Hari Nath Tilhari, J.
1. This is defendants' Second Appeal arising out of the judgment and decree dated 17.11.1987 delivered by the Civil Judge, Sagar, in R.A.No. 40/83 whereby the first Appellate Court, namely the Civil Judge, Sagar, set aside the judgment and decree dated 30.7.1983 passed by the Principal Munsiff, Sagar, in O.C.No. 209/81 whereby the Munsiff had dismissed the plaintiff's suit. The first Appellate Court decreed the plaintiff's suit holding that the plaintiff is entitled to 1/3rd share in the suit properties and for partition being effected by metes and bounds and for delivery of separate possession of her share. The first Appellate Court further directed that as regards mesne profits, an enquiry shall be made by the Trial Court in respect of the 1/3rd share of the plaintiff from the date of suit till the date of delivery of possession.
2. The facts of the case in brief are that the plaintiff/respondent Smt. Keriyamma filed a suit claiming the following reliefs:-
(a) For a declaration that the first defendant appellant is not the adopted son of plaintiff's father Sri Balindrappa or that the said adoption is opposed to law or never took place;
(b) For a declaration that the plaintiff and 2nd defendant/appellant are entitled to equal 1/2 share in the suit properties and for mesne profits.
These two reliefs were originally claimed in the plaint. According to plaintiff's case, Balindrappa was the father of plaintiff and defendant-2; that Balindrappa died on July 30, 1982 leaving behind him the only two daughters as his heirs, namely, the plaintiff/respondent and defendant/appellant No. 2; that the death ceremonies of Balindrappa were performed by the plaintiff and her husband. Plaintiff's case is that defendant-1 claiming to be the adopted son of plaintiff's father Balindrappa, claimed that he had been adopted on 15.3.1979 by Balindrappa and on that basis he tried to interfere with the possession of the plaintiff, So, there was need for filing the suit.
On notice being served, written statement was filed by first defendant/appellant only. The suit proceeded exparte against defendant-2. Defendant-1 in his written statement, which has been read over and explained to me in English after being so translated by the learned Counsel for the appellants, took the plea as under:-
. 'Defendant-1 denies the plaintiff to be the daughter of Balindrappa'.
He further pleaded that he used to look after Balindrappa and Balindrappa adopted him on 28.10.1969 and the Deed of Adoption was executed on 15.3.1979 by Balindrappa. He denied that plaintiff and defendant-2 have been the heirs of Balindrappa. He has denied that the death ceremonies of Balindrappa were performed by the plaintiff and her husband. However, he admitted that the suit properties belonged to Balindrappa, in para 4 of the written statement. It is further pleaded therein, as per translation made thereof by the learned Counsel for the appellants, that plaintiff and defendant-2 do not have any right, title or interest in or over the suit properties. He further pleaded that under the Deed of Adoption dated 15.3.1979 he, as an adopted son, succeeded to the properties in suit belonging to Balindrappa, as the sole heir. A further plea was taken to the effect that the suit properties belonged to Balindrappa and were in possession of defendant-1 as the full right owner. It was further pleaded that plaintiff and 2nd defendant both are not entitled to claim partition of the suit properties. This plea has been taken in para 4 of the written statement. Thus, it appears from the pleadings of first defendant that he claimed from the beginning the suit properties belonged to Balindrappa and that he was exclusively entitled to possession and title over the said properties as exclusive owner and not as co-owner with plaintiff or defendant No. 2. It is thus clear that according to both the properties in the suit admittedly belonged to Balindrappa.
On the basis of the pleadings of the parties, the Trial Court framed the following issues:-
1) Whether the plaintiff proves that she is the daughter of Balindrappa?
2) Whether the first defendant is the adopted son of Balindrappa?
3) Whether the suit is barred by limitation?
4) Whether the plaintiff is entitled for the relief of declaration as prayed for?
5) Whether the plaintiff is entitled to 1/2 share in the suit schedule properties?
6) What order?
