Karnataka High Court
Umadevi vs M P Veena on 26 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29475
RSA No. 690 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 690 OF 2024 (PAR)
BETWEEN:
1. UMADEVI
W/O LATE GANGADHAR
AGED ABOUT 68 YEARS
R/AT NO 2081, 7TH MAIN,
KUVEMPU ROAD,
KUMARASWAMY LAYOUT,
2ND STAGE,
BANGALORE-560 078.
2. M G HARISH
S/O LATE GANGADHAR
AGED ABOUT 46 YEARS
R/AT NO 2081, 7TH MAIN,
Digitally signed
KUVEMPU ROAD,
by DEVIKA M KUMARASWAMY LAYOUT,
Location: HIGH 2ND STAGE,
COURT OF BANGALORE-560 078.
KARNATAKA
3. M G TEJASVI
D/O LATE GANGADHAR
AGED ABOUT 42 YEARS
R/AT NO 2081, 7TH MAIN,
KUVEMPU ROAD,
KUMARASWAMY LAYOUT,
2ND STAGE,
BANGALORE-560 078.
AT PRESENT THE APPELLANT
NOS.1 TO 3 ARE ALL
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NC: 2024:KHC:29475
RSA No. 690 of 2024
R/AT NO 25/2A,
HANISYAMA NILAYA,
16TH MAIN ROAD,
NEAR MARUTI GARMENTS
SRINIDHI LAYOUT AREHALLI
BANGALORE-560 061.
...APPELLANTS
(BY SRI. SANDEEP K., ADVOCATE)
AND:
1. M P VEENA
D/O LATE PUTTAHARIYAPPA
AGED ABOUT 51 YEARS
R/AT No. 1256 A BLOCK,
2ND CROSS, 60 FEET ROAD,
SAHAKARANAGAR,
BENGALURU-560 092.
2. M LAKSHMIKANTHA
S/O MARANNA
AGED ABOUT 63 YEARS,
R/AT NO.70, MAHASHREE,
3RD MAIN ROAD,
SRI GURU RAGHAVENDRANAGARA,
UPSTAIR, 7TH PHASE,
J P NAGAR,
BENGALURU-560 078.
3. PARVATHAMMA
W/O LATE M. ERALINGARAJU
AGED ABOUT 58 YEARS
4. MANASAGOWDA
D/O.LATE E. ERALINGARAJU
AGED ABOUT 36 YEARS
RESPONDENT NOS.3 AND 4 ARE
RESIDENTS OF HARIAHARANILAYA,
RAGHAVENDRA COLONY,
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NC: 2024:KHC:29475
RSA No. 690 of 2024
MADHUGIRI TOWN,
TUMKUR DISTRICT-572 132.
...RESPONDENTS
(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE
FOR C/R3 AND C/R4)
THIS RSA IS FILED SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 22.01.2024 PASSED IN RA
NO.5018/2023 ON THE FILE OF THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, TUMAKURU, SITTING AT MADHUGIRI,
DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 03.06.2023 PASSED IN OS NO.103/2017
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, MADHUGIRI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the learned counsel for the appellants and also the learned counsel for the respondents.
2. The appellant is the plaintiff and the appellant/plaintiff filed the suit before the Trial Court seeking the relief of partition in respect of item Nos.1 to 5 of the suit schedule properties contending that all the items of the suit schedule properties are the ancestral and -4- NC: 2024:KHC:29475 RSA No. 690 of 2024 joint family properties of plaintiff and defendant. Hence, entitled for claim in the suit schedule properties.
3. The defendant No.1 also contend that he is also entitled for share in the suit schedule property to an extent of 1/4th share. The defendant Nos.3 and 4 have appeared and filed written statement that item No.5 was bequeathed by Lakshmamma in favour of her son Eralingaraju through registered Will dated 16.06.2003. The Trial Court having considered the material on record, granted the relief of permanent injunction in respect of item Nos.1 to 4 and declined to pass any share in respect of item No.5 since the defendant Nos.3 and 4 have proved the registered Will dated 16.06.2003.
4. Being aggrieved by the judgment and decree an appeal is filed in R.A.No.5018/2023 before the First Appellate Court with regard to the declining of share in respect of item No5. The defendant No.1 has also filed an appeal in respect of rejection share in respect of item No.5. Both the appeals are dismissed by the First Appellate Court concurring the finding of the Trial Court -5- NC: 2024:KHC:29475 RSA No. 690 of 2024 that the Will is registered. The witnesses who have been examined before the Trial Court also deposes with regard to the execution of Will that is one of the attesting witness as well as son of scribe also examined and he identifies the signature of his father and hence, accepted the Will. The First Appellate Court comes to the conclusion that there is no impediment her to execute the Will as per wish since the property exclusively belongs to the mother and she derived the property through a gift.
5. Being aggrieved by the concurrent finding of the Trial Court as well as the First Appellate Court the present second appeal is filed by the plaintiffs contending that the very approach of the Trial Court as well as the First Appellate Court is erroneous. Both the Courts have committed an error in accepting the Will which is marked as Ex.P1. The counsel appearing for the appellant also would vehemently contend that First Appellate Court committed an error in when the document is produced before the First Appellate Court invoking Order 41 Rule 27 of CPC for production of additional evidence under which -6- NC: 2024:KHC:29475 RSA No. 690 of 2024 gift deed dated 08.10.2010 was sought to be produced to demonstrate that Lingamma during her life time had affixed her left hand thumb impression on the said document, however on the alleged Will dated 16.06.2003, Lingamma had affixed her signature. The counsel also submits that when the gift deed was executed by the plaintiffs and defendants and not discloses the very execution of the Will. Hence, this court has to admit and frame substantial question of law that both the Courts disregarded the judicial admission recorded and averred and sign by the beneficiary of the alleged Will dated 16.06.2003 that the property is an ancestral property. Both the Courts have committed an error in coming to the conclusion that the Will dated 16.06.2003 has been proved and also this Court has to frame substantial question of law with regard to the rejection of application filed under Order 41 Rule 27 of CPC.
