Karnataka High Court
Smt Mohini Kharvi vs Sri Dasa @ Minna Kharvi on 30 November, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 270 OF 2014 (PAR)
BETWEEN:
1. SMT. MOHINI KHARVI
D/O LATE CHANDRA KHARVI
AGED ABOUT 66 YEARS,
R/AT GANAPAYYA COMPOUND
BAHUDRUSHA ROAD
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
POST KUNDAPURA.
2. SRI. BABU NAIK
S/O LATE LINGA NAIK
AGED ABOUT 68 YEARS,
R/AT GANAPAYYA COMPOUND
BAHUDRUSHA ROAD
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
POST KUNDAPURA.
3. SMT. VIMALA
D/O BABU NAIK
AGED ABOUT 34 YEARS,
R/AT GANAPAYYA COMPOUND
BAHUDRUSHA ROAD
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
POT KUNDPURA.
4. SRI. ASHOK
S/O BABU NAIK
AGED ABOUT 31 YEARS,
R/AT GANAPAYYA COMPOUND
BAHUDRUSHA ROAD
2
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
POST KUNDAPURA.
5. SMT. LATHA
D/O BABU NAIK
AGED ABOUT 29 YEARS,
R/AT GANAPAYYA COMPOUND
BAHUDRUSHA ROAD
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
POST KUNDAPURA.
... APPELLANTS
(BY MR: HAREESH BHANDARY .T., ADVOCATE)
AND:
1. SRI. DASA @ MINNA KHARVI
S/O LATE CHANDRA KHARVI
AGED ABOUT 63 YEARS
R/O KHARVI MELKERE,
KUNDAPURA KASBA VILLAGE,
KUNDAPURA TALUK.
2. SMT. SHANTHI PATEL
W/O GANAPATHI PATEL
AGED ABOUT 56 YEARS
KANCHIKODU,
GUJJADI VILLAGE & POST
KUNDAPURA TALUK.
3. SRI. RAMAKRISHNA KHARVI
S/O LATE CHANDRA,
AGED ABOUT 54 YEARS
BAHUDRUSHA ROAD
KUNDAPURA KASABA VILLAGE
KUNDAPURA POST
KUNDAPURA TALUK.
4. SMT. RAJEEVI TANDELA
W/O MADAVA TANDELA
AGED ABOUT 50 YEARS
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KASARGODU TOKA POST
HONNAVARA TALUK, UK.
5. SMT. SUMITHRA KHARVI
W/O NARASIMHA KHARVI
AGED ABOUT 48 YEARS
NEAR BAJANA MANDIRA,
KODI, KUNDAPURA TALUK.
6. SMT. JANNI KHARVI
W/O SHANKAR NAIK
AGED ABOUT 46 YEARS
NEAR MAHAKALI TEMPLE
MADHYKERI
KASABA VILLAGE & POST
KUNDAPURA TALUK.
7. SMT. SHOBHA KHARVI
DEAD BY HER LEGAL
REPRESENTATIVES
A) GOPAL MESTHA
SON OF NAGAPPA MESTHA
AGED ABOUT 45 YEARS
B) SANTHOSH,
S/O GOPAL MESTHA
AGED ABOUT 12 YEARS,
C) ADITHYA
S/O GOPAL MESTHA
AGED ABOUT 9 YEARS,
D) CHETHANA,
D/O GOPAL MESTHA
AGED ABOUT 03 YEARS,
PROPOSED 7(B) TO (D)
RESPONDENTS ARE
MINORS AND THEY
ARE REPRESENTED BY
THEIR NATURAL
GUARDIAN AND FATHER
GOPALA MESTHA
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PROPOSED 7(A) RESPONDENT
ALL ARE RESIDING AT
'JAI SANTHOSHA MATHA',
UDYAMA NAGAR
HONNAVARA P.O & TALUK
U.K. DISTRICT.
UDYAM NAGAR
HONNAVARA TALUK
U.K. DISTRICT.
... RESPONDENTS
(BY MR: K CHANDRANATH ARIGA, ADVOCATE FOR R1 - R6.
R7 (A) IS SERVED.