Parties adduced oral as well as documentary evidence. The Trial Court after having examined the evidence of the parties, recorded the following findings:-
It held that plaintiff has proved to be the daughter of Balindrappa. It also held that first defendant has proved that he is the validly adopted son of Balindrappa. The Trial Court held that the suit was time barred for invalidation by declaration of adoption. The Trial Court further held as under:-
'Plaintiff wants a declaration that she and defendant-2 are entitled to 1/2 share. She does not ask for any possession over the properties nor partition in the properties, a relief which should have been asked far, Hence, mere declaratory relief cannot be given'
The Trial Court further held that Ex.D-1, which is the Adoption Deed, does not amount to be a Will and it only provides for the management of the affairs of the properties of Balindrappa. Under it, no property was specifically given to defendant-1. The Trial Court thereafter took it to be an undisputed fact and observed that:-
'Here it is an undisputed fact that the suit properties are the ancestral properties of Balindrappa. As such after adoption defendant-1 became a coparcener with Balindrappa and after the death of Balindrappa, defendant-1 would get 1/2 share and 1/2 share will be deemed to have gone to Balindrappa, which would again be divided into three shares, i.e. 1/3 of that 1/2 to the plaintiff, 1/3 of 1/2 to defendant-2 and 1/3 of 1/2 to defendant-1'.
Thus, according to the Trial Court, the share of the plaintiff was held to be 1/6, the share of defendant-2 was held to be 1/6 and the share of defendant-1 was held to be 4/6. Dealing with issue No. 6, the Trial Court has taken the view that the documents which the plaintiff wanted to file along with I.A.12 under Order 18 Rule 17 C.P.C. on 28.7.1983 for filing the certified copy of Record of Rights, had not been filed along with the plaint and were not relevant for the purpose of exhibition in the case and the Trial Court rejected that application. The Trial Court dismissed the suit with these findings but, no doubt, after determining the shares of the parties.
Having felt aggrieved from the judgment and decree of the Trial Court, the plaintiff/respondent filed R.A.No. 40/83. During the pendency of the said appeal the plaintiff/respondent, in view of the trial Court's finding to the effect that the plaintiff ought to have claimed decree for possession which she has not claimed, moved an application before the lower Appellate Court for amendment of the plaint to add relief No. 2(a) to the effect: -
'As a consequence of the declaration of title to the extent of 1/2, decree for partition and possession of 1/2 share with mesne profits be also granted'.
The first Appellate Court considered the matter and found that in the plaint itself the plaintiff has already paid the Court fee for the relief for partition when she filed the suit originally but as there appears to be an omission to make an explicit claim for partition arid separation of the property, it was just and proper to allow the amendment as the cause of action has not been changed. So, the first Appellate Court after hearing the parties, maintained the finding of the Trial Court to the effect that the plaintiff is the daughter of Balindrappa and that the first defendant is the validly adopted son of Balindrappa. In view of the provisions of Hindu Succession Act, it held that the respective shares of the parties would be 1/3 each and accordingly allowed the appeal declaring that the plaintiff/respondent was entitled to 1/3 share and for partition of the suit properties and directed that the partition shall be effected by metes and bounds and issued a further direction as mentioned above for being followed in the course of the proceedings. The first Appellate Court opined that the amendment was of a formal nature and the matter could be decided at the appellate stage itself so instead of remanding it to the Trial Court, the first Appellate Court in paragraph 21 dealing with point No. 2 raised by it as to whether the suit properties are ancestral properties or self-acquired properties of deceased Balindrappa, observed that-
'Parties have not raised any contention with regard to the nature of the properties in their pleadings. But, since the learned Prl. Munsiff has observed that it is the ancestral property, it is to be seen whether his observation is proper and as to whether the property is the ancestral property or the separate self acquired property of the deceased Balindrappa'.
