(Prayer: This RSA is filed under Section 100 of CPC against the judgment and decree dated 30.01.2021 passed in R.A.No.4/2018 on the file of the II Additional District and Sessions Judge, Chikkaballapur, sitting at Chintamani and etc.)

Oral Judgment

1. This matter was heard in part earlier at the stage of admission and at the request of the learned counsel for the appellant only, the matter was deferred for hearing further arguments. Today, the counsel who files vakalath on behalf of the appellant in his argument would vehemently contend that suit is filed for the relief of declaration. The counsel mainly would contend in his argument that sale deed was executed by Byrappa in favour of Ramaiah in the year 1972 as per Ex.P2. The counsel also would submit that another sale deed at Ex.D5 was executed by Narayanappa in favour of Ramaiah on the very same day as per Ex.D5. The counsel also would submit that one more document at Ex.D4 was executed by Kamalamma, who is the second wife of Narayanappa, in favour of Gowramma. The said Gowramma is none other than the wife of Ramaiah. The counsel would vehemently contend that in these documents i.e., Ex.P2, D4 and D5 there is a recital that sale deeds are executed with a condition to devolve the property in favour of children of Narayanappa who is none other than the brother of Ramaiah. Hence, on that basis, the appellant/plaintiff is entitled to get the decree of declaration. The counsel also would submit that the document at Ex.P10- Will was executed by the Ramaiah and his wife Gowramma and based on the said Will also the plaintiff has become absolute owner of the suit property. The counsel would submit that the Trial Court as well as the First Appellate Court committed an error in dismissing the suit on the ground that not made out any case to grant the relief of declaration. Hence, the matter requires reconsideration and prays this Court to admit the second appeal.

2. Per contra, the counsel appearing for the respondents would submit that one Sonnamma is the wife of Ramaiah and Ramaiah has got a daughter by name Jayamma through his first wife Sonnamma and defendants are the legal heirs of the said Jayamma. Thus, the question of disinheriting the property of legal heirs of Ramaiah by executing a document in favour of the appellant does not arise. The counsel would submit that already Trial Court as well as First Appellate Court come to the conclusion that there was no such Will. The counsel also would submit that document of Ex.P10-Will is a created document and the same was referred to the handwriting expert and handwriting expert commissioner has given the report that the signatures at Will are not the signatures of Ramaiah and Gowramma and hence, both the Courts disbelieved the case of the appellant/plaintiff. The counsel also would submit that in paragraph 3 of the plaint, it is specifically pleaded that the suit schedule properties are absolutely belongs to Ramaiah and also contend that the said Ramaiah had executed a Will. When the Courts comes to the conclusion that there was no such Will in favour of the appellant and the same is a created document, the question of admitting the second appeal before this Court does not arise since there is no any factual error and there is no any substantive question of law before this Court to consider the same in this second appeal.

3. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that it is not in dispute that there was a sale deed in favour of Ramaiah which was executed by one Byrappa in the year 1972 as per Ex.P2. So also, on the very same day, Narayanappa had executed one more sale deed in favour of Ramaiah in the year 1972 and the said document is marked as Ex.D5. It is also not in dispute that the Kamalamma, who is the second wife of the Narayanappa, had executed a sale deed in favour of Gowramma in respect of two items of the properties on 12.01.1995 as per Ex.D4 and the said property is the absolute property of Kamalamma.

4. It is important to note that the counsel appearing for the appellant argued before this Court vehemently that when the condition was made in the sale deed itself, that creates a right in favour of the appellant. Having perused the plaint in which the relief is sought for declaration, it discloses that there is no any specific averment that the plaintiff/appellant would derive the right in respect of the suit schedule properties based on the condition imposed in the sale deeds at Ex.P2, D4 and D5. Hence, it is clear that as per Order VI Rule 2 of CPC, there must be a clear particular details of pleading and without the pleading, there cannot be any evidence. Even if any evidence is adduced before the Court, the same cannot be relied upon. Thus, it is the trite law that unless there is a specific pleading in the plaint as per Order VI Rule 2 of CPC, the case of the plaintiff cannot be considered.

