Karnataka High Court
Sri K V Nagesh Gowda vs Sri Munivenkatappa K.M on 31 October, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1716 OF 2014 (DEC/INJ)
BETWEEN:
SRI. K.V. NAGESH GOWDA
AGED ABOUT 33 YEARS
S/O. SRI K.M. VENKATAPPA
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
... APPELLANT
(BY MR: G. PAPIREDDY, SR. COUNSEL, A/W
MR: V. VINOD REDDY, ADVOCATE)
AND:
1. SRI MUNIVENKATAPPA K.M.
AGED ABOUT 74 YEARS
S/O. LATE SRI HOOVALLI MUNISWAMY
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
2. SRI CHINNAPPAIAH
AGED ABOUT 51 YEARS
S/O. LATE SRI HOOVALLI MUNISWAMY
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
3. SRI KARENNANAVARA NARAYANAPPA
AGED ABOUT 68 YEARS
S/O. SRI HANUMAPPA
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
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4. SRI CHOWDAPPA
AGED ABOUT 38 YEARS
S/O. SRI KARENNANAVRA NARAYANAPPA
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
5. SRI RAMAIAH
AGED ABOUT 53 YEARS
S/O. SRI KARENNANAVRA NARAYANAPPA
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
6. SRI LAKSHMAIAH
AGED ABOUT 30 YEARS
S/O. SRI KARENNANAVRA NARAYANAPPA
R/O. KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
7. SRI K.M. UMESH
AGED ABOUT 27 YEARS
S/O SRI K.M. MUNIVENKATAPPA
NO. 642, UTTARAHALLI
BALALBHANAGARA
SUBRAMANYAPURAM POST
BENGALURU - 560 001.
8. SRI. K.C. NAGARAJ
AGED ABOUT 26 YEARS
S/O. SRI K.M. CHINNAPPAIAH
KADENAHALLI VILLAGE
BYRAKUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT - 563 131.
... RESPONDENTS
(BY MR: K.K. VASANTH, ADVOCATE FOR R1 AND R7;
MR.:K. SEENAPPA, ADVOCATE FOR R2 AND R8;
R3, 4, 5 AND R-6 ARE SERVED.)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT & DECREE DATED 12.8.2014 PASSED IN
R.A.NO.83/2011 ON THE FILE OF II ADDITIONAL SENIOR CIVIL
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JUDGE AND JMFC, KOLAR, (ITINERATING AT MULBAGAL)
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 1.4.2011 PASSED IN OS.NO.198/2007 ON THE FILE
OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, MULBAGAL.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-plaintiff is before this Court being aggrieved by the judgment and decree dated 01.04.2011 passed in OS No.198 of 2007 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC at Mulbagal (hereinafter referred to as 'the Trial Court' for brevity), dismissing the suit filed by the plaintiff for the relief of declaration and permanent injunction, which was confirmed by the judgment dated 12.08.2014 passed in RA No.83 of 2011 on the file of the learned II Additional Senior Civil Judge and JMFC at Kolar (itinerating at Mulbagal) (hereinafter referred to as 'the First Appellate Court' for brevity).
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the appellant herein as plaintiff filed OS No.198 of 2007 against the 4 defendants for declaration of his title over the suit schedule properties and for perpetual injunction. It is contended by the plaintiff that he is the owner in possession of the suit schedule properties as he acquired the same under the registered Will executed by Smt.Muniyamma, wife of late Hoovalli Munishami on 18.06.2004 which was registered on 23.06.2004. It is stated that the plaintiff is the grand son of the testator Muniyamma through her son K M Venkatappa. Muniyamma was residing in the house of plaintiff and it was the plaintiff and his father who looked after her, till her death. Muniyamma died on 14.07.2004.
4. It is stated that Muniyamma had cancelled the registered Will dated 22.09.1986 executed by her and her husband in favour of defendant Nos.7 and 8 by executing the registered cancellation deed dated 16.06.2004 which came to be registered on 23.06.2004. It is stated that the registered Will dated 18.06.2004 is the last testament executed by the testator Muniyamma and by virtue of the same, suit properties devolved on the plaintiff after her death. Since then, the plaintiff is in peaceful possession and enjoyment of the suit properties. The defendants are not having any right, 5 title or interest over the suit properties. They started threatening to dispossess the plaintiff. In the meantime, plaintiff approached the Deputy Tahsildar, Byrakur for change of khata on the basis of registered Will, but since khata was not changed, plaintiff has approached the Civil Court seeking declaration of his title on the basis of the suit properties.
5. The schedule appended to the plaint describes 3 items of the properties i.e., (i) 10.04 acres of land in Sy.No.80, (ii) 4 acres of land in Sy.No.81/P2 situated at Kadenahalli village, Byrakur Hobli, Mulbagal Taluk and (iii) the house property situated at Kadenahalli village bearing K.No.67 measuring East to West 45 feet and North to South 81 feet.
