Rajeshwari W/O Parashuram ... vs Kalloleppa S/O Balappa ...
2022 Latest Caselaw 2968 Kant

                               1


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

       DATED THIS THE 22ND DAY OF FEBRAUARY, 2022

                             BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

           R.S.A.NO.100686 OF 2014 (DEC/INJ)

BETWEEN:

SMT. RAJESHWARI W/O PARASHURAM
KAMBALE, AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O GANDHI NAGAR, HUNNUR,
TQ: JAMAKHANDI, DIST: BAGALKOT-587110.

                                               ...APPELLANT

(BY SRI.HARISH S.MAIGUR, ADV.)

AND:

SRI.KALLALEPPA S/O BALAPPA MADAPPAGOL,
AGE:16 YEARS, OCC: NIL.
REPRESENTED BY HIS NEXT FRIEND,
NATURAL GUARDIAN FATHER,
SRI.BALAPPA S/O KALLAPPA MADAPPAGOL,
AGE: 43 YEARS, OCC: DRIVER,
R/O AMBEDKAR NAGAR, HUNNUR,
TQ: JAMAKHANDI, DIST: BAGALKOT-587110.

                                           ...RESPONDENT

(BY SRI.M.C.HUKKERI, ADV.)

    THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
                                      2


PASSED BY THE COURT OF SENIOR CIVIL JUDGE, JAMAKHANDI AT
JAMKHANDI IN R.A.NO.07/2014 DATED 30.06.2014 AND THE
JUDGMENT AND DECREE PASSED BY THE COURT OF PRL.CIVIL
JUDGE AND IST ADDL.JMFC, JAMKHANDI IN O.S.NO.145/2011
DATED 01.01.2014, IN THE INTEREST OF JUSTICE & EQUITY.

    THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendant who is questioning concurrent judgment and decree

of the Courts below wherein suit filed by the

respondent/plaintiff seeking relief of declaration and injunction

is decreed by both the Courts below.

2. The facts leading to the case are as under:

The respondent/plaintiff filed a suit for declaration and

injunction in O.S.No.145/2011. The respondent/plaintiff is

asserting title on the basis of Will executed by one Gangavva

in his favour on 26.10.2005. The respondent/plaintiff has

specifically contended that suit schedule property was

originally owned by one Gangavva S/o Balappa Madeppagol.

The respondent/plaintiff has claimed that said Gangavva and

one Balappa and his son Kalloleppa i.e., the present

respondent/plaintiff were all residing together in the suit

property. The respondent/plaintiff claimed that his father was

looking after said Gangavva till her death. It is in this context,

the testator Gangavva out of love and affection towards

Balappa and his son Kalloleppa has executed a Will in favour

of plaintiff thereby bequeathing the suit schedule property.

The respondent/plaintiff also contended that he is the grand

son of brother of testator and therefore, claimed that he has

become owner pursuant to bequeath made by the said

Gangavva. The respondent/plaintiff has further pleaded and

contended that Gangavva had a daughter by name Shantha

who is given in marriage and she is residing along with her

husband. The present defendant is none other than the

daughter of said Shantha. The respondent/plaintiff has

specifically pleaded that defendant has no right and title over

the suit schedule property and at no point of time she was in

possession of the suit schedule property. The grievance of the

respondent/plaintiff is that appellant/defendant in collusion

with panchayat authorities got passed a resolution No.3/20 on

the basis of fabricated consent deed alleging that Gangavva

had relinquished her right over the suit schedule property

under deed dated 24.07.2010. It is in this background, the

respondent/plaintiff was compelled to file a suit for declaration

and consequential relief of injunction.

3. On receipt of summons, the appellant/defendant

contested the proceedings and stoutly denied the entire

averments made in the plaint. On the contrary, the present

appellant/defendant claimed that she is the grand daughter of

Gangavva and being a direct successor to the suit property,

seriously disputed the alleged Will set up by the

respondent/plaintiff. It is further pleaded by the present

appellant/defendant that Gangavva being her maternal

grandmother was in fact residing with her till her death and

during her lifetime she has relinquished the suit schedule

property in favour of appellant/defendant.

4. The Trial Court having examined ocular and

documentary evidence more particularly the evidence of PW.2

has answered issue No.1 in the affirmative. While dealing with

issue No.1, the Trial Court has meticulously examined the

evidence led in by the propounder of Will and having

examined the recitals in the Will as well as the evidence of

PW.2 has held that the respondent/plaintiff has succeeded in

proving due execution of Will in his favour. On examining the

ocular evidence of PW.2 who is the attesting witness, the Trial

Court was of the view that attesting witness has deposed

specifically in regard to Gangavva coming to Jamkhandi and

executing the Will deed as per Ex.P-2 thereby bequeathing the

suit property in favour of respondent/plaintiff. He has also

deposed that Gangavva got the Will registered with the

authority. On examining the cross-examination of PW.2, the

Trial Court was of the view that the attesting witness has

withstood the test of cross-examination. The evidence of

attesting witness who is examined as PW.2 is strictly in

consonance with the mandatory requirements under Section

63(C) of Indian Succession Act coupled with Section 68 of

Indian Evidence Act.

5. Having examined the evidence adduced by the

respondent/plaintiff, the Trial Court has also given its anxious

consideration to the defence set up by the

appellant/defendant. The Trial Court having examined the

evidence of appellant/defendant has found that the

relinquishment deed dated 23.07.2010 set up by

respondent/plaintiff is an unregistered document and

therefore, does not create any right and interest in favour of

appellant/defendant. On these set of reasonings, the Trial

Court has proceeded to decree the suit filed by

respondent/plaintiff declaring the respondent as the absolute

owner and has granted perpetual injunction thereby

restraining the appellant/defendant from interfering with

respondent/plaintiff peaceful possession over the suit schedule

property.

6. The Appellate Court having meticulously assessed

the ocular and documentary evidence has found that the

respondent/plaintiff has succeeded in establishing due

execution of Will and has succeeded in removing the

suspicious circumstances. The Appellate Court on re-

appreciation found that the evidence of PW.2 clearly

establishes the due execution of Will in favour of the

respondent/plaintiff. On these set of reasonings, the Appellate

Court has concurred with the findings recorded by the Trial

Court and has proceeded to dismiss the appeal.

7. It is against this concurrent judgment and decree of

the Courts below, unsuccessful defendant is before this Court.

8. Perused the judgment under challenge.

9. Both the Courts have concurrently held that

respondent/plaintiff has succeeded in proving the due of Will

by examining the attesting witness to the Will deed. Both the

Courts have held that the Will set up by the

respondent/plaintiff is a genuine one and the same is not at all

surrounded by suspicious circumstances and the clinching

evidence adduced by the propounder of the Will clearly

establishes that the Will is genuine. Both the Courts have

concurrently held that the Will is held to be proved by the

respondent/plaintiff. On the contrary, the defence set up by

appellant/defendant claiming right and title on the basis of

unregistered document is rightly negatived by both the Courts

below.

10. No substantial questions of law arises. The appeal

is devoid of merits and the same is accordingly dismissed.

Sd/-

JUDGE

CA