Ramachandra Rao Patange Vs. Bhagirathibai  Insc 499 (18 August 2006)
Pasayat & Lokeshwar Singh Panta Arijit Pasayat, J.
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.
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
factual position in a nutshell is as follows:
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.
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:
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 Keshavarao Sadare?
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.
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.
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.
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
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.
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.
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.
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
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
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 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.
appeal is allowed to the extent indicated above.
will be no order as to costs.