Smt Sarojamma vs Smt Jayamma
2021 Latest Caselaw 5742 Kant

                                            RSA.3124/2006
                                1
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF DECEMBER, 2021

                           BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

          REGULAR SECOND APPEAL NO.3124/2006

BETWEEN:

SMT. SAROJAMMA
D/O LATE LAKSHMAMMA,
AGED ABOUT 53 YEARS,
R/A GOWRIPET,
KOLAR CITY-563101.                      ... APPELLANT

(BY SRI K.RAGHAVENDRA RAO, ADV.)

AND:

1.       SMT. JAYAMMA
         W/O LATE PILLAPPA,
         AGED ABOUT 58 YEARS

2.       SMT. SUSHEELAMMA
         D/O LATE PILLAPPA,
         ABOUT 43 YEARS,

3.       SHRI PAPANNA
         S/O LATE PILLAPPA,
         SINCE DEAD BY LR'S.

3(A)     SMT. PUTTAMMA
         W/O LATE PAPANNA,
         AGED ABOUT 37 YEARS,

3(B)     MASTER MAHESH
         S/O LATE PAPANNA,
         AGED ABOUT 13 YEARS,
         REPRESENTED BY HIS MOTHER
         AS GURDIAN, R/AT KURUBARPET,
         KOLAR CITY-563101.

4.       SHRI RANGASWAMY
                                                 RSA.3124/2006
                             2
      S/O DRIVER MUNISWAMAPPA,
      AGED ABOUT 63 YEARS,
      ALL ARE R/AT KURUBARPET,
      KOLAR CITY.-563 101.                ... RESPONDENTS

(BY SRI S.VISWESHWARAIAH, ADV. FOR
    R1, R2 AND R3 (A & B),
V/O DT.05.03.2009, NOTICE TO R4 IS D/W)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 11.9.2006 PASSED IN R.A.NO.125/1998 ON THE FILE
OF THE I ADDL.CIVIL JUDGE (SR.DN.), KOLAR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 30.3.1998 PASSED IN OS.NO.286/1989 ON
THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC, KOLAR.

      THIS APPEAL COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT DELIVERED THE FOLLOWING :

                    JUDGMENT

This regular second appeal is filed by the

unsuccessful plaintiff challenging the judgment and

decree dated 30.03.1998 passed by the court of

Additional Civil Judge (Jr.Dn.) and J.M.F.C., Kolar, in

O.S.No.286/1989, which has been confirmed in

R.A.No.125/1998 by the court of I Additional Civil

Judge (Sr.Dn.), Kolar, by its judgment and decree dated

11.09.2006.

2. For the sake of convenience, the parties to the

appeal are referred to as per their rankings given before

the trial court.

RSA.3124/2006

3. Brief facts of the case that would be relevant for

the purpose of disposal of this appeal are:

Plaintiff had filed O.S.No.286/1989 against the

defendants to declare that she is the owner of the suit

schedule property and also to direct the defendants to

deliver the possession of the suit schedule property and

to direct the defendants to pay a sum of Rs.160/- as

damages for use and occupation of the suit schedule

property.

4. It is the case of the plaintiff that her mother

Lakshmamma, wife of one Muniswamappa was the

absolute owner in possession of the suit schedule

property and he had purchased the suit schedule

property from one Kichaiah Setty under a registered

sale deed dated 12.03.1958 (Ex.P2) for a valuable

consideration. It is her further case that Kichaiah Setty

had purchased the suit schedule property from one

Pillappa and his brother Muniramaiah under a

registered sale deed dated 04.05.1954 as per Ex.P3.

Defendant Nos.1 and 2 are the wives of Pillappa and RSA.3124/2006

defendant No.3 is Muniramaiah, who is the brother of

Pillappa. Defendant No.4 is the brother of the plaintiff.

5. It is the further case of the plaintiff that her

mother Lakshmamma had leased a portion of the suit

schedule property to Pillappa and Muniramaiah and the

remaining portion of the suit schedule property was in

possession of her brother Rangaswamy, who is

defendant No.4. Plaintiff's mother Lakshmamma had

bequeathed the suit schedule property in favour of the

plaintiff under a registered Will dated 02.04.1971.

Smt.Lakshmamma had died on 17.11.1973. After the

death of Lakshmamma, the plaintiff being the

propounder of the registered Will dated 02.04.1971

executed by her mother Lakshmamma, she became the

absolute owner of the suit schedule property and she

was entitled to recover the rent from the defendants.

