Karnataka High Court
B Lalithamma vs B C Surendranath S/O Late Chikka ... on 9 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.2511/2006 (PAR)
BETWEEN:
1. B. LALITHAMMA
SINCE DECEASED BY HER LRS
A. B.N. VASUNDARA
W/O S.R.MURTHY
AGED ABOUT 37 YEARS
R/O CHAITANYA NAGAR
NEAR LAKSHMI TEMPLE
DODDABALLAPUR-561 203
B. B.N. SUJATHA
W/O RAMALINGAPPA
AGED ABOUT 34 YEARS
R/O ANAPALLI VILLAGE
CHILAKALMERAPU HOBLI
CHINTAMANI TALUK
KOLAR DISTRICT.
C. B.N. SHYLAJA
D/O LATE B NARAYANASWAMY
AGED ABOUT 30 YEARS
4TH CROSS,30TH DIVISION
SHANTHINAGAR
DODDABALLAPUR - 561 203.
D. B.N. VENKATESH
S/O LATE B.NARAYANASWAMY
AGED ABOUT 27 YEARS
4TH CROSS,30TH DIVISION
2
SHANTHINAGAR
DODDABALLAPUR - 561 203.
... APPELLANTS
(BY SRI N.S.SESHADRI, ADVOCATE)
AND:
1. B.C. SURENDRANATH
S/O LATE CHIKKA CHOWDAPPA
SINCE DECEASED BY HIS LRS.
1(A) B.S.SATHYANARAYANA MURTHY
S/O LATE B.C.SURENDRANATH
SINCE DEAD BY HIS LRS.
1(A)(I) SMT. PARVATHI
W/O. LATE B.S.SATHYANARAYANA MURTHY
AGED ABOUT 65 YEARS
1(A)(II) B.S.RAJIV
W/O. LATE B.S.SATHYANARAYANA MURTHY
AGED ABOUT 46 YEARS
RESPONDENT NO.1(A)(I) AND 1(A)(II)
ARE R/AT JAYALAKSHMI GARDENTS
ALAHALLI, KASABA HOBLI,
DODDABALLAPUR TALUK - 561 203.
1(A)(III) JAYAKEERTHI
W/O. LATE B.S.SATHYANARAYANA MURTHY
AGED ABOUT 44 YEARS
NO.46, ANUGRAHA
MARAHALLI I MAIN, VIJAYANAGAR
BENGALURU - 560 040.
1(B) B.S. DAYANANDA MURTHY
S/O. LATE B.C. SURENDRANATH
AGED ABOUT 55 YEARS
R/A. JAYALAKSHMI GARDENS
ALAHALLI, KASABA HOBLI
DODDABALLAPUR TALUK - 561 203
3
1(C) B.S.CHIDANANDA MURTHY
S/O. LATE B.C. SURENDRANATH
AGED ABOUT 52 YEARS
1(D) B.S.PRAKASH KUMAR
S/O. LATE B.C. SURENDRANATH
AGED AOBUT 50 YEARS
BOTH 1(C) AND 1(D) ARE R/AT
NO.924, KONGADIYAPPA MAIN ROAD,
DODDABALLAPUR TALUK - 561 203
2. VISHWANATH
S/O ADINARAYANA
SINCE DECEASED BY HIS LRS.