R7 (B) TO R7 (D) ARE MINORS REPRESENTED BY R7(A))
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT & DECREE DATED 13.11.2013 PASSED IN
R.A.NO.104/2013 ON THE FILE OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, UDUPI, (SITTING AT KUNDAPURA),
KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD 31.1.2011 PASSED IN
OS.NO.27/2006 ON THE FILE OF SENIOR CIVIL JUDGE,
KUNDAPURA.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Even though the matter is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
2. The defendants have preferred this second appeal being aggrieved by the impugned judgment and decree dated 31.01.2011 passed in O.S.No.27/2006 on the file of learned Senior Civil Judge, Kundapura (hereinafter referred to as 'the trial Court' for brevity), partly decreeing the suit of the plaintiff and allotting 1/8th share in the schedule properties, which was confirmed vide judgment dated 13.11.2013 in R.A.No.104/2013 on the file of the learned Additional District and Sessions Judge and Additional MACT, Udupi (sitting at Kundapura), Kundapura (hereinafter referred to as 'First Appellate Court').
3. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
4. Brief facts of the case are that the plaintiff filed suit O.S.No.27/2006 against the defendants seeking partition and separate possession of his share in the plaint 'A' and 'B' 6 schedule properties. It is contended that the plaintiff and defendant Nos.1 to 7 are the children of one Chandra Kharvi. Properties described in the schedule 'A' to the plaint belongs to the said Chandra Kharvi and as he is the moolageni tenant of the property. Money described in 'B' schedule was deposited by said Chandra Kharvi during his life time. He died intestate on 26.03.2006 leaving behind the plaintiff and defendant Nos.1 to 7 as his legal heirs. His wife pre-deceased him. Chandra Kharvi was mentally unsound and was suffering from certain disease. After his death, the plaintiff and defendants became the joint owners in respect of plaint 'A' and 'B' schedule properties. Therefore, those properties are liable to be divided into eight equal shares.
5. It is contended that defendant Nos.1 and 3 are acting detrimental to the right, title and interest of the plaintiff and collecting the monthly rents unauthorizedly. Therefore, the plaintiff demanded his share over the schedule properties. But the said defendants were postponing the partitioning of the properties. The plaintiff therefore filed the suit for a partition and separate possession of his share over the schedule properties.
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6. Defendant No.3 filed the written statement denying the contention of the plaintiff as stated in the plaint and contended that the plaintiff during the life time of his father Chandra Kharvi, had left the house of his father after taking huge cash from him and therefore, he is not entitled for any share in the schedule properties. After the death of Chandra Kharvi, plaintiff has also expressed his intention not to claim any share in the schedule properties and therefore the suit filed by the plaintiff for partition is not maintainable. It is further contended that the plaint schedule 'A' and 'B' are liable to be divided into six shares only and defendant Nos.1 to 6 are entitled for 1/6th share each. It is contended that the gold ornaments left behind by the Chandra Kharvi is not included in the plaint and that there is no cause of action for the suit. Accordingly, he prayed for dismissal of the suit.
7. Defendant Nos.2, 4 to 7 have filed a memo adopting the written statement filed by defendant No.3.
8. Defendant No.1 filed the written statement denying the contention taken by the plaintiff except admitting the relationship between the parties. It is contended that 8 defendant No.1 is in exclusive possession and enjoyment of the schedule 'A' properties and she has become absolute owner of item No.2 in 'A' schedule by virtue of registered Will dated 29.06.2004 executed by her father late Chandra Kharvi during his life time while he was in sound state of mind and health. Since it is the last Will of Chandra Kharvi, defendant No.1 has acquired right, title and interest over item No.2 of 'A' schedule properties and plaintiff and other defendants are not having any right. Accordingly, she prayed for dismissal of the suit.