6. On service of notice, defendant No.1 appeared before the Trial Court and filed written statement denying the contention of the plaintiff. However, the relationship between the parties is admitted. The contention taken by the plaintiff that Muniyamma died on 14.07.2004 is also admitted. It is contended that there is no cause of action for the suit. It is submitted by defendant No.1 that Hoovalli Munishami 6 separated from his brother and started earning his livelihood by doing agricultural labour. He had no other source of income for his subsistence. He acquired the agricultural land and house properties from out of his hard earned money and in the meantime, he married Muniyamma. Therefore, some of the properties were purchased in the name of Muniyamma. Munishami and Muniyamma got 4 sons. The eldest being K M Venkatappa, the father of the plaintiff, the second son is K M Munivenkatappa - defendant No.1. The third son is K M Venkatarame Gowda is not made as party to the suit. The fourth son is K M Chinnappaiah, is arrayed as defendant No.2. Defendant Nos.7 and 8 are the sons of defendant Nos.1 and 2 respectively.
7. It is contended that Hoovalli Munishami is the kartha of the family and he convened the meeting of all his sons and the villagers on 13.09.1980 and effected partition of his properties. 'A', 'B', 'C' and 'D' suit properties were allotted in favour of his 4 sons under the assignment deed of even date. Munishami retained 10.04 acres of land in Sy.No.80 comprising of mango garden for his subsistence and gave 4 acres of land in Sy.No.81 for the subsistence of his wife 7 Muniyamma for her life time, with the consent of all the children. Thus, item Nos.1 and 2 of the suit properties were in possession of Munishami and Muniyamma respectively even after partition amongst the sons. K M Munivenkatappa and K M Chinnapaiah, the second and fourth sons of Munishami and Muniyamma were allotted 'B' and 'D' properties under the assignment deed dated 13.09.1980 who were arrayed as defendant Nos.1 and 2. They were called upon to discharge the existing loan against the suit properties as on that date as per the condition stipulated in the assignment deed dated 13.09.1980. Accordingly, defendant Nos.1 and 2 have discharged the loan existed on the family properties and they have improved the properties stood in their names. It was decided that the properties which were in the possession of Munishami and Muniyamma is to be inherited by defendant Nos.1 and 2 after the demise of their parents. It is specifically stated that defendant No.1 should inherit the property which was retained by Munishami and defendant No.2 should inherit the property that was given in favour of Muniyamma.
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8. It is stated that even though K M Venkatappa, the father of plaintiff was party to the family assignment, he filed the suit in OS No.4 of 1990 against defendant Nos.1 and 2 and against Muniyamma seeking partition and separate possession of the properties. The said suit came to be dismissed. He had preferred appeal in RA No.13 of 1996 before the District and Sessions Judge at Kolar. The appeal also came to be dismissed as per compromise petition filed by the parties. A settlement deed was executed on 13.09.1980. It is contended that the father of the plaintiff colluded with him and they have created a sham documents said to be the Will executed by late Muniyamma. It is contended that Muniyamma had no manner of right, title or interest over the properties in question. After the death of Munishami and Muniyamma, defendant Nos.1 and 2 have became the absolute owners in peaceful possession and enjoyment of the properties in question.
9. It is also contended that behind the back of defendant No.1, Munishami and Muniyamma have executed the joint registered Will dated 22.09.1986 in favour of defendant No.7 in respect of Sy.No.80 which was standing in 9 the name of Munishami and in favour of defendant No.8 in respect of Sy.No.81 which was standing in the name of Muniyamma. It is contended that Muniyamma had no right to bequeath the suit property in favour of the plaintiff and she never executed any Will or cancellation deed as contended. Accordingly, defendant No.1 prays for dismissal of the suit.
10. On the basis of these pleadings, the Trial Court framed the following issues:
"1. Whether the plaintiff proves that the plaintiff is the owner in possession and enjoyment of suit schedule properties and he having acquired the same by virtue of registered Will executed by name Muniyamma on 18.06.2004?
2. Whether the plaintiff further proves that defendants are trying to dispossess the plaintiff form the suit schedule properties?
3. Whether the defendants prove Smt.Muniyamma is not entitled to bequeath the property in favour of anybody muchless in favour of plaintiff as contended in para-12 of the written statement?
4. Whether the defendants further prove that the 1st defendant has became the absolute 10 owner in possession and enjoyment of the property in Sy.No.80 as contended in para-13 of the written statement?
5. Whether the defendants further prove the value of the suit schedule properties is more than Rs.10,00,000/- (Rs. Ten Lakhs only) hence this court has no pecuniary jurisdiction to try this suit as contended in para-7 of the written statement?
6. Whether the plaintiff is entitled for the declaration as prayed?
7. Whether the plaintiff is entitled for permanent injunction as prayed?
8. What order or decree?"
11. The plaintiff got examined himself as PW1 and examined four witnesses as PWs.2 to 5 and got marked Exs.P1 to P12 in support of his contention. Defendant No.1 got himself examined DW1 and examined four witnesses as DWs.2 to 5 and got marked Exs.D1 to D8 in support of his defence. The Trial Court after taking into consideration all these materials on record answered issue Nos.1, 2, 5, 6 and 7 in Negative and issue Nos.3 and 4 in Affirmative and accordingly, dismissed the suit of the plaintiff with costs. 11
12. Being aggrieved by the same, the plaintiff preferred RA No.83 of 2011. The First Appellate Court after considering the materials on record confirmed the impugned judgment and decree passed by the Trial Court and dismissed the appeal. Being aggrieved by the same, the plaintiff is before this Court.
