Second appeals by defendant No.2 against concurrent decrees granting each plaintiff a one-seventh share in family properties and declaring a Will void. The court held the Will was unproved for want of attesting witnesses, rejected admission of additional evidence, and dismissed the appeals.
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: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.424 OF 2023 (PAR/DEC)
CONNECTED WITH
REGULAR SECOND APPEAL NO.421 OF 2023 (PAR/DEC)
IN R.S.A.No.424/2023
BETWEEN:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
K G CHANDRAMOULI S/O LATE K GOPALA SHASTRY, AGED ABOUT 59 YEARS, R/O PATTALAMANE VILLAGE, THIRTHAHALI TALUK-577432 SHIVAMOGGA DISTRICT.
(BY SRI P N HARISH, ADVOCATE) AND:
…APPELLANT
NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023
AGED ABOUT 62 YERS, R/O THONACHI KOPPA, LAKSHMI TEMPLE, T BEGUR POST, NELAMANGALA TALUK-562123, BENALURU DISTRICT.
…RESPONDENTS (BY SRI PRASAD B S, ADVOCATE FOR C/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022 PASSED IN R.A.No.71/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
IN R.S.A.No.421/2023
BETWEEN:
K G CHANDRAMOULI S/O LATE K.GOPALA SHASTRY, AGED ABOUT 59 YEARS, R/O PATTALAMANE VILLAGE, THIRTHAHALLI TALUK-577 432. SHIVAMOGGA DISTRICT.
…APPELLANT
(BY SRI P N HARISH, ADVOCATE)
AND:
S/O LATE K.GOPAL SHASTRY AGED ABOUT 62 YEARS, R/O THONACHI KOPPA LAKSHMI TEMPLE, T.BEGUR POST, NELAMANGALA TALUK-562 123 BENGLAUR DISTRICT.
3. GIRIJAMMA
W/O LATE K.GOPALA SHASTRY AGED ABOUT 80 YEARS, R/O PATTALAMANE VILLAGE, THIRITHAHALLI TALUK-577432 SHIVAMOGGA DISTRICT.
D/O LATE K.GOPAL SHASTRY W/O H.N.DATTATHREYA AGED ABOUT 53 YEARS, YOGA NARASIMHA NEAR SOMANNA GARDEN, DURGAPARAMESHWARI LAYOUT, VIDYARANYAPURAM, BENGALURU-560 097.
…RESPONDENTS
(BY SRI PRASAD B S, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022 PASSED IN R.A.No.70/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
These appeals are taken up together since the parties are one and the same and both the second appeals are arising out of the common judgment and decree passed by the First Appellate Court.
before the Trial Court that defendant Nos.2 to 5 are the children of late K Gopala Shastri and defendant No.1 is the wife of said K Gopala Shastri. The said Gopala Shastri originally hailed from Somavarasanthe, Tudur hobli of Thirthahalli taluk and subsequently he went to Pattalamane village to Thirthahalli taluk. After that he has separated from his brother Rama Shastri and settled in Pattalamane village in the year 1960. The plaintiffs and defendants are the legal heirs of late Gopala Shastri. The
late Gopala Shastri after separated from his brother Rama
Shastri, filed a declaration before the Land Tribunal Thirthahalli and got confirmation of occupancy rights in his favour on behalf of the joint Hindu family as head and Manager or Kartha of the family. As such, after enquiry, the said authorities have issued Form No.10 in favour of joint Hindu family. Some of the properties are purchased by late Gopala Shastri out of the joint family funds and hence, they are also joint family properties. It has come to the knowledge of the plaintiffs that defendant No.2 has secretly created a Will and on that basis, he applied for khata before Tahasildar and same has been opposed by the plaintiffs and defendant No.5. The Tahasildar, Thirthahalli has registered the dispute in R.R.T.S.H.R.14/2005-06 and holding enquiry, mutated the khata in favour of defendant No.2 and the said order was challenged by defendant Nos.1 and 4 before the Assistant Commissioner, Shivamogga in two appeals i.e., in P.D.A.Nos.140/06-07 and 187/07-08 and Assistant Commissioner held an enquiry on 30.08.2011 passing
order and set aside the order passed by the Tahsildar, Thirthahalli. In terms of the order of the Assistant Commissioner, the properties were mutated in the joint names of plaintiffs and defendants. It is contended that defendant No.2, on the basis of alleged Will has filed probate in P&SC No.11/2011 before the Principal Civil Judge (Sr. Dn.), Shivamogga and the same is pending for consideration. It is also contended that alleged Will dated 15.12.2004 and the alleged gift deed dated 23.07.2004 are illegal, void and unenforceable and not binding on the plaintiffs’ share in the suit schedule properties. Hence, sought for the relief of declaration and partition.