It held that the properties to be the self-acquired properties of Balindrappa after taking into consideration Ex.P-11 the Sale Deed dated 20.1.1978 executed by one Veerappashetty, son of Ryavappa Shetty in favour of Balindrapa for Rs. 1,500/- in respect of the suit land. It is on the basis of its finding that the suit properties are the self-acquired properties of Balindrappa that the first Appellate Court held that first defendant being the adopted son of Balindrappa and Balindrappa having left two daughters and the adopted son at the time of his death and that all the three were entitled to 1/3 equal share each and accordingly decreed the suit declaring the shares and for partition. Feeling aggrieved from the judgment and decree of the first Appellate Court the defendants have come up in this Second Appeal. I have heard the learned Counsel for appellant and the respondents, and have gone through the record with the assistance of the learned Counsel.
3. Sri S.R. Hegde Hudlamane, learned Counsel for the appellants, raised the following contentions:-
The learned Counsel for the appellant Sri Hegde first submitted that once the application for amendment had been allowed allowing the plaintiff to add further relief as 2 (a) in the plaint, the first Appellate Court should have granted the first defendant an opportunity for filing additional written statement and in support of this contention he made a reference to the Decision of the Supreme Court in the case of THARAYIL SARADA AND ANR. v. GOVINDAN AND ANR., : (1983)2SCC276 . Mr. Hegde further submitted that had defendant-1 been allowed to file additional written statement, he would have taken a further plea to the effect that the properties were ancestral properties and as an opportunity was not given to him to take that plea by amending the written statement, the first Appellate Court erred in decreeing the suit for 1/3 share and for partition. Lastly, Mr. Hegde submitted that when the plaint was filed, certified copy of the record of rights should have been filed and Section 132 of the Karnataka Land Revenue Act provides that if certified copy of the record of rights is not filed the plaint shall be rejected. Therefore, when it has not been filed, the suit was not maintainable and was liable to be dismissed. The decree passed by the first Appellate Court, therefore, suffers from illegality.
4. On behalf of respondent, Mr. Sudhakar Pai holding brief for Mr. Ravi G. Sabhahit, contended that so far as the first contention of the Learned Counsel for the appellants is concerned, it is purely technical in nature. It is not of the nature of substantial error of law. He further submitted that when the plaint was originally filed, the plaintiff had paid the necessary Court fee for the decree for partition, though accidentally the relief for partition and separate possession was not claimed. But, beyond doubt the plaintiff claimed 1/2 share on the ground that the properties belonged to Balindrappa. He further submitted that claim for partition and separate possession was involved in the suit and defendent well knew it, and as such in para 4 of the written statement the first defendant has very clearly stated that the plaintiff is not entitled to claim partition, He further submitted that when the amended relief was a decree for partition and separate possession of the share in addition to the declaration, what more could have the defendant alleged in it as he has already asserted in the written statement that plaintiff is not entitled to claim decree for partition. So, if technically the first Appellate Court failed to give opportunity to file additional written statement, it cannot be said that the defendant-1 was subjected to any irreparable loss or injury nor can it be said that such an error is substantial in nature. He further submitted that error of substantial nature is one which would have really affected the decision of the case on merits. The learned Counsel further submitted that the scheme of Code of Civil Procedure discourages or bars the reversal of the decrees of the Court merely on technical pleas. As such, it is not a sufficient or good ground to interfere in the Second Appeal.
Dealing with the second contention of the learned Counsel for the appellants, learned Counsel for the respondent submitted that while claiming the share, plaintiff categorically stated that the properties belonged to Balindrappa. If the first defendant wanted to raise the plea of ancestral nature of the properties, he should have raised that plea in the original written statement. When he did not do so, the first Appellate Court took the view that no party has raised any plea to the effect that the properties were joint or self-acquired. If the first defendant wanted to claim so, he should have alleged so. But, when this plea was not taken, the learned Munsiff committed jurisdictional error in holding the properties to be ancestral as it is well settled that even if there is some evidence led on that point, no evidence to be looked into in respect of a plea which has not been raised in the pleadings of the parties. So, the Munsiff definitely committed an error or law in attempting to make out a new case for the defendants/appellants. He submitted that when the first Appellate Court took the properties to be self-acquired as per the Sale Deed in the name of Balindrappa and there was no pleading that it was ancestral properties, the first Appellate Court could not be said to have committed the error of law or jurisdiction in taking the properties as self-acquired properties of Balindrappa and in holding the plaintiff to be entitled to 1/3 share as well as in holding that defendants 1 and 2 are entitled to 1/3 share each and for partition and separate possession.