5. The counsel for the respondents submits that for the first time in the second appeal, the counsel for the appellant argued that there were conditions. The counsel also brought to notice of this Court that in the written statement also the defendants have specifically pleaded that there were conditions in the said sale deeds. Having taken note of the written statement also, it discloses that such defence was taken while denying the very execution of the Will.

6. It is important to note that when the suit is filed for the relief of declaration, the plaintiff must succeed in the suit on his own legs and not on the weakness of the defendants. Even if there is any such admission and recital in the documents at Ex.P2, D4 and D5, when the absolute sale deeds are executed, the vendor cannot put any condition that property should devolve upon someone else and it is nothing but a statutory devolution of right in favour of if any legal heirs. The counsel appearing for the respondents also brought to notice of this Court that Sonnamma is the first wife of Ramaiah and also brought to notice of this Court to the admission on the part of PW1 wherein PW1 admitted that Sonnamma is the first wife of Ramaiah. When such admission is there, at this stage, the appellant cannot deny the relationship of Sonnamma with Ramaiah and the defendants are claiming through that Sonnamma and that Sonnamma was having a daughter by name Jayamma and they are claiming on that basis. When the suit is filed for the relief of declaration, it is the bounden duty of the plaintiff to prove his case on his own strength and not on the weakness of the defendants. When the Trial Court taken note that the Will is propounded by the appellant/plaintiff as per Ex.P10 and court commissioner comes to the conclusion that the said document is a created document and when the suit is filed based on the will claiming that Ramaiah is the absolute owner of the property and Ramaiah and Gowramma had executed the Will in favour of the appellant as per Ex.P10, both the Courts finding reached the finality in coming to such a conclusion that Will is also not proved and not accepted the case of the plaintiff. The scope of second appeal is only with regard to the substantive question of law and no such substantive question of law is made out by the appellant in this second appeal.

7. No doubt counsel appearing for the appellant relies upon judgment of the Apex Court reported in AIR 1987 SC 1616 in the case of LACHMAN SINGH vs KIRPA SINGH AND OTHERS and brought to notice of this Court paragraph 7 wherein discussion made with regard to succession of property under Section 15(1) and 15(2) of Hindu Succession Act and the said judgment will not comes to the aid of the counsel for the appellant since the appellant fails to prove that there was a Will in his favour thus, question of inheriting the property does not arise.

8. In respect of the other contention that Court can mould the relief, the counsel relies upon the judgment reported in 2025 LIVELAW (SC) 353 in the case of J GANAPATHA AND OTHERS vs M/S N SELVARAJALOU CHETTY TRUST REP. BY ITS TRUSTEES AND OTHERS and also the judgment of this Court passed in R.S.A.No.3028/2006 connected with R.S.A.No.3027/2006. No doubt, this Court considering the judgment of Ramaiah's case comes to the conclusion that even if the parties fail to prove the very declaration, if they are entitled for half share in the property, the Court acting under the provisions of Order VII Rule 7 of CPC, is empowered to mould the relief. But in the case on hand, the question of mould the relief as contented by the counsel for the appellant does not arise since, the suit is filed based on the Will. When the legatee has not proved the Will, the question of moulding the relief as contented by the counsel for the appellant does not arise. Both the Courts have taken note of the said fact into consideration and comes to the factual aspects of the Will which has been propounded has not been proved by the appellant and appellant also sought for the relief of declaration based on the said Will. When both the Courts come to the conclusion that Will has not been proved and the commissioner's opinion is also against the appellant herein, the question of reconsideration does not arise. Hence, I do not find any grounds to admit the appeal and frame substantial questions of law.

9. In view of the discussions made above, I pass the following:

ORDER

The second appeal is dismissed.

In view of dismissal of the main appeal, I.As. if any, do not survive for consideration and the same stand disposed of.