(Pamidighantam Sri Narasimha and Sandeep Mehta, JJ.)
Sri Chidanandaswamy Ballari Sri Guru Bristayyaswami, Avadoothmath and Another ____________________________________ Appellant(s);
v.
Shadaksharayya __________________________________ Respondent.
Civil Appeal No(s). 14120 of 2024 (Arising out of SLP(Civil) No(s). 9337 of 2024), decided on November 29, 2024
The Order of the court was delivered by
Order
1. Leave granted.
2. Heard the learned senior counsel appearing for the parties and have perused the material placed on record.
3. The present appellants are the original plaintiffs who filed the suit1 against the respondent herein, seeking a declaration that appellant No. 1(Math) is the owner of the scheduled properties2 and appellant No. 2 (mathadhipathi) is entitled to manage the said properties as a trustee of the Math. Besides the relief of declaration, the appellants-plaintiffs also sought relief of permanent injunction restraining the respondent from interfering with the peaceful possession and enjoyment of the suit scheduled properties. The respondent-defendant filed his written statement inter alia alleging that he is the only successor of Chidananda Swamy3 in the light of the Will executed by Chidananda Swamy in respondent-defendant’s favour. The First Additional Senior Civil Judge, Ballari4, vide judgment dated 30th April, 2015 decreed the suit and declared that appellant No. 1(Math) is the owner of the scheduled properties and appellant No. 2 (mathadhipathi) is entitled to manage the said properties as a trustee of the Math.
4. Being aggrieved by the aforesaid judgment and decree of the trial Court, the respondent herein preferred an appeal5 before the Additional District and Sessions Judge-II, Ballari6. The first appellate court vide judgment dated 28th April, 2017 had set aside the judgment and decree passed by the trial Court and remanded the suit to the trial Court for fresh disposal as per law, with a specific direction to reconsider the judgment in respect of the Will relied upon the respondent-defendant to claim rights over appellant No. 1(Math) by giving equal opportunities to both the parties.
5. The appellants-plaintiffs, feeling dissatisfied with the aforesaid order of the first appellate court, preferred an appeal7 before the High Court of Karnataka, Dharwad Bench8. The High Court vide judgment dated 31st January, 2024, confirmed the remand order made by the first appellate Court, directing the trial Court to take additional evidence on record with regard to the proof of alleged Will relied upon by the respondent-defendant. Assail is given to this decision of the High Court in this appeal by special leave.
6. After having heard the learned senior counsel appearing for the parties, we find that glaring errors were committed by the High Court as well as the first appellate Court.
7. The first error stems from the observations made by the appellate courts below, with respect to the proof of the Will relied upon by the respondent-defendant. The first appellate Court made an observation that proving and considering the legality of the Will is extremely necessary for the adjudication of the matter. Thus, it observed that the signature on the said Will and admitted signature shall be referred to an Expert to get his opinion, as to whether t14120/he signature on the Will belongs to Chidananda Swamy or not. This observation of the first appellate Court is completely erroneous and contrary to the material placed on record because the trial Court had already referred the signature on the disputed Will, as relied upon by the respondent-defendant, along with the admitted signature, to the State Forensic Science Laboratory, Bengaluru (SFSL). The SFSL report dated 03rd March, 2015 unequivocally expounded that the individual who executed the admitted signature did not write the signature on the Will. Moreover, the report concluded that the signature on the Will was created through imitation/forgery.
8. Hence, the first appellate Court clearly fell in error while remanding the matter back to the trial Court for the sole purpose of adducing additional evidence in respect of proving the genuineness of the Will. As a natural corollary, the High Court also erred while relying upon this observation of the first appellate Court and confirming the order of remand.
9. The second error committed by the High Court is in respect of the observation made regarding the prohibition on a woman to act as the mathadhipathi of appellant No. 1 (Math). The High Court observed that the first appellate court has duly considered that a woman cannot act as mathadhipathi of appellant No. 1 (Math). However, on going through the judgment delivered by the first appellate Court, no such observation is discernible.
10. Hence, in view of the discussion made above, the judgment of the first appellate court as well as the High Court, are perverse on the face of the record and deserve to be set aside.
11. Resultantly, the remand order dated 28th April, 2017 passed by the first appellate Court, as well as the order dated 31st January, 2024 passed by the High Court affirming the said remand order, are set aside. The appeal preferred by the respondent-defendant bearing Regular Appeal No. 25 of 2015 is restored to its original number to the file of the first appellate Court i.e., the Additional District and Sessions Judge-II, Ballari and the same shall be heard and decided as per law.
12. The appeal is allowed accordingly.
13. No order as to costs.
14. Pending application(s), if any, shall stand disposed of.
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1 OS No. 37 of 1994
2 Sy No. 97/2 measuring 1.10 acres, Sy. No. 162/1 measuring 8.54 acres, and Sy. No. 161/2 measuring 5.39 acres at somlapura village.
3 Mathadhipathi of appellant No. 1 (Math), who had expired on 20th April, 1992 and upon his death, appellant No. 2 assumed the role of mathadhipathi of appellant No. 1 (Math).
4 Hereinafter, being referred to as ‘trial Court’.
5 Regular Appeal No. 25 of 2015.
6 Hereinafter, being referred to as ‘first appellate Court’.
7 Miscellaneous Second Appeal No. 100092 of 2017.
8 Hereinafter, being referred to as ‘High Court’.
