Karnataka High Court
K V Rajesh vs K V Ramesh on 11 January, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
RSA No. 645 OF 2013
BETWEEN:
1. K.V. RAJESH
S/O LATE K.V. VENKATARAMANA SWAMY
AGED ABOUT 43 YEARS
2. SMT. LALITHAMMA
W/O K.V. RAJESH
AGED ABOUT 42 YEARS
BOTH ARE R/AT
GURIKAR MADAPPA GALLI
FORT, KANAKAPURA TOWN
RAMANAGARA DISTRICT - 571 511.
... APPELLANTS
(BY SRI.NARESH KUMAR FOR
SRI. G. MANIVANNAN, ADVOCATE)
AND:
1. K.V. RAMESH
S/O LATE K.V. VENKATARAMANA SWAMY
AGED ABOUT 46 YEARS.
2. DINESH KUMAR
S/O LATE K.V. VENKATARAMANA SWAMY
AGED ABOUT 45 YEARS.
BOTH ARE RESIDING AT
SERUGARARA BEEDHI
FORT, KANAKAPURA TOWN
RAMANAGARA DISTRICT - 571 511.
2
...RESPONDENTS
(BY SRI.T. SUBRAMANYA, ADVOCATE FOR R1 & R2)
THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 14.12.2012 PASSED IN R.A. NO. 83/2010 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT,
KANAKAPURA, RAMANAGARA DISTRICT, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 04.09.2010 PASSED IN O.S. NO. 535/2006 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) RAMANAGARA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present regular second appeal is filed under
Section 100 of CPC by the appellants/defendants
aggrieved by the judgment and decree dated 14/12/2012
passed in RA.No.83/2010 on the file of the Presiding
Officer, Fast Track Court, Kanakapura, Ramanagara
District (for short 'the First Appellate Court'), in and by
which, the first appellate Court while dismissing the
appeal filed by the appellants/defendants confirmed the
judgment and decree dated 04/09/2010 passed in
O.S.No.535/2006 on the file of the Civil Judge (Senior
Division) Ramanagara, (for short 'the Trial Court) in
terms of which the trial court had declared the
respondents/plaintiffs to be the owners in possession of
the suit schedule properties.
2. The brief facts leading up to filing of the
appeal are that; the above suit in OS.No.535/2006 is filed
by the plaintiffs claiming relief of declaration declaring
them to be the absolute owners in respect of the suit
schedule property being a house property bearing
Municipal Khatha No.627/587, approximately measuring
east to west 49 ft. north to south 12 1/2 ft. consisting of
a shop measuring 9 x 10 ft and a house is constructed
thereon measuring 9 x 10 ft and 2 square house at the
first floor situated in Ward No.25 of Kodihalli road, on the
premise that the aforesaid property was bequeathed in
favour of plaintiffs by its owner Smt. Kempamma by
executing and registering a Will dated 25/11/2000.
3. That the plaintiff Nos.1 and 2 and defendant
No.1 are the brothers and the defendant No.2 is the wife
of defendant No.1. That Smt. Kempamma is the daughter
of late Venkataramana Shetty of Kanakapura and the
sister of father of plaintiff Nos.1 and 2 and defendant
No.1. The said Smt. Kempamma had no issues and was
ailing due to her old age and infirmity as such, the
plaintiff Nos.1 and 2 had taken care of said Smt.
Kempamma. That one K.V.Padmalakshmi, the wife of
plaintiff No.1 is the fostered daughter of Kempamma and
the plaintiff No.1 married the said K.V.Padamalakshmi as
per the desire of Smt. Kempamma on 15/05/1991. That
apart Smt. Kempamma who had her savings Bank
Account at Vijaya Bank, Kanakapura bearing Account
No.1001/06317 had nominated said K.V.Padmalakshmi,
the wife of the plaintiff No.1 to be her nominee. That the
suit schedule property is the self-acquired property of
Smt. Kempamma and in the aforesaid facts and
circumstances, the said Kempamma had executed and
registered a Will dated 25/11/2000 bequeathing the suit
property in favour of plaintiff Nos.1 and 2. That the
defendant Nos.1 and 2 being completely aware of this
aspect of the matter, under the guise of providing
treatment to the said Smt. Kempamma had taken her to
Bengaluru and obtained signatures of said
Smt.Kempamma on blank stamp papers. That said
Smt.Kempamma neither executed any Will in favour of
defendants nor had cancelled the Will earlier executed by
her in favour of the plaintiffs. That the defendants having
no right over the property have been denying the
entitlement of the plaintiffs. That Smt.Kempamma
passed away on 06/09/2006 after brief period of
treatment in the hospital. That in order to meet the
expenses of her treatment, funeral and other expenses,
plaintiffs had mortgaged the property in favour of one
Kumar and had raised Rs.50,000/-. That the defendants
had filed a police complaint claiming that said
Smt.Kempamma had executed a Will in their favour and
also canceled the earlier Will executed in favour of the
plaintiffs. Based on the same defendants were making
false claim over the suit schedule property, which
constrained the plaintiffs to approach the court.
4. The defendants appeared and filed written
statement admitting the relationship of Smt.Kempamma
her ownership over the suit schedule property and also
admitting that said Smt.Kempamma was not having any
issues. However, they denied that Smt.K.V.Padmalakshmi
being the protected daughter of Smt.Kempamma was
nominated as nominee in the bank account of Vijaya
Bank. They also specifically denied that Smt.Kempamma
had executed Will in favour of plaintiffs and the plaintiffs
are in possession and enjoyment of the suit schedule
property. Further the averments in the plaint with regard
to obtaining signature of Smt.Kempamma on a blank
stamp paper are also denied. It is further contended by
the defendants that the suit schedule property being self-
acquired property of Smt.Kempamma, who had no issues
was being taken care of by the defendant No.1 along with
his wife defendant No.2. The said Smt.Kempamma being
satisfied with the treatment met out by the defendant
Nos.1 and 2 had executed Will dated 18/06/2006 in
favour of defendant No.1 in respect of the suit schedule
property. In the said Will, it was recited that the previous
Will dated 01/02/2002 executed in favour of plaintiffs was
canceled through a deed of cancellation of Will dated
23/08/2006. That subsequent to execution of Will dated
18/08/2006 in favour of defendant No.1, Smt.Kempamma
fell ill and in order to meet the expenses, requested the
defendant No.1 to sell the suit schedule property and in
furtherance thereof executed a power of attorney dated
25/08/2006 in favour of defendant No.1. That based on a
said power of attorney, defendant No.1 sold the suit
schedule property in favour of defendant No.2, who is the
wife of defendant No.1 by executing and registering a
deed of sale dated 28/08/2006. The defendant No.2
purchased the suit schedule property by obtaining loan
from her office and bank as she was a Government
teacher and on the strength of the said deed of sale dated
28/08/2006 the defendant No.2 is in peaceful possession
and enjoyment of the suit schedule property. That
Smt.Kempamma passed away on 06/09/