This Regular Second Appeal is filed to set aside a decree in a suit for declaration of ownership based on a will. The High Court held that no substantial question of law arises upon re-appreciation of the evidence and dismissed the appeal at the stage of admission.
Regular Second Appeal dismissed at the stage of admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:23554 RSA No. 493 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.493 OF 2017 (DEC/INJ)
BETWEEN:
SRI PRASAD S/O LATE S.KRISHNEGOWDA, AGED ABOUT 51 YEARS, R/A HIRODE BEEDI, PANDAPURA TOWN, MANDYA DISTRICT - 571 401.
…APPELLANT
(BY MS. JANAVI.M., ADVOCATE FOR SRI. CHANDRAKANTH.R.GOULAY., ADVOCATE)
AND:
SMT.RADHA, W/O PUTTASWAMY, AGED ABOUT 48 YEARS, R/A NO.200, 5TH CROSS, VIJAYANAGARA RAILWAY LAYOUT, MYSORE CITY - 570 001.
Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA
…RESPONDENT
(BY SRI. E.RAJAGOPALA ., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Ms.Janavi., learned counsel on behalf of Sri.Chandrakanth
R.Goulay., for the appellant has appeared through video conferencing.
Sri.E.Rajagopala., learned counsel for the respondent has appeared in person.
The plaintiff filed a suit seeking the relief of declaration that she is the absolute owner in possession of the suit schedule property by virtue of a Will dated 02.08.2004 executed by her mother in her favor and for a permanent injunction. After the service of the suit summons, the defendant entered an appearance, filed a written statement, and denied the plaint averments. It is contended that the suit is bad for non-joinder of necessary parties. The defendant had several contentions. Among other grounds, he prayed for the dismissal of the suit.
NC: 2023:KHC:23554 RSA No. 493 of 2017
Based on the above pleadings, the Trial Court framed Issues. To substantiate their claims, the plaintiff-led evidence and documents were marked and exhibited. Defendant did not lead evidence. On the trial of the action, the suit came to be decreed holding that the plaintiff is the absolute owner and possessor of suit schedule property based on the Will dated 02.08.2004 executed by her mother, and the defendant was also restrained by an order of injunction. Aggrieved by the Judgment & Decree of the Trial Court, the defendant preferred an appeal before the First Appellate Court. On appeal, the Judgment and Decree of the Trial Court were confirmed. Hence, this Regular Second Appeal is filed by the defendant under Section 100 of CPC.
Next, she submits that the suit is bad for non-joinder of necessary parties. The Trial Court ought to have dismissed the suit. She places reliance on the decision reported in BALURAM
NC: 2023:KHC:23554 RSA No. 493 of 2017
Vs. P.CHELLATHANGAM & OTHERS - Civil Appeal Nos.10940-10941/2014 (arising out of SLP(C) Nos.996997 of 2013) .
She made a further submission that the plaintiff ought to have filed a Probate case before the District Court and not a suit before the Civil Court.
Lastly, she submits that viewed from any angle, the Judgments & Decrees of both Courts are unsustainable in law. Hence, this Regular Second Appeal may be admitted by framing substantial questions of law.
NC: 2023:KHC:23554 RSA No. 493 of 2017
NC: 2023:KHC:23554 RSA No. 493 of 2017
Ms.Janavi., learned counsel for the appellant in presenting her argument vehemently contended that the suit is bad for non-joinder of necessary parties. She argued by saying that the other children of Smt.Puttalaxamma are not made parties hence, the Trial Court ought to have rejected the suit on the ground of non-joinder of necessary parties.
In reply, Sri.E.Rajagopal., learned counsel for the respondent contended that the suit is one for declaration based on the Will. Hence, the other children of Smt.Puttalaxmamma are not necessary parties to the suit.
Considered the submission about non-joinder of necessary parties. The plaintiff filed a suit for a declaration based on a Will. In a suit filed for a declaration, the other children of Smt.Puttalaxamma are neither necessary nor proper parties. Hence, the suit would not fail. The law is well settled that the plaintiff is Dominus Litis. He cannot be compelled to sue a person against whom he does not claim any relief. Hence, the contention about the non-joinder of necessary parties is untenable.
NC: 2023:KHC:23554 RSA No. 493 of 2017
The Trial Court extenso referred to the material on record and concluded that the plaintiff has proved the execution of the Will. The First Appellate Court has examined the material on record and re-appreciated it. I am satisfied that it has been appreciated from the correct perspective. The concurrent finding of facts, however erroneous, cannot be disturbed by the High Court in the exercise of the power under Section 100 of CPC. The substantial question of law must be distinguished from a substantial question of fact. In my view, the findings recorded by both Courts are either vitiated by nonconsideration of relevant evidence or by an erroneous approach to the matter.
NC: 2023:KHC:23554 RSA No. 493 of 2017
consideration in this appeal. As a result, I find no merit in this appeal, and accordingly, it is dismissed at the stage of
admission.
Sd/JUDGE
TKN List No.: 1 Sl. No.: 85
3 issues framed by the court
Whether the appeal raises substantial questions of law for interference under Section 100 of CPC.
Whether the suit is bad for non-joinder of necessary parties (other children of the testator).
Whether the regular second appeal is liable to be allowed or dismissed at the stage of admission.
1 provisions across 1 enactments
Sri Prasad S/O Late S.Krishnegowda
Smt. Radha
Jyoti Mulimani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