9. Defendant No.9 who was impleaded later, filed the written statement admitting the relationship between the parties but denied the claim of the plaintiff. She also supported the contention of defendant No.1 regarding execution of the Will by Chandra Kharvi and contended that the plaintiff has suppressed the Will executed by Chandra Kharvi. As per the Will, defendant Nos.1, 8 to 11 are the absolute owners in respect of item No.2 of 'A' schedule property and accordingly prayed for dismissal of the suit. 9
10. Defendant Nos.8, 10 and 11 have filed a memo adopting the written statement filed by defendant No.9.
11. On the basis of these pleadings, the Trial Court framed the following issues and additional issues as under:
1. Whether the plaintiff proves that he himself and the defendants constitute Hindu Joint Family and the plaint "A" and "B" schedule properties are their joint family properties?
2. Whether the plaintiff further proves that the plaint "A" schedule properties are to be divided into 8 fair and equal shares and he is entitled for one such shares in plaint "A" schedule property and 1/7th share in the plaint "B" schedule properties?
3. Whether the defendant No.3 proves that the plaintiff had left the house by taking huge amount from his father and hence, only 6 shares are to be made in the plaint "A" and "B" schedule properties and only defendants no.1 to 6 are entitled for 1/6th share each?
4. To what reliefs the parties are entitled to?
5. What Order or decree?
Additional Issues:
1. Whether the defendant no.1 proves that she is the absolute owner of the item no.2 of suit "A"
schedule property by virtue of a Registered "Will" dated 29.06.2004 executed by her father Chandra Kharvi?
2. Whether the defendant no.1 proves that she is only entitled for monies shown in the suit "B" schedule property?
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3. Whether the suit is bad for non-inclusion of various golden ornaments of deceased Chandra Kharvi?
4. Whether the suit is barred by limitation?
5. Whether the suit is properly valued?
6. Whether the defendant no.9 proves that defendant no.1 and 8 to 11 are the absolute owner of the item no.2 of suit "A" schedule property by virtue of the registered "Will" dated 29.06.2004 executed by Chandra Kharvi?
12. The plaintiff examined himself as PW.1 and one more witness as PW.2 and got marked Exs.P1 to P4 in support of his contention. The defendants examined defendant No.1 as DW.1 and four more witnesses as DWs.2 to 5 and got marked Exs.D1 to D20 in support of their defence. The trial Court after taking into consideration all these materials on record, answered issue No.2 partly in the affirmative, issue No.4 and additional issue No.5 in the affirmative, issue No.3 and additional issue Nos.1, 2, 3, 4 and 6 in the negative and came to conclusion that the Will putforth by defendant Nos.1, 8 to 11 is not proved in accordance with law as the same is surrounded by suspicious circumstances. Accordingly, the suit of the plaintiff was came to be decreed in part holding that plaintiff, defendant Nos.1 to 7 are entitled for partition and 11 separate possession of 1/8th share each in the suit 'A' and 'B' schedule properties and for mesne profits.
13. Being aggrieved by the same, defendant Nos.1, 8 to 11 preferred R.A.No.104/2013 before the First Appellate Court. The First Appellate Court on re-appreciation of the pleadings on record, came to the conclusion that the reasons assigned by the trial Court is just and proper and accordingly, the appeal was dismissed confirming the impugned judgment and decree passed by the trial Court. Being aggrieved by the same, defendant Nos.1, 8 to 11 have approached this Court by preferring the second appeal.
14. Heard Sri. Hareesh Bhandary.T., learned counsel for the appellants and Sri. K.Chandranath Ariga, learned counsel for respondent Nos.1 to 6. Perused the materials on record.
15. Learned counsel for the appellants contended that Chandra Kharvi who is the father of the plaintiff and defendant Nos.1 to 7, executed the registered Will as per Ex.D1. There are no suspicious circumstances surrounding the execution of the Will. Even though the plaintiff contended 12 that Chandra Kharvi was not of sound mind when the Will was executed, that contention of the plaintiff was rejected by both the Courts. When Chandra Kharvi was held to be of sound mind when the Will was executed, the trial Court as well as the First Appellate Court committed an error in decreeing the suit of the plaintiff as prayed for. The contesting defendants examined DWs.1 to 5 to prove their contentions. The suspicion raised by the trial Court as well as the First Appellate Court are flimsy and therefore, sought for setting aside the impugned judgment and decree passed by both the Courts.