In respect of the third contention of the learned Counsel for the appellants, the learned Counsel submitted that no doubt, the suit had been filed without producing the certified copy of the Record of Rights but the office of the Court also did not point-out the defect till the stage of decision. It was only when the stage of decision had come, the office put a note that certified copy of the record of rights was not filed. Then the plaintiff moved an application and tried to file the copy of the entry of the Record of Rights but the learned Munsiff rejected the same holding that it was not relevant. In the circumstances, the learned Counsel submitted that had the first defendant raised a plea at the initial stage or raised an objection that the document had not been filed, and the learned Munsiff would have rejected the plaint and the plaintiff would have filed a fresh plaint along with the document. But, when the defect was pointed-out at a later stage, plaintiff did make an attempt to rectify the defect but the Trial Court nullified it. Now, at this stage, it is not open to raise an objection in that behalf and no party has to be made to suffer because of some technical fault as well as because of the fault on the part of the Court its Staff or the Counsel. As the first defendant failed to raise that plea or waived that plea initially, the lower Appellate Court rightly took the view that on that ground the suit could not be dismissed. There is no error of law of substantial nature in the decision of the first Appellate Court and as such, learned Counsel for the respondent/plaintiff submitted that the Appeal be dismissed.
5. I have applied my mind to the contentions raised by the learned Counsel for the parties. The scope of exercising jurisdiction under Section 100 of C.P.C. is limited and restricted to the matters which involve substantial questions of law. The expression 'substantial question of law' has got its significance. The Legislature has made use of the expression 'substantial question of law'. That a reading of this expression indicates special significance that an appeal shall lie to the High Court if it is satisfied that the case involves not only question of law but substantial question of law. No doubt, the user of expression 'substantial question of law' here does not refer to a substantial question of law of general importance or of public importance. It refers to the question of law which is of substantial nature and in between the parties to the case. In a case every error of law cannot be a ground for interference with the judgment and decree of the Court below unless and until the appellant is able to show that the question is of substantial nature. A question of 'substantial nature' is one, the decision in respect of which one way or the other would have the effect of affecting the rights of the parties and the decision of the case on merits. It is not mere sheer and bare technical question of law which might not have the effect of affecting determination of the rights of the parties one way or the other. Dealing with this aspect of the matter as to what is 'substantial question of law', in the case of PANKAJ BHARGAV v. MOHINDER, 1991(1) SCC 566, Hon'ble M.N. Venkatachaliah J, as he then was, delivering the Judgment on behalf of the Court, laid down as under:-
'What is substantial question of law would certainly depend upon the facts and circumstances of every case. A question of law to be considered a 'substantial question of law' need not, be one of general importance and it could be a substantial question as between the parties. However, if a question of law had been settled by the highest Court of the Country that question however important and difficult it may have been regarded in the past and over which may be its effect on any of the parties, it would not be regarded as substantial question of law'.
In RAGHUNATH PRASAD SINGH AND ANR. v. DEPUTY COMMISSIONER OF PARTABGARH, the Judicial Committee observed as under:-
'A substantial question of law does not mean a question of general importance but it should be a substantial question of law as between the parties'.
This Court had the occasion to consider the views expressed on this point by the High Courts of Bombay, Nagpur and Madras placing different emphasis on what is substantial question between the parties. It was held by this Court that while the view taken by the Bombay High Court was too narrow and the one taken by the Nagpur High Court was too broadly stated, approving the view taken by the Madras High Court had observed thus:-
'The proper test for determining whether the question of law raised in the case would be substantial would, in our opinion to be, whether it directly and substantially affects the rights of the parties and if so, whether it is open question in the sense that it is not finally settled by this Court or by Privy Council or is not free from defect and call for discussion on views. If the question is settled by the highest Court or the general principles to be applied in the question settled and there may be question of principles open that the plea raised is palpably deserted, the question would not be a substantial question of law'.