13. Heard Sri G Papireddy, learned senior advocate for Sri V Vinod Reddy, learned counsel for the appellant and Sri K K Vasanth, learned counsel for respondent Nos.1 and 7 and Sri K Seenappa, learned counsel for respondent Nos.2 and 8. Perused the materials including the Trial Court records.
14. Learned senior advocate for the appellant submitted that the relationship between the parties is admitted. It is also admitted by the defendants that Hoovalli Munishami and his wife Muniyamma have executed the Will as per Ex.D3 and have reserved their rights to cancel the Will during their lifetime and accordingly, after the death of Hoovalli Munishami, Muniyamma executed the cancellation deed of the Will on 16.06.2004 as per Ex.P2. She has also executed the registered Will dated 18.06.2004 as per Ex.P1 in 12 favour of the plaintiff. The plaintiff examined PWs.1 to 5, including the attesting witness to prove the Will - Ex.P1 and the cancellation deed - Ex.P2. Both these documents are registered documents. There is absolutely no reason to disbelieve these documents. When the earlier Will was cancelled, the defendants cannot take advantage of the said Will or the earlier partition deed that was entered into between Hoovalli Munishami and his sons. Admittedly, Hoovalli Munishami retained the suit property for himself and his wife. He further submitted that the limited estate granted in favour of Muniyamma over the suit property is enlarged in view of Section 14(1) of the Hindu Succession Act. Therefore, she was the absolute owner of the suit property and accordingly executed the cancellation deed of the Will and executed separate Will as stated above. The authority of Muniyamma to execute these registered documents cannot be questioned by the defendants.
15. Learned senior advocate submitted that the Trial Court as well as the First Appellate Court have committed an error in forming an opinion that Muniyamma was aged 97 years and therefore, she executing the cancellation deed of 13 the Will and the separate Will, is suspected. The defendants have never denied the execution of Will and the sound disposing state of mind of Muniyamma at the relevant point of time, while filing the written statement. PWs.2 and 5 are the attesting witnesses and PW4 - the son of the scribe have categorically deposed regarding the execution of Exs.P1 and
2. No shadow of doubt is cast on these documents. But the Trial Court proceeded to disbelieve these documents on imaginary grounds.
16. Learned senior advocate further contended that the First Appellate Court acting under Section 96 of CPC should have re-appreciated the oral and documentary evidence, but without doing so, it has upheld the impugned judgment and decree passed by the Trial Court. No proper points for consideration were raised by the First Appellate Court, which vitiates its judgment.
17. Learned senior advocate further submitted that an application under Order XLI Rule 27 of CPC was filed before the First Appellate Court for summoning the Sub-Registrar to produce the thumb impression register maintained in his 14 office. But the said application came to be dismissed without assigning cogent reasons. However, at the same time, it is commented as to why the plaintiff has not examined the Sub- Registrar who registered the documents. Therefore, the finding of the Trial Court and the First Appellate Court are perverse and without taking into consideration the oral and documentary evidence placed before them. Hence, these judgments and decree are to be set aside.
18. Learned senior advocate further submitted that he has filed IA.1 of 2021 for production of additional documents and IA.2 of 2022 for framing additional substantial questions of law. In view of the findings recorded by the Trial Court as well as the First Appellate Court, raising doubt on the contentions taken by the plaintiff, additional documents were produced. These documents would assist the Court in pronouncing the judgment. The additional documents i.e., the original receipt dated 29.10.2021 and the original loan discharge certificate dated 29.11.2021 issued by HOPCOMS, Lalbagh, Bengaluru, would prove that it is the plaintiff who discharged the loan that was standing in the name of Hoovalli 15 Munishami. Therefore, he prays for allowing both the applications and also the appeal, in the interest of justice.
19. Per contra, learned counsel for the respondents opposing the appeal contended that the properties are the self acquired properties of Hoovalli Munishami and there was a partition between Hoovalli Munishami and his sons, including defendant Nos.1 and 2. In the said partition, the suit properties were retained by Hoovalli Munishami for himself and for his wife Muniyamma. Later, they have executed the Will as per Ex.D3, bequeathing the suit properties in favour of defendant Nos.7 and 8, who are the children of defendant Nos.1 and 2. The plaintiff and his father taking advantage of the advanced age of Muniyamma, managed to concoct Exs.P1 and 2, even though she was not in a position to execute any documents, nor there was any reason to execute such documents. PW1 categorically admitted the execution of Ex.D3. He also admits that Muniyamma was aged 97 years and was having fragile health. PW2 the attesting witness never identified the thumb impression of Muniyamma, but admitted that she was not having sound disposing state of mind. DW5 categorically stated that under the pretext of 16 taking her to conduct cataract procedure, took the signatures of Muniyamma on Exs.P1 and 2.