Defendant Nos.1 to 3 in collusion with defendant No.4

denied payment of rent to the plaintiff and also denied

plaintiff's title to the suit schedule property. It is under RSA.3124/2006

these circumstances, the plaintiff had approached the

trial court in O.S.No.286/1989.

6. The defendants after service of suit summons

had entered appearance before the trial court.

Defendant Nos.1 to 3 had filed a joint written statement

denying the plaint averments. They denied that

Smt.Lakshmamma, who is the plaintiff's mother, was

the absolute owner of the suit schedule property and

they also denied that Lakshmamma had leased any

portion of the suit schedule property in favour of the

defendants. They also denied that the fourth defendant

was in possession and enjoyment of a portion of the

suit schedule property. They contended that they are

the absolute owners of the suit schedule properties and

therefore, there was no necessity for them to take the

suit schedule property on lease. They disputed that the

husband of defendant Nos.1 and 2 Pillappa and his

brother defendant No.3 had executed any sale deed in

favour of Lakshmamma and they also disputed that

Lakshmamma was the owner of the suit schedule RSA.3124/2006

property under the said sale deed and that she had

executed a Will in favour of the plaintiff herein. It was

contended by defendant Nos.1 to 3 that the Will said to

have been executed in favour of the plaintiff is a

concocted and fabricated document. It is stated that

the fact that defendant Nos.1 to 3 are not the tenants of

the suit schedule property was decided in

H.R.C.No.21/1969 and therefore, it is not open for the

plaintiff to contend that the defendants-1 to 3 are the

tenants of the suit schedule property. Defendant Nos.1

to 3 also contended that they have perfected their title

to the suit schedule property by means of adverse

possession and accordingly prayed to dismiss the suit.

7. Defendant No.4, who is the brother of the

plaintiff, filed a separate written statement admitting

the plaint averments and he further submitted that the

plaintiff's suit may be decreed without any order as to

costs against him.

RSA.3124/2006

8. On the basis of the rival pleadings, the trial

court framed the following issues:

"1. Does plaintiff proves exclusive ownership and possession over the suit schedule property?

2. Does plaintiff proves alleged lease deed in respect of suit property in favour of defendant No.1, 2, 3 by late Lakshmamma as contended?

3. Does plaintiff proves defendant No.1, 2 and 3 are tenant of suit schedule property?

4. Does plaintiff proves alleged registered Will deed dt:2.4.1971 by late Lakshmamma in favour of her in respect of suit property?

5. Does plaintiff is entitled for declaration as sought for?

6. Does plaintiff is entitled for damages by way of rent as well as cost of suit as claimed?

7. Does defendant No.1, 2, 3 proves suit is not properly valued?

8. Does defendant No.1, 2, 3 proves suit is barred by law of adverse possession against plaintiff?

9. Does defendant No.1, 2, 3 proves suit is barred under the law of limitation?

10. Dose defendant No.1, 2, 3 are entitled for any exemplary cost as claimed?

RSA.3124/2006

11. What order or decree?"

9. During the course of trial, plaintiff got herself

examined as PW-1 and three other independent

witnesses were examined on behalf of the plaintiff as

PWs-2 to 4 and 19 documents were marked as Exs.P1

to P19. On behalf of the defendants, defendant No.3

was examined as DW-1 and two independent witnesses

were examined as DWs-2 and 3 and 98 documents were

marked as Exs.D1 to D98.

10. After completion of recording evidence, the

trial court heard the arguments addressed on behalf of

all the parties and thereafterwards having appreciated

the oral and documentary evidence available on record

answered issue Nos.1 to 3 and 5 to 10 in the negative,

consequently by its judgment and decree dated

30.03.1998 dismissed the plaintiff's suit. Being

aggrieved by the same, plaintiff had filed

R.A.No.125/1998 before the court of I Additional Civil

Judge (Sr.Dn.), Kolar ("the first appellate court" for RSA.3124/2006

short). In the said appeal, the first appellate court after

hearing the arguments on both sides had framed the

following points for consideration:

"1. Whether the plaintiff has made out grounds for appointment of Commissioner as prayed in the interim application u/o 26 R.10-A of CPC?

2. Whether the plaintiff has established that defendant No.3 Muniramaiah and his brother Pillappa sold the suit schedule property in favour of Kichaiah Shetty under Ex.P.3 sale deed and as such Kichaiah Shetty was the absolute owner of the suit schedule property?