A reading of this Decision per se shows that the question of law to be substantial question of law between the parties, it has to be looked into whether it directly and substantially affects the rights of the parties to the litigation. This question has got to be determined in the context of the facts of the present case.
6. Learned Counsel's contention has been that the first appellate Court allowed amendment of the plaint and the plaintiff was allowed to add a further relief of decree for partition and separation of her share, which she had already claimed in the suit. As the Trial Court has dismissed the suit on the ground that plaintiff had not claimed the further relief which she ought to have claimed for partition and separation, of the share which she has claimed in the plaint as well as in the relief clause to be 1/2 share in the properties in dispute. So, on this technical ground the suit was dismissed. The plaintiff, who was appellant before the first appellate Court and respondent now in this Appeal, has moved an application for amendment and she was allowed to amend the plaint and the case was decided on the basis of the relief claimed after amendment. Learned Counsel's contention has been that the first Appellate Court has committed an error of law as, while it allowed amendment of the plaint, it did not give an opportunity to the first defendant to file additional written statement. This may be said to be an irregularity. Unless and until it is found that it has resulted in failure of justice and it has got the effect of causing substantial injury in the dispensation of justice to the defendant it cannot be said that the first Appellate Court has committed the substantial error of law. It is asserted by the defendant-1/appellant that as the opportunity has not been given, this judgment should be set aside and he should be allowed to file additional written statement. When I put a question to the learned Counsel for the appellants as to what defence the defendant-1 could have put forth with reference tothat portion of the relief that was added, and not with respect to the quantum of share, which she had claimed before amendment, learned Counsel for the appellants tried to say that he could have taken the plea of property to be joint ancestral. That plea the appellant/defendant could have taken at the original stage itself when the plaintiff had filed the suit alleging that the properties belonged to plaintiff's father Balindrappa and that the two sisters, namely plaintiff and defendant No. 2 have got 1/2 share each in that and that the adoption of first defendant is illegal and bad and there has been no adoption of first defendant and if there was any, it was illegal and opposed to law.
7. The first defendant claimed that he is entitled to entire property and the plaintiff/respondent and defendant-2/appellant-2 are not entitled to any share, title or interest in the properties. He could have taken the plea that the property is joint ancestral and plaintiff's share is so much. No such defence was taken or asserted in the written statement. The defence which he could have taken against the amended portion to the relief clause has already been taken. At this stage it appears to be an attempt of the appellant/defendant to re-open the entire case fresh realising the defect in his pleadings in the written statement when the share was claimed by the plaintiff that plaintiff's share was 1/2; that the properties in dispute were ancestral and that as per the Adoption Deed he is also one of the heirs and plaintiff's share would be like this. The question is, if at this particular stage the defendant would have applied for amendment of the written statement, whether it would have been open to him to take a new plea in defence altogether? In my opinion, when the matter has travelled two stages, at this belated stage it would not be proper to allow the defendant to change his defence about the shares and the defence with respect to the relief which he has already taken in the written statement as mentioned above. Thus, I am of the opinion that if there is any error on the part of the first appellate Court in not giving the defendant/appellant an opportunity of filing additional written statement, it could not be said to be a substantial error of law in the case because whatever he could have pleaded with reference to the decree for partition he has already pleaded in the written statement.
8. Section 99 C.P.C. also appears to lay down the law to this effect:
'99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction :
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
Provided that nothing in this section shall apply to non-joinder of a necessary party.'