20. Learned counsel further submitted that Ex.P2 is dated 16.06.2004 said to be the cancellation deed of the Will and Ex.P1 - the Will is said to have been executed on 18.06.2004. Further, Exs.P1 and 2 were not registered as on the dates of execution, but came to be registered on 23.06.2004. Admittedly, Muniyamma died on 14.07.2004 i.e., within about 20 days, which clearly supports the contention of the defendants that these documents were concocted taking advantage of the health condition of Muniyamma.
21. Learned counsel further submitted that the evidence of the witnesses for the plaintiff disclose that the plaintiff and his father have taken active role in getting the documents - Exs.P1 and 2 and therefore, it is clear that the documents were not executed by Muniyamma out of her own will and they were concocted documents.
22. Learned counsel placed reliance on the decision in Sri J T Surappa and another Vs Sri Satchidhanandendra 17 Saraswathi Swamiji Public Charitable Trust and Others1, to contend that the requirement of law for proving the Will are not satisfied by the plaintiff, to seek any decree in his favour.
23. Learned counsel further submitted that admittedly the properties were self acquired properties of Hoovalli Munishami. One of the suit properties was given to Muniyamma to be enjoyed during her life time and after her death to be devolved on defendant Nos.7 and 8. Under such circumstances, Muniyamma could not get any right, title or interest over the suit property to bequeath it in favour of the plaintiff. Section 14(1) of the Hindu Succession Act, will not come into operation but it is Section 14(2) of the Hindu Succession Act would govern the field.
24. Learned counsel further submitted that IA.1 of 2021 filed under Order XLI Rule 27 of CPC is not maintainable as there is no explanation as to how those documents came into existence. The documents disclose that they came into existence during October - November 2021 i.e., during pendancy of the second appeal. It is purely an after thought, to concoct these documents to hoodwink the Court. These 1 ILR 2008 KAR 2115 18 documents do not disclose that there was loan that was due in the name of Hoovalli Munishami and the plaintiff was called upon to clear the same. It was defendant Nos.1 and 2 who have cleared the loan as per the terms of the partition and therefore, the additional documents would not improve the case of the plaintiff in any manner.
25. Learned counsel further submitted that the father of the plaintiff had filed OS No.4 of 1990 for partition, against his brothers and mother Muniyamma, which came to be dismissed. He had even filed RA No.13 of 1996 which was also came to be dismissed as per Ex.D1. The suit properties were never the subject matter of the said suit. Therefore, it is clear that it is purely an after thought by the plaintiff and his father to concoct the documents for the purpose of usurping the lands.
26. Learned counsel further submitted that the Trial Court on proper appreciation of the materials on record answered the issues against the plaintiff and gave cogent reasons for disbelieving his version. The First Appellate Court on re-appreciation of the materials on record, upheld the 19 judgment and decree passed by the Trial Court and dismissed the appeal. The scope of the second appeal under Section 100 of CPC is very limited and no grounds are made out to form a different opinion and to allow the appeal. Therefore, he prays for dismissal of the appeal with costs.
27. The appeal was admitted vide order dated 02.07.2021 and the following substantial questions of law were formulated:
"1. Whether Muniyamma, W/o late Hoovalli Munishami was competent to execute the Will on her own in respect of the schedule property?
2. Whether Muniyamma had power to cancel the Will executed by herself and her husband in favour of defendants 7 and 8 wherein she was entitled for life interest?
3. Whether the said Muniyamma was competent to execute fresh Will in respect of the entire property in favour of plaintiff?"
28. IA.1 of 2021 was filed under Order XLI Rule 27 of CPC on 16.12.2021 along with the receipt dated 29.10.2021, loan discharge certificate dated 29.11.2021 and the interim 20 order passed by the Assistant Commissioner, dated 11.10.2021. It is the contention of the plaintiff that he discharged the loan that was due from Hoovalli Munishami. Except the receipt and the certificate said to have been issued by the Managing Director, HOPCOMS, Lalbagh, to contend that the loan that was due in the name of Hoovalli Munishami was paid by the plaintiff, no other documents such as demand notice or the loan register extract is produced before the Court. If there was no demand by HOPCOMS, there was no reason to pay the said amount by the plaintiff several years after the death of Hoovalli Munishami who admittedly died on 26.12.1986. Moreover, the payment was made during the pendancy of the second appeal i.e., about 15 years after filing the suit. The third document is the copy of the interim order passed by the Assistant Commissioner, Kolar Sub Division, directing the parties to maintain status quo. None of these documents will help the plaintiff to improve his position before this Court. Moreover, these are all the subsequent documents which were not available at the time of trial or during the first appeal.
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29. Order XLI Rule 27 of CPC bars production of additional evidence in appellate Courts unless a ground is made out as stated in sub Rule (1) clause (a) or (aa) or (b). The plaintiff has not made out any such grounds for seeking production of additional documents at this stage. For all these reasons, the application i.e., IA.1 of 2021 is not liable to be allowed.
30. The appellant filed IA.2 of 2022 seeking to frame the additional substantial questions of law which is as under:
"1). Whether the Courts below were
justified in holding that the deceased Smt.
Muniyamma was not entitled to bequeath the suit properties in favour of anybody muchless in favour of the plaintiff by ignoring acquisition of absolute ownership over the suit properties under section 14(1) of the Hindu Succession Act, 1956?
