Karnataka High Court
Sunanda D/O Basavantappa Halligeri vs Gouravva W/O Nagappa Halligeri Lrs By on 5 March, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.100152 OF 2015
BETWEEN:
Smt. Sundada
D/o Basavantappa Halligeri
Age 45 years
Occ: Agriculture and household work
R/o Devalingakoppa Village
Taluk: Kalaghatagi
District: Dharwad
...Appellant
(by Shri Shriharsh A Neelopant and
Shri Arun A Neelopant, Advocates)
AND:
Smt. Gouravva
W/o Nagappa Halligeri
Since deceased by her LR
1. Ningappa
S/o Shivappa Ramnal
Age 46 years
Occ: Agriculture
R/o Kuravinakoppa
Taluk: Kalaghatagi
District: Dharwad
2. Nagappa
S/o Basavantappa Tadasadavar
Age 61 years
Occ: Agriculture
2
R/o Gambhyapur village
Taluk: Kalaghatagi
District: Dharwad
2(a) Smt. Fakkiravva
W/o Nagappa Tadasad
Aged 67 years
Occ: Household work
R/o Gambhyapur village
Taluk: Kalaghatagi
District: Dharwad
2(b) Smt. Mahadevi
W/o Kallappa Honnalli
Age 49 years
Occ: Household work
R/o Gambhyapur village
Taluk: Kalaghatagi
District: Dharwad
2(c) Smt. Basalingavva
W/o Budappa Ramani
Age 47 years
Occ: Household work
R/o Gambhyapur village
Taluk: Kalaghatagi
District: Dharwad
2(d) Premanand
S/o Nagappa Tadasad
Age 41 years
Occ: agriculture
R/o Gambhyapur village
Taluk: Kalaghatagi
District: Dharwad
2(e Ningappa
S/o Nagappa Tadasad
Age 37 years
Occ: Agriculture
R/o Gambhyapur village
Taluk: Kalaghatagi
3
District: Dharwad
3. Basavva
W/o Kallappa Galeppanavar
4. Anasuya
W/o Ulavappa Bhayatti
Age 31 years
Occ: Housewife
R/o Devalingakoppa Village
Taluk: Kalaghatagi
District: Dharwad
Since deceased, Respondent No.4
is treated as LR of R3
...Respondents
(by Shri S.R Hegde, Advocate for C/R1;
Sri S.B. Babaradi Advocate for R2(a to (e);
Shri R.D. Kulkarni, Sachin C. Kulakarni,
Shri Vinayakaa S. Kulakarni Advocates for R4;
R4 is treated as LR of deceased R3)
This Regular Second Appeal is filed under Section 100
CPC against the judgment and decree dated 24.01.2015
passed in Ra No.48 of 2010 on the file of the III Additional
Senior Civil Judge and Judicial Magistrate First Class, Hubballi
dismissing the appeal and confirming the judgment and
decree dated 22.12.2009 passed in OS No.79 of 1992 on the
file of the Civil Judge (Jr. Dn.) .and JMFC Kalghatagi
dismissing the suit filed for declaration and partition.
This appeal coming on for further hearing this day, the
court delivered the following:
JUDGMENT
This Regular Second Appeal is directed against the Judgment and decree dated 24th January, 2015 passed by the III Additional Senior Civil Judge and JMFC, Hubballi in Regular 4 Appeal No.48 of 2010; and the judgment and decree dated 22nd December 2009 passed in OS No.79 of 1992 on the file of the Civil Judge (Jr. Dn.), Kalaghatagi. The appellant in this second appeal is the plaintiff before the Trial Court and the appellant before the first appellate court.
2. For the purpose of convenience, the parties to this second appeal are referred to with their status before the Trial Court.
3. The plaintiff has filed suit for declaration that by virtue of Registered Will dated 22nd October, 1981 she became the owner of the suit schedule property and as such she has sought for possession of the suit schedule property, inter alia, the plaintiff has sought for allotment of share of Ningavva (testator) in the schedule property.