16. Learned counsel placed reliance on the decision in the case of MAHESH KUMAR (DEAD) BY L.Rs v. VINOD KUMAR AND ORS1, to contend that the mere fact that defendant No.1 was said to be present at the time of execution of the Will and testator has not bequeathed any property under the Will to his other children, are not decisive of the issue relating to genuineness or validity of the Will. When those suspicious circumstances referred to by the trial Court and the First Appellate Court are eliminated, the Will is 1 2012 AIR SCW 2347 13 to be held as proved and the suit of the plaintiff is to be dismissed. Accordingly, he prayed for allowing the appeal.
17. Per contra, learned counsel for the respondent- plaintiff opposing the appeal submitted that even though defendant No.1 putforth the Will-Ex.D1, she is not successful in dispelling the suspicious circumstances surrounding the execution of the Will. The trial Court as well as the First Appellate Court concurrently found that the beneficiary under the Will i.e., defendant No.1 has taken active part in getting the Will executed and disinheritance of the properties by the other children was not for any valid reasons. Therefore, there are no reasons to interfere with concurrent finding of both the Courts.
18. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in the case of KALYAN SINGH, LONDON TRAINED CUTTER, JOHRI BAZAR, JAIPUR vs. SMT. CHHOTI AND OTHERS2 and RAJ KUMARI AND OTHERS vs. SURINDER PAL SHARMA3, to contend that there are no reasons for the testator to disinherit his other daughters 2 (1990) 1 SCC 266 3 2019 SCC OnLine SC 1747 14 towards whom he was having equal love and affection and when defendant No.1 the propounder of the Will had taken active role in executing the Will, all the suspicious circumstances are to be eliminated to contend that the Will is proved. Therefore, it is his contention that defendant No.1 is not successful in proving the Will-Ex.D1.
19. Learned counsel also submitted that since there is concurrent finding of fact regarding the Will-Ex.D1 by the trial Court as well as by the First Appellate Court, this Court by exercising power under Section 100 of CPC cannot interfere with the findings unless it is found that the finding recorded by the trial Court and the First Appellate Court are perverse and against the materials that are placed before the Court. Unless such grounds are made out, the appeal filed by the appellants is not liable to be allowed. In support of this contention, he placed reliance on the decisions in GURNAM SINGH (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS vs. LEHNA SINGH (DEAD) BY LEGAL REPRESENTATIVES4 and C. DODDANARAYANA REDDY (DEAD) BY LEGAL 4 (2019) 7 SCC 641 15 REPRESENTATIVES AND OTHERS vs. C. JAYARAMA REDDY (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS5.
20. Learned counsel further submitted that the plaintiff filed FDP.No.11/2011 before the trial Court and in that proceedings, the Commissioner was appointed and the properties were auctioned through Court. Plaintiff and defendant No.3 have purchased the same in the auction sale. Since there was a stay granted by this Court during 2014, the final decree is not yet drawn. In view of these subsequent developments, he submits that the appeal is liable to be dismissed as devoid of merits.
21. I have considered the submissions made by the learned counsel appearing for the parties in light of the materials on record.
22. It is the specific contention of the plaintiff that his father is Chandra Kharvi and he had succeeded by himself and defendant Nos.1 to 7. It is also contended that Chandra Kharvi died on 26.03.2006. These facts are not disputed by any of the defendants. Defendant Nos.1, 8 to 11 are the 5 (2020) 4 SCC 659 16 contesting defendants. Admittedly, plaintiff and defendant Nos.1 to 7 are the children of late Chandra Kharvi. It is the specific contention of defendant No.1 that late Chandra Kharvi left behind her the registered Will-Ex.D1. To prove that fact, she examined DWs.1 to 5. DW.1 is defendant No.1 herself, DW.2 is the attesting witness and since this witness has not tendered for cross-examination, his evidence was expunged. DW.3 is the other attesting witness. During cross- examination, DW.3 specifically stated that the Will was got written by defendant No.1. She was very much present even before the witness, went to the office of the scribe. Witness also stated that defendant No.1 was present there to get the Will registered in her favour. Therefore, the trial Court as well as the First Appellate Court formed the consistent opinion that the propounder of the Will took active role in execution of the Will and it is a suspicious circumstance.