2). Whether the first appellate court being the final court of facts and law was justified in not reassessing the entire oral and documentary evidence on record independently in compliance with the mandatory requirement of order 41 Rule 31 of the Code of Civil Procedure while passing the impugned Judgment and decree?
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3). Whether the first appellate court committed illegality in rejecting the application filed under order 41 Rule 27 of the code of civil procedure without giving reasons contrary to the Judgment in the case of Puttaswamy Vs. Nagaraju reported in 2011 AIR CC 334 (Kar)?"
31. The proviso appended to Section 100 of CPC enables this Court to formulate any substantial question of law even at the later stage of hearing. In the present case, one of the controversy raised by the parties is with regard to the right of Muniyamma to execute the Will Ex.P1 in favour of the plaintiff. It involves a substantial question of law as to whether she was having absolute right over the schedule properties to bequeath the same in favour of the plaintiff. The proposed substantial question of law No.1 is already covered under the substantial questions of law Nos.1 to 3 formulated by this Court. However, to raise a specific substantial question of law in the light of Section 14(1) and (2) of the Hindu Succession Act, I deem it appropriate to re- frame the substantial questions of law Nos.1 to 3 formulated by this Court vide order dated 12.07.2021 with specific 23 substantial questions of law. Therefore, I am of the opinion that the application filed by the appellant is to be allowed. Accordingly, IA.2 of 2022 is allowed.
32. Thus, the substantial questions of law for consideration are as under:-
"1. Whether the right of deceased Muniyamma over the schedule properties was enlarged in view of Section 14(1) of the Hindu Succession Act, to bequeath the same in favour of the plaintiff?
2. Whether the First Appellate Court has properly appreciated the oral and documentary evidence placed before it, before proceeding to dismiss the appeal?
3. Whether the First Appellate Court was right in rejecting the application filed by the appellant under Order XLI Rule 27 of CPC?"
33. The relationship between the parties is not in dispute. It is also not in dispute that the properties were purchased by Hoovalli Munishami and they are his self acquired properties. The defendants contended that there was a partition between Hoovalli Munishami and his sons and 24 the deed of assignment dated 13.09.1980 was executed. It is also their contention that the suit properties were retained by Hoovalli Munishami towards maintenance of himself and his wife Muniyamma, to be enjoyed by them till their death. It is also contended that a duty was cast upon defendant Nos.1 and 2 to discharge the existing loans, under the assignment deed.
34. Even though specific contentions were raised by the defendants by filing written statement, the plaintiff has not filed any rejoinder to deny the same. The defendants have also contended that Hoovalli Munishami and Muniyamma executed a Will as per Ex.D3 bequeathing the suit properties in favour of defendant Nos.7 and 8.
35. Ex.D3 is the Will dated 22.09.1986 executed jointly by Hoovalli Munishami and Muniyamma. It is an admitted document as the plaintiff also places reliance on this document to contend that Muniyamma by executing Ex.P2, cancelled this Will dated 22.09.1986. The recitals in Ex.D3 disclose that Sy.No.80 i.e., item No.1 and vacant site with K.No.67 i.e., item No.3 in the plaint are the self acquired 25 properties of Munishami as he purchased it during his life time. The document also disclose that property bearing Sy.No.81 measuring 4 acres i.e., item No.2 in the plaint was acquired by Muniyamma and khata stands in her name. Therefore, it could be safely concluded that item Nos.1 and 3 of the plaint schedule are the self acquired properties of Munishami and he bequeathed those properties in favour of defendant No.7 - Umesh by executing the Will Ex.D3. In the very same Will, Muniyamma bequeathed item No.2 of the plaint schedule in favour of defendant No.8 - Nagaraj. The reason for bequeathing these properties in favour of defendant Nos.7 and 8 respectively during their minority, is explained by the testators.
36. Since there is no dispute with regard to Ex.D3 and the recitals found therein, item Nos.1 and 3 of the plaint schedule are the self acquired properties of Hoovalli Munshami and item No.2 is the self acquired property of Muniyamma. Admittedly, Hoovalli Munishami pre-deceased Muniyamma as he died on 26.12.1986. Immediately, after his death, item Nos.1 and 3 of the plaint schedule devolve on defendant No.7 as the legatee under the Will. Definitely 26 Muniyamma will not get any right over the same. Hence, the contention of the plaintiff that Muniyamma cancelled the Will Ex.D3 which was executed by Munishami cannot be accepted. Even if she has executed Ex.P2 to cancel Ex.D3, it could be only in respect of item No.2 and not in respect of item Nos.1 and 3 of the plaint schedule. Even if it is to be held that item Nos.1 and 3 left behind by Hoovalli Munishami was in possession of Muniyamma as per the recital found in Ex.D3, no right is created in favour of Muniyamma, therefore, she could not have cancelled Ex.D3 is respect of item Nos.1 and 3.
37. Item Nos.1 and 3 of the schedule are the self acquired properties of Hoovalli Munishami. It is admitted that there was a partition amongst Hoovalli Munishami and his sons during his life time. Only the suit properties were retained by Hoovalli Munishami for himself and his wife to be enjoyed during their life time. It is not the contention of the plaintiff that Muniyamma got the right, title or interest over the suit property item Nos.1 and 3 after the death of Hoovalli Munishami. Learned counsel for the appellant contended that in view of Section 14(1) of the Hindu Succession Act, the limited interest of Muniyamma got enlarged and therefore she 27 is the owner and entitled to bequeath the properties under the Will.