This Section per se shows that if there is any error or irregularity or defect in procedure which does not affect the merits of the case, then on the ground of that error the decree passed by the Courts below is not to be reversed modified nor the case to be remanded. Learned Counsel for the appellant has relied upon the Decision of the Supreme Court in the case of Tharayil Sarada and Anr. v. Govindan and Anr. In that case it has been observed as under:
'On behalf of the defendant, who is the appellant before us, it is contended, in our opinion rightly, that the High Court before making the decree should have given an opportunity to the defendant to file an additional written statement. Accordingly, we set aside? the impugned judgment and the decree and send the case back to the High Court to dispose of the appeal in accordance with law, after giving the defendant an opportunity to file an additional written statement. We express no opinion on the correctness or otherwise of the findings recorded by the High Court on other points'.
The Decision in that case, in view of the different facts and circumstances of the case, will not apply to the present case. In this case the plea which the defendant could have raised against the amendment that has been sought to be made in the relief clause, had already been taken in the written statement wherein in paragraph 4 of the written statement the defendant asserted that plaintiff is not entitled to decree for partition.
9. From a perusal of the plaint along with the valuation slip it appears that plaintiff while claiming 1/2 share in the properties, also valued the suit for partition and paid the necessary Court fee. The valuation slip to the plaint contained at page 12 of the original records of the Trial Court reads as under:
'In the above case for the purpose of declaration regarding validity of adoption the suit is valued under Section 25(1) of Karnataka Court Fee and Suits Valuation Act, hence the Court fee of Rs. 25.00 is paid, and for the purpose of partition i.e. 1/2 share the suit is valued for Rs. 5,000.00, hence the Court fee of Rs. 30.00 is paid under Section 35(3) of the Karnataka Court Fee and Suits Valuation Act.'
This valuation slip has been made part of the plaint and in the plaint it has been mentioned as to how and for what purpose the suit has been valued and the quantum of Court fee paid. This clearly reveals that the plaintiff filed the suit, no doubt for declaration, but impliedly claimed the relief for partition of share and its possession though it did not make formal prayer so specifically or expressly but he had already paid the relevant Court fee on the date when the suit was filed. So, the plaintiff was aware about the nature of the claim in the suit, for which Court fee had already been paid. Thus, considering the matter as a whole, particularly with reference to the defence taken in the written statement denying the plaintiff's right to claim for partition, I do not find that the appellants in this case have been prejudiced in the defence, by the first appellate Court's allowing that relief to be expressly made by amendment which the original plaint contained impliedly or on account of the failure of the first appellate Court to give the first defendant an opportunity to file additional written statement. Really, the facts were clear and defence was taken appropriately. It does not appear that the facts in the Supreme Court case were like the facts of the present case. The observations in that case appears to be made in the context of that case and as such in the present case, the Decision in Tharayil Sarada's case is not of great assistance to the defendant/appellant in this matter.
10. Keeping in view the law laid down by the Supreme Court in the case of BECHAN PANDEY AND ORS. v. DULHIN JANKI DEVI AND ORS., : [1976]3SCR555 . and in the case of SANT NARAIN MATHUR AND ORS. v. RAMA KRISHNA MISSION AND ORS., : [1975]2SCR188 . it would not be just and proper to remand the matter on mere technical ground, particularly when defendants had the opportunity and they did take the defence against the relief for partition. As such, there is no substance in the first contention of the learned Counsel for the appellants.
11. As regards the second contention of the learned Counsel for the appellant, there was no occasion for the Trial Court or the first appellate Court to have gone into the question as to whether the properties in dispute were the ancestral properties or self-acquired properties of Balindrappa. The plaintiff claimed 1/2 share in the properties in dispute taking the properties to be belonging to her father. No doubt, the properties belonged to Balindrappa. But, as the properties were not asserted or alleged in pleading to be ancestral one and defendant-1 being the adopted son of Balindrappa, the plaintiff's share would not be 1/2. There was no occasion for the Trial Court to assume that the properties in dispute were ancestral properties or to assume that they were not ancestral properties. If the defendant wanted to allege and challenge the quantum of share of plaintiff and defendant-2, instead of claiming the entire properties for himself, if he would have been fair and if really the properties were ancestral, he should have taken that plea in the written statement and also pleaded in answer, the ingredients of fact in the sense whether the properties came down from ancestors or whether these properties were acquired from the funds of joint family. No such plea is specifically taken anywhere. Learned Counsel for the appellants contended that there is some admission of PW-1 and that it was taken into consideration by the Trial Court, In my opinion, and as it is well settled principle of law on pleadings and evidence that no amount of evidence is to be looked into in respect of a plea which has not been raised in the pleadings, it was not open to the Trial Court to make out a new case for the defendant/appellant. When I so opine, I find support from the view expressed by their Lordships of the Privy Council in the case of SIDDI MOHAMMED SHAH v. MT. SARAN AND ORS., . wherein their Lordships have observed thus :
'The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners, therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put forward.'