6. Per Contra, the counsel appearing for the respondent/Plaintiff would vehemently contend that the Trial Court in detail discussed the both oral and -7- NC: 2024:KHC:29475 RSA No. 690 of 2024 documentary evidence placed on record particularly proving of the Will, though it is contended that Will is disputed, in paragraph No.15 of the judgment taken note of the admission on the part of the plaintiff and particularly the admission of gift deed made in favour of her grand mother Lakshmamma by her great grand mother. She further admits that out of 4 sons only Eralingaraju was residing in Madhugiri and remaingin 3 sos were government employees and had permanently settled in Bengaluru. The reason for assigning the Will also stated and the same also taken note of by the Trial Court even detail discussion was made in paragraph Nos.15 and 16 and even taken note of the evidence of witnesses who have been examined to prove the Will in paragraph No.17 that is attesting witness was examined as DW4 and DW3 is the practicing Advocate, he has deposed that his parent uncle by name Suryanarayana.H.T was working as deed writer and now he is no more and hence he came and identified the signature of his uncle. All these aspects were -8- NC: 2024:KHC:29475 RSA No. 690 of 2024 taken note of by the Trial Court and rightly comes to the conclusion that Will has been proved.
7. The counsel also would vehemently contend that First Appellate Court re-assessed the material available on record with regard to the very execution of the Will and having considered the grounds urged in the appeal memo, framed point for consideration as whether the Will Ex.D1 has been proved and while re-assessing the material on record, taken note of evidence of the DW5 in paragraph No.16 admits with regard to the mental condition of the executant of the Will and also taken note of the answer elicited from the mouth of the Plaintiff while appreciating the evidence available on record and also in paragraph No.23 extracted the cross-examination of DW2 wherein he categorically denied with regard to the mental condition of the executant and also while answering point No.3 taken note of in paragraph No.26 that the condition of executant and even though the answer elicited that he was suffering from cancer and the same cannot be a ground to disbelieve the execution of the Will and also it is observed -9- NC: 2024:KHC:29475 RSA No. 690 of 2024 that during the said period, she was residing with legatee and defendant No.3 was taking care of about her treatment the defendant No.2 also admitted the execution of the Will and there is no any impediment to her to execute Will and confirmed the judgment of the Trial Court.
8. Having considered the submissions of appellants' counsel and also the counsel appearing for the respondents, there is no dispute with regard to the granting of share in respect of item Nos.1 to 4 and only the dispute is with regard to the item No.5 is concerned. The plaintiffs as well as defendant No.1 claims the share in respect of item No.5 also. In respect of item No.5, the defendant Nos.3 and 4 have categorically contend that Will was executed and also it is not in dispute that property devolves upon the testator through the gift deed and also counsel would vehemently contend that when there was a admission in the earlier proceedings that the same was admitted as ancestral property and Court has to look into the material available on record when the property was
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NC: 2024:KHC:29475 RSA No. 690 of 2024 gifted in favour of testator and testator become an absolute owner of the property under Section 14 of Hindu Succession Act and she was having absolute right to execute the Will and it is also emerged during the course of evidence also that legatee was residing along with the executor and also even suggestion was made that she was suffering from cancer and she was also taken care of by the legatee. Even the Trial Court also taken note of the fact that remaining 3 sons were government employees and they are permanently settled in Bengaluru. In paragraph No.15 in detail discussed the reason for bequeathing the property in favour of the legatee. The First Appellate Court also re-assessed the material available on record and in order to prove the Will also, the attesting witness has been examined as PW4 and PW3 is also identified the signature of his father who has prepared the Will that he is a deed writer, since he was no more and hence the son who is practicing Advocate has been examined before the Trial Court and proved even under Section 69 of the Evidence Act that person who is having
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NC: 2024:KHC:29475 RSA No. 690 of 2024 acquaintance with signature of the deed writer has been examined and when such being the case, I do not find any ground to accept the contention of the appellant's counsel that both the Courts have committed an error in accepting the Will. The other contention is that the gift deed is also produced before the First Appellate Court along with an application filed under Order 41 Rule 27 of CPC and the same is only for the purpose of non mentioning of the execution of earlier Will since the gift deed was executed by the plaintiff and defendants subsequently and the said document is not clinches the issues involved between the parties and mere non mentioning of the execution of the earlier Will cannot be a ground to decide a germane issues involved between the parties by invoking Order 41 Rule 27 of CPC, since the Will is registered one. Having considered the material available on record, I do not find any error committed by both the Courts and both the Courts have taken note of the material available on record and when the execution of the Will has been proved and the same is also a registered Will and attesting witnesses have been
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NC: 2024:KHC:29475 RSA No. 690 of 2024 examined and nothing is elicited with regard to disbelieving the same. Hence, I do not find any ground to admit and frame substantial question of law in respect of item No.5 of the suit schedule property which has been excluded by the Trial Court as well as First Appellate Court in granting the relief of partition.
9. In view of the discussions made above, I pass the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 53