suit schedule properties. The suit is only filed to harass the aged mother and there is no cause of action to file the suit. There is no document adduced to show that the suit schedule properties are the joint family properties and the same are a self-acquired properties of K Gopala Shastri. Hence, the plaintiffs are not entitled for share in the suit properties.
admitting the plaint averments and he contend that he was working as a peon at Salur. Defendant Nos.1 to 3 by colluding with each other created the documents to defeat the share of defendant No.4 as well as plaintiffs. The deceased K Gopala Shastri did not have right to execute Will dated 15.12.2004 since the properties shown in the Will are the joint family properties. The deceased Gopala Shastri did not have any intention to execute such type of documents. The gift deed executed is not binding on defendant No.4. Defendant No.4 is not having any independent possession. Defendant No.4 is living in a
rented house and he is not having source of income. Defendant Nos.1 to 3 are enjoying the suit schedule properties. Hence, prayed the Court to grant the relief.
the parties to lead their evidence. The Trial Court after considering both oral and documentary evidence placed on record comes to the conclusion that occupancy rights granted in favour of the father of the plaintiffs K Gopala Shastri would enure to the benefit of entire family and did
not accept the contention of the defendants regarding execution of the Will and the plaintiffs have received Rs.2,20,000/- towards their share and executed the relinquishment deed since there is no material placed before the Court to substantiate the same. Hence, the suit of the plaintiffs is decreed and granted 1/7th share each in
favour of the plaintiffs in the suit schedule properties by effecting partition and also declared that the Will dated 15.12.2004 executed in respect of the suit schedule property is void, illegal and not binding on the plaintiffs’ share in the suit schedule properties and also held that defendant No.4 is also entitled for 1/7th share in the suit schedule properties. Being aggrieved by the judgment and decree of the Trial Court, three appeals are filed in R.A.Nos.70/2018, 71/2018 and 77/2018.
arising out of the common judgment passed by the Trial Court. The First Appellate Court having considered the grounds urged in the respective appeals formulated the points and having reassessed both oral and documentary evidence placed on record comes to the conclusion that the grant made in favour of Gopala Shastri is for the benefit of the family and Will propounded by defendant Nos.1, 3 and 5 have not been proved and payment of Rs.2,20,000/- each to the plaintiffs also not proved since no documents are placed before the Court to accept the contention that a reference is made in the Will by the father of the plaintiffs i.e., Gopala Shastri. Hence, the First Appellate Court confirmed the judgment and decree of the Trial Court. Being aggrieved by the said concurrent finding of both the Courts, the present second appeals are filed before this Court by defendant No.2.
for the appellant/defendant No.2 that both the Courts have committed an error in holding that the suit schedule
properties are the joint family properties of the plaintiffs and defendants and deceased K Gopala Shastri filed declaration for conferment of occupancy rights not as an individual but for the family. The learned Trial Judge failed to notice that in the declaration made by deceased K Gopala Shastri marked as Ex.P2, he has categorically made a statement that for the past twenty years, he has been cultivating this land personally and in the column mentioned for narrating details of his family members, he has mentioned the names of his wife, sons and daughter. This itself does not give an indication that he made declaration for the benefit of family and not as an individual. The counsel further would vehemently contend that both the Courts have failed to take note of important admissions made by PW1 with regard to the factum of individual cultivation by his father and he having migrated without any nucleus by working hard cultivated personally as a tenant. It is also contend that the Trial Court committed an error in coming to the conclusion that Will has not been proved. The counsel also submit that an
attempt is made before the First Appellate Court to examine the attested witnesses but the First Appellate Court not allowed the appellant to lead evidence and prayer was rejected. The counsel also would vehemently contend that when the property is the absolute property of Gopala Shastri, the plaintiffs are not entitled for any share.
