Mohammed Yunus vs Smt. Honnamma on 16 February, 2024

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Karnataka High Court

Mohammed Yunus vs Smt. Honnamma on 16 February, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF FEBRUARY, 2024

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                R.S.A. NO.2999/2007 (INJ)


BETWEEN:

MOHAMMED YUNUS
S/O ISMAIL SAB
AGED ABOUT 65 YEARS,
OCC: MEDICAL PRACTITIONER
RESIDENT OF MALLADIHALLI
HOLALKERE TALUK
CHITRADURGA DISTRICT
                                                ... APPELLANT

              (BY SRI B.M.SIDDAPPA, ADVOCATE)

AND:

1.     SMT. HONNAMMA
       W/O KOTRAPPA
       AGED: DIED
       OCC: AGRICULTURE
       RESIDENT OF DASIKATTE VILLAGE
       HOLALKERE TALUK
       CHITRADURGA DISTRICT

R1(a)BASAPPA S/O LATE KOTRAPPA
     AGED ABOUT 55 YEARS
     RESIDENT OF DASIKATTE VILLAGE
     HOLALKERE TALUK, CHITRADURGA DISTRICT.
                             2



R1(b) RAJAPPA S/O LATE KOTRAPPA
      AGED ABOUT 40 YEARS
      RESIDENT OF DASIKATTE VILLAGE
      HOLALKERE TALUK
      CHITRADURGA DISTRICT.

R1(c) RAVI S/O LATE KOTRAPPA
      AGED ABOUT 35 YEARS
      RESIDENT OF DASIKATTE VILLAGE
      HOLALKERE TALUK
      CHITRADURGA DISTRICT.

R1(d) KAMALAMMA W/O HOLIYAPPA
      AGED ABOUT 45 YEARS
      RESIDENT OF KADALEKATTE
      MALLADIHALLI POST
      HOLALKERE TALUK
      CHITRADURGA DISTRICT.

R1(e) GEETHAMMA W/O MANJAPPA
      AGED ABOUT 32 YEARS
      R/O. BANNIHATTI
      CHANNAGIRI TALUK
      DAVANAGERE DISTRICT.

1(f)   SHOBHA W/O MAYAPPA
       AGED ABOUT 25 YEARS
       R/O. ANDANUR, HOLALKERE TALUK
       CHITRADURGA DISTRICT.

2.     MUDIYAPPA S/O GUDADAPPA
       AGED MAJOR, AGRICULTURE BY PROFESSION
       RESIDENT OF MALLADIHALLI
       HOLALKERE TALUK
       CHITRADURGA DISTRICT-577501.

3.     HOLIYAPPA S/O NAGAPPA
       AGED ABOUT 65 YEARS,
       AGRICULTURE BY PROFESSION
                               3



      RESIDENT OF MALLADIHALLI
      HOLALKERE TALUK
      CHITRADURGA DISTRICT
                                             ... RESPONDENTS

       (BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R1;
              R1(a) - SERVED (UNREPRESENTED)
               VIDE ORDER DATED 21.01.2016,
                  R1(b) TREATED AS SERVED
                  R1(c), R1(d), R1(e), R1(f),
            R2 & R3 - SERVED & UNREPRESENTED)


     THIS R.S.A. IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT     AND   DECREE   DT.31.8.2007  PASSED    IN
R.A.NO.62/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
HOLALKERE AND ETC.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   30.01.2024 THIS  DAY,  THE   COURT
PRONOUNCED THE FOLLOWING:


                        JUDGMENT

This appeal is filed challenging the judgment and decree

dated 31.08.2007 passed in R.A.No.62/2002 by the Civil Judge

(Sr. Dn.), Holalkere.

2. The parties are referred to as per their original

rankings before the Trial Court to avoid confusion and for the

convenience of the Court.

4

3. The case of the plaintiff before the Trial Court while

seeking the relief of declaration and permanent injunction that

the original propositus of the family is one Gangappa and the

suit schedule property belongs to the said Gangappa. The

Gangappa is having a daughter by name Ningamma and a son

by name Holiyappa. Defendant No.2 is the grandson of

Gangappa through Ningamma. Holiyappa having a wife by name

Neelamma and the plaintiff is the daughter of Holiyappa and

Neelamma and the plaintiff is the granddaughter of said

Gangappa through Holiyappa.

