Kathyayani Vs Rajamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.09.2022 PASSED IN RA.No.5041/2019 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, SITTING AT MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.08.2014 PASSED IN OS.No.19/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KORATAGERE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.S.V. Prakash, learned counsel for the appellant and Sri.M.B. Chandrachooda, learned counsel for the respondents.

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Unsuccessful plaintiff is the appellant in the second appeal.

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Facts in brief which are utmost necessary for disposal of the present appeal are as under:

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3.1. A suit for partition came to be filed by the plaintiff against the defendants in O.S.No.19/2009. According to the plaint averments, Nanjappa is the

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common prepositus who had a wife by name Gangamma and children Rajamma, Annapurna and Kathyayini.

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3.2. It is contended that the suit properties are the

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ancestral properties and after the death of Nanjappa and Gangamma, plaintiff being one of the daughters of Nanjappa and Gangamma is entitled for the 1/3^rd share in the suit property. Defendants are the sisters of the plaintiff.

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3.3. Suit of the plaintiff was contested by contending

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that the suit properties are the self acquired properties of Nanjappa and during the lifetime of Nanjappa, he has bequeathed entire suit properties and yet another property in favour of his own grandson namely B.R.Kiran who is the son of defendant No.1.

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3.4. Despite such a defence, plaintiff for the reasons

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best known to her, did not implead the legatee as a party to the suit.

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3.5. Suit on contest, came to be dismissed holding

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that the suit properties are the self acquired properties of Nanjappa and therefore, he had every right to bequeath the suit properties in favour of his grandson - B.R.Kiran who is the son of defendant No.1.

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Being aggrieved by the same, appeal came to

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be filed by the unsuccessful plaintiff in RA No.5041/2019.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the legal and factual aspects of the matter, dismissed the appeal filed by the plaintiff.

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Thereafter, plaintiff is before this Court, in this

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appeal on following grounds and have raised substantial questions of law:

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GROUNDS

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The impugned judgment and decree passed by the first appellate court is contrary to Order XLI Rule 31 of Code of Civil Procedure, 1908 in as

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much as it has failed to re-appreciate the entire materials on record which is sine qua non in order to dispose of the first appeals filed under Section 96 of Code of Civil Procedure, 1908.

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A close reading of the impugned judgment handed down by the first appellate court, it is axiomatic that the first appellate court has failed to re-appreciate the evidence on record with reference to rival contention of the parties. As held by the Hon'ble Apex Court and this Hon'ble Court, the re-appreciation of entire materials is a must while deciding the first appeals filed under Section 96 of Code of Civil Procedure, 1908. In that view of the matter, the impugned judgment and decree passed by the first appellate court is illegal, arbitrary and liable to be set aside.

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Both the courts have erred in law in holding that the properties which are subject matter of the Will said to have been executed by father of the plaintiff in favor of the son of the first defendant is perverse in as much as it is based on no evidence.

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Both the courts have not appreciated that even though there is no presumption under Hindu law that a property standing in the name of an individual member is a joint family property even then when there is sufficient nucleus for the joint family to acquire the property, then it is for the individual member who claims that the property standing in his name is his self-acquisition to prove that he has got separate income to acquire the said property. Both the courts have failed to apply the principles of Hindu law in that regard.

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Both the courts have not appreciated that admittedly, the father of the plaintiff was a primary school teacher and it was admitted by the contesting defendants that he retired from service

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thirty years ago. Further, no acceptable materials have been produced by the defendants to show that the income generated from the ancestral property was not even sufficient to maintain the joint family and that the properties which were acquired in the individual name of the father of the plaintiff was his self-acquisition who acquired out of his salary income. Nothing is brought before the court to show that what it is the pension, the father of the plaintiff was drawing at the time of acquisition of the properties in his individual name. On the other hand, the defendants have not furnished the details of the ancestral properties held and possessed by the father of the plaintiff. From the ancestral properties held and possessed by the father of the plaintiff, it is pellucid that the joint family had sufficient nucleus on the date when the father of the plaintiff acquired the properties in his individual name. Therefore, both the courts are not justified in returning the finding that the properties which are bequeathed in favor of the son of the first defendant were self-acquired property of the father of the plaintiff.

