Dismissed

G Jeevanraj v. Balasubramanya

Karnataka HC5 Jan 2023RSA/833/2020

Case brief

AI extract

What is this about?

In this second appeal by a minor through his father, the High Court rejected the claim that the First Appellate Court erred in granting property shares to legal heirs where the alleged will was unproved. The Court held that since the mother died intestate, heirs were entitled to shares, including adjustments for all four children, and no substantial question of law arose.

What the court decided

AI extract

G Jeevanraj Vs Balasubramanya — Succession and Inheritance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.833 OF 2020

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BETWEEN:

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G.JEEVANRAJ, B.BHASKAR BABU, AGED ABOUT 21 YEARS, GENERAL HOSTEL ROAD, MUDIGERE ROAD, BELUR TOWN, BELUR. HASSAN DISTRICT – 573 201.

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...APPELLANT (BY SRI. PRASANNA B.R, ADVOCATE)

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AND:

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1 . BALASUBRAMANYA, S/O. T. GOVINDARAJU, AGED ABOUT 56 YEARS, R/AT HARSHA ANANDA NILAYA, KALIDASA EXTENSION, 2^ND CROSS, SIDDARUDA NAGAR, BHADRAVATHI TOWN, SHIVAMOGGA DISTRICT – 577 301.

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2 . G. BHASKAR BABU, S/O. T. GOVINDARAJU, AGED ABOUT 48 YEARS, GENERAL HOSTEL ROAD, MOODIGERE ROAD, BELUR TOWN, BELURU, HASSAN DISTRICT – 573 115

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3 . G. MEENAKSHI,

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W/O. LATE RAJENDRA, AGED ABOUT 50 YEARS, SDA TALUK OFFICE, SHIVAMOGGA CITY, SHIVAMOGGA – 577 201.

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….RESPONDENTS

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(BY SRI. MOHAN KUMAR T., ADVOCATE FOR R1 SRI RAJKUMAR R, ADVOCATE FOR R3 R2-SERVED AND UNREPRESENTED)

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THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED: 16.10.2019 PASSED IN RA.NO.22/2018 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 31.01.2018 PASSED IN O.S.NO.19/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., BELUR.

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THIS R.S.A., COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission

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today.

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Heard the learned counsel appearing for the appellant, the learned counsel appearing for respondent No.1 and the learned counsel appearing for respondent No.3. Respondent No.2 is served and unrepresented.

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This appeal is filed challenging the judgment and decree dated 16.10.2019 passed in R.A.No.22/2018 on the file of the III Additional District & Sessions Judge, Hassan.

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Defendant No.3 is the appellant before this Court, who was minor represented through his natural guardian, fatherG. Bhaskar Babu-defendant No.1 in O.S.No.19/2015.

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The factual matrix of the case of the plaintiff before the Trial Court is that the original propositus Govindaraju was having his wife namely Jayalakshmamma. The said couple was having their children namely plaintiff and defendant Nos.1 and 2. The said Govindaraju was not having any ancestral properties and similarly the said Jayalakshmamma was also not having any properties from her parental side. The said Govindaraju was a carpenter by profession and he has purchased the suit properties in the name of Jayalakshmamma out of the income that derived from the said profession with an intention that his children should not give any trouble to his wife in future and her children should treat her very well. The said Jayalakshmamma was not having any avocation and she was a housewife and led the family out of the income earned by her husband. The defendant

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No.1’s marriage was solemnized during the year 2001. After his marriage, he started to reside separately from his parents. The plaintiff was looking after his parents as he is eldest son and the responsibility was shouldered on him. On 15.12.2008, the said Govindaraju was paralyzed and he was under treatment for three months and on 25.03.2009, he has called all his children and told that he is not going to make any division in respect of the said suit properties and asked his children to get division of the suit properties consequent upon his death, and handed over all the original documents to the plaintiff, and on 18.12.2010 he died leaving behind his wife and children. The plaintiff was looking after his mother and defendant No.2. On 21.12.2013, the said Jayalakshmamma also passed away. He has performed all the death rituals. Defendant No.1 has requested the plaintiff to reside in the house, wherein, his parents were residing, as the plaintiff was residing at Bhadravathi, hence permitted defendant No.1 to stay in the house as the said house will not be destroyed. After six months, the plaintiff has requested defendant Nos.1 and 2 to make division of the suit properties, but he has postponed on one pretext or the other. On 11.03.2015, the plaintiff has called defendant No.1 telephonically

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to make division of the properties, for that also, defendant No.1 kept mum. Therefore, on 02.06.2015, the plaintiff has convened panchayath with elderly persons including his cousin Chelvaraj to division the suit properties, at that time, defendant No.1 has stated that his mother has bequeathed the suit properties in favour of defendant No.3 i.e., defendant No.1’s son namely Jeevanraj by way of Will and expressed that he was not ready to divide the suit properties. Under the circumstances, without having any other alternative remedy, the plaintiff has approached the Trial Court by filing a suit seeking the relief of partition and contended that the alleged will is created and concocted.