4. The factual matrix of the case, in brief, are as under:
Plaintiff states that Channabasava had three daughters, viz. Ningava, Gowravva and Gangavva. Channabasava died leaving behind these three daughters as to succeed to his estate. Ningavva died on 03rd September 1989. She was issueless; Gowravva died leaving behind her son Ningappa 5 (defendant No.1) and Gowravva (defendant No.2) died leaving behind two children, viz. Nagappa [defendant 2(a)] and Basavva [defendant 2(b)]. Basavva had a daughter (defendant No.3). The suit schedule property, as per plaint, belongs to Chanabasava and as such, all the three daughters of Basavva had one-third share each in respect of the suit schedule property. It is further stated that till the death of Ningavva, she has been in possession and enjoyment of suit schedule property and as such Ningavva had perfected title insofar as the suit schedule property by adverse possession.
Defendant 2(a) died on 03rd September, 1997. Plaintiff is the daughter of Ningavva's brother. Plaintiff being brought up by Ningavva, she and her father, in turn, were taking care of Ningavva and as such, Ningavva had executed Will dated 22nd October, 1981 in favour of Sunanda (plaintiff). It is further stated that pursuant to the death of Ningavva, the defendants illegally interfered with the suit schedule property and refused to deliver possession of suit schedule property to the plaintiff, and as such, the plaintiff has filed a suit for declaration that by virtue of registered Will dated 22nd October, 1981, the plaintiff being the owner of the suit schedule property and has 6 right over the same. The plaintiff further stated that the defendants, without any semblance of right and interest over the suit schedule property, have interfered with the suit schedule property and as such, the plaintiff was constrained to file suit in OS No.79 of 1992 on the file of Civil Judge (Jr. Dn.), Kalaghatagi against the defendants. After service of suit summons, the defendants have entered appearance.
Defendant No.1 filed written statement contending that the suit is not maintainable as the suit schedule property originally belonged to Nagappa Halligeri and after his death, it devolved upon his three daughters. Defendant No.1 further states that during 1980, Gangavva (defendant No.2) had orally relinquished her one-third share in the suit property in favour of Ningavva, thus Ningavva had two-third share of the property in question and Gowravva had one-third share of the suit schedule property. It is further contended by defendant No.1 that Ningavva, at no point of time, had cultivated her one-third share of the suit schedule property and as such the defendant No.1 denied the averments made in the plaint with regard to the execution of registered Will dated 22nd October, 1981 in favour of the plaintiff. It is further stated in the plaint 7 that in order to knock off the property, the plaintiff has created a Will dated 22nd October, 1981, inter alia, contends that even if assumed that the document appears to be executed by Ningavva, however, she was not in sound mind at the time of execution of the same and hence he sought for dismissal of the suit.
Defendant No.3 has filed written statement contending that she is also having a share in the suit schedule property and the said property is continuing as a joint family property.
During the course of proceedings defendant No.3 was impleaded and she further contends that Ningavva has executed an unregistered Will dated 09th March, 1983 cancelling the earlier Will. Hence, defendant No.3 states that in view of revocation of the earlier Will dated 22nd October, 1981 upon execution of un-registered Will dated 03rd March, 1983, the defendant No.3 has become the absolute owner of the property in question.
5. On the basis of the pleadings, the Trial Court has framed the following issues:
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1. Whether the plaintiff proves that on 22.10.1981 the deceased Smt.Ningawwa W/o Shivappa Hallikere has executed the Will in her favour?
2. If so, whether the plaintiff further proves that she is the owner of the suit schedule 'A' property to the extent of 2/3rd share and also she is the owner of the suit schedule B property?