This being the position, the first Appellate Court when it observed that no plea was raised in the pleadings regarding the ancestral nature of the properties, should have set aside the finding regarding the shares recorded by the Trial Court on the ground that no case has been pleaded in defence to the effect that the properties in dispute were ancestral and therefore their shares were like that. When this is the position, then the properties admittedly belonged to their father, namely the father of the plaintiff/respondent, defendant-2/appellant as well as the adopted son defendant-1/appellant because it has been found by the Court below that the Deed of Adoption has been valid. It has also been found by the Court below that the Adoption Deed was not a Will disposing of the properties. So, the properties have to devolve in accordance with the provisions of Sections 8, 9 and 10 of the Hindu Succession Act and Section 6 of the said Act could not come into play as has been found by the first appellate Court. Had the properties been ancestral, Section 6 of the Hindu Succession Act would have its play. Since it is nobody's case that the properties are ancestral, it is always to be presumed that the properties belonged to the person in whose name they did stand. When that being the position, the properties belonged to Balindrappa and in accordance with the principles laid down in Section 8 and Section 10, Class I heirs mentioned in the first column of the Schedule will take equal share simultaneously.
12. Here, it is not the case of a Hindu widow. Here it is the case of an adopted son and two natural daughters of the deceased. Hence, there can be no doubt that all the three under Sections 8 to 10 of Hindu Succession Act, 1956 would have got equal shares. Therefore, in my opinion, the first Appellate Court did not commit any error in holding the shares of the properties to be 1/3 each. In the present case the plaintiff claimed 1/2 share for herself and 1/2 share for defendant-2/appellant while the first defendant tried to grab the entire properties on the basis of the Adoption Deed. In the circumstances, it appears that Justice has been done to the parties by the first Appellate Court and the decision of the lower appellate Court does not suffer from any error of law of substantial nature.
13. There remains the last point to be determined, though no question was got framed on that. Section 132 of the Karnataka Land Revenue Act does not provide for dismissal of the suit if the copy of Record of Rights is not produced along with the plaint. The Section provides that along with the plaint the party has to file the certified copy of the Record of Rights. It further provides that if the plaintiff fails to do so for some reason or the other, then that party can produce that document within a reasonable time to be fixed by the Court. It means, for some reason or mistake if the plaintiff has failed to produce the document, the Court would grant time to file the same. Even thereafter if such certified copy is not annexed or produced, the Court shall reject the plaint but the provision does not say to dismiss the suit. The provision further provides that rejection of plaint by itself shall not preclude the party from presenting the fresh plaint on the same cause of action along with the certified copy of the Record of Rights.
14. Clause (2) of Section 132 says that when the suit is finally disposed of, the Court shall communicate to the Deputy Commissioner the error appearing in such entry and any alteration therein that may be required by the order and the copy of the communication shall be kept with the record. A reading of this provision per se indicate that the purpose of filing the certified copy of Record of Rights is to see that the Record of Rights are maintained correctly and if at the time of final disposal of the suit the Court finds any error in the entry the same shall be communicated to the Deputy Commissioner for rectification. The further provision is that the person fails to produce the copy of the document and if it comes to the notice of the Court, the Court may reject the plaint or it may grant further time to the party to produce it.