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In pursuance of the suit filed by the plaintiff, defendant No.1 had appeared and filed the written statement, admitting the death of the parents and also admitting the relationship between the parents but contended that his parents were having 4 children namely Girija, plaintiff and defendant Nos.1 and 2. But the said Girija was no more. The plaintiff has not averred in the plaint about the said Girija and the genealogy is not correct. The suit properties were purchased in the name

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of Jayalakshmamma during her life time, which is self acquired properties, either plaintiff or defendants are not having any right over the suit properties. Defendant No.1 also contended that when the Will was executed in favour of defendant No.3, the plaintiff and other defendants are not having any right in respect of the suit schedule properties. Hence, the Trial Court has framed the issues and recorded the evidence.

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The plaintiff in order to substantiate his case examined himself as P.W.1 and also examined two witnesses as PWs.2 and 3 and got marked the documents as Exs.P1 to P9. On the other hand, defendant No.1 has examined himself as D.W.1 and also examined two witnesses as D.Ws.2 and 3 and not marked any documents.

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The Trial Court after considering both oral and documentary evidence available on record dismissed the suit by answering issue Nos.1 to 6, as negative. Hence, the appeal was filed before the First Appellate Court by the plaintiff. The First Appellate Court having considered the material available on record and on re-appreciation, reversed the findings of the Trial Court and granted the relief in favour of the plaintiff and also

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granted share in respect of other children, who are the children of Jayalakshmamma and Govindaraju, by granting 1/4^th share in respect of the suit schedule properties. Hence, the present second appeal is filed before this Court.

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The main contention of the learned counsel appearing for the appellant in the present appeal is that the First Appellate Court has committed an error in granting share in favour of one of the daughter of Jayalakshmamma and Govindaraju, who is not a party to the proceedings. The learned counsel also would vehemently contend that the First Appellate Court failed to appreciate the provision under Order 32 Rule 3A of CPC., and protect the interest of the minor, who is the appellant herein. Though the minor represented through his father, the father has not protected the interest of the minor even though there was a Will in favour of him. The said Will though placed before the Trial Court, the same was not marked. When the judgment and decree passed against the interest of the minor, the substantial question of law arises for consideration of this Court. Hence, the matter requires to be atleast remanded by the First Appellate Court in order to prove the

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Will, which was claimed by defendant No.1 executed in favour of defendant No.3. The plaintiff has not disproved the Will dated 14.09.2012 executed in favour of defendant No.3. Hence, it requires interference and the substantial question of law has to be framed.

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Per contra, learned counsel appearing for the

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respondent/plaintiff would contend that the Trial Court has committed an error in answering all the issues as negative. It is the case of the plaintiff before the Trial Court that the suit schedule properties are the self-acquired properties of his father, the same was purchased in the name of the plaintiff’s mother Smt. Jayalakshmamma. Though it is contended that the Stridhana properties of their mother Smt. Jayalakshmamma and there was a Will dated 14.09.2012 in favour of third defendant, the same has not been proved. The said Will is not marked. Though contended that their mother Smt. Jayalakshmamma had executed a registered will on her absolute self-acquired properties in favour of her grand son by name G. Jeevanraj, who is the third defendant, the same also not been proved. Even though answered issue Nos.3 and 4 as negative, the Trial Court

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dismissed the suit and committed an error. Hence, an appeal is filed before the First Appellate Court.

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The learned counsel would submit that the First Appellate Court on re-appreciation of both oral and documentary evidence available on record and coming to the conclusion that the property belongs to Smt. Jayalakshmamma. Smt. Jayalakshmamma and Govindaraju were having four children and no dispute with regard to the fact that they were having four children and even though one of the daughter is not a party to the proceedings, granted 1/4^th share in respect of the suit schedule properties since the Will also not been proved by defendant No.1, who is a natural guardian of defendant No.3.

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The learned counsel also would submit that though it is contended that it is a Stridhana property, the same is also not been proved. The First Appellate Court on re-appreciation of the material available on record rightly came to the conclusion that when the property belongs to Smt. Jayalakshmamma, who is the mother of defendant Nos.1 and 2 and also the mother of the plaintiff and not committed any error in granting the relief reversing the judgment and no substantial question of law arises

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for consideration of this Court. Hence, it requires to be dismissed.