3. If so whether the plaintiff further proves that the defendants are in wrongful possession of the suit properties?
4. Whether the defendant No.2 proves that the suit is not properly valued and court fee paid therein is not correct?
5. Whether plaintiff is entitled for declaration sought for?
6. Whether the plaintiff is entitled for possession of the suit properties from the defendants?
7. What order?
6. Before the Trial Court, the plaintiff has examined PW1 to PW4 and got marked documents Exhibits P1 to P4. On behalf of defendants, defendant No.1 has examined DW1 to DW6 and marked documents Exhibits D1 to D11. The Trial Court, after considering the material on record and on 9 appreciation of the evidence adduced by the parties, by order dated 22nd December, 2009 had dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff has filed Regular Appeal No.48 of 2010 on the file of the III Additional Senior Civil Judge and JMFC, Hubballi contending that the trial Court has failed to take note of the fact that the deceased Ningavva has executed the Registered Will dated 22nd October, 1981 and that the Trial Court has not properly framed the issue pertaining to the alleged Will dated 09th March, 1983, in which, as per defendant No.3, the said Ningavva has executed unregistered Will dated 09th March, 1993 in her favour, and therefore, the appellant/plaintiff contended that the Trial Court has not considered the material evidence on record in its right perspective and therefore sought setting aside the judgment impugned therein. Whereas the learned counsel for the respondents before the first Appellate Court have submitted that they would support the judgment and decree of the Trial Court. The first appellate court, after considering the arguments advanced and materials on record and on appreciation of facts, by order dated 24th January, 2015 has dismissed the Regular Appeal 10 and accordingly, confirmed the judgment and decree dated 22nd December, 2009 passed by the Trial Court. Being aggrieved by the judgment and decree passed by both the Trial Court and the First Appellate Court, the plaintiff has preferred the instant second appeal before this Court.
7. I have heard the learned counsel for the appellants and the learned counsel for the respondents. Shri Shriharsh A Neelopant, learned counsel for the appellant submits that though there is a concurrent finding recorded insofar as the order passed by the Trial Court as well as the first appellate court, the First Appellate Court being the first court of appeal while looking into the factual aspects of the case, has not considered the same in its right perspective and without considering the settled proposition of law, has passed cryptic order dated 24th January, 2015 which requires to be set aside. He further submits that though the controversy is with regard to the two testamentary documents dated 22nd October, 1981 and 09th March, 1983 Exhibit P1 and Exhibit D4 respectively, however, the Trial Court has failed to frame issue relating to subsequent un-registered Will i.e. Will dated 09th March 1983 (Exhibit D4) and as such, the Courts below have not 11 considered the factual aspect of the case in its right perspective. It is also the submission of the learned counsel for the appellant that perusal of entire finding recorded by the Trial Court as well as the Appellate Curt, nothing has been stated about whether the plaintiff has proved the registered Will dated 22nd October, 1981 (Exhibit P1) which is to be considered in the second appeal. Yet another ground urged by the learned counsel for the appellant is that as per the discussion made at paragraph 34 of the impugned judgment and decree of the trial Court, wherein it is held that the defendants therein have not proved the unregistered Will dated 09th March, 1983 (Exhibit D4) and in this regard though the finding is recorded by the Trial Court as against the defendants therein, however, the Trial Court has dismissed the suit without appreciating the evidence on record, as such, the impugned judgment and decree passed by the Trial Court, which subsequently confirmed by the First Appellate Court requires to be set aside. In other words, the learned counsel for the appellant submits that the perusal of paragraph 34 of the judgment of the Trial Court would clearly indicate the factum of not proving the unregistered Will dated 09th March, 12 1983 (Exhibit D4) by the defendants, has reached finality and this aspect of the matter was not considered by the Trial Court. In order to fortify his contentions, the learned counsel for the appellant, places reliance on the following judgments:
1) PENTAKOTA SATYANARAYANA & ORS v.