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Both the courts have not appreciated that the father of the plaintiff relinquished his 1/3rd share in respect of certain ancestral properties by executing registered relinquishment deed by accepting a sum of 2,000/- in the year 1989. It is needless to state that the father of the plaintiff has no right to relinquish his 1/3rd share in the properties of ancestral joint family of which he was a member. Further, the fact that he executed relinquishment deed in favor of his brother would show that the father of the plaintiff possessed the joint family properties and received a sum of ₹2,000/-. Therefore, no evidence is adduced to show that the property standing In the name of the father of the plaintiff were acquired out of his self-earned money.

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Both the courts have committed grave illegality in not properly appreciating that the first defendant who filed the written statement in paragraph 12 stated that the plaintiff and the defendants were still in joint possession and had not divided the ancestral and self-acquired properties i.e., vacant site bearing Katha No.415/3 measuring east to west 50' and north to south 15' and the land measuring 2 acres of areca and coconut garden situated at Pathaganahally village and that the plaintiff and defendants are sharing the proceeds equally among themselves. The first defendant having said so, never sought for partition of the said properties by making counter claim. The first defendant as could be seen from her oral evidence has not adduced any material whatsoever to show that her father acquired the suit schedule property out of his separate income.

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Both the courts have not noticed that unless the acceptable materials are produced to show that what was the salary income of the father of the plaintiff at the time while acquiring the suit schedule property, it cannot be said that the properties standing in the name of father of the plaintiff are his self-acquired. As already stated, when materials are placed on record to show that the father of the plaintiff owned and possessed sufficient ancestral properties on the date when he acquired the suit schedule properties in his individual name, it is for the defendants to establish that the properties acquired by the father of the plaintiff are out of his self-earned money. Having regard to the materials on record, it is pellucid that there are absolutely no material whatsoever placed on record by the defendants to establish the same and in absence of which, both the courts have committed an error in law in returning the finding that the suit schedule properties are the self-acquired proeprties of the

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father of the plaintiff. In this view of the mater, the impugned judgment passed by the first appellate court confirming that of the trial court cannot be sustained.

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� Both the courts have not appreciated that the father of the plaintiff had three daughters i.e., the plaintiff and defendants 1 and 2. It is an admitted fact that during his life time in the year 2002, he executed the Will where under, he bequeathed all the properties to his daughters which was duly registered. However, it is stated that he executed a registered cancellation deed dated 03.10.2006 under which he cancelled the earlier Will dated 27.11.2002 and thereafter he executed another Will in favor of B.R. Kirankumar, the son of the first defendant bequeathing all the properties in his favor under a registered Will dated 02.03.2007. There are absolutely no reasons for the father of the plaintiff to exclude other two daughters, namely the plaintiff and the second defendant. If really there were reasons for the father of the plaintiff to exclude his other two daughters, he should have stated so in the alleged Will dated 02.03.2007. In the cancellation Will dated 03.10.2006, the father of the plaintiff alleged that all his daughter have neglected to take care of him. From the recitals in cancellation deed dated 03.10.2006 and the recitals in the alleged Will dated 02.03.2007, it is axiomatic that the first defendant and her family managed to obtain the cancellation deed dated 03.10.2006 and the Will dated 02.03.2007 when the father of the plaintiff was living with them taking advantage of his old age and helplessness. Otherwise, there are absolutely no reasons to exclude his daughter from succeeding the properties after his death. These aspects having not been properly considered by both the courts, it resulted in causing total miscarriage of justice to the plaintiff.

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� Both the courts have not noticed the suspicious circumstances surrounding the execution of the alleged Will dated 02.03.2007 said to have been executed by the father of the plaintiff in favor of the son of the first defendant. It is now well settled by catenae of decisions that it is the duty on the part of the profounder of the Will to dispel the suspicious circumstances surrounding the execution of the Will. As already stated, there are absolutely no reasons stated in the alleged Will dated 02.03.2007 in excluding the daughters by the father of the plaintiff in the matter of succession to his properties. It is an admitted fact that the father of the plaintiff has executed a Will dated 27.11.2002 where under he had bequeathed all the properties to all his daughters. In the cancellation deed dated 03.10.2006, the earlier Will dated 27.11.2002 was cancelled on the ground that his daughters neglected to maintain him. On 02.03.2007, it is alleged that father of the plaintiff executed a Will in favor of his grandson who is no other than the son of the first defendant excluding all his daughters without assigning any reasons whatsoever. Admittedly, the father of the plaintiff while cancelling the earlier Will and executing the alleged Will dated 02.03.2007, he was living with the family of the first defendant. Therefore, it is pellucid that the first defendant and his son managed to obtain the cancellation deed as well as the alleged Will dated 02.03.2007 from the father of the plaintiff by taking advantage of his illness and the old age. The evidence adduced by the first defendant would not show that the suspicious circumstances surrounding the execution of the Will are dispelled. In the circumstances, both the courts have committed an error in holding that the first defendant proved that the suit schedule property was the self-acquired properties and the

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execution of the alleged Will dated 03.02.2007 by the father of the plaintiff.