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Having heard the respective counsel and also on

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perusal of the material available on record, it is not in dispute that the properties stand in the name of Smt. Jayalakshmamma, who is the mother of the plaintiff and defendant Nos.1 and 2. It is also the claim of the plaintiff that the property belongs to Smt.Jayalakshmamma and the plaintiff is entitled for 1/3^rd share. The records also reveal that the plaintiff while filing the suit, not arrayed one of his sister Smt. Girija, as party to the proceedings but during the course of the evidence, it has emerged that one more daughter by name Girija was also born to Smt. Jayalakshmamma and Govindaraju. The said fact has not been disputed by both the plaintiff as well as the first defendant. The Trial Court also while on appreciation of the material available on record, in the absence of the Will, which has been claimed by defendant No.1 contending that the same is executed by Smt. Jayalakshmamma in favour of his son, who has been arrayed as third defendant. Hence, answered the issue as negative. Though produced the Will, not marked the

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document and proved the execution of the Will. When the Will is propounded, the same has to be proved by the person, who propound the Will and the same should be proved without any suspicion. The learned counsel appearing for the appellant would vehemently contend that the Will was produced before the Trial Court, but the same was not marked. The learned counsel appearing for the appellant also would vehemently contend that the minor interest cannot be defeated on account of his father has not conducted the case properly. The fact that the first defendant, who is the father of the minor viz., first defendant himself has filed the written statement before the Trial Court and he contested the matter that there was a Will. It is also important to note that when he had the knowledge about the Will was not produced before the Trial Court, when the appeal was also filed by the appellant – plaintiff before the First Appellate Court and not made any efforts to even seeking for permission to mark the document of Will before the First Appellate Court or place the original Will before the Court and not made any attempt to prove the Will by examining the witnesses, but only took the defense that the Will was executed in favour of the third defendant, who is a minor. Admittedly, no

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doubt, he was a minor. At the time of filing the suit, he was aged about 15 years. But father was represented as natural guardian to minor and he himself has been examined as DW.1 before the Trial Court. Hence, the very contention of the learned counsel for the appellant that the minor interest has not been protected cannot be accepted for the reason that the natural guardian father led his evidence by examining himself as DW.1 but not produced the Will.

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The other contention of the learned counsel appearing for the appellant is that he is also a beneficiary in view of the judgment and decree. No doubt, while appointing a guardian, the guardian should not have any interest. Here is a case of the father is a natural guardian, who contested the matter before the Trial Court by filing the written statement and he himself has been examined as D.W.1 and no document was placed before the Court, even though took the defense that the property is a Stridhana property and also the property belongs to Smt. Jayalakshmamma and she had executed the Will. No effort was made before the Trial Court or before the First Appellate Court to place and mark the document by seeking

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permission of the First Appellate Court. The First Appellate Court also on re-consideration of both oral and documentary evidence available on record, formulated the point that whether the Trial Court has committed an error in dismissing the suit and answered point No.1, having considered the material available on record i.e., the property belongs to Smt. Jayalakshmamma and the same was purchased in the name of Smt. Jayalakshmamma. When the Will was not proved, Smt. Jayalakshmamma died intestate, the legal heirs are entitled for share and the legal heirs are the plaintiff and defendant Nos.1 and 2. Apart from that, when the material discloses that Smt. Jayalakshmamma and Govindaraju were having a daughter by name Girija, which has not been disputed by both the plaintiff as well as defendants; taking note of the said fact into consideration, the First Appellate Court reversed the finding of the Trial Court in coming to the conclusion that when the will has not been proved, the legal heirs of the original owner-Smt. Jayalakshmamma granted the decree. I do not find any error committed by the First Appellate Court in reversing the finding and the material is very clear that the Will has not been proved though it is propounded that the Will was executed in favour of

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the third defendant. Hence, the reasoning given by the First Appellate Court that the Will has not been proved and also the property belongs to Smt. Jayalakshmamma and she died intestate. Hence, her children are class-1 heirs and they are entitled for share. The First Appellate Court discussed Section 14 of the Hindu Succession Act, 1956 with regard to Stridhana property in paragraph Nos.16 and 17 and also given the reasoning for granting the share as the same is not proved as Stridhana property. When such being the material on record, I do not find any error committed by the First Appellate Court and no substantial question of law arises before the Court. Even though one of the daughters is not a party to the proceeding, the First Appellate Court taken note of the interest of the other daughter, granted the share. In a suit for partition also even if a party is not made as a party, she can be arrayed in the final decree proceedings while drawing up of the same. Hence, the very contention of the learned counsel appearing for the appellant that when the daughter Girija is not a party to the proceedings, granted share, cannot be accepted and granting of share is in accordance with law. There is no dispute with regard to the relationship between the parties. Hence, no ground is

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made out to invoke Section 100 of CPC., to frame any substantial question of law.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the appeal, I.A.No.1/2020 for stay

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does not survive for consideration, the same stands disposed of.

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Sd/JUDGE

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cp*

G Jeevanraj v. Balasubramanya

Case brief

What is this about?

What the court decided

G Jeevanraj v. Balasubramanya

Case brief

What is this about?

What the court decided

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