PENTAKOTA SEETHARATNAM & ORS (AIR 2005 SC 4362);
2) INDU BALA BOSE & ORS v. MANINDRA CHANDRA BOSE & ANR (AIR 1982 SC 133);
3) UMA DEVI NAMBIAR & ORS v. T.C. SIDHAN (DEAD) (AIR 1995 SC 1852);
4) S. JAGADISH v. DR. S. KUMARASWAMY SINCE DEAD BY LRs S.K. LINGARAJU AND OTHERS (ILR 2008 KAR. 87);
5) KALYAN SINGH, LONDON TRAINED, CUTTER, JOHRI BAZAR, JAIPUR v. SMT. CHHOTI AND OTHERS (AIR 1990 SC 396); AND
6) ANIL BEHARI GHOSH v. SMT. LATIKA BALA DASSI AND OTHERS (AIR 1955 SC 566)
8. Placing reliance on the above judgments, the learned counsel submits that unless the registered Will dated 22nd October, 1981 is been revoked, it is to be noted that the testator had made another Will dated 09th March, 1983 revoking the earlier registered Will dated 22nd October, 1981 and the document is required to be made as per Section 70 of the Indian Succession Act.
13
9. Per contra, Shri. R D Kulkarni the learned counsel appearing for the respondent No.4 submits that it is settled principle of law that always the last Will prevails over the earlier Will even if it is registered. The intention of the testator is the foremost consideration while interpreting the narration made in the Will, and accordingly, he submits that since the Will dated 09th March, 1983 (Exhibit D4) is the latter Will and the intention of Ningavva is specifically stated in the said Will, and therefore, the finding recorded by both the Courts below is valid and does not call for interference by this Court.
10. The learned counsel appearing for the respondent No.1 submits that the relationship between the parties is disputed. He submits that the plaintiff is a stranger to the testator. He draws the attention of the Court by pointing out at the deposition of PW1 and PW2 before the Trial Court. On inviting the attention of the Court to cross-examination of PW1, he submits that there is no relationship between the plaintiff and testator (Ningavva) and as such he submits that the judgment and decree passed by both the Courts below is in accordance with law and does not call for any interference 14 by this Court. He further submits that though additional issue has been framed by the Trial Court, same is not forthcoming in the discussion of the Trial Court and as such this aspect of the matter ought to have been considered by the Appellate court. He invites the attention of this Court with regard to the contents of Exhibit P1 and Exhibit D4. He also submits that nothing is stated in the Will with regard to the relationship between the plaintiff and the testator and as such the finding recorded by the Courts below requires to be affirmed by this Court. To buttress his submission, he places reliance on the Constitutional Bench judgment of the Hon'ble Supreme Court in the case of H. VENKATACHALA IYENGAR v. B. N. THIMMAJAMMA & OTHERS reported in AIR 1959 SC 443.
11. This Second Appeal preferred by the plaintiff was admitted on 20th October, 2016 to consider the following substantial question of law:
"Whether the judgment and decree of both the courts below are perverse in misreading the Will -Exhibit P1 by holding that the plaintiffs have failed to prove the Will?15
12. On appreciation of oral and documentary evidence on record, both the Courts below have concurrently held that the plaintiff has failed to prove the Will dated 22nd October, 1981 (Exhibit P1). In the normal circumstance, this Court, in Second Appeal, would not be inclined to interfere with such a concurrent finding on fact. In the case on hand, the question would be whether the case for interference on concurrent finding of fact is made out and the law on that point is well settled. After reviewing the entire case papers, it is pertinent to note that this Court in RSA No.305 of 2004 in the case of MARIAM HUSSAIN v. SYEDANI AND OTHERS disposed of on 01st March, 2007 has held as follows:
"... As both the Courts below have not only misread the evidence on record, ignored the material evidence on record and relied on the evidence which is inadmissible in evidence and recorded the said finding though it is a concurrent finding of fact, this Court in its jurisdiction under Section 100 is duty bound to interfere with the said perverse finding in order to do justice between the parties."
13. The stand taken by the appellant that while appreciating the evidence, the Courts below have not kept in 16 mind the legal principles as also it has misread the evidence and thereby it is necessary for me to go through the entire evidence on record and to find out whether a case for interference on concurrent findings is made out or not. From the materials on record, it is not in dispute that the suit filed by the plaintiff for declaration came to be dismissed on 22nd December, 2009. Being aggrieved by the same, the plaintiff has preferred First Appeal in RA No.48 of 2010 before the III Additional Senior Civil Judge and JMFC, Hubballi. I have carefully and cautiously gone through the judgment and decree passed by the first appellate court. At paragraph 8 of the judgment, it is observed as follows:
"8. In the trial Court, the plaintiff has got examined as PW1 and got documents marked as Ex.p- 1 to 11. Defendant No.1 has examined as DW.1 and attesting witnesses have examined as DW2 to 6 and got documents marked as Ex.D1 to 11.