2(A) SMT. NAGARATHNAMMA
W/O. LATE K.A. VISHWANATH
AGED ABOUT 75 YEARS
2(B) K.V. SACHIDANANDA
S/O. LATE K.A. VISHWANATH
AGED ABOUT 54 YEARS
2(C) K.V.SADANANDA
S/O. LATE K.A. VISHWANATH
AGED ABOUT 52 YEARS
2(D) K.V. KESHAVA
S/O. LATE K.A. VISHWANATH
AGED ABOUT 50 YEARS
2(E) K.V.HAMSAVENI
D/O. LATE K.A. VISHWANATH
AGED ABOUT 56 YEARS
ALL ARE R/AT NO.715
NEXT TO TEXTILE MANUFACTURERS
CO-OPERATIVE BANK, GANDHINAGAR
4
DODDABALLAPUR - 561 203
BANGALORE RURAL DISTRICT
... RESPONDENTS
(BY SRI S.M.BABU, ADV. FOR R1(D) AND R2(A&B);
SRI V.B.SHIVAKUMAR, ADV. FOR R1(B); SERVICE OF NOTICE
TO R2(C), R2(D) AND R2(E), HELD SUFFICIENT V/O DATED
21.08.2012; SERVICE OF NOTICE TO R1(C) HELD
SUFFICIENT V/O DATED 04.12.2018; R1(A)(I) & R1(A)(II)
SERVED AND UNREPRESENTED; APPEAL AGAINST R1(A)(III)
HELS SUFFICIENT V/O. DATED 27.09.2019)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
THE JUDGEMENT & DECREE DATED 1.6.2006 PASSED IN
R.A.NO. 62/2002 (OLD NO.157/2000) ON THE FILE OF THE
CIVIL JUDGE (SR.DN.), DODDABALLAPUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 22.7.2000 PASSED IN OS.NO. 312/1989 ON THE FILE
OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC,
DODDABALLAPUR.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Smt. Narasamma and Smt. Puttamma instituted a suit
seeking for partition.
2. The family relation, as stated by them, was as follows:
CHIKKA CHOWDAPPA
(DIED IN 1954)
NARASAMMA NANJAMMA
(the first wife-first plaintiff) (the second wife)
B.C.VENKATANARAYANAPPA B.C.SURENDRANATH
(son - died in 1963) (the first defendant)
PUTTAMMA B.C.THAMMAIAH
(wife-the second plaintiff) (whereabouts not known, presumed to be
dead)
LALITHAMMA
(daughter-LR of Plaintiff Nos.1 and 2)
3. It was stated that the three sons of Chikka Chowdappa
had partitioned their joint family properties by way of a
registered Partition Deed dated 03.09.1948 (Ex.P1). In the
said partition, the suit schedule properties had fallen to the
share of Chikka Chowdappa. It was stated that Chikka
Chowdappa had died intestate and as such, his three sons
and his wife-Narasamma had succeeded to the said
properties. It was alleged that since the second defendant
attempted to raise a construction in the said properties, the
plaintiffs were constrained to file a suit.
4. It was stated that Chikka Chowdappa's elder son,
B.C.Venkatanarayanappa, the husband of the second plaintiff,
had also passed away in the year 1963, leaving behind his
only son, Krishnamurthy, who also passed away before he got
married. B.C.Venkatanarayanappa had another daughter,
namely, B.Lalithamma-the third plaintiff and all three of them
were entitled to 3/7th share in the suit schedule properties.
5. This suit was contested by the defendants by filing a
separate written statement.
6. The first defendant -B.C.Surendranath (the half brother
of the deceased-B.C.Venkatanarayanappa) denied the entire
plaint averments. He also denied the relationship as stated
by the plaintiffs. He stated that Smt.Narasamma, the first
plaintiff, was not the legally wedded wife of Chikka
Chowdappa. He, however, stated that
B.C.Venkatanarayanappa, (the husband of the second
plaintiff) was not the legitimate son of Chikka Chowdappa. He
stated that Chikka Chowdappa belonged to Devanga
Community, whereas Narasamma belonged to a different
community and they were not legally married. It was stated
that since the husband of the second plaintiff-
B.C.Venkatanarayanappa was not the legitimate son of
Chikka Chowdappa, he could not claim any rights in the
properties of Chikka Chowdappa. It was admitted that his
father, i.e. Chikka Chowdappa, had given some properties to
B.C.Venkatanarayanappa with his consent.
7. He, however, stated that he was the absolute owner of
the suit schedule property bearing Sy.No.19 having
purchased the same from one B.G.Anjinappa under the
registered Sale Deed dated 08.01.1947 and ever since then,
he was in possession of the same. He stated that the
plaintiffs were not in possession of the suit schedule
properties at any point of time and that he had filed a suit in
O.S.No.115/1969 against the second defendant, but the said
suit had been settled and thereafter, he and his wife had sold
Item No.1 to the second defendant for a valuable
consideration under a Sale Deed dated 04.05.1970. He
contended that Item No.1 belongs to his wife. He further
contended that the suit was speculative and hence, the
plaintiffs were not entitled for any relief.