15. In the present case the records of the case reveals, no doubt as admitted by the learned Counsel for the plaintiff/respondent, by mistake the certified copy of the Record of Rights was not filed initially while filing the suit. When the suit was filed without the certified copy of the document being annexed, it was the duty of the office of the Court to have brought to the notice of the plaintiff and the Court that defect in the plaint by non-compliance of Section 132 of K.L. Revenue Act, if that would have been pointed-out at the very initial stage, definitely the plaintiff would have taken steps and filed the same at the earliest. There might be hundreds of reasons for not filing the same on account of the mistake of the Counsel, Mistake of the Counsel was also sufficient cause. But, it was the Head Munshi or Sheristedar, i.e., the Officer who is duty bound to examine the plaint as to whether it is in accordance with the Rules and to point the defect at the initial stage or if he failed, the defendants' Counsel could have taken an objection in the initial stage itself. Neither the Sheristedar or the officer at the administrative side of the Munsiff Court whose duty was to point out, did not point-out nor this defect was brought to the notice of the Court by the defendants. The trial of the suit had gone and reached the stage of the decision. It was only at the stage when the decision of the case was to come, the Sheristedar made a report to the effect that the certified copy of Record of Rights has not been produced. The plaintiff for due compliance of the same, made an application to produce the document. Unfortunately, the Munsiff who tried the suit, rejected the application on the ground that the said document was not relevant.
16. So, if there was any mistake in not filing the Record of Rights at the initial stage, it was not only of the plaintiff but it was a mistake on the part of the Court and the staff of the Court whose duty was to point-out this preliminary defect. If it was pointed-out, no doubt, the plaintiff/respondent would have taken necessary steps at the earlier stage and the defect would have been rectified. On this basis as well learned Counsel for the appellants submitted that the suit had been dismissed by Trial Court and therefore the first Appellate Court should not have decreed the suit: I think there is no substance in this contention. Section 132 of the Act does not provide for dismissal of the suit but provides only for rejection of the plaint or for return of the plaint. This well settled principle of law that it is one of the first and highest duties of the Courts to take care that the act of the Court does no injury to any suit/or has been laid down by Cairns, L.C. in RODGER v. COMPITOIR D ESCOMPTE de PARIS., 1871 (3) PC 465. This Decision has been followed by Hon'ble Supreme Court in many cases including the one in JAGAT DHISH BHARGAVA v. JAWAHAR LAL BHARGAVA AND ORS., AIR 1961 SC 833. In the said Decision Their Lordships have observed as under:
'It is true that more than five years have elapsed after the pronouncement of judgment but for this long delay and lapse of time respondents are not to be blamed. The failure of the Trial Court to draw up a decree as well as the failure of the relevant department in the High Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present inordinate position. In such a case, there can be no doubt that litigant deserves to be protected against the default committed or negligence shown by the Court of its officers in discharge of their duties.'
This proposition of law as laid down by their Lordships of the Supreme Court fully applies to the facts of the case.
17. When the office of the Munsiff Court was to scrutinise and point-out the defect in the light of Section 132 of Karnataka Land Revenue Act, failed to point-out the defect to the Court and defendant-1 also did not raise the plea in that regard as well as the Court also did not take note of that mistake, then for that mistake the party should not have been made to suffer. When the report was made at the stage of decision in this regard, the plaintiff/respondent took steps by moving an application for filing the document along with I.As XI and XII then the Trial Court's duty was to have taken that document on record because the plaintiff deserved to be protected on account of the default committed by the Court's staff itself. Thus considered, in my opinion, the lower Appellate Court did not commit any error of law when decided the matter in favour of the plaintiff and over-ruled Trial Court in this regard. I am further of the opinion that there is no substance in this last contention of the learned Counsel for appellants.
18. In the above view of the matter, and taking the view that there was an irregularity not affecting the decision on merits of the case and in view of the principles of law and the running law under Section 99 C.P.C. the decree passed in favour of the plaintiff/respondent cannot be reversed or modified nor the case can be remanded.
19. No other point has been pressed. The Appeal, as such, is hereby dismissed as being without substance.