DYANESHWAR RAMACHANDRA RAO PATANGEversusBHAGIRATHIBAI

A               DY ANESHWAR RAMACHANDRA RAO PA TANGE
                                           v.
                                  BHAGIRA THIBAl

                                  AUGUST 18, 2006

B           [ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]


          Suit for specific performance of contract-Maintainability-Contract
   entered into by deceased brother of plaintiff-Suit filed by sister as legal
C heir-Wife of deceased surviving-Decree of suit on the ground of admission
   of execution of the document by defendant-First appellate court held that
   since the widow was surviving and her remarriage was not established, suit
   by plaintiff not maintainable; and that the document was also not genuine-
   High Court held that in view of alleged remarriage of widow, the suit was
   maintainable and that document was valid in view of admission of its
D execution---On appeal, heid: In view of uncontroverted evidence that the wife
   of the deceased had not remarried, the wife being Class 1 heir of the deceased,
  the suit by plaintiff was not maintainable-The finding of High Court that
  execution of the document was admitted is abrupt as against reasoned
  finding of first appellate court that the document was not genuine-Hindu
E Succession Act, 1956-Section 8--Code of Civil Procedure, 1908.
          Plaintiff-respondent filed suit for specific performance of contract of
    sale of a house property, against defendant-appellant. According to plaintiff
    the property was agreed to be sold to her brother, who died leaving behind his
    three sisters including plaintiff and his wife. Defendant though admitted
F   execution of the document (Exbt. P-1) but contended that it was a nominal sale
    agreement. During trial, he stated that wife of the deceased had not remarried.
    Trial Court decreed the suit, finding that the agreement was valid. First
    appellate Court allowed the appeal holding that the plaintiff was not competent
    to bring the suit as a legal heir of her brother; that remarriage of the wife of



                                                                                       ..
    the deceased was not established; and that Exbt. P-1 was not a genuine
G   document.

          In second appeal, High Court held that in view of alleged remarriage of
    the widow, the plaintiff was entitled to maintain the suit; and that since the
    execution of the document was admitted by the defendant, the agreement was

H                                        628
             DYANESHWARRAMACHANDRARAOPATANGEv. BHAGIRATHIBAl[PASAYAT,J] 629

       valid. Hence the present appeal.                                                     A
          Allowing the appeal, the Court

            HELD: 1. High Court was in error in holding that in view of the alleged
         remarriage of the widow, the plaintiff was entitled to maintain a suit. The
         defendant who was examined as DW-1 clearly stated that wife of deceased had        B
       . not re-married and was staying in another village with her uncle and she is
         the legal heir of the deceased. DW-1 's evidence was not challenged in cross
         examination. There was even no suggestion given refuting the statement that
         the second wife had not re-married. Thus, the evidence of DW-1 had remained
         uncontroverted. The wife is Class I legal heir of the deceased in terms of the
         Schedule referred to in Section 8 of the Hindu Succession Act, 1956.               C
                                                                             [632-A-C)
             2. 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-1 was not established and it was not a genuine
       document. The High Court's abrupt reasoning that the defendant appears to            D
       have accepted execution of the document is indefensible. (632-D-El
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 66 of 2000.

            From the Judgment and Order dated 15 .6.1989 of the High Court of
       Karnataka at Bangalore in R.S.A. No. 677/1992.
                                                                                            E
             Girish Ananthamurthy and P.P. Singh for the Appellant.

             S.K. Kulkarni, Tireesh Kumar and Sangeeta Kumar for the Respondent.

             The Judgment of the Court was delivered by
                                                                                            F
             ARIJIT PASA YAT, J. Challenge in this appeal is to the judgment of a
       learned Single Judge of the Kamataka 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          G
       in holding that Exhibit P-1 was not proved though execution of the same was
       admitted by the defendant.

             The factual position in a nutshell is as follows:

-I"·         The plaintiff is the respondent herein. The suit is for specific performance   H
    630                     SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

A of contract of sale of a house property situated in Gabbut Oni, Hubli, bearing
    CTS No.3119/B in Ward No. Ill.

          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 I0.1.1976 leaving
B 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
C 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
D 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
E appeal was admitted on the following questions of law:
            I. Whether the Court below was right in holding that the plaintiff is
            not cor.ipetent to file a suit as she is not a legal heir of deceased
            Keshavarao Sadare?

            2. Whether the Court below was justified in holding that Ex.P. l is not
F           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
G   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
                                                                                        -
H   those of the trial Court.
          DYANESHWARRAMACHANDRARAOPATANGEv. BHAGlRATHIBAI[PASAYAT,J.] 63]

            Learned counsel for the appellant submitted that the learned Single A
     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.
                                                                                       B
           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       C
     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 D
.,   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 E
     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 F
     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 G
     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 H
    632                   SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A 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
B established. Unfortunately, the High Court proceeded on the basis as if it was
  the accepted position that Smt. Anusuyabai had remarried. That is really not
  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
C 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
D position and held that execution of Ex.P-l was not established and it was not
  a genuine document. The High Court's abrupt reasoning that the defendant
  appears to have accep<ed 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
E 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.

    K.K.T.                                                     Appeal allowed.