The counsel also submits that in terms of the Will, provision is made to all the children and also reference was made in respect of the plaintiffs that an amount of Rs.2,20,000/- each was given to them and not disinherited any of the family members even after executing the Will. Hence, this Court has to admit the appeal and frame the substantial questions of law for reconsideration of the second appeal since the very approach of both the Courts is erroneous.
NC: 2024:KHC:25328 RSA No. 424 of 2023 C/W RSA No.421 of 2023
Form No.7, specific details are given with regard to the family. The order of the Land Tribunal is at Ex.P3 and the same is also very clear that though grant was made in the name of K Gopala Shastri, the same is for the benefit of the family and Ex.P4 is the certified copy of Form No.10. The counsel also would vehemently contend that Ex.P5 and P6 are the mutations and though an attempt was made to grab the property based on the Will, the same was also challenged. The counsel contend that though the Tahsildar confirmed keeping the revenue records in the name defendant No.2 and the said order was set aside by
the Assistant Commissioner and also relies upon the documents at Ex.P7 to P14 i.e., RTC extracts and Ex.P15 to P18 i.e., the demand register extracts. The counsel would vehemently contend that when the grant is made in favour of Gopala Shastri for the benefit of family and other properties are also purchased that is item No.3 out of the joint nucleus hence, father was not having any absolute right to execute the Will as well as gift and the same is not binding on the plaintiffs. Hence, the Trial Court as well as
the First Appellate Court rightly held that grant made in favour of the father of the plaintiffs i.e., Gopala Shastri would enure to the benefit of entire family and not committed any error in passing such an order.
the very application though filed in the individual capacity, details are furnished and no dispute with regard to the granting of property by the Land Tribunal.
joint family properties and it was Moolageni tenancy lands
enjoyed as joint Hindu family acquisitions.
the Courts rightly come to the conclusion that in the absence of any documentary evidence for having made the payment and relinquishment of right, relief sought by the appellant cannot be granted.
plaintiffs except stating in the Will that an amount of Rs.2,20,000/- was paid and for having made the payment also, no document is placed and none of the witnesses were also examined to support the case of the defendants for having made payment of Rs.2,20,000/- towards share of the plaintiffs. When such materials are not available before the Court, I do not find any error committed by both the Courts in coming to the conclusion that the property is available for partition.
only upon satisfying appellate Court the conditions mentioned therein wherein it has been stated that the applicant must establish that despite his due diligence he could not adduce said evidence or that the said evidence was not available at the state of trial before the Trial Court and the same is of recent origin. Absolutely none of the reasons are assigned in the application, as such, in view of the absence of satisfactory reasons assigned by the appellant in I.A.No.3 cannot be entertained and the First Appellate Court also given the reason while rejecting the application when the certified copy is produced before the
Trial Court as Ex.D11. When the original is in the custody of the appellant ought to have been produced the original and examined the attesting witnesses. But the fact that he also filed a probate petition before the Principal Civil Judge is also not in dispute. But no such attempt was made before the Trial Court. Hence, the First Appellate Court taking into note of the grounds envisaged under Order 41 Rule 27(aa) of CPC comes to the right conclusion that no such effort was made before the Trial Court to
produce the document and nothing is prevented him to adduce the evidence to prove the Will and the document is not of recent origin and detailed order has been passed by the First Appellate Court. When reasons are assigned stating that mere filing of an application under Order 41 Rule 27 of CPC not enough and the appellant has to satisfy the grounds urged in the said application. Thus, I do not find any ground to come to other conclusion and hence, the matter does not require any reconsideration and there is no grounds to admit the appeal and frame substantial questions of law invoking Section 100 of CPC.
ORDER
The regular second appeals are dismissed.
Sd/JUDGE
SN
3 issues framed by the court
Whether the occupancy rights grant in the name of K Gopala Shastri enured to the benefit of the joint Hindu family, making the properties available for partition.
Whether the Will dated 15.12.2004 was proved without examination of attesting witnesses as required by law.
Whether additional evidence to prove the Will could be permitted at the appellate stage under Order 41 Rule 27 CPC.
5 provisions across 3 enactments
K G Chandramouli
K G Nagabhushana
K G Narayanaswamy / K G Narayanamurthy
Girijamma
K G Prasanna
K G Ramesh Shastry
H P Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