23. Defendant No.1 examined herself as DW.1 and during cross-examination, specifically admitted that her father was having equal love and affection towards all the children and there was no reason to show extra love and affection towards her. She also stated that the other children of 17 Chandra Kharvi were frequently visiting him and were helping him financially. Witness categorically stated that Chandra Kharvi was not showing any difference amongst his children. On the basis of these categorical admissions, the trial Court as well as the First Appellate Court formed consistent opinion that there are no valid reasons for disinheritance by other heirs of deceased-Chandra Kharvi.
24. It is the settled proposition of law that when the propounder of Will played an active role in getting the Will executed, it is a suspicious circumstance and propounder has to satisfy regarding due execution of the Will. This suspicion in the present case which was rightly raised by both the Courts, was not expelled by defendant No.1. Moreover, when Chandra Kharvi was having equal love and affection towards all his children i.e., plaintiff and defendant Nos.1 to 7, there is absolutely no reason for him to exclude his other children and prefer only defendant No.1 to inherit the major share i.e., about half share in the schedule properties. Considering the evidence on record, the suspicion raised by both the Courts are justifiable. I do not find any perversity in the reasoning 18 given by the trial Court and the First Appellate Court in appreciating the evidence on record.
25. The jurisdiction of this Court under Section 100 of CPC is to be exercised sparingly. The trial Court will appreciate the materials on record in detail and the First Appellate Court acting under Section 96 of CPC is entitled to re-appreciate the entire materials on record. Unless such findings by the trial Court and the First Appellate Court are found to be perverse and against the materials that are available on record, the said findings cannot be interfered with. Merely because the other view is also possible on the materials on record, the same cannot be the ground to set aside the judgment and decree passed by the Courts below. This position of law is reiterated by the Hon'ble Apex Court in the case of GURNAM SINGH (supra) in Paragraph No.13, it is held as under:
"13. At the outset, it is required to be noted that the learned trial court held the will dated 17-1-1980, which was executed in favour of original Defendants 2 to 6, surrounded by suspicious circumstances and therefore did not believe the said will.19
13.1. The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law"
is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam, in a second appeal under Section 100 CPC, the High Court cannot 20 substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or
(ii) Contrary to the law as pronounced by the Supreme Court; or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal."
(emphasis supplied)
26. The very same position of law is reiterated by the Hon'ble Apex Court in the case of C.DODDANARAYANA REDDY (supra) in paragraph No.25, which reads as under:
"25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp. 347-48, paras 12-15) 21 "12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V.Kanniah Naidu, this Court held: (SCC p. 393) 'It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'
14. In Navaneethammal v. Arjuna Chetty, this Court held: (SCC p. 166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another 22 view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'
15. And again in Taliparamba Education Society v. Moothedath Mallisseri Illath M.N., this Court held: (SCC p. 486, para 5) '5. ... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.' "
(emphasis supplied)
27. In view of the evidence on record and the settled position of law on the subject, I am of the opinion that there are no substantial question of law that would arise for consideration and therefore, there are no grounds for interfering with the impugned judgment and decree passed by the trial Court, which is confirmed by the First Appellate Court. Even though the learned counsel for the appellants placed reliance on the decision in the case of MAHESH KUMAR (supra), to contend that disinheriting the other heirs will not always lead to a suspicious circumstance to reject the Will, the fact and circumstances in the said case was entirely different in view of the specific discussions held in paragraph 23 Nos.29 and 30 of the said judgment. Therefore, I do not find any reason to interfere with the impugned judgment and decree and the concurrent findings of fact recorded by both the Courts. No grounds are made out to admit the appeal.
28. In view of the discussions held above, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The impugned judgment and decree dated 31.01.2011 passed in O.S.No.27/2006 on the file of the learned Senior Civil Judge, Kundapura, confirmed vide judgment dated 13.11.2013 in R.A.No.104/2013 on the file of the learned Additional District and Sessions Judge and Additional MACT, Udupi (sitting at Kundapura), Kundapura, is hereby confirmed.
(iii) Registry is directed to send back the trial Court records along with copy of this judgment.
Sd/-
JUDGE SMJ