8. The first defendant subsequently amended his written
statement whereby he took up the contention that his father-
Chikka Chowdappa had executed an unregistered Will dated
24.01.1954 bequeathing Item Nos.2 and 3 in his favour. He
also stated that Item No-1 of the suit schedule property
initially, belonged to one B.G.Anjinappa and he had sold the
same in his favour under the sale deed dated 08.01.1947 and
it was his separate property and as a consequence, the
plaintiffs could not claim any share.
9. The second defendant, i.e. the purchaser of Item No.1
from the first defendant, also filed a written statement
denying the entire plaint averments. He stated that he had
obtained approved plan and had constructed a building at a
huge cost and the same was deliberately not mentioned in
the plaint. He also took up the plea that he was in adverse
possession over and beyond the statutory period prescribed
and that the suit was barred by limitation.
10. The Trial Court on consideration of the evidence
adduced before it, came to the conclusion that the suit
schedule properties were the joint family properties of Chikka
Chowdappa but the plaintiffs had failed to prove that the suit
schedule properties had fallen to the share of Chikka
Chowdappa under the family partition in the year 1946. The
Trial Court also held that the plaintiffs had failed to prove that
the first plaintiff-Narasamma was the legally wedded wife of
Chikka Chowdappa and her son, B.C.Venkatanarayanappa
was the legitimate son of Chikka Chowdappa. The Trial Court
held that the plaintiffs were not entitled to seek partition and
it accordingly, proceeded to dismiss the suit.
11. As far as the contention that the Will had been
executed by Chikka Chowdappa in favour of the first
defendant on 24.01.1954, the trial Court held that the Will
had been proved.
12. Being aggrieved, the third plaintiff preferred an appeal.
13. Plaintiff Nos.1 and 2, in the mean time, had passed
away and the third plaintiff was their only legal heir and she
therefore preferred an appeal.
14. The Appellate Court, on re-appreciation of the entire
evidence concurred with the finding and recorded by the Trial
Court and dismissed the appeal.
15. It is against these concurring judgments, the present
second appeal has been preferred.
16. This appeal was admitted to consider the following
questions of law:
"1. Whether the trial Court as well as the First Appellate Court have
erred in relying upon a Will marked as Ex.D.17 (sic Ex.D19)
which surfaced into limelight 21 years after filing of the original
written statement in O.S.No.273/1970? and
2. Whether the judgment of the First Appellate Court is perverse
and illegal by not framing proper point which is to be
considered under Order 41 Rule 31(a) of Code of Civil
Procedure?"
17. It is not in dispute that there was a registered partition
deed dated 03.09.1948 (Ex.P1) entered into between Chikka
Chowdappa, the father of the first defendant,
B.C. Surenderanath, the first defendant, B.C.Thimmanna (the
third son of Chikka Chowdappa) and
B.C.Venkatanarayanappa-the husband of the second plaintiff
and the first son of Chikka Chowdappa. In the said partition
deed, there was a clear recital that B.C.Venkatanarayanappa
was the first son of Chikka Chowdappa. Thus, way back in the
year 1948 itself, Chikka Chowdappa himself stated in clear
and unequivocal terms that B.C.Venkatanarayanappa was his
son. Thus, the assertion of the first defendant that
B.C.Venkatanarayanappa was neither the son of Chikka
Chowdappa nor that Narasamma-the first plaintiff was the
legally wedded wife of Chikka Chowdappa, cannot be
accepted.
18. The Appellate Court has, therefore, rightly come to the
conclusion that the finding recorded by the Trial Court in this
regard was incorrect. This finding of the Appellate Court has
also been accepted by the first defendant, inasmuch as no
cross-objections had been filed to the appeal.
19. It is also not in dispute that under this partition deed,
certain properties were retained by Chikka Chowdappa and
that Item Nos.2 and 3 in the suit schedule properties were
the properties retained by him. Thus, it cannot be in dispute
that Item Nos.2 and 3 were the properties of Chikka
Chowdappa
20. As far as Item No.1, which is the house property, there
is also a clear recital in the Sale Deed (Ex.P2) executed by
the first defendant in favour of the second defendant that the
said property had been purchased by his father, Chikka
Chowdappa, in the year 1943.
21. In view of these indisputable facts, it is, therefore, clear
that all the suit schedule properties were in fact the
properties of Chikka Chowdappa and the resultant position,
on the death of Chikka Chowdappa, would be that the
properties would devolve to his three sons in equal shares.
