DYANESHWAR RAMACHANDRA RAO PATANGE versus BHAGIRATHIBAI

Citation: [2006] SUPP. 4 S.C.R. 628 · Decided: 18-08-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
DY ANESHWAR RAMACHANDRA RAO PA TANGE 
v. 
BHAGIRA THIBAl 
AUGUST 18, 2006 
B 
[ARIJIT PASA Y AT AND LOKESHWAR SINGH PANT A, 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. 
H 
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 
628 
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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. 
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 
E 
F 
ARIJIT PASA Y AT, 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: 
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. 
Accordi

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