Smt. Puttalakshmamma Vs Smt. Muniyamma, Since Dead by Her Lrs

THIS RSA IS FILED U/S. 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 19.9.2013 PASSED IN R.A.NO.220/2011 ON THE FILE OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 16.6.2011 PASSED IN OS.NO.321/2006 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, DODDABALLAPURA.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2026:KHC:12025 RSA No. 2015 of 2013

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the Judgment and decree dated 19.09.2013 passed in R.A. No. 220 of 2011 by the learned IV Addl. District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru.

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For convenience, the parties are referred to,

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based on their rankings before the Trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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3.1. The plaintiff filed a suit against the defendants

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for partition and separate possession regarding the suit properties. The plaintiff and defendant No.2 are the daughters of defendant No.1. Defendant No.1 had 3 sons namely, Muniraja, N.M.Channabasavaiah and

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N.M.Dakshinamurthy and also have 2 daughters by name Puttalakshmamma (the plaintiff) and Swarnambike (defendant No.2). There was a family partition in the plaintiff’s family. The partition took place among the family members on 01.04.1995 and the same was reduced into

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writing by way of Panchayat Palupatti . In furtherance of which, ‘A’ schedule properties were allotted to the share of defendant No.1. In the said partition, only the life interest was given to defendant No.1. Such being the position, defendant No.1 executed a gift deed in favour of defendant No.2 regarding item No.1 suit property. It is contended that the alleged gift deed is null and void and that the plaintiff is entitled for her legitimate share in the suit properties. Accordingly, a cause of action arose to file a suit for partition. Hence, the suit.

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3.2. The defendants filed a written statement denying the plaint averments. It is contended that the plaintiff is in no way concerned with the suit properties. It is contended that there was a prior partition effected

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among the family members wherein the ‘A’ schedule properties fell to the share of defendant No.1. It is contended that defendant No.1 executed the gift deed on her own will and with love and affection. Hence, prays to dismiss the suit.

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3.3. The Trial Court, based on the pleadings of the

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parties, framed the following issues:

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“1. The plaintiffs proves that the suit schedule properties are the joint family and ancestral properties of the plaintiff and defendants?

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2. Whether the plaintiff proves that she is in joint possession and enjoyment of the suit schedule properties?

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3. Whether the plaintiff proves that the alleged gift deed dated 22/06/2006, is not binding on the plaintiff?

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4. Whether the plaintiff is entitled share in the suit schedule properties as prayed for?

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5. What order or decree ?”

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3.4. The Trial Court, after recording the evidence of

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the parties, hearing on both sides and after appreciating

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the verbal and documentary evidence, dismissed the suit of the plaintiff with costs vide judgment dated 16.06.2011.

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3.5. The plaintiff, aggrieved by the judgment and

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decree passed by the Trial Court in O.S. No.321 of 2006 preferred the appeal in R.A. No.220 of 2011 before the learned IV Addl. District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru.

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3.6. The First Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration:

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“ POINT NO.1. Weather the impugned judgment and decree passed by the trial court under appeal, is perverse capricious and arbitrary and it calls for any interference by this court?

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POINT NO.2. What order?”

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3.7. The First Appellate Court, after re-appreciating

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the entire evidence on record, dismissed the appeal vide

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judgment dated 19.09.2013, confirming the judgment and decree passed by the Trial Court.

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The plaintiff, aggrieved by the impugned

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judgments passed by the Courts below, preferred this Regular Second Appeal.

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Heard the arguments of the learned counsel for

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the plaintiff and the learned counsel for the defendants.

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Learned counsel for the plaintiff submits that

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the First Appellate Court being the final fact finding court is required to re-appreciate the entire evidence on record and has to answer each issue framed by the Trial Court and has to frame the proper points for consideration in compliance with Order XLI Rule 31 of the CPC. He further submits that the First Appellate Court has not answered all the issues framed by the Trial Court and also has not framed the proper points for consideration. To buttress his arguments he places reliance on the judgment of the Hon’ble Apex Court in the case of H. SIDDIQUI (D) BY

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LR'S V. A. RAMALINGAM reported in (2011) 2 KCCR

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1389 . Therefore, he submits that the judgment passed by the First Appellate Court is contrary to the exposition of law laid down by the Hon’ble Apex Court in the case referred supra and accordingly, on these grounds, prays to

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allow the appeal and remit the matter for a fresh consideration to the First Appellate Court.

