAR BRANCH,
SAGAR TALUK-577 401,
SHIVAMOGGA DISTRICT.
6. K.G.SUDHAMANI
D/O LATE K.GOPAL SHASTRY
W/O H.N.DATTATHREYA
AGED ABOUT 53 YEARS,
YOGA NARASIMHA
NEAR SOMANNA GARDEN,
DURGAPARAMESHWARI LAYOUT,
VIDYARANYAPURAM,
BENGALURU-560 097.
...RESPONDENTS
(BY SRI PRASAD B S, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022
PASSED IN R.A.No.70/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
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RSA No. 424 of 2023
C/W RSA No.421 of 2023
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are taken up together since the
parties are one and the same and both the second appeals
are arising out of the common judgment and decree
passed by the First Appellate Court.
2. These appeals are listed for admission. Heard
the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiffs
before the Trial Court that defendant Nos.2 to 5 are the
children of late K Gopala Shastri and defendant No.1 is the
wife of said K Gopala Shastri. The said Gopala Shastri
originally hailed from Somavarasanthe, Tudur hobli of
Thirthahalli taluk and subsequently he went to
Pattalamane village to Thirthahalli taluk. After that he has
separated from his brother Rama Shastri and settled in
Pattalamane village in the year 1960. The plaintiffs and
defendants are the legal heirs of late Gopala Shastri. The
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late Gopala Shastri after separated from his brother Rama
Shastri, filed a declaration before the Land Tribunal
Thirthahalli and got confirmation of occupancy rights in his
favour on behalf of the joint Hindu family as head and
Manager or Kartha of the family. As such, after enquiry,
the said authorities have issued Form No.10 in favour of
joint Hindu family. Some of the properties are purchased
by late Gopala Shastri out of the joint family funds and
hence, they are also joint family properties. It has come to
the knowledge of the plaintiffs that defendant No.2 has
secretly created a Will and on that basis, he applied for
khata before Tahasildar and same has been opposed by
the plaintiffs and defendant No.5. The Tahasildar,
Thirthahalli has registered the dispute in
R.R.T.S.H.R.14/2005-06 and holding enquiry, mutated the
khata in favour of defendant No.2 and the said order was
challenged by defendant Nos.1 and 4 before the Assistant
Commissioner, Shivamogga in two appeals i.e., in
P.D.A.Nos.140/06-07 and 187/07-08 and Assistant
Commissioner held an enquiry on 30.08.2011 passing
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order and set aside the order passed by the Tahsildar,
Thirthahalli. In terms of the order of the Assistant
Commissioner, the properties were mutated in the joint
names of plaintiffs and defendants. It is contended that
defendant No.2, on the basis of alleged Will has filed
probate in P&SC No.11/2011 before the Principal Civil
Judge (Sr. Dn.), Shivamogga and the same is pending for
consideration. It is also contended that alleged Will dated
15.12.2004 and the alleged gift deed dated 23.07.2004
are illegal, void and unenforceable and not binding on the
plaintiffs' share in the suit schedule properties. Hence,
sought for the relief of declaration and partition.
4. In pursuance of the suit summons, the
defendants appeared and filed the written statement.
Defendant Nos.1, 3 and 5 contend that during the lifetime
of K Gopala Shastri, the plaintiffs have received their share
and have executed the documents to that extent and have
also executed the bond for having received their share and
cash and hence they are not entitled for any share in the
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suit schedule properties. The suit is only filed to harass
the aged mother and there is no cause of action to file the
suit. There is no document adduced to show that the suit
schedule properties are the joint family properties and the
same are a self-acquired properties of K Gopala Shastri.
Hence, the plaintiffs are not entitled for share in the suit
properties.
5. Defendant No.4 has filed written statement
admitting the plaint averments and he contend that he
was working as a peon at Salur. Defendant Nos.1 to 3 by
colluding with each other created the documents to defeat
the share of defendant No.4 as well as plaintiffs. The
deceased K Gopala Shastri did not have right to execute
Will dated 15.12.2004 since the properties shown in the
Will are the joint family properties. The deceased Gopala
Shastri did not have any intention to execute such type of
documents. The gift deed executed is not binding on
defendant No.4. Defendant No.4 is not having any
independent possession. Defendant No.4 is living in a
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rented house and he is not having source of income.
Defendant Nos.1 to 3 are enjoying the suit schedule
properties. Hence, prayed the Court to grant the relief.
6. Defendant No.2 also filed the written statement
contending that the said K Gopala Shastri has executed a
registered Will dated 15.12.2004 by bequeathing the
properties in favour of his surviving family members and
also made declaration in the Will itself that shares are
given in favour of the plaintiffs to the tune of
Rs.2,20,000/- each in cash as they were not staying in the
house of the deceased Gopala Shastri and prayed the
Court to dismiss the suit.