3. Whether the plaintiff has establishe that her mother Smt.Lakshmamma had purchased the suit schedule property from Kichaiah Shetty under Ex.P.2 sale deed dt:12.03.1958 and thereby she was the absolute owner of the suit schedule property?

4. Whether the plaintiff has established that she became the absolute owner of the suit schedule property by virtue of the regd. Will dt:2.4.1971 executed by her mother Smt.Lakshmamma?

5. Whether the contesting defendants have established that they are the absolute owners, in possession and enjoyment of the suit schedule property on the basis of their own rights?

RSA.3124/2006

6. Whether there is any need to interfere with the judgment and decree under appeal?

7. What decree or order?"

By answering point Nos.1, 4 and 6 in the negative and

point Nos.2, 3 and 5 in the affirmative, the first

appellate court by its judgment and decree dated

11.09.2006 dismissed the regular appeal filed by the

plaintiff and thereby confirmed the judgment and

decree passed by the trial court in O.S.No.286/1989. It

is under these circumstances, the plaintiff is before this

court in this regular second appeal.

11. This court had admitted this regular second

appeal on 01.06.2009 to consider the following

substantial questions of law:

"1. Whether the lower appellate court has committed an error in dismissing the suit in its entirety even assuming that the Will dated 02.04.1971, Ex.P1 is held as not proved, since the Lower Appellate Court itself has come to the conclusion that the mother of the plaintiff has acquired title to the property under the documents at Exs.P2 and P3?

RSA.3124/2006

2. Whether the manner of consideration of the evidence by the Lower Appellate Court in proof of the Will dated 02.04.1971, Ex.P1 would admit of perversity, thus leading to its erroneous conclusion?"

12. Learned counsel for the appellant/plaintiff

submits that the trial court has held that the execution

of Ex.P2/sale deed was proved while the first appellate

court had held that the execution of both the sale deeds

i.e., Ex.P2 and Ex.P3 was proved and inspite of the

same, the said courts have dismissed the suit of the

plaintiff. He submits that since the courts below have

given a finding that the mother of the plaintiff had

purchased the suit schedule property under the

registered sale deed Ex.P2, there was no justification for

dismissing the suit of the plaintiff. He submits that

defendant Nos.1 to 3 are strangers to the family and

defendant no.4, who is the brother of the plaintiff, has

admitted the execution of the Will by his mother in

favour of the plaintiff and therefore, defendant nos.1 to

3 have no right to dispute the execution of the Will or

contend that the Will has been executed under RSA.3124/2006

suspicious circumstances. He submits that even if it is

presumed that the Will is not proved by the plaintiff

since the execution of the sale deed in favour of her

mother Lakshmamma has been proved, the plaintiff

being a co-sharer has independent right to seek the

relief of possession. He submits that the Will has been

proved by the plaintiff by examining PW-4, who is the

brother of one of the attesting witnesses who has

identified the signature of his brother Bandeppa, the

attesting witness and therefore, the requirement of

Section 69 of the Indian Evidence Act is complied by the

plaintiff. He submits that Kichaiah Setty, who is the

vendor of the plaintiff's mother, has been examined as

PW-2 and he has admitted the execution of the sale

deed Ex.P2 in favour of Lakshmamma and the said sale

deed has been signed by Pillappa and the third

defendant Muniramaiah as the attesting witnesses and

therefore, it is not open to defendant Nos.1 to 3 to

contend that Pillappa and his brother Muniramaiah

had never executed any sale deed in favour of Kichaiah RSA.3124/2006

Setty. He also submits that pursuant to the sale deed

Ex.P2, the khatha in respect of the suit schedule

property was changed and Ex.P4 is an endorsement

issued by the local body to the said effect and therefore,

it goes to show that the sale deed has been acted upon

and therefore it is not open for the defendant Nos.1 to 3

to contend that the possession of the suit schedule

property was not handed over to the purchaser under

any of the sale deeds i.e., Exs.P2 and P3.

He has relied upon the judgment of the Hon'ble

Supreme Court in the case of Madhukar D.Shende -vs-

Tarabai Aba Shedage1 and contends that a stranger

cannot challenge the execution of the will on the ground

that it is surrounded by suspicious circumstances. He

further submits that PW-3 is the widow of defendant

No.4 and she has categorically admitted the execution

of the will. He also submits that the other children of

the deceased Lakshmamma have now filed an affidavit

before this court admitting the execution of the Will and

AIR 2002 SC 637 RSA.3124/2006

therefore, it is not open for the defendant Nos.1 to 3,

who are strangers, to dispute the execution of the Will.

