JUDGMENT
G. Ramesh, J.
1. This appeal is by the defendant being aggrieved by the judgment and decree dated 19-2-2000 passed by the learned Civil Judge (Senior Division), Chikkaballapur, in R.A. No. 40 of 1996, wherein the learned Civil Judge (Senior Division), confirmed the order of the learned Munsiff Gowribidanur, in O.S. No. 176 of 1987.
2. Plaintiff filed a suit to declare him as absolute owner of the suit schedule properties and for permanent injunction against the defendant. Narayanappa had two sons by name Krishnappa and Aswathappa (plaintiff) and four daughters by name Subbamma, Bhageerathamma, Lakshmamma and Puttamma respectively. Narayanappa father of the plaintiff and Sheshamma mother died about 70 years back. The daughters of Narayanappa namely, Subbamma died in Kaldevapura Village of Madhugiri Taluk about 34 years back, Bhageerathamma died about 33 years back at Hajipet in Kadapah District of Andhra Pradesh, Lakshmamma died about 17 years back at Tumkur and Puttamma died on 8-5-1986 at Idagur Village in Gowribidanur Taluk. Krishnappa one of the son’s of Narayanappa died about four years back at Doddamaralur Village. Subbamma one of the daughters of Narayanappa alone had four male issues and one female issue while other children of Narayanappa had no issues’. One of the son’s of Subbamma is Krishnamurthy-defendant. Puttamma the fourth daughter of Narayanappa was married to one Subbarayappa and on death of her husband, Puttamma succeeded to the assets of her husband Subbarayappa. She had no issues. According to the plaintiff on the death of Puttamma, he succeeded to the suit properties by way of succession as nearest heir to Puttamma. According to the plaintiff, he is the only surviving member in the family of late Narayanappa his father. Plaintiff alleges that defendant is a stranger to the suit schedule properties and any documents in his custody is illegal. It is alleged by the plaintiff that the defendant concocted certain documents and that defendant has no manner of right, title and interest in respect of the possession of the suit schedule properties.
3. Defendant denied some of the facts in controversy and contended that plaintiff is not the near successor to the suit properties. During the lifetime of Puttamma, it is alleged that she had exectited a registered Will in his favour and put him in possession of the suit properties and also, it is alleged that Puttamma and her husband had adopted him as their adopted son, as such, plaintiff is nothing to do with the suit properties. According to the defendant, Will was valid and binding and he resisted the suit. Based on the pleadings, the Trial Court raised as many as ten issues in addition to two additional issues. After trial and hearing the parties, the Trial Court held that plaintiff is the absolute owner of the suit property and also is in possession of the same and that there is interference by the defendant. It held that plaintiff is entitled for declaration and injunction. Being aggrieved by the same defendant preferred appeal before the learned Civil Judge (Senior Division), Chikkaballapur, in R.A. No. 40 of 1996. The Appellate Court having examined the order of the Trial Court and after hearing the parties held that defendant is not the adopted son and he is only a foster son of Puttamma. It also held that Will is not duly proved by the defendant and dismissed the appeal. Being aggrieved by the same, defendant has come up in second appeal raising several substantial questions of law. At the time of admission on 8-6-2000, the following substantial questions of law were raised:
(i) Whether in the facts and circumstances of this case, Section 15(2)(b) of the Hindu Succession Act, 1956 or Section 15(1)(c) of the Act applies?
(ii) Whether the Courts below were justified in decreeing the suit applying Section 15(1)(c) of the Act?
4. Heard the Counsel for the respective parties.
5. It is the submission of the learned Counsel for the appellant that the Trial Court proceeded to decree the suit on the assumption that Section 8 of the Hindu Succession Act, 1956 applies to the case on hand and that the lower Appellate Court has committed an error in not considering the effect of Section 15(2) of the Hindu Succession Act (‘Act’ for short). Rather, it has proceeded to pass order based on irrelevant documents and, as per Section 15(2) of the Act, in respect of property held by a female Hindu dying intestate, the Courts will have to look into the source of acquisition of property by her and has to decide as to whether who is entitled to the property and whether Sections 8 and 14 or 15(2) has to be made applicable to it or not. In support of his argument, learned Counsel has relied upon the decision in the case of Bhagat Ram (dead) by L.Rs v. Teja Singh (dead) by L.Rs, . to contend that property inherited by a female Hindu from her mother and who dies intestate devolves upon her sister or else upon the legal heirs of her father and not upon the brother of the predeceased husband. In the instant case, it is contended that the appellant is the adopted son and both the Courts below have failed to appreciate the Will executed in favour of the appellant in a proper perspective and that either by virtue of the Will or in the alternate, by virtue of adoption, the appellant has to succeed. Accordingly it was submitted that the plaintiff has no right or title over the property.