4. It is the case of the plaintiff that the property

bearing re-Sy.No.35/3 of Malladihalli village belongs to the said

Gangappa and the said Gangappa executed a gift deed in favour

of his grandson-Mudiappa to the extent of 3 acres towards

southern side on 26.07.1954 and the said Gangappa continued

his possession in respect of the remaining property during his

lifetime. It is also the case of the plaintiff that after the death of

said Gangappa, his daughter-in-law – Neelamma, the wife of

Holiyappa continued the possession of the remaining property of
5

Gangappa. The said remaining property is the suit schedule

property. The property which was gifted in favour of defendant

No.2 is the phoded land and Sy.No.35/3a was continued in the

name of Gangappa and Sy.No.35/3b which was gifted was

continued in the name of defendant No.2 and the same is

evident in the revenue records. Sy.No.35/3a was cultivated by

the mother of the plaintiff and Sy.No.35/3b is in possession of

defendant No.2. The mother of the plaintiff had executed a Will

on 29.06.1981 in respect of Sy.No.35/3a in favour of her

daughter Honnamma i.e., plaintiff during her lifetime. After the

death of Neelamma, the plaintiff continued to pay the tax and

she in possession of the said property.

5. It is the case of the plaintiff that while executing the

Will, by mistake, the survey number is mentioned as

Sy.No.35/3b instead of Sy.No.35/3a but the boundaries are

shown as per Sy.No.35/3a only. In view of the said mistake,

Sy.No.35/3b has been continued in the name of the plaintiff in

the revenue records and Sy.No.35/3a continued in the name of

defendant No.2. It is the specific case of the plaintiff that before
6

executing the Will, Sy.No.35/3a was standing in the name of

Neelamma and Sy.No.35/3b was standing in the name of

Mudiappa. The mother of defendant No.2 was not having any

right in respect of suit schedule property. It is the claim of

defendant No.3 that based on the gift deed executed by

Ningamma, a suit was filed in O.S.No.213/1983 and the same

was dismissed. While filing the suit, the survey number is

mentioned as Sy.No.35/3b and inspite of defendant No.2 having

no right in respect of the said property, he had sold the property

in favour of defendant No.1 vide sale deed dated 23.01.1993.

The said Ningamma had no right to execute any gift deed in

favour of defendant No.3 and defendant No.3 was not having

any right to sell the property in favour of defendant No.1. Based

on the said gift deed and sale deed, both defendant Nos.1 and 3

will not get any right. It is contended that in view of the mistake

in mentioning the survey number as Sy.No.35/3b, the

defendants are troubling the plaintiff. It is also the claim of the

plaintiff that based on the sale deed, defendant No.1 also filed a

suit in O.S.No.500/1993.

7

6. In pursuance of suit summons, defendant Nos.1 and

3 were appeared and filed their written statement admitting that

originally the property belongs to Gangappa i.e., Sy.No.35/3 and

denied other averments made in the plaint. It is contended that

the revenue entry made in favour of defendant No.1 is correct

and defendant No.2 is the owner of the suit schedule property

and there is no cause of action to file the suit. It is the

contention of defendant No.3 that the suit schedule property was

sold in the year 1993 in favour of defendant No.1 and he has

been in possession of the property and admits that the said

Gangappa having a son by name Holiyappa and he married one

Neelamma and passed away within six months. It is contended

that after the death of said Holiyappa, Neelamma returned to

her parental house at Dasikatte and stayed there and she passed

away in the said village. It is also the case of defendant No.3

that the plaintiff also born and brought up in Dasikatte village

and her marriage was performed with Kotrappa and the said

Kotrappa also passed away. It is also contended that defendant

No.3 got married along with the daughter of the plaintiff. The

daughter of Gangappa was in cultivation of the property bearing
8

Sy.No.35/3a. The said Ningamma executed a registered gift

deed in favour of her grandson i.e., defendant No.3 on

15.07.1983 towards southern portion of the property i.e., the

suit schedule property. The said property is in Sy.No.35/3a and

daughter Ningamma was having a right to execute the gift deed

and defendant No.2 is the witness to the said gift deed and as a

result of sale deed, defendant No.1 became the owner of the

property.