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Per contra , the learned counsel for the defendants supported the impugned judgment passed by the First Appellate Court and submits that the First Appellate Court has rightly re-appreciated the entire evidence on record and has passed the impugned judgment. The judgment and decree passed by the First Appellate Court is in compliance with Order XLI Rule 31 of the CPC. Accordingly, on these grounds, prays to dismiss the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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This Court admitted the appeal on 17.06.2014

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to consider the following substantial questions of law.

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“a) Whether, the first defendant has exclusive right to execute gift deed dated 22.6.2006 vide at Ex.D-1 & P-3 in favour of 2nd defendant, as the first defendant was having only life interest in the properties and thus, the rights of the properties is governed by the provisions of Section 14(2) of the Hindu Succession Act, and not Section 14(1) of the Hindu Succession Act?

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b) Whether the rights conferred on the first defendant by virtue of palupatti dated 1.4.1994 is a life interest or absolute rights and under such circumstances whether such acts will come within the ambit of Section 14(1) or Section 14(2) of Hindu Succession Act?”

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Reg. Substantial Questions of Law Nos.(a) and (b):

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Since, these substantial questions of law are interconnected with each other, they are taken together for a common discussion to avoid the repetition of facts.

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It is undisputed fact that the plaintiff filed a suit for partition and separate possession claiming her share in

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the suit schedule properties. The defendants filed a written statement raising several grounds. The Trial Court after recording the evidence of the parties, and after appreciating the verbal and documentary evidence, dismissed the suit of the plaintiff with costs vide judgment dated 16.06.2011. The plaintiff, aggrieved by the Judgment and decree passed by the Trial Court in O.S. No.321 of 2006 preferred the appeal before the learned IV Addl. District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru in R.A. No. 220 of 2011, wherein the First Appellate Court framed the following points for consideration:

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“ POINT NO.1. Weather the impugned judgment and decree passed by the trial court under appeal, is perverse capricious and arbitrary and it calls for any interference by this court?

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POINT NO.2. What order?”

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Except these points for consideration as

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aforementioned, the First Appellate Court has not framed

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any other points for consideration. To consider the case on hand, it is necessary to examine Order XLI Rule 31 of Code of Civil Procedure.

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Order XLI Rule 31 of CPC provides that the First Appellate Court is required to frame the proper points for determination, the decision thereon, the reasons for the decision and whether the decree appealed from is reversed or varied, and the relief to which the appellant is entitled.

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From the perusal of the judgment passed by the First Appellate Court, it is evident that the First Appellate Court has not properly framed the points for determination, the First Appellate Court has only extracted the averments made in the pleadings and has not appreciated the verbal and documentary evidence of the parties on record.

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The Hon’ble Apex Court in the case of H. SIDDIQUI (D) BY LR'S (supra), had an occasion to deal with the requirements of the provisions of Order XLI

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Rule 31 of the CPC. The Hon’ble Apex Court has observed that the said provisions provide guidelines for the First Appellate Court as to how the Court has to proceed and decide the appeal. It is further observed that the provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. It must be evident from the judgment of the First Appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record.

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In paragraph No.18 of the judgment referred supra, the Hon’ble Apex Court, after considering its several judgments, observed thus:

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“18. … … It is mandatory for the appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the first appellate Court must not record the mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on each point independently to that of the

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trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions.”

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From the perusal of the judgment of the first Appellate Court, it is crystal clear that the first Appellate Court has only recorded the general expression, it has not re-appreciated the entire evidence on record, and has not framed the proper points for consideration. The judgment passed by the first Appellate Court is not in compliance with Order 41 Rule 31 of the CPC, and is contrary to the ratio laid down in the case of H. SIDDIQUI (D) BY LR'S (supra). Thus, the matter requires reconsideration by the first Appellate Court. Therefore, the judgment and decree passed by the First Appellate Court is required to be set aside

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Since this Court is of the opinion that the matter requires consideration afresh by the First Appellate

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Court, question of considering substantial questions of law

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Nos.1 and 2 does not arise as they have a bearing on the merits in the issue.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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The Appeal is allowed.

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The impugned judgment passed by the First Appellate Court is hereby set aside.

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The matter is remitted to the First Appellate Court for consideration afresh.

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The Regular Appeal in R.A. 220/2011 is restored to its original file.

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The First Appellate Court is directed to pass the judgment in compliance with the provisions of Order XLI Rule 31 of the CPC after appreciating the entire evidence on record and framing proper points for consideration.

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