6. Per contra, Counsel for the respondents vehemently contended that on facts, the Courts below have held that the Will is not duly proved and the lower Appellate Court has also opined that the appellant has to be considered as a foster son and not as an adopted son and that the appellant/defendant has failed to prove and establish that he has become the owner of the property and that Section 15(2) of the Act applies to the case on hand. Learned Counsel also contended that it is the plaintiff who being the near relative of the deceased Puttamma, is entitled to the suit properties by virtue of succession in preference to the defendant. Accordingly, it is contended that no substantial question of law arises for consideration of this Court and there is a concurrent finding of both the Courts below, although based on different reasoning and this Court shall not unless for special reasons to be assigned, interfere with the findings on facts. In support of his argument, learned Counsel relied on several decisions which I shall refer to in the course of the order.
7. Let me now proceed to consider the ratio laid down in the decisions cited by the Counsels for the parties. In Bhagat Ram’s case, the Apex Court has held thus:
While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that, properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass.
The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of Sub-sections (2) of Section 15, which gives a special pattern of succession.
8. In Kondiba Dagadu Kadam v Savitribai Sopan Gujar and Ors. , the Apex Court has held that where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise such a point as a substantial question of law in second appeal. The mere appreciation of facts, documentary evidence, or the meaning of the entries and the contents of the documents cannot be held to be raising a substantial question of law.
9. Learned Counsel for the respondents has relied upon the decision in the case of Arumugham (dead) by L.Rs and Ors. v Sundarambal and Anr. , to the similar effect.
10. In the case of Santosh Hazari v Purushottam Tiwari (dead) by L.Rs, . it is held that to say a substantial question of law is involved in the case, it must have foundation in the pleadings and should emerge from the sustainable findings of fact registered by the Court of facts and further an answer to such question must be necessary for a just and proper decision. To the similar effect is the decision in Govindaraju v. Mariamman . wherein it is held to be a question of law involved in the case, there must be foundation for it in the pleadings and the question should emerge from the substantial findings of fact arrived at by the lower Court.
11. In the decision in G. Mahalingappa v. G.M. Savitha, 2005 SAR (Civil) 705. the Apex Court has held that concurrent findings of facts by the Court of appeal cannot be interfered without any sufficient and just reasons. It is not permissible in second appeal to arrive at a contrary finding only on the basis of the arguments advanced.
12. The Trial Court as well as the lower Appellate Court having noted the evidence of the defendant and also the wordings used in the Will at Ex. D. 14 referring to the defendant as ‘foster son’, have distinguished that a ‘foster son’ is different from an ‘adopted son’ and have come to the conclusion that defendant failed to prove that he is the adopted son and at the most, he could held to be only a foster son. It is the argument of the learned Counsel for the appellant that earlier i.e., before the commencement of the Hindu Adoptions and Maintenance Act, 1956, there was a custom only to take in adoption and the words ‘foster son’ is also equivalent to that of ‘adoption’ and contended that defendant is the adopted son of Puttamma and as such, he is immediate heir to succeed to the estate of deceased Puttamma who has succeeded to the estate of her husband. On this issue, both the Courts below having discussed on facts, have come to the conclusion that there is no valid adoption of the defendant. In that view of the matter, though there is no substantial question of law raised in this regard, incidentally this aspect has been taken note of to hold whether the defendant/appellant is in a position to establish right and title over the suit properties.
13. In the absence of any such adoption being proved as held by both the Courts below, then we may have to fall back on the substantial question of law raised as to what would be position of the appellant to claim succession to the estate of Puttamma.
14. As regards the Will, based on which defendant has also tried to establish his right and title over the suit properties, both the Courts below while comparing the signatures and also having regard to the nature of the document and transcription, have come to the conclusion that the defendant has failed to establish that the Will has been duly executed in his favour. At this juncture, it is the argument of the learned Counsel for the appellant that although the attesting witness has been examined to support the case of the defendant, the Trial Court as well as the lower Appellate Court have come to different conclusions having found some irregularities in the signature on the Will. It is argued further that when there is evidence by one of the attesting witnesses as to the due execution of the Will, the same ought not to have been held in the contrary by the Courts below. In this regard, it would be relevant to note how the lower Appellate Court has considered this aspect while discarding Ex. D. 14-Will and disbelieving the version of the witnesses. In paras 31, 32 and 33, the lower Appellate Court has dealt with the matter in detail. It has noted that this defendant has not referred to any Will in his evidence. He has deposed that he has become the owner in possession of the suit property by virtue of he being the foster son of Puttamma. It appears, on several occasions matter had been adjourned while examining the defendant’s witnesses. Looking to the evidence of the defendant and also comparing the signature on the Will, the lower Appellate Court has come to the conclusion that the signatures on the Will are not identical and they differ from each other and the defendant has not clarified the same in his evidence. It has also observed that the onus of proof of Will is on the defendant in the case and he must satisfy the conscience of the Court that the Will was made in the normal course and free from suspicion. It is for the propounder to remove such suspicion to establish that the Will is duly executed. Having noted the conduct and version of the witness, the lower Appellate Court has come to the conclusion that the evidence of the defendant’s witnesses is not believable. It has also disbelieved the evidence of the scribe. Having examined the evidence on record as to the state of mind of Puttamma, the testator, it has observed that Puttamma was not in a position to understand the facts and such, it has concluded that the Will has not been proved beyond doubt. This is more a question of fact finding. When there is concurrent finding of both the Courts below, the same cannot be negated by reappreciating the evidence and material on record in second appeal.