7. The defendant No.2 admits the relationship between

the parties and also admits that the Gangappa is the original

propositus and he is the owner of entire extent of 6 acres 6

guntas. He also admits the gift deed executed by Gangappa in

favour of defendant No.2 and the Gangappa was enjoying the

remaining property. He denied the fact that after the death of

Gangappa, his son’s wife Neelamma was cultivating the same

and admitted that phodi was done by the survey department

after the execution of the gift deed. He admits that in the Will

dated 29.06.1981, a mistake was crept in mentioning the survey

number as Sy.No.35/3b instead of Sy.No.35/3a and also admits
9

that the boundary description is in respect of Sy.No.35/3a and

he further admits that in the revenue records, a mistake was

crept on account of said Will.

8. The Trial Court having considered the pleadings of

the parties framed the following issues:

1. Whether the plaintiff proves her ownership over the

suit schedule property?

2. Whether the plaintiff is entitled for the relief of

permanent injunction as sought in the plaint?

9. The plaintiff in order to prove her case examined

herself as PW1 and also examined two witnesses accused PW2

and PW3 and got marked the documents at Ex.P1 to P2. On the

other hand, defendant No.2 examined himself as DW1;

defendant No.1 examined as DW2 and defendant No.3 examined

as DW3 and got marked the documents at Ex.D1 to D25. The

Trial Court having considered both oral and documentary

evidence placed on record comes to the conclusion that the

plaintiff has not proved the case and dismissed the suit.
10

10. Being aggrieved by the judgment and decree of the

Trial Court, an appeal was preferred by the plaintiff in

R.A.No.62/2002 and the First Appellate Court having considered

the grounds urged in the appeal memo formulated the following

points:

1. Whether the lower Court is justified in dismissing the suit

of plaintiff?

2. Whether the judgment and decree of the lower Court is

required to be interfered with in this appeal?

11. The First Appellate Court having reassessed both oral

and documentary evidence placed on record answered point

No.1 as negative in coming to the conclusion that the Trial Court

committed an error in dismissing the suit of the plaintiff and

answered point No.2 as affirmative in coming to the conclusion

that the judgment and decree of the Trial Court requires

interference and set aside the judgment and decree of the Trial

Court and decreed the suit of the plaintiff declaring that the

plaintiff as the owner in possession of the suit schedule property

and consequently, the defendants are restrained by way of
11

permanent injunction from disturbing the plaintiff’s peaceful

possession and enjoyment of the suit schedule property. Being

aggrieved by the judgment and decree of the First Appellate

Court, the present appeal is filed before this Court.

12. The learned counsel appearing for the appellant

would vehemently contend that the First Appellate Court grossly

erred in holding that Sy.No.35/3a mentioned in Ex.P1 is wrong

and it must have been Sy.No.35/3b. The document is of the year

1986 and the mother of the plaintiff died afterwards i.e., in the

year 1987. Under these circumstances, the findings recorded by

the First Appellate Court are bad in law. The First Appellate Court

committed an error in holding that Ningamma had no title to

execute the gift deed in favour of defendant No.3 though

evidence on record goes to show that the Will came into

existence in the year 1981 but the gift deed came into existence

in the year 1983. The First Appellate Court committed an error

in placing reliance on the statement made by the defendant No.2

who is supporting the case of the plaintiff. The counsel further

contend that the First Appellate Court grossly erred in
12

considering the evidence of defendant No.1 with regard to

knowledge of the gift deed. Admittedly defendant No.1 came

into picture only after purchasing of the land. The First Appellate

Court grossly erred in mentioning much about the boundaries

without considering the existence of the property as on the date

of bequeathing the property in favour of the plaintiff by her

mother. The First Appellate Court committed an error in relying

upon Ex.D1 produced by defendant No.2 in holding that the

northern portion was retained by Gangappa and same is the suit

schedule property though it is not the case of the plaintiff. The

case of the plaintiff is that Sy.No.35/3a and 35/3b has been

inter-changed and whereas the First Appellate Court has

proceeded with the footing that there was no land remaining

with Gangappa as on the date of bequeathing the property in

favour of the plaintiff by her mother. This approach of the First

Appellate Court is erroneous. The First Appellate Court grossly

erred in holding that defendant No.1 not verified the document.

In fact, the document produced by defendant No.1 goes to show

that as on the date of purchasing of the property, the property

was in the name of defendant No.3 and revenue records stands
13

in his name. The First Appellate Court crossly erred in holding

that the property gifted in favour of defendant No.2 is at

southern side of Sy.No.35/3 and the same is mentioned. It is

also contended that in fact, the Trial Court has considered this

aspect and comes to the conclusion that the plaintiff fails to

prove that Sy.No.35/3b has been given to Mudiappa under the

gift deed and no records are produced in this regard hence, the

very finding of the First Appellate Court is erroneous.