38. A specific contention is raised that right of Muniyamma over the schedule property is enlarged and she became the absolute owner of the schedule properties in view of Section 14(1) of the Hindu Succession Act. This section declares that any property possessed by a female Hindu, shall be held by her as full owner and not as a limited owner. But sub section (2) of Section 14 is an exception to sub section (1) of Section 14, as it bars the application of Section 14(1) to any property acquired by way of gift or under a Will or any other instrument etc., which prescribe a restricted estate in favour of such Hindu female. When it is the specific contention of the parties that only under the Will - Ex.D3, a life estate was created in favour of Muniyamma to enjoy the property till her death, it cannot be said that her right over the property is enlarged in view of Section 14(1) of the Hindu Succession Act. But on the other hand, sub section (2) of Section 14 would apply to the facts of the case and limited interest of Muniyamma over the property will not be enlarged. Therefore, I am of the opinion that Muniyamma was not 28 having right, title or interest over the suit property item Nos.1 and 3 to bequeath the same in favour of the plaintiff under the Will - Ex.P1. Moreover, right of Hoovalli Munishami over the schedule property upon his death, will not vest with Muniyamma. Therefore, she could not have cancelled the Will that was executed by Hoovalli Munishami and she could not bequeath the schedule properties in favour of the plaintiff.
39. Learned senior advocate placed reliance on the decision of the Apex Court in V Tulasamma and Others Vs Seshs Reddy2, wherein the concurring judgment, Hon'ble Justice P N Bhagavati (as he then was) for himself and for the Hon'ble companion Judge discussed at length about sub section (1) and (2) of Section 14 of the Hindu Succession Act, 1976 and categorically held that sub section (2) cannot therefore be interpreted in a manner which would rob sub section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub section (1). It is also held that it could have been the intention of the legislature and therefore sub section (2) must be confined to cases where properties are acquired by a Hindu female for the 2 (1977) 3 SCC 99 29 first time as a grant, without any pre-existing right, under a gift, Will, instrument, decree, order or award, the terms of which prescribes a restricted estate in the property.
40. In the present case, admittedly, item Nos.1 and 3 of the schedule were the self acquired properties of Hoovalli Munishami. Muniyamma was not having any pre-existing right over these properties. It is only Hoovalli Munishami retained these properties for maintaining himself and his wife Muniyamma and created limited interest during her life time. When that being the case, it cannot be contended that the limited interest created in the property in favour of Muniyamma would be enlarged by application of Section 14(1) of the Hindu Succession Act. On the other hand, it is sub section (2) of section 14 which is applicable to the facts of the case.
41. Learned counsel also placed reliance on the decision in Gulwant Kaur and another Vs Mohinder Singh and Others3, to contend that the limited interest created in favour of Muniyamma is enlarged in view of Section 14(1) of the Hindu Succession Act. He also relied on the 3 (1987) 3 SCC 674 30 decision in Bai Vajia (Dead) by LRs Vs Thakordhai Chelabhai and Others4, in support of his contention. In Gulwant Kaur (supra), the wife having strained relationship with her husband was living separately and the husband entrusted her a land to fetch income towards her maintenance. Subsequently, the husband had sold the said land in spite of her protest. In a suit that was instituted by the purchaser, the High Court held that the wife was allowed to receive the proceeds of the land in order to meet her day to day expenses and that the land was never intended to be given to her. Disagreeing with this conclusion, the Hon'ble Apex Court held that when the land in question was given to the wife in lieu of her maintenance, that is sufficient to attract Section 14(1) of the Hindu Succession Act. Similar was the case in Bai Vajia (supra), wherein, it is held that since the land was acquired by Hindu female in lieu of maintenance or arrears of maintenance, it gets enlarged in view of Section 14(1) 0of the Act. But the facts in the present case are entirely different. The recitals found in Ex.D3 makes it clear that the executants proposed to enjoy the property during their life time and after their death, the property is to be 4 (1979) 3 SCC 300 31 devolved to defendant Nos.7 and 8 as mentioned therein. The recital in this document suggest that Muniyamma had no pre-existing right over item Nos.1 and 3 of the property and it was not held by her in lieu of maintenance or arrears of maintenance. Under such circumstances, it cannot be contended that her right if any over the property would be enlarged in view of Section 14(1) of the Hindu Succession Act.
42. It is relevant to refer to the decision in Ranvir Dewan Vs Rashmi Khanna and another5. The Hon'ble Apex court discussed at length about section 14(1)(2) of the Act to conclude as under:
"40. Reading of the aforementioned principle of law laid down in V. Tulasamma and Sadhu Singh, it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an 5 (2018) 12 SCC 1 32 acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property."
Thus, the position of law on the subject is very well settled and in view of the facts and circumstances of the case on hand, the contention of the learned senior advocate cannot be accepted.