14. A perusal of paragraph 8 of the judgment would clearly indicate that the first appellate Court has not considered the entire case material before the Trial Court and the learned Judge of the First Appellate Court has not even looked into as to how many witnesses have been examined 17 before the Trial Court and as to what number of documents are produced before the Trial Court. The first appellate court had discussed the evidence of PW1 and has taken the evidence of PW2 to 4 lightly and passed the impugned judgment and decree. According to the first appellate Court, the plaintiff has marked Exhibits P1 to P11. However, on perusal of entire judgment of the Trial Court, there is no such document as Exhibits P1 to P11 and there are only Exhibit P1 to Exhibit P4 produced by the plaintiff which would clearly indicate the fact that the Appellate Judge has not applied his mind judiciously while appreciating the evidence on record made by the parties. In this aspect of the matter, the perusal of paragraph 19 of the first appellate court, wherein the Court has referred to the law declared by Hon'ble Supreme Court as well as this Court through various judgments, however, there is no finding by the Appellate Court with regard to the application of ratio insofar as the facts and circumstances of the case. The perusal of paragraph 25 of the judgment of the first Appellate Court reveals that it has come to the conclusion that the finding recorded by the Trial Court is not sustainable in law. However, the first appellate court has dismissed the 18 appeal filed by the appellant/plaintiff therein and confirmed the judgment and decree passed by the Trial Court which is self-explanatory in which the First Appellate Court ought not to have said so without looking into the material on record produced by the parties. It is the settled principle of law that in the case of NAVANEETHAMMAL v. ARJUNA CHETTY reported in (1996)6 SCC 166 wherein the Apex Court has observed that interference of concurrent finding of the Courts below under Section 100 of the Code of Civil Procedure must be avoided unless warranted by compelling reasons. In this regard, it is relevant to quote the observation made by Apex Court at paragraph 11 of the judgment which reads as hereunder:
"11. This Court, time without number, pointed out that 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 re-appreciate the evidence just to replace the findings of the lower courts."
15. Further, it is useful to refer to the law declared by this Court in the case of S. JAGADISH v. DR. S. 19 KUMARASWAMY SINCE DEAD BY LRs S.K. LINGARAJU AND OTHERS reported in ILR 2008 KAR. 87 wherein this Court has held that the misreading of documentary and oral evidence on record and ignoring the relevant material on record amounts to perverse and capricious finding contrary to material on record and under such circumstances, the concurrent finding of both the Courts below is a concurrent error and the High Court has jurisdiction to interfere in such concurrent finding of fact and it is the duty of the High Court to interfere in such finding in order to prevent miscarriage of justice.
16. This court in the case of LIGAKATH ALI KHAN v. SRI SYED WAZEED AND OTHER reported in ILR 2012 KAR 2035 has held that while deciding the first appeal, and exercising the power of appreciation of evidence by the first appellate Court, it shall follow the fundamental rules required to be followed while deciding the appeal. Independent assessment of all the relevant evidence and important aspects of the case should be considered by it as required under Section 96 of the Code of Civil Procedure. It is further held in the said case that Order XLI Rule 31 of the Code of Civil Procedure provides guidelines for First Appellate Court as to 20 how it has proceed to decide the appeal and independently assess the relevant evidence and all the material aspects of the case and record its findings on the points raised for consideration. Being the final court on facts, the first Appellate Court must assign reasons for decision to all the points that are formulated for its consideration. The first appeal being a valuable right of the parties having conferred with right to be heard both on question of fact and law, the judgment of first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of its findings. It is pertinent to mention here that having applied the law declared by this Court in the afore-mentioned cases to the case on hand, it makes clear that the impugned judgment and decree passed by the first appellate court is cryptic and none of the relevant aspects of the matter have either been noticed or appreciated in the impugned judgment and decree passed by the First Appellate Court. Thus, there is flaw on account of which the impugned judgment is vitiated and cannot be sustained. In this regard, the guidelines laid down by this Court at paragraphs 18 and 19 of the judgment are relevant to be extracted. The same read thus: 21
"18. Section 96 of the Code provides the right of an appeal. O 41 R 31 of the Code provides guidelines for the Appellate Court as to how it has to proceed and decide the appeal. The First Appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the Final Court of facts, the First Appellate Court must assign reasons for its decision on the point/s which have been formulated for consideration. The first appeal being a valuable right and the parties having been conferred with right to be heard both on questions and fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the finding.