13. Per contra, learned counsel for defendant

Nos.1 to 3 submits that the courts below have recorded

a concurrent finding as against the plaintiff and have

refused to declare the title of the plaintiff with regard to

the suit schedule property. He submits that the Will

has not been executed in compliance of the requirement

of Section 63 of the Indian Succession Act and Section

68 of the Indian Evidence Act. He also submits that the

evidence of PW-4 is of no assistance to the plaintiff to

prove the Will because the said witness admittedly was

not in a position to identify the signature of his brother

for the reason that he did not know to read and write

English. He further submits that though defendant

nos.1 to 3 have raised a specific plea of adverse

possession, the courts below have failed to appreciate

the same. He submits that the very finding in the

earlier HRC proceedings would go to show that the

defendant nos.1 to 3 were in possession of the suit RSA.3124/2006

schedule property. The said HRC proceedings have

been dismissed on the ground that there was no

material to establish that there was a jural relationship

of landlord and tenant between the parties. He submits

that the Will executed by Lakshmamma does not state

anything about disinheritance of other children and

therefore, the courts below have rightly refused to

believe the same and in the absence of proof of the Will,

the plaintiff cannot be declared as the absolute owner of

the suit schedule property. He has relied upon a

judgment of this court reported in the case of

Sri.J.T.Surappa and Another -vs- Sri

Satchidhanandendra Saraswathi Swamiji Public

Charitable Trust and Others2 in support of his

contention that the will has not been executed in

compliance of the requirement of Section 63 of the

Indian Succession Act and Section 68 of the Evidence

Act.

14. In reply, learned counsel for the plaintiff

submitted that the question of adverse possession does

ILR 2008 KAR 2115 RSA.3124/2006

not arise in the case on hand as the defendant nos.1 to

3 have denied the title of the plaintiff and there is no

specific plea with regard to adverse possession nor was

there any evidence led in this regard. He also

submitted that there was no issue framed in this regard

by the trial court and therefore, the question of adverse

possession cannot be gone into in this regular second

appeal.

15. I have carefully considered the arguments

addressed on behalf of the plaintiff and on behalf of

defendant nos.1 to 3 and also perused the material

evidence available on record.

16. The plaintiff in order to establish her case

with regard to the title of the property has relied upon

the sale deeds Ex.P2, Ex.P3 and the Will Ex.P1. Ex.P3

is the sale deed dated 04.05.1954 executed by Pillappa

and his brother Muniramaiah - third defendant herein

in favour of Kichaiah Setty. Kichaiah Setty in turn has

executed Ex.P2, the sale deed dated 12.03.1958 in RSA.3124/2006

favour of plaintiff's mother Lakshmamma. The

municipal record of the suit schedule property was

changed in the name of Lakshmamma pursuant to

Ex.P2 and an endorsement has been issued to the said

effect by the jurisdictional local body as per Ex.P4. The

trial court had held that execution of Ex.P2 by Kichaiah

Setty in favour of plaintiff's mother Lakshmamma was

proved, but it had disbelieved the execution of Ex.P3.

However, the first appellate court has given a finding

that execution of both the sale deeds i.e., Exs.P2 and P3

was proved by the plaintiff. It is necessary to note that

PW-2 Kichaiah Setty had categorically admitted before

the trial court about the execution of Ex.P2 in favour of

the plaintiff's mother Lakshmamma. As rightly

contended by the learned counsel for the plaintiff,

Ex.P2 has been signed by Pillappa and his brother third

defendant viz., Muniramaiah as the attesting witnesses

and therefore, it is not open for the defendants to

contend that Pillappa and his brother third defendant

have not executed the sale deed/Ex.P3 in favour of RSA.3124/2006

Kichaiah Setty. The title of Lakshmamma in respect of

the suit schedule property is, therefore, proved by the

plaintiff in view of Ex.P2 and Ex.P3-sale deeds.

17. Insofar as the execution of the Will by the

plaintiff's mother as per Ex.P1 in favour of the plaintiff

is concerned, the wife of defendant No.4, who has been

examined as PW-3, has admitted the execution of the

said Will. The defendants are strangers to the plaintiff

and defendant No.4. The plaintiff in order to prove the

execution of the Will has examined PW-4, who is the

brother of the attesting witness Bandeppa. He has

categorically identified the signature of his brother

Bandeppa and therefore, the plaintiff has complied the

requirement of Section 69 of the Indian Evidence Act.