22. This would, however, be subject to the condition that
Chikka Chowdappa had died intestate. However, a plea set-
forth by the first defendant, by way of an amendment in his
written statement, was that Chikka Chowdappa had executed
a Will on 24.01.1954 (Ex.D.19) under which Item Nos.2 and 3
of the suit schedule properties had been bequeathed to him
and therefore, they were his absolute properties.
23. It is settled law that a party who propounds a Will has
to be necessarily prove the due execution of the will as
prescribed under Section 68 of the Indian Evidence Act, 1872
(hereinafter referred to as 'the Act' for short). If the
requirements of Section 68 of the Act are not complied, the
law prohibits the use of the Will as evidence in a Court of law.
It was, therefore, imperative that the first defendant should
have proved the due execution of the Will. Admittedly, the
Will was attested by two witnesses, namely,
M.G.Ashwathnarayana and B.G.Anjanappa.
24. It is not in dispute that neither of these attesting
witnesses were examined to prove the execution of the Will.
DW.1 during the course of his examination-in-chief, has
stated as follows:
"I am the first defendant in the above case. One Chikka
Chowdappa is my father. The first plaintiff is not the legally
wedded wife of my father. The deceased 2nd plaintiff
Puttamma was the daughter-in-law of the deceased 1st
Plaintiff. In the partition between my father and his sons,
the suit property has fallen to the share of my father. During
the life time of my father also, i was managing the suit
property. My father died in the year 1954. Even one
Venkatanarayanappa, the husband of 2nd Plaintiff
(deceased), and father of the 3rd Plaintiff is not the
legitimate son of deceased 1st Plaintiff. the Plaintiffs have
no right over the suit property. Apart from the suit in hand,
there are several litigations pending between myself and the
Plaintiffs. My father has executed Will in favour of me with
respect to the suit properties. Hence, after the death of my
father, I have become the owner of the suit properties.
The suit properties are in my possession since last about
50 years. I have paid the land revenue of the suit
properties. I have produced seven certified copy of the Kird
extract and they are marked as Ex.D1 to Ex.D7. I have
produced nine pahani extracts, and they are marked as
Ex.D8 to Ex.D16. i have produced two RTC extracts and
they are marked as Ex.D17 and Ex.D18. The plaintiffs have
no share in the suit properties. i have produced the Will
executed by my father in favour of me, the same is marked
as Ex.D19. Ex.D19(a) is the signature of my father. One
Anjinappa and Aswathanarayan have attested said
Will. Anjinappa is no more and the other attestor
Ashwathanarayan is still alive. One Narasimhaiah is the
scribe of Ex.D-19 and he is still alive. The Plaintiffs are
never in possession of the suit property and they have no
any kind of right over the suit properties"
(Emphasis Supplied)
25. Thus, though there was one attesting witness alive, the
first defendant did not choose to examine him. The
consequence of this is that the Will which was pressed into
service by the first defendant, cannot be used as evidence
and it would have to be held that Chikka Chowdappa had died
intestate. Since the Will has not been proved at all in the
manner prescribed by law, both the Courts had committed a
serious error in accepting that the Will had been executed by
Chikka Chowdappa.
26. The reliance placed upon by both the Courts on the
evidence of the scribe to come to the conclusion that the Will
had been proved and the same cannot be accepted. The Apex
Court in the case of JANKI NARAYAN BHOIR VS.
NARAYAN NAMDEO KADAM reported in (2003) 2 SCC 91
has clearly held that the examination of the scribe would not
amount to examination of an attesting witness and the
evidence of the scribe of a will cannot satisfy the
requirements stipulated under Section 68 of the Act. The
reliance of the Courts below on the deposition of the scribe
would therefore be incorrect.
27. In the light of the above legal position, the question of
law framed in this appeal as to whether the Courts below
could have relied upon Ex.D19, the Will, is to be answered
against the first defendant and in favour of the appellants.
28. The second appeal is accordingly allowed. The suit of
the plaintiffs is decreed. The appellants herein, by virtue of
being legal heirs of B.C.Venkatanarayanappa would
collectively be entitled to 1/3rd share in item Nos.1 to 3 of the
suit schedule properties.
Sd/-
JUDGE
KTY