13. Having considered the grounds urged in the second

appeal, this Court framed the following substantial questions of

law while admitting the appeal:

1. Whether the lower appellate Court was justified in

reversing the judgment of the Trial Court?

2. Whether the finding of the lower appellate Court is

perverse?

14. The counsel for the appellant in his argument would

vehemently contend that the Trial Court having considered both

oral and documentary evidence placed on record rightly

dismissed the suit. The First Appellate Court committed an error
14

in not considering the sale deed of the appellant who had

purchased the property in the year 1993. The counsel also would

vehemently contend that the very finding given by the First

Appellate Court is erroneous and the said finding is perverse and

against the material available on record. The First Appellate

Court committed an error in coming to the conclusion that

already there was a gift deed in favour of the plaintiff by her

mother and the very approach of the First Appellate Court that

the daughter of original propositus Gangappa was not having

any right to execute the gift deed in favour of defendant No.3 is

erroneous and the same requires consideration.

15. The counsel for the respondents appeared and not

addressed his arguments and seeks time. This Court refused the

prayer of the counsel for the respondents since in the previous

date of hearing it is made it clear to argue the matter on the

next date of hearing without fail.

16. Having considered the grounds urged in the appeal

memo and also considering the substantial questions of law

framed by this Court, this Court has to reanalyze the material
15

available on record since there is a divergent finding. The Trial

Court turned down the claim of the plaintiff while answering

Issue No.1. The First Appellate Court reversed the finding of the

Trial Court.

17. It is not in dispute that the property originally

belongs to the propositus of the family i.e., Gangappa. It is also

not in dispute that the said Gangappa had a daughter by name

Ningamma and a son by name Holiyappa. It is also not in

dispute that the plaintiff is the granddaughter of said Gangappa

through his son – Holiyappa and defendant No.2 is the grandson

of said Gangappa through his daughter – Ningamma. It is also

not in dispute that defendant No.3 is the son-in-law of the

plaintiff. It is also not in dispute that the total extent of the

property is 6 acres 6 guntas which originally belongs to the said

Gangappa. It is also not in dispute that the said Gangappa

executed a gift deed in favour of defendant No.2 who is the

grandson of Gangappa through Ningamma in the year 1954 to

the extent of 3 acres towards southern portion of Sy.No.35/3. It

is also the pleadings of the parties that the said Gangappa
16

retained remaining portion of the property to the extent of 2

acres 39 guntas and enjoyed the same during his lifetime. It is

also not in dispute that the said Gangappa, during his lifetime,

not executed any testamentary documents in respect of the

remaining property except the document of Ex.D1. It is also not

in dispute that based on Ex.D1, the land was phoded as

Sy.No.35/3b. It is the claim of the plaintiff that her mother –

Neelamma had executed a Will in her favour in terms of Ex.P1.