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SUBSTANTIAL QUESTIONS OF LAW

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i) Whether the judgment handed down by the first appellate court is in consonance with Order XLI Rule 31 o Code of Civil Procedure, 1908 in as much as it has failed to re-appreciate the entire materials on record which is sine qua non to dispose of the first appeal filed under Section 96 of Code of Civil Procedure, 1908?

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ii) Whether on facts and in the circumstances of the case, both the courts are justified in holding that the suit schedule properties are self-acquired properties of late Nanjappa?

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iii) Whether both the courts have erred in law in holding that the suit schedule properties are selfacquired properties of the father of the plaintiff notwithstanding the failure of the first defendant to place on record the details of the income derived by P.N.Nanjappa from his ancestral properties and the quantum of pension amount he was drawing at the time of acquisition of the suit schedule property?

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iv) Whether both the courts are right in law in holding that the first defendant has proved the execution the alleged Will dated notwithstanding the first defendant having failed to of 02.03.2006 dispel the suspicious circumstances surrounding the execution of the Will?

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v) Whether the impugned judgment passed by the first appellate court confirming the judgment and decree of the trial court original suit sustainable in law when both the courts have failed to consider the suspicious circumstances surrounding the execution of alleged Will dated 02.03.2007?

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Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that both the Courts have not properly appreciated the material evidence on record in a proper manner and wrongly dismissed the suit of the plaintiff and sought for admitting the appeal on the aforesaid substantial questions of law.

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Per contra, learned counsel for respondent No.1, who is the mother of the legatee supports the impugned judgments.

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Having heard the arguments of both the sides,

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this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that the Will executed by Nanjappa is marked before the Court as Ex.D.33. The Will is proved by examining two witnesses namely D.W.2 and 3.

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After the written statement came to be filed, plaintiff did not choose to implead the legatee as a party to the suit and therefore, dismissal of the suit by both the

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Courts is just and proper and sought for dismissal of the appeal.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, plaintiff being the third daughter of deceased Nanjappa and Gangamma is not in dispute. Defendants are also the daughters of Nanjappa.

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It is the case of the plaintiff that the suit properties are the ancestral properties. Therefore, plaintiff has got 1/3^rd share in the suit properties and same has not been properly appreciated by both the Courts.

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But defendant No.1 having filed the written statement, has taken specific contention that suit properties are the self acquired properties and same has been bequeathed in favour of the son of defendant No.1 who is the grandson of Nanjappa.

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Despite such a categorical defence in the written statement, for the reasons best known to the plaintiff, plaintiff did not implead the son of defendant No.1 namely B.R.Kiran as a party to the suit.

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Further, after raising necessary issues, when the evidence was recorded, defendant has established before the Court that Ex.D.33 is a genuine document. The property that has been subject matter of the suit and Ex.D.33 – Will, are being one and the same are the self acquired properties of Nanjappa, who worked as a school teacher.

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Further, in Ex.D.33, there is one more property and same is not even included in the suit schedule by the plaintiff even after placing Ex.D.33 on record.

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It is also to be noted that though the land in Sy.No.150 totally measures 6 acres 16 guntas, the deceased Nanjappa possessed ownership only to the extent of 2 acre 10 guntas and same is the subject matter

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of Ex.D.33 – Will. Except producing RTC extract, plaintiff has not established that the suit properties are the ancestral properties. Therefore, Nanjappa did not have any right and interest to bequeath entire suit property in favour of son of defendant No.1.

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Under such circumstances, learned Trial Judge believing the veracity of Ex.D.33 in view of the oral and documentary evidence placed on record by examining attesters to the witness namely D.W.2 and 3, this Court is of the considered opinion that dismissal of the suit by both the Courts is just and proper.

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