43. With regard to item No.2 of the plaint schedule, since it is the self acquired property of Muniyamma she is the absolute owner and she will have every right to bequeath the same in favour of any other person. Accordingly, she bequeathed in favour of defendant No.8 under Ex.D3. The right of Muniyamma to cancel Ex.D3 and to execute the Will bequeathing the property in favour of the plaintiff cannot be questioned in view of the clear recital regarding the right of Muniyamma over item No.2 found in Ex.D3. But the question is whether the plaintiff is successful in proving cancellation of Ex.D3 and bequeathing item No.2 in his favour by executing Exs.P1 and P2?
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44. Even if the right of Muniyamma to cancel the bequeath made in favour of defendant No.8 as per Ex.D3 and to execute fresh Will in favour of plaintiff is to be accepted, the burden is on the plaintiff to prove execution of Exs.P1 and 2 to succeed in his claim. Admittedly, Muniyamma was aged 97 years when Exs.P1 and 2 came into existence. Ex.P2 was executed on 16.06.2004 and Ex.P1 was executed on 18.06.2004, but both the documents were registered on 23.06.2004. Even according to the plaintiff, himself and his father were very much present with Muniyamma when she was taken to Taluk office at Mulbagal. The stamp papers for writing the documents were obtained by the father of the plaintiff. PW3 - the witness for the plaintiff categorically states that Muniyamma was residing with the plaintiff and his father during her last days. Therefore, it is clear that the propounder/beneficiary under the Will had taken active role in getting the documents i.e., Exs.P1 and 2, executed and they were in a position to influence Muniyamma to a great extent.
45. PW2 is the attesting witness to Ex.P1 - Will, who categorically admits during cross examination that, at the time of executing the document, Muniyamma was not in 34 sound state of mind, which cuts the case of the plaintiff at the root. When PW2 categorically states that Muniyamma was not having sound state of mind, a reasonable conclusion that could be arrived at is that the plaintiff and his father taking advantage of her condition and also the fact that she was residing with them, got Exs.P1 and 2 and thereafter, registered the same.
46. Apart from the above, serious doubt arises as to why Muniyamma just before her death has chosen to cancel the Will that was executed by her and by her husband as per Ex.D3 during 1986. From 1986 till 2004, the said Will was in existence. Hoovalli Munishami never thought it fit to cancel the Will. No strong reasons are assigned in Ex.P2 for canceling Ex.D3, except saying that ""£À£ÀUÉ vÀÄA¨Á ªÀAiÀĸÁìVzÀÄÝ «¯ï£À°èzÀÝAvÉ £ÀqÉAiÀÄzÉ ºÉÆÃV £Á£ÀÄ ¸ÀzÀj M¯ï£Àß £À£Àß ªÀÄ£À¸ÀÆàªÀðPÀªÁV gÀzÀÄÝ ªÀiÁqÀ®Ä ¤±ÀѬĹ §gɹzÀ Q«¯ï gÀ¢ÝAiÀiÁw ¥ÀvÀæ." In view of these materials on record, serious doubt arises about execution of Exs.P1 and 2 by Muniyamma just few days before her death. The plaintiff has not expelled these doubts by placing cogent materials and assigning valid reasons.
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47. The reasons assigned in Ex.P2 for canceling Ex.D3 is so bald and not even justified by the plaintiff to contend that defendant Nos.1 and 2 or defendant Nos.7 and 8 have not acted in terms of the assignment deed or the Will Ex.D3. On the other hand, the plaintiff who examined himself as PW1 categorically admitted that Hoovalli Munishami had availed the loan from PCRD Bank, Mulbagal and there is a recital in the partition deed to clear off the loan. The defendants produced Exs.D4 and 5 in support of their contention that the loans that were incurred by Hoovalli Munishami and Muniyamma were cleared by them. Under such circumstances, there was no strong reason for Muniyamma to execute Exs.P1 and 2 during the last days of her life. In view of these reasons, the contention taken by the plaintiff that Muniyamma had executed the deed of cancellation of Will as per Ex.P2 and the Will as per Ex.P1, cannot be accepted.
48. The Trial Court raised proper issues and taken into consideration the oral and documentary evidence to form an opinion that the plaintiff has not proved his contention that Muniyamma executed the Will dated 18.06.2004 bequeathing the suit property in his favour after canceling Ex.D3. On the 36 other hand, it answered issue No.3 in Affirmative and accordingly, dismissed the suit of the plaintiff with costs. The First Appellate Court on re-appreciation of the oral and documentary evidence, referred to the admissions given by the witnesses and also raised serious doubt about execution of the Will by Muniyamma, thereby, disbelieved Exs.P1 and 2.