19. Keeping in view the settled principles of law, on perusal of the impugned judgment, it is clear that the Court below has failed to follow the fundamental rules governing the exercise of its jurisdiction under S.97 of Code and decide the appeal as per the guidelines under O 41 Rule 31 of the Code. The impugned judgment is cryptic. None of the relevant aspects of the matter ha either been noticed or appreciated. The impugned judgment falls short of the considerations which are expected from the court 22 of first appeal. Thus, there is a flaw, on account of which, the impugned judgment is vitiated and cannot be sustained."
17. In the case of SMT. RANI AND ANOTHER v. SMT. SANTA BALA DEBNATH AND OTHERS reported in AIR 1971 SC 1028, the Hon'ble Supreme Court has observed that Appellate court could not decree the suit in appeal on the ground of false representation and are not supported by any evidence and they seriously vitiate their appreciation of evidence on record.
18. In a celebrated case, between HAFAZAT HUSSAIN v. ABDUL MAJEED AND OTHERS reported in (2001)7 SCC 189 it is observed thus:
"...the serious infirmities and illegalities committed by the learned trial Judge as well as the I Appellate Judge, and the necessity for his interference to prevent total miscarriage of justice, with convincing reasons. The findings recorded by the trial court as well as the first appellate court were shown to be not only vitiated due to perversity of reasoning but also due to surmises and misreading of the materials on record."23
19. The perusal of finding recorded by the first appellate court would indicate that the first appellate court has not considered the factual aspects of the case in its right perspective and not appreciated the documents and therefore, the impugned judgment and decree passed by the first appellate court is without assigning reasons and according to this Court, it is not a judgment at all.
20. This court, in the case of PREMNATH KAKDE v. AMARNATH reported in 2018(1) KAR.L.J. 237 at paragraph 28 of the judgment observed that the appreciation of evidence means the court has to consider what exactly the evidence given by the parties in support of their pleadings and whether the said evidence is sufficient to prove the issues cast upon them. In order to come to such conclusion one has to look into the evidence of the parties and documents produced by them.
21. Having applied the said principle laid down by this Court to the case on hand, it is to be inferred that the first appellate Court has not considered the grounds urged by the appellant challenging the findings record by the Trial Court vis-à-vis it is very strange that even the Trial Court has not 24 considered the additional issues framed therein at the time of adjudicating the dispute and in that view of the matter, the judgment and decree passed by the first appellate court requires to be interfered with by this Court. Having taken note of the judgments referred to by the learned counsel for the appellant and the learned counsel for the respondents on the merits of the case, this Court had taken a decision to remand the case to the First Appellate Court, with a request to the First Appellate Court to test the legality of the judgment and decree of the Trial Court in the circumspection of the law laid down by this Court and Apex Court in the judgments referred to above to the factual aspects of the case on hand.
22. The Hon'ble Supreme Court in the case of S. SUBRAMANIAN v. S. RAMASWAMY ETC. ETC. reported in AIR 2019 SC 3056 has held that the High Court can set aside the finding of fact recorded by the lower courts by re-appreciating the entire evidence on record including the documentary evidence, in a second appeal is permissible only on substantial question of law and not on question of facts or law. It is held by the Hon'ble Supreme Court that the question of law cannot 25 be a substantial question of law, and as such, the Hon'ble Supreme Court has laid down the law that the High Court, while exercising the power under Section 100 and 103 of the Code of Civil Procedure, shall interfere with the judgment and decree passed by the Courts below, provided the courts below has passed the judgment and decree with perversity and without looking into materials on record and in the manner known to law.