7. The Trial Court considering the pleadings of the
parties framed the Issues and Additional Issue and allowed
the parties to lead their evidence. The Trial Court after
considering both oral and documentary evidence placed on
record comes to the conclusion that occupancy rights
granted in favour of the father of the plaintiffs K Gopala
Shastri would enure to the benefit of entire family and did
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not accept the contention of the defendants regarding
execution of the Will and the plaintiffs have received
Rs.2,20,000/- towards their share and executed the
relinquishment deed since there is no material placed
before the Court to substantiate the same. Hence, the suit
of the plaintiffs is decreed and granted 1/7th share each in
favour of the plaintiffs in the suit schedule properties by
effecting partition and also declared that the Will dated
15.12.2004 executed in respect of the suit schedule
property is void, illegal and not binding on the plaintiffs'
share in the suit schedule properties and also held that
defendant No.4 is also entitled for 1/7th share in the suit
schedule properties. Being aggrieved by the judgment
and decree of the Trial Court, three appeals are filed in
R.A.Nos.70/2018, 71/2018 and 77/2018.
8. Defendant Nos.1, 3 and 5 have filed
R.A.No.77/2018 and defendant No.2 has filed
R.A.Nos.70/2018 and 71/2018. The First Appellate Court
considered all the appeals together since the same are
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arising out of the common judgment passed by the Trial
Court. The First Appellate Court having considered the
grounds urged in the respective appeals formulated the
points and having reassessed both oral and documentary
evidence placed on record comes to the conclusion that
the grant made in favour of Gopala Shastri is for the
benefit of the family and Will propounded by defendant
Nos.1, 3 and 5 have not been proved and payment of
Rs.2,20,000/- each to the plaintiffs also not proved since
no documents are placed before the Court to accept the
contention that a reference is made in the Will by the
father of the plaintiffs i.e., Gopala Shastri. Hence, the
First Appellate Court confirmed the judgment and decree
of the Trial Court. Being aggrieved by the said concurrent
finding of both the Courts, the present second appeals are
filed before this Court by defendant No.2.
9. The main contention of the counsel appearing
for the appellant/defendant No.2 that both the Courts
have committed an error in holding that the suit schedule
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properties are the joint family properties of the plaintiffs
and defendants and deceased K Gopala Shastri filed
declaration for conferment of occupancy rights not as an
individual but for the family. The learned Trial Judge failed
to notice that in the declaration made by deceased K
Gopala Shastri marked as Ex.P2, he has categorically
made a statement that for the past twenty years, he has
been cultivating this land personally and in the column
mentioned for narrating details of his family members, he
has mentioned the names of his wife, sons and daughter.
This itself does not give an indication that he made
declaration for the benefit of family and not as an
individual. The counsel further would vehemently contend
that both the Courts have failed to take note of important
admissions made by PW1 with regard to the factum of
individual cultivation by his father and he having migrated
without any nucleus by working hard cultivated personally
as a tenant. It is also contend that the Trial Court
committed an error in coming to the conclusion that Will
has not been proved. The counsel also submit that an
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attempt is made before the First Appellate Court to
examine the attested witnesses but the First Appellate
Court not allowed the appellant to lead evidence and
prayer was rejected. The counsel also would vehemently
contend that when the property is the absolute property of
Gopala Shastri, the plaintiffs are not entitled for any share.
The counsel also submits that in terms of the Will,
provision is made to all the children and also reference
was made in respect of the plaintiffs that an amount of
Rs.2,20,000/- each was given to them and not disinherited
any of the family members even after executing the Will.
Hence, this Court has to admit the appeal and frame the
substantial questions of law for reconsideration of the
second appeal since the very approach of both the Courts
is erroneous.
10. Per contra, the learned counsel appearing for
the respondent No.2/plaintiff would vehemently contend
that the plaintiffs have relied upon the documents
particularly the document at Ex.P2 i.e., Form No.7. In
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Form No.7, specific details are given with regard to the
family. The order of the Land Tribunal is at Ex.P3 and the
same is also very clear that though grant was made in the
name of K Gopala Shastri, the same is for the benefit of
the family and Ex.P4 is the certified copy of Form No.10.
The counsel also would vehemently contend that Ex.P5
and P6 are the mutations and though an attempt was
made to grab the property based on the Will, the same
was also challenged. The counsel contend that though the
Tahsildar confirmed keeping the revenue records in the
name defendant No.2 and the said order was set aside by
the Assistant Commissioner and also relies upon the
documents at Ex.P7 to P14 i.e., RTC extracts and Ex.P15
to P18 i.e., the demand register extracts. The counsel
would vehemently contend that when the grant is made in
favour of Gopala Shastri for the benefit of family and other
properties are also purchased that is item No.3 out of the
joint nucleus hence, father was not having any absolute
right to execute the Will as well as gift and the same is not
binding on the plaintiffs. Hence, the Trial Court as well as
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the First Appellate Court rightly held that grant made in
favour of the father of the plaintiffs i.e., Gopala Shastri
would enure to the benefit of entire family and not
committed any error in passing such an order.
11. Heard the learned counsel appearing for the
respective parties and perused the material available on
record. The counsel for the appellant also brought to
notice of this Court with regard to Form No.7 which was
filed before the competent authority for granting of the
property. When he filed Form No.7 before the authority he
had mentioned that Yajamana of family is Gopala Shastri
and his wife name is also mentioned and also he has given
the details of all the family members including the children
who are the minors and particulars are given stating that
family is consisting of 8 persons and also declaration was
made that family is not having any other property and
information what he has given are true and correct.
