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CASE NO.: Appeal (civil)  66 of 2000

PETITIONER: Dyaneshwar Ramachandra Rao Patange

RESPONDENT: Bhagirathibai

DATE OF JUDGMENT: 18/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

Challenge in this appeal is to the judgment of a learned  Single Judge of the Karnataka High Court allowing the Second  Appeal filed by the respondent.  

       By the impugned judgment, the High Court held that the  respondent was competent to file the suit and that the Courts  below were not justified in holding that Exhibit P-I was not  proved though execution of the same was admitted by the  defendant.          The factual position in a nutshell is as follows:

       The plaintiff is the respondent herein. The suit is for  specific performance of contract of sale of a house property  situated in Gabbut Oni, Hubli, bearing CTS No.3119/B in  Ward No. III.

       According to plaintiff, the above property was agreed to  be sold to the brother of the plaintiff under an agreement of  sale dated 26.11.1974. The brother of the plaintiff Keshavarao  Mahadevappa died on 10.1.1976 leaving behind him three  sisters including the plaintiff-respondent and his second wife  Shantabai @ Ansuyabai as his legal heirs. The plaintiff-sister  of Keshavarao filed a suit for specific performance. Though the  defendant admitted the execution of the document but  contended that it is a nominal sale agreement. The trial Court  found the agreement as valid and granted the decree for  specific performance. The appellate Court differed from the  findings and proceeded to examine whether the plaintiff is  competent to bring the suit for specific performance as a legal  heir of Keshavarao. This issue was held vital as legal heir of  the original agreement holder is entitled to purchase the  property.  Accordingly, the appeal was allowed.  Second Appeal  was filed before the High Court. Primary stand was that so  long as the plaintiff is represented, the court is not concerned  with who the legal heir is or are and it is for them to settle the  issue between them. On the question of agreement of sale the  appellate Court has come to a different conclusion without  justifiable reasons. It was submitted that the appellate Court  had embarked upon unnecessary investigations and has come  to a wrong conclusion. The second appeal was admitted on the  following questions of law:

1.      Whether the Court below was right in  holding that the plaintiff is not competent to  file a suit as she is not a legal heir of deceased

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Keshavarao Sadare?

2.      Whether the Court below was justified in  holding that Ex.P.1 is not proved though the  execution of the same is admitted by the  defendant?    

       So far as the first question is concerned the High Court  held that the view of the first Appellate Court was not justified.  The wife of the deceased had re-married thereby losing her  right over the property. Further, two of the three sisters had  relinquished their shares in favour of the plaintiff. So far as  the second question is concerned the High Court held that  since execution of the document was admitted by the  defendant, the first Appellate Court could not have given a  different conclusion from that of the trial Court. Both the  questions were therefore answered in favour of the plaintiff by  setting aside the judgment and decree of the First Appellate  Court and restoring those of the trial Court.

       Learned counsel for the appellant submitted that the  learned Single Judge has not indicated any reason as to how  and why he came to the conclusion that the wife of the  deceased brother had re-married. On the contrary, the  evidence was to the contrary and the first Appellate Court had  after analyzing the evidence on record came to the conclusion  that re-marriage was not established.  

       In response, learned counsel for the respondent  submitted that the First Appellate Court had failed to notice  the true essence of the matter and, therefore, the judgment of  the First Appellate Court has rightly been set aside by the  High Court.  

Before dealing with the merits, it would be proper to take  note of the procedure adopted by the High Court in dealing  with the Second Appeal.  

       It was brought to the notice of the Bench hearing the  matter by an office note that the lawyer who was appearing for  the appellant had died. Direction was given to issue notice to  the appellant to engage another counsel. But in spite of service  of notice no counsel was engaged. The office report dated  30.5.1998 indicates that the paper books were not filed as no  counsel was engaged after death of the previous counsel and   the matter was listed for direction for filing the paper books.  Strangely, no order regarding filing of the paper books was  passed and on 4.6.1998 the Court passed the order directing  Sri Raghavachari to appear and argue the same as amicus  curiae. As the appellant had not appeared in spite of service of  notice, office was directed to give papers to him. To say the  least, the procedure adopted is clearly inappropriate. Be that  as it may, we will now deal with the merits.     

       The First Appellate Court analysed the evidence of record  and noted that the suit for specific performance was filed by  the respondent in respect of the agreement purported to have  been entered into by her brother with the present appellant.  Her brother Keshavarao Sadare died on 10.1.1976. According  to plaintiff he left behind three sisters including the plaintiff- respondent and the second wife Shantabai @ Anusuyabai.  Though the trial Court held that the plaintiff who was the  sister of the deceased Keshasvarao had filed the suit being his  legal heir, the first Appellate Court found that there was no

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material brought on record to establish that the widow of the  deceased had re-married. In fact, Shantabai @ Ansuyabai was  not examined as a witness.  The defendant who was examined  as DW-1 clearly stated that Keshavarao Sadare had re-married  Smt. Anusuyabai as second wife after the death of his first  wife and said Anusuyabai had not re-married and was staying  in another village with her uncle and she is the legal heir of  Keshavarao Sadare. Thus, DW-1’s evidence was not challenged  in cross examination. There was even no suggestion given  refuting the statement that Smt. Anusuyabai, the second wife  of Keshavarao Sadare had not re-married.  Thus, the evidence  of DW-1 had remained uncontroverted. In view of this position,  the First Appellate Court held that the alleged second marriage  of Anusuyabai had not been established. Unfortunately, the  High Court proceeded on the basis as if it was the accepted  position that Smt. Anusuyabai had remarried. That is really  no so.  She is Class I legal heir of deceased Keshavarao Sadare  in terms of the Schedule referred to in Section 8 of the Hindu  Succession Act, 1956 (in short the ’Succession Act’). Therefore,  above being the position, the High Court was clearly in error in  holding that in view of the alleged remarriage of the widow, the  plaintiff was entitled to maintain a suit. But the factual  position is clearly to the contrary, as brought on record. On  that score alone, the appeal deserves to succeed. However,  there is another aspect which needs to be highlighted. The  First Appellate Court had indicated the reasons as to how it  found Exhibit P-1 was not a genuine document.  It analysed  the factual position and held that execution of Ex.P-I was not  established and it was not a genuine document. The High  Court’s abrupt reasoning that the defendant appears to have  accepted execution of the document is indefensible. In view of  the conclusion as noted above to the effect that the plaintiff- respondent is not competent to file the suit, it is really not  necessary to deal with the other question about the  genuineness of the document in detail.  

       The appeal is allowed to the extent indicated above.   There will be no order as to costs.