18. It is also important to note it is emerged in the

evidence that the husband of Neelamma i.e., Holiyappa who is

the son of Gangappa died immediately after the marriage. It is

also the claim of the plaintiff that immediately after the

execution of the gift deed, properties were phoded as

Sy.No.35/3a and 35/3b. The property which was gifted in favour

of defendant No.2 – Mudiappa was phoded as Sy.No.35/3b. The

sketch at Ex.P2 also discloses that the property was phoded as

Sy.No.35/3a and 35/3b. Ex.P3 also discloses that the property

has been phoded as Sy.No.35/3a and 35/3b. Ex.P4 clearly

discloses that Sy.No.35/3b stands in the name of Gangappa son
17

of Holiyappa. The documents at Ex.P5 and P6 are the tax paid

receipts of the year 1962-63 and 1963-64 respectively. Ex.P7 is

the tax paid receipt of the year 1964-65, Ex.P8 is the tax paid

receipt of the year 1965-66, Ex.P9 and P10 are the tax paid

receipts of the year 1960-61 and 1961-62, Ex.P11 and P12 are

the tax paid receipts of the year 1966-67 and 1967-68. Ex.P13

discloses that the property is mutated in favour of defendant

No.3 rounding off the name of defendant No.2 consequent upon

the sale deed and in column No.12 it discloses the name of

Mudiappa and Holiyappa i.e., defendant Nos.2 and 3. Ex.P14 is

the RTC stands in the name of defendant No.1 based on

M.R.No.3/1992-93. Ex.P15 discloses that the property to the

extent of 3 acres stands in the name of defendant No.2 and so

also to the extent of 2 acres 39 guntas in the name of

Gangappa. Ex.P16 discloses that the property stands in the

name of Honnamma i.e., the plaintiff based on the Will and the

same is mutated in M.R.No.12/1982-83. The plaintiff also relied

upon the document at Ex.P19 which is the copy of the judgment

dated 22.08.1984 passed in Appeal No.M.A.50/1983 wherein the

claim of defendant No.3 was dismissed and the order passed on
18

I.A.No.1 in O.S.No.216/1983 dated 30.11.1983 by the learned

Munsiff, Hosadurga was confirmed. Ex.P20 is the survey sketch

with regard to phoding of other properties.

19. On the other hand, defendants have also produced

the document of gift deed dated 26.07.1954 at Ex.D1 and no

dispute in respect of said document and the parties have

admitted the same. Ex.D2 stands in the name of defendant

No.2 to the extent of 3 acres based on the gift deed. Ex.D3 is

the RTC to the extent of 2 acres 39 guntas i.e., the suit schedule

property and the name of Mudiappa was rounded off and name

of defendant No.3 is entered based on M.R.No.1/1986-87. Ex.D4

is also stands in the name of plaintiff based on the Will. Ex.D5 is

in respect of Sy.No.35/3b. Ex.D6 is also stands in the name of

defendant No.1 based on the sale deed as per M.R.No.3/1992-

93. The sketch is at Ex.D7 and no dispute with regard to phoding

of the property. The defendants also relies upon the documents

at Ex.D8 to D15 which are the tax paid receipts. Ex.D16 is the

sale deed executed in favour of defendant No.1 by defendant

No.3. Ex.D17 is also a sketch. Ex.D18 is the mutation register,
19

Ex.D19 is the RTC which stands in the name of defendant No.1

and Ex.D20 is the Form No.10. Ex.D21 is the EC, Ex.D22 and

D23 are the tax paid receipts. Ex.D24 is the copy of the order

passed in O.S.No.500/1993 wherein the suit of the plaintiff

(defendant No.1) was decreed in respect of Sy.No.35/3a.

Ex.D25 is the gift deed dated 15.07.1983 executed by

Ningamma in favour of defendant No.3.

20. Having reconsidered both oral and documentary

evidence placed on record and also considering the evidence of

PW1 to PW3 and DW1 to DW3 it discloses that the plaintiff

claims the suit schedule property based on Ex.P1. PW2 and PW3

also deposed about the execution of the Will in favour of the

plaintiff by Neelamma who is the daughter-in-law of original

propositus-Gangappa. The same was executed on 29.06.1981.

It is important to note that defendants claim the right based on

the gift deed executed by Ningamma who is the daughter of

original propositus-Gangappa in favour of defendant No.3 in the

year 1983-84. Defendant No.1 claims the right through

defendant No.3 who had executed the sale deed in terms of
20

Ex.D16. It is important to note that the property originally

belongs to Gangappa is not in dispute. It is also not in dispute

that the very Gangappa had executed a gift deed in favour of

defendant No.2 in the year 1954 to the extent of 3 acres and the

same is also admitted by all the parties. It is also not in dispute

that the said Gangappa had a son by name Holiyappa and a

daughter by name Ningamma. The Court has to take note of the

said fact into consideration. If really, propositus intends to give

entire property in favour of the his daughter’s son, he would

have executed the gift deed to the entire extent. But he only

had executed the gift deed to the extent of half of the property

in terms of Ex.D1. It is also important to note that the son-

Holiyappa died even prior to the death of Gangappa. It is also

important to note that tax paid receipts for the year 1961 to

1968 clearly disclose that the tax is paid by Neelamma who is

the daughter-in-law of said Gangappa. It is admitted fact that

the said Gangappa has not executed any testamentary document

in respect of the remaining property i.e., to the extent of 2 acres

39 guntas. It is also important to note that when the son-

Holiyappa died prior to Gangappa and property belongs to
21

Gangappa devolves upon the legal heirs of his son i.e.,

Neelamma who is the daughter-in-law of Gangappa and the

plaintiff who is the granddaughter of Gangappa through his son

Holiyappa. It is also important to note that the daughter-in-law

who succeeded to the estate of her husband along with her

daughter, after the death of Gangappa, had executed the Will in

the year 1981 itself and in this regard, the plaintiff examined

PW2 who is the attesting witness to the said Will. It is also

important to note that daughter-Ningamma of the original

propositus executed the gift deed in favour of defendant No.3 in

the year 1983-84 in terms of Ex.P25 i.e., subsequent to the Will

executed by the daughter-in-law of the original propositus-

Gangappa and propositus already made provision to his

grandson through his daughter in the year 1954 itself.