15. Let me now deal with the substantial questions of law raised. Section 15 of the Hindu Succession Act, 1956 which is relevant to the case, is extracted below:
15. General Rules of succession in the case of female Hindus.-
(1) The property of a female Hindu dying intestate shall devolve according to the rule set out in Section 16.–
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in Sub-sections (1).–
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter), not upon the other heirs referred to in Sub-sections (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from, her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in Sub-sections (1) in the order specified therein, but upon the heirs of the husband.
16. Admittedly, the plaintiff is the brother of the deceased Puttamma who succeeded to the estate of her husband over which the plaintiff sets up his claim and seeks for declaration of injunction. According to the defendant, he is the adopted son. Of course, as is found out by both the Courts below, he failed to prove adoption and also failed to prove the Will said to have been executed in his favour. Further, the degree of relationship of the plaintiff with the deceased Puttamma has to be considered. According to the appellant’s Counsel, insofar as devolution of property of a Hindu female is concerned, if the property is inherited by her from her parents, naturally devolution is on her sister and not upon the brother of the predeceased husband. In the instant case, it is to be seen that the suit properties were held by Puttamma not directly from her parents but it is derived from her husband. She died intestate and issueless. A question arises as to whether on priority or in preference, plaintiff being the brother of Puttamma stands in priority over the defendant who is the nephew i.e., Puttamma’s sister’s son. In the case on hand, there is no such claim put forth by the relatives of the husband of Puttamma. It is only a claim between the brother of deceased Puttamma on the one side and her sister’s son on the other. As per the Rule of Succession as provided under Section 15(1), Class I heirs are the sons and daughters of the deceased and the husband. Secondly, if there are no persons available in the first category, it would be the heirs of the husband and in the instant case, there is no such claim put forth by the relatives of the husband. Under the third category comes the mother and father of Puttamma and they are also no more. In the 4th category comes the heirs of the father and lastly upon the heirs of the mother. And necessarily when the plaintiff is said to be heir of her father i.e., her own brother who stands in preference to that of the defendant and in such circumstance, the property shall have to be inherited by the plaintiff. Although for different reasons and relying upon different provisions of the Succession Act, both the Courts below have come to the same conclusion, the fact remains that in order of preference, the plaintiff would be entitled to claim the suit properties over the defendant and he is held to be the legal heir who comes under the 4th category as provided under Section 15(1) of the Hindu Succession Act.
17. At the cost of repetition, it has to be noted that both the Courts below have held that neither the adoption or the Will is proved by the defendant and as a matter of priority, the plaintiff is entitled to claim the property as the legal heir of Puttamma.
18. As per Section 15(2) of the Hindu Succession Act, the property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased, not upon the heirs referred to in Sub-sections (1) in the order prescribed therein but, in the heirs of the husband. In the instant case, as noted, none of the heirs of the husband and Puttamma came forward to set up a claim and in such a situation, whether Section 15(2) applies to the case of hand or not is the question. The property claimed by the plaintiff although is succeeded by the deceased Puttamma through her husband but, in the absence of any heirs of the husband of Puttamma, naturally we may have to fall back on Section 15(1). It is the argument of the appellant’s Counsel that if there are no heirs of the husband of the deceased Puttamma to claim the property, the property shall be taken over by the Government as a matter of escheat. In this regard, learned Counsel has relied upon the decision in the case of State of Punjab v. Balwant Singh and Ors. AIR 1991 SC 2301 : 1992 Supp. (8) SCC 108. It has to be noted, as a matter of reference, if Puttamma has succeeded to the estate of her husband, the question of inheriting the property by her relatives through her parents does not arise for consideration. In the normal course, it has to be succeeded through the relatives of her husband. In the instant case, the relatives of the husband of Puttamma are not available. Naturally and necessarily, either Puttamma’s parents or the heirs of the father would be entitled to claim and it is not as if there is none to claim the suit properties in the instant case. In the circumstances, there is no merit in the contention that the property should vest in the Government as a matter of escheat.
19. While answering the substantial question of law, it has to be held that in the facts and circumstances of the case, as per Section 15(1)(c) and (d), the plaintiff is entitled to succeed to the estate of his deceased sister in preference to the defendant and the property devolves on the plaintiff in the absence of any heirs of her husband.
20. For the foregoing reasons, the appeal is dismissed. Parties to bear their own costs.