18. The Hon'ble Supreme Court in the case of

Madhukar D.Shende (supra) has held that if there is

nothing unnatural about the transaction and the

evidence adduced satisfies the requirement of proving a

will, the court would not return a finding of "not proved"

RSA.3124/2006

merely on account of certain assumed suspicion or

supposition. Who are the persons propounding and

supporting a will as against the person disputing the

will and the pleadings of the parties would be relevant

and of significance. It is further observed that when the

near relatives of the testator and the propounder have

not disputed the execution of the Will, it is not open for

the stranger to the family to challenge the Will. Having

regard to the pronouncement of the Hon'ble Supreme

Court in the case of Madhukar D.Shende (supra), the

challenge to the Will by the defendants-1 to 3 loses its

significance and the courts below have failed to

appreciate this aspect of the matter. The judgment of

this court relied upon by the learned counsel for the

defendant Nos.1 to 3 in the case of J.T.Surappa

(supra) would not be applicable to the facts and

circumstances of the present case. There is no dispute

with regard to the proposition laid down by the co-

ordinate Bench of this court in the said case and I am

in respectful agreement with the same. However, since RSA.3124/2006

the said judgment does not apply to the fact situation in

the present case, the same has no relevance.

19. Learned counsel for the defendants has also

contended that defendant Nos.1 to 3 have perfected

their title by adverse possession. The material available

on record would go to show that there is no specific

plea in the written statement filed by the defendant

Nos.1 to 3, which satisfies the requirement to claim

declaration of title by adverse possession. Further, as

rightly contended by the learned counsel appearing for

the plaintiff, defendant Nos.1 to 3 have not admitted the

title of the plaintiff/her predecessors in respect of the

suit schedule property and therefore, the plea of

adverse possession is not available to them.

20. It is also required to be taken note of the fact

that the trial court has not framed any issue with

regard to the adverse possession nor there was any oral

or documentary evidence produced by the plaintiffs in

order to prove their possession adverse to the interest of RSA.3124/2006

the plaintiff. Under the circumstances, I am of the

considered view that the plea of defendant Nos.1 to 3

that they have perfected their title by adverse

possession is liable to be rejected.

21. Since the first appellate court had given a

categorical finding that execution of Exs.P2 and P3 was

duly proved by the plaintiff, it is very clear that the

mother of the plaintiff had acquired title to the suit

schedule property under the said documents Ex.P2 and

Ex.P3. As rightly contended by the learned counsel for

the plaintiff that even if it is presumed that the Will is

not proved by the plaintiff, the first appellate court was

not justified in rejecting the prayer of the plaintiff to

declare her title to the suit schedule property or to

grant her the other reliefs sought for in the suit for the

reason that the title of plaintiff's mother was proved.

Further, the execution of the Will in the present case

has been duly proved by the plaintiff by examining PW-

4, who is the brother of the attesting witnesses. The

challenge to the Will has been thrown only by defendant RSA.3124/2006

Nos.1 to 3, who are strangers to the family whereas

defendant No.4 has admitted the said Will and his wife,

who has been examined as PW-3, has clearly deposed

before the trial court admitting the Will.

22. Under the circumstances, the courts below

were not justified in dismissing the suit of the plaintiff.

Having regard to the judgment of the Hon'ble Supreme

Court in the case of Madhukar D.Shende (supra), the

courts below have completely erred in appreciating the

evidence of proof with regard to the execution of the Will

Ex.P1 dated 02.04.1971. Both the courts below have

failed to appreciate that the challenge was being thrown

with regard to the genuineness of the Will and with

regard to the proof of execution of the Will by strangers

and not by the family members of the plaintiff.

23. Under the circumstances, I am of the

considered view that the substantial questions of law

framed in this regular second appeal are required to be RSA.3124/2006

answered in favour of the plaintiff and in the

affirmative. Accordingly, the following order:

The regular second appeal is allowed. The

judgment and decree dated 30.03.1998 passed by the

court of Additional Civil Judge (Jr.Dn.) and J.M.F.C.,

Kolar, in O.S.No.286/1989 and the judgment and

decree 11.09.2006 in R.A.No.125/1998 by the court of I

Additional Civil Judge (Sr.Dn.), Kolar, are hereby set

aside and the suit of the plaintiff is decreed. It is

declared that the plaintiff is the owner of the suit

schedule property and the defendants are directed to

deliver the vacant possession of the suit schedule

property to the plaintiff within a period of four months

from today.

In view of disposal of the appeal, the pending I.A.

does not survive for consideration. Hence, they stand

disposed of.

Sd/-

JUDGE KNM/-