Karnataka High Court
Smt. Neelamma vs Sri. Shankarappa on 1 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.1705/2014 (PAR)
BETWEEN:
1. SMT. NEELAMMA,
W/O KRISHNAPPA,
AGED ABOUT 53 YEARS,
R/AT No.399/3,
CHIKKANNA BUILDING GUNJUR,
BANGALORE - 560 087.
2. SMT. SHANTHAMMA,
W/O NARAYANAPPA,
AGED ABOUT 50 YEARS,
R/AT DODDASHIVARA,
DODDAKADTHUR,
MALLUR TALUK,
KOLAR DISTRICT,
PIN - 563 130.
3. SMT. LAKSHMAMMA,
W/O HANUMANTHAPPA,
AGED ABOUT 48 YEARS,
R/AT 86, KACHMARANAHALLI,
GUNJUR POST,
BANGALORE - 560 087.
... APPELLANTS
(BY SRI. V.ANAND, ADVOCATE)
AND:
1. SRI. SHANKARAPPA,
2
S/O LATE MUNIVENKATAPPA,
AGED ABOUT 59 YEARS,
R/AT 4TH MAIN, 2ND CROSS,
PATEL NARAYANAPPA STREET,
LAKSHMISAGAR,
MAHADEVAPURA POST,
BANGALORE - 560 048.
2. SMT. NAGAMMA,
W/O BEERAPPA,
AGED ABOUT 46 YEARS,
R/AT KAVITHA GENERAL ENG. WORKS,
KODIHALLI, (SEGEPURA)
JAYAMANGALA POST,
LAKKUR HOBLI,
KOLAR - 563 130.
SMT. MUDDAMMA,
W/O LATE MUNIVENKATAPPA,
SINCE DECEASED LRs.,
APPELLANT Nos.1 TO 3 AND
RESPONDENT Nos. 1 AND 2
ALREADY ON RECORD.
... RESPONDENTS
(BY SRI. H.M.RAJASHEKARA, ADVOCATE FOR R-1;
SRI. RAMANJI C., ADVOCATE FOR R-2)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 08.07.2014
PASSED IN R.A. No.99/2012 ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 09.08.2012 PASSED IN O.S. No.422/2011 ON THE
FILE OF SENIOR CIVIL JUDGE, MALUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
1. This is a second appeal by the plaintiffs.
2. The plaintiffs are sisters who filed a suit against
their brother--Shankarappa, sister--Nagamma and
mother--Muddamma. It was their case that the suit
properties belonged to their father--Munivenkatappa,
who passed away on 16.12.2005 intestate and as a
result, they had inherited an equal share in the suit
properties.
3. The suit was resisted by the defendants by filing
written statement. It was stated that the suit Item Nos.1
to 3 and 5 were the self-acquired properties of
Munivenkatappa. It was also stated that defendant No.1
had, out of his earnings, purchased suit Item No.5 in the
name of his father through a General Power of Attorney
and he had constructed a house on suit Item No.5 and
was residing therein. It was stated that Munivenkatappa
executed a registered Will on 07.12.2005 bequeathing
suit Item Nos.1 to 3 and 5 in favour of defendant No.1,
and on his death, by virtue of the bequest, defendant
No.1 had become the absolute owner of the properties.
4. Thus, the dispute essentially between the parties
was as to whether Munivenkatappa died intestate or
whether he had executed a Will in favour of defendant
No.1.
5. In order to establish the Will, defendant No.1
examined both the attesting witnesses and also the
Counsel who had drafted the Will. The Will in question is
admittedly a registered Will. The Trial Court, after
appreciation of the evidence of the attesting witnesses
and the Counsel who drafted the will, has recorded a
finding that Munivenkatappa had, in fact, executed the
registered Will dated 07.12.2005. In view of the said
finding, the Trial court dismissed the suit in respect of
suit Item Nos.1 to 3 and 5, however, granted 1/5th share
in suit Item No.4, which was undisputedly joint family
property.
6. Being aggrieved, an appeal was filed by the sisters.
The Appellate Court on re-appreciation of the evidence
came to the conclusion that the findings recorded by the
Trial Court that the Will had been executed, could not be
found fault with. It accordingly confirmed the decree of
the Trial Court and dismissed the appeal.
7. It is against these concurring judgments in respect
of dismissal of the claim for a share in respect of suit
Item Nos.1 to 3 and 5, this second appeal has been
preferred.
8. The learned counsel for the appellants contended
that the suit Item Nos.1 to 3 and 5 were bequeathed
only in favour of defendant No.1 and therefore, a
presumption has to be drawn that the execution of the
Will was surrounded by suspicious circumstances. He
also submitted hat the exclusion of daughters under the
alleged will bequeathing the entire properties in favour of
only defendant No.1 was unnatural and therefore, both
the Courts were not justified in dismissing the suit.
9. It is admittedly not the case of the plaintiffs that
the defendants played an active role in securing the Will
in his favour. In the absence of any plea or evidence to
indicate that defendant No.1 had played an active part in
the execution of the Will, the argument of the learned
counsel that the execution of the will was surrounded by
suspicious circumstances would be of no consequence.
10. The argument, that the 1st defendant had
contended that he had contributed to the acquisition of
the said properties and that also was a factor to
considered regarding the Will, cannot also be accepted.
It is to be stated here that the manner in which the
properties were acquired would be of no consequence,
because, even if defendant No.1 had contended that he
had contributed towards sale consideration, he admitted
that suit Item Nos.1 to 3 and 5 were acquired by
Munivenkatappa and belonged to him.
11. If the suit properties i.e., the suit Item Nos.1 to 3
and 5 were in fact purchased by Munivenkatappa,
obviously, they would be his separate properties and he
was therefore entitled to make a bequest in that regard.
12. As stated above, since both the Courts have
concurred in recording a finding of fact that the Will
dated 07.12.2005 had been executed by
Munivenkatappa, the consequential decree dismissing
the claim in respect of the suit Item Nos.1 to 3 and 5
cannot be found fault with.
13. There is no substantial question of law arising for
consideration in this second appeal. It is accordingly
dismissed.
Sd/-
JUDGE
RK
CT:SN