49. The contention of the learned counsel for the appellant that the First Appellate Court has not formulated necessary point for consideration and proceeded to confirm the judgment and decree of the Trial Court mechanically or that the applications filed under Order XLI Rule 27 of CPC to summon the thumb impression register from the office of Sub-Registrar, Mulbagal as additional evidence is dismissed without assigning any reason, cannot be accepted, for the simple reason that, the First Appellate Court considered the contention of the parties in the light of the materials that are placed before the Court and concurred with the findings of the Trial Court. It has held that the plaintiff has failed to prove the sound disposing state of mind of Muniyamma at the time of executing Exs.P1 and P2 and the suspicious circumstances surrounding execution of Exs.P1 and 2 are not explained. 37 Under such circumstances, it is held that summoning of the documents as additional evidence or examining the Sub- Registrar, Mulbagal, would not help the plaintiff in any manner. The said finding recorded by the First Appellate Court cannot be said to be erroneous. When the plaintiff is not successful in expelling the serious doubts regarding the sound disposing state of mind of Muniyamma to execute the documents and when there is no explanation as to why the plaintiff and his father have taken active role in getting the documents executed and registered, the additional evidence proposed to be placed before the First Appellate Court or before this Court, would not serve any purpose.
50. When the Trial Court and the First Appellate Court on appreciation and re-appreciation of the materials, recorded a concurrent finding of facts, the scope under Section 100 of CPC to interfere with such findings would be very limited. It is relevant to refer to the decision of the Hon'ble Apex Court in Thiagarajan and Others v. Sri Venugopalaswamy B. Koil and Others6, wherein, the scope and ambit of Section 100 was discussed at length and it is held that existence of 6 (2004) 5 SCC 762 38 substantial question of law is sine-qua-non for exercise of the jurisdiction under the amended provisions of Section 100 of CPC. It is categorically held that it is the obligation on the Courts of law to further clear intendment of the legislature and not frustrating by excluding the same. It is re-iterated that where findings of fact by the First Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible.
51. In Narayan Rajendran and Another v.
Lekshmy Sarojini and Others7, the Hon'ble Apex Court again discussed at length about the scope and ambit of Section 100 CPC both prior to the amendment to CPC in 1976 and after it. It referred to the decision of the Privy Council in Luchman Singh Vs Puna8, wherein, it is held that the second appeal can lie only on one or the other grounds specified in the section. It also referred to Durga Chowdhrani Vs Jewahir Singh Chowdhri9, wherein, it is held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact, 7 (2009) 5 SCC 264 8 ILR (1889) 16 Cal 753 (PC) 9 ILR (1891) 18 Cal 23 (PC) 39 however gross or inexcusable the error may seem to be. This decision of the privy council was again relied on in the later decision in Ramratan Sukal Vs Nandu10, wherein, it is held that third Court cannot entertain an appeal upon any question as to the soundness of findings of fact by the second Court; if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final. This position of law is re-iterated by the privy council in its later decision in Ramgopal Vs Shamskhaton11, to emphasize that a Court of second appeal is not competent to entertain questions as to the soundness of findings of facts by the Courts below.
52. The Hon'ble Apex Court in Narayanan Rajendran (supra) categorically held that even before the amendment, interference under Section 100 CPC was limited and after amendment, the power has been further curtailed. The amendment Act 1976 has introduced drastic changes in the scope and ambit of this section which is now confined to cases where a question of law is involved and such question must be a substantial one. The Court has referred to several 10 ILR (1892) 19 Cal 249 (PC) 11 ILR (1893) 20 Cal 93 (PC) 40 such judgments after amendment to Section 100 of CPC and re-iterated that the jurisdiction of the High Court under this section to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction to interfere with pure question of fact while exercising its jurisdiction.
53. The Hon'ble Apex Court referred to its earlier decision in Madhavan Nair Vs Bhaskar Pillai12, to observe that the High Courts are not justified in interfering with the concurrent findings of fact. It is held that it is well settled that even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground that the High Court to upset the same. Referring to the Fifty- fourth report of the Law Commission of India submitted in 1973, the legislative background which led to the amendment of Section 100 CPC was highlighted that 'the question could perhaps be asked, why the litigant who wishes to have justice from the highest court of the State should be denied the opportunity to do so, atleast where there is a flaw in the conclusion of facts reached by the Trial Court or by the Court 12 (2005) 10 SCC 553 41 of first appeal. The answer is obvious but even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualified right of first appeal may be necessary for satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury'. Thus, the Hon'ble Apex Court once again crystallized the legislative intention by referring to its several other decisions to caution the High Courts to refrain from interfering with the concurrent findings of fact without there being a substantial question of law.
54. Therefore, it is found that unless the concurrent finding recorded by the Trial Court and the First Appellate Court are perverse, against the materials on record or against the settled proposition of law, such findings cannot be interfered with by acting under Section 100 of CPC. Even if it is to be held that on the basis of the materials on record, a different opinion could have been drawn, it is not a ground to interfere with the impugned judgment and decree under challenge.
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55. In view of the discussions held above, I am of the opinion that the substantial questions of law are to be answered in favour of defendants and against the plaintiff.
56. Hence, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs throughout.
(ii) The judgment and decree dated 01.04.2011 passed in OS No.198 of 2007 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC at Mulbagal and the judgment dated 12.08.2014 passed in RA No.83 of 2011 on the file of the learned II Additional Senior Civil Judge and JMFC at Kolar (itinerating at Mulbagal), are hereby confirmed.
(iii) Consequently, the suit of the plaintiff is dismissed.
Registry to send back the Trial Court records along with the copy of this judgment.
Sd/-
JUDGE *bgn/-