21. It is rightly pointed out by the First Appellate Court

that the property devolves upon the granddaughter, wife of his

son since, they succeeds the estate of her husband Holiyappa

and already wife had executed the registered Will in favour of

the plaintiff in the year 1981 itself. Hence, the Ningamma who is
22

the daughter of original propositus was not having any right to

execute the gift deed in favour of defendant No.3 in the year

1983 since her father already executed the gift deed in favour of

defendant No2 who is the son of Ningamma. Though defendant

No.1 claims that he had purchased the property from defendant

No.3, when Ningamma had no title in respect of the property

and already the original propositus made the provision in favour

of grandson-Mudiappa who is the son of Ningamma (daughter of

original propositus) in the year 1954 itself to the extent of half of

the property, the question of Ningamma executing the document

in favour of defendant No.3 does not arise when already the

daughter-in-law who succeeded to the estate of her husband

along with her daughter had executed the Will in favour of the

plaintiff in the year 1981 itself. The Trial Court taking into note

of the material available on record erroneously comes to the

conclusion that the property is distinct and the said conclusion

cannot be accepted. The original document is of the year 1954

in terms of Ex.D1 and boundaries are very specific in respect of

Sy.No.35/3b and not in respect of Sy.No.35/3a. The First

Appellate Court also taken note of the boundaries mentioned in
23

the Will and comes to the conclusion that by mistake, it is

mentioned as Sy.No.35/3b instead of Sy.No.35/3a which was in

occupation of original propositus-Gangappa. The Court has to

take note of the boundaries mentioned in Ex.D1 which is in

respect of Sy.No.35/3b. The said fact also taken note of by the

First Appellate Court. There is no dispute with regard to the

earlier gift deed which was executed in respect of southern

portion in the year 1954. The contention of the appellant

counsel that the First Appellate Court committed an error in

coming to the conclusion that earlier gift deed is in respect of

southern portion and the said contention cannot be accepted.

The First Appellate Court rightly taken note of the fact that the

earlier gift deed of year 1954 is in respect of southern portion

and the said Gangappa retained the property of towards

northern portion in Sy.No.35/3 and the same is Sy.No.35/3a.

The fact that Sy.No.35/3a continued in the name of Gangappa

and Sy.No.35/3b phoded consequent upon Ex.D1 – gift deed

executed in favour of defendant No.2 is not in dispute.
24

22. No doubt, while executing the Will in favour of the

plaintiff by her mother, by mistake, it is mentioned as property

bearing Sy.No.35/3b instead of Sy.No.35/3a and already gift

deed was executed by the original propositus in favour of

defendant No.2 in respect of Sy.No.35/3b. The said fact is also

taken note of the First Appellate Court and boundaries also

considered and boundaries will prevail. The mistake in

mentioning the property as Sy.No.35/3b in the Will will not take

away the case of the plaintiff. The Trial Court committed an

error in coming to the conclusion that the property is distinct and

the First Appellate Court rightly appreciated the same. Apart

from that documents which have been produced by the plaintiff

clearly disclose that the property was retained by her

grandfather and she has paid the tax. The fact that Will was

executed by Neelamma in the year 1981 and the same is not in

dispute. The First Appellate Court also taken note of the fact that

when the property stands in the name of the original owner

Gangappa and subsequently, tax was paid by Neelamma who is

the daughter-in-law of said Gangappa since her husband pre-

deceased Gangappa, the share of the Gangappa i.e., remaining
25

half portion in Sy.No.35/3 i.e., Sy.No.35/3a devolves upon her

and her daughter on account of her husband Holiyappa pre-

deceased and Will was also executed in favour of the plaintiff in

the year 1981 itself. When such material is available on record,

I do not find any error committed by the First Appellate Court in

allowing the appeal. Thus, the First Appellate Court is justified in

reversing the judgment of the Trial Court and the finding of the

First Appellate Court is not perverse. Hence, I answer first

substantive question of law as affirmative and the second

substantive question of law as negative.

23. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN

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