Hence, it is very clear that he has given all details of
family members as well as property. Hence, it is clear that
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the very application though filed in the individual capacity,
details are furnished and no dispute with regard to the
granting of property by the Land Tribunal.
12. The counsel for the appellant also brought to
notice of this Court to the pleadings made in the plaint by
furnishing the certified copies before the Court while
arguing the matter wherein, in paragraph 2 it is stated
with regard to the relationship between the parties and
produced genealogical tree. It is also stated in the plaint
that Gopala Shastri originally hailed from
Somavarasanthe, Tudur hobli of Thirthahalli taluk and he
has separated from his brother Rama Shastri and settled
in Pattalamane village in the year 1960. It is also stated
that he died leaving behind the plaintiffs and defendants
on 05.11.2005 and all of them succeeded to his estate as
class I heirs under Hindu Succession Act. The plaint 'A' and
'B' schedule properties are the immovable properties and
'C' schedule property is movable property and specific
averment is made that the suit schedule properties are the
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joint family properties and it was Moolageni tenancy lands
enjoyed as joint Hindu family acquisitions.
13. Having considered the pleadings of the
plaintiffs, though the counsel contend that not specifically
pleaded with regard to the joint occupation and
confirmation of title for the family, a specific pleading is
made and also pleading is made with regard to the filing of
probate petition before the Court and hence, not
suppressed anything. Having taken note of the material
available on record, no doubt, there is a Will executed in
favour of defendant Nos.1 to 3 and 5 and the Trial Court
also comes to the conclusion that Will has not been proved
since none of the attesting witnesses have been examined
before the Court. No doubt, the counsel for the appellant
brought to notice of this Court that an averment is made
in the Will that an amount of Rs.2,20,000/- each was paid
to the plaintiffs and they have received their share and
relinquished their right. But in order to comes to such a
conclusion, no material is placed before the Court. Both
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the Courts rightly come to the conclusion that in the
absence of any documentary evidence for having made
the payment and relinquishment of right, relief sought by
the appellant cannot be granted.
14. In paragraph 7 of the plaint given the details of
family members and it is also stated that the plaintiffs and
defendants are minors at the time of giving an application
and also declare that the family is not having any other
property except seeking the conferment of occupancy
right. It is stated that subsequent purchase is also made
with the joint nucleus and no other independent income
was having by the father. Such being the material
available on record, it is clear that Will was not proved
under Section 68 of the Indian succession Act as well as
63 of the Indian Evidence Act by examining the attesting
witnesses. No doubt, the counsel for the appellant
brought to notice of this Court that the properties are
given to all of them that is house property and other
properties but no provision is made in favour of the
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plaintiffs except stating in the Will that an amount of
Rs.2,20,000/- was paid and for having made the payment
also, no document is placed and none of the witnesses
were also examined to support the case of the defendants
for having made payment of Rs.2,20,000/- towards share
of the plaintiffs. When such materials are not available
before the Court, I do not find any error committed by
both the Courts in coming to the conclusion that the
property is available for partition.
15. The counsel would vehemently contend that an
application is filed before the First Appellate Court seeking
permission to examine the attesting witnesses. First
Appellate Court formulated the point in this regard but
answered the same as negative in coming to the
conclusion that taking into note of the affidavit
accompanying I.A.No.3 does not disclose any sort of
reason which is acceptable by this Court. As per the
provisions of Order 41 Rule 27(a) of CPC, the parties to
the appeal can be permitted to lead additional evidence
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only upon satisfying appellate Court the conditions
mentioned therein wherein it has been stated that the
applicant must establish that despite his due diligence he
could not adduce said evidence or that the said evidence
was not available at the state of trial before the Trial Court
and the same is of recent origin. Absolutely none of the
reasons are assigned in the application, as such, in view of
the absence of satisfactory reasons assigned by the
appellant in I.A.No.3 cannot be entertained and the First
Appellate Court also given the reason while rejecting the
application when the certified copy is produced before the
Trial Court as Ex.D11. When the original is in the custody
of the appellant ought to have been produced the original
and examined the attesting witnesses. But the fact that
he also filed a probate petition before the Principal Civil
Judge is also not in dispute. But no such attempt was
made before the Trial Court. Hence, the First Appellate
Court taking into note of the grounds envisaged under
Order 41 Rule 27(aa) of CPC comes to the right conclusion
that no such effort was made before the Trial Court to
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produce the document and nothing is prevented him to
adduce the evidence to prove the Will and the document is
not of recent origin and detailed order has been passed by
the First Appellate Court. When reasons are assigned
stating that mere filing of an application under Order 41
Rule 27 of CPC not enough and the appellant has to satisfy
the grounds urged in the said application. Thus, I do not
find any ground to come to other conclusion and hence,
the matter does not require any reconsideration and there
is no grounds to admit the appeal and frame substantial
questions of law invoking Section 100 of CPC.
16. In view of the discussions made above, I pass
the following:
ORDER
The regular second appeals are dismissed.
Sd/-
JUDGE
SN