23. The Hon'ble Supreme Court in the case of HAFAZAT HUSSAIN (supra) has held that the rule of non-interference in a concurrent finding of lower courts is not an absolute rule of universal application. What must be examined is whether the second appellate court has interfered with such findings, is whether its conclusions are justifiable according to the parameters of consideration for interference under Section 100 of the Code of Civil Procedure.
24. In the instant case, the first appellate Court has not appreciated the evidence on record and therefore it vitiates in its entirety following the law declared by the Apex Court as stated supra. It is pertinent to mention here that this Court 26 can interfere with the question of fact under Section 100 of Code of Civil Procedure on the following principles:
(i) if the courts below have ignored the
evidence on record;
(ii) misdirected themselves I the matter of legal principles governing the authority of complete testamentary dispossession (in the instant case there are to testaments);
(iv) wrongly cast burden on the plaintiff as to prove the manner and nature of acquisition of the property.
25. Therefore, having considered the concurrent findings of the both the courts below, the rule of non- interference in, held, is not an absolute rule for universal application, and therefore, whenever the first appellate court has mechanically disposed of the matter without considering the material on record or re-appreciate the evidence on record with available materials on record, this Court shall interfere and set aside such judgment; and in view of the same, the impugned judgment and decree dated 24th January 2015 passed in RA 48 of 2010 by the III Additional Senior Civil Judge and Judicial Magistrate First Class, Hubballi requires to be set aside by this Court. The conclusion arrived 27 to remit the case to the First Appellate Court, is after examining the entire case material in the light of substantial question of law framed by the Court and accordingly answered.
26. In the instant case, the findings of the first appellate court is based on surmises and conjectures which is perverse finding not based on legally acceptable evidence and which are patently contrary to law declared by the Hon'ble Supreme Court, held, cannot have any impunity from interference at the hands of this Court. First Appellate Court, held, is duty-bound to make a critical analysis of the matter before it. It cannot mechanically affirm the findings of the Trial Court without proper and due application of mind. it is an undisputed fact that there are two Wills propounded by the plaintiff as well as defendant No.3. Undoubtedly, the first appellate ought to have appreciated genuineness of the Wills in parameters of law as laid down by the Hon'ble Supreme Court in the case of B. N. THIMMAJAMMA & OTHERS (supra) wherein the Constitutional Bench of Hon'ble Supreme Court has laid down the guidelines for validating testamentary dispossession. Suffice to say that the Hon'ble Supreme Court in the case of KALYAN SINGH, LONDON TRAINED, CUTTER, 28 JOHRI BAZAR, JAIPUR (supra) at paragraph 20 of the judgment has held that the propounder of Will shall remove all the suspicious circumstances. In this regard, the first appellate court has misguided itself by applying wrong principles and not considered the fact as to how many documents have been produced by the parties before the Trial Court or the pleadings referred to in the plaint or the written statement by the parties and in that view of the matter, the judgment passed by the Trial Court is to be set aside and to be remanded to the first appellate Court for disposal afresh and in accordance with law. Needless to observe that this Court has not expressed any opinion on merits in the case and the first Appellate Court shall not be influenced by the observation made hereinabove and shall consider the entire materials on record being the first Court for appreciating the evidence on fact. Hence the following:
ORDER
1. Regular Second Appeal is allowed.
2. Judgment and Decree dated 24th January, 2015 passed in RA No.48 of 2010 by The III Additional Senior Civil Judge and Judicial Magistrate First Class, Hubballi is set aside.29
3. The matter is remitted back to the First Appellate Court for disposal afresh and in accordance with law.
4. Parties are directed to be appear before the first appellate Court on 07th April, 2020 without waiting for any notice in this regard.
Sd/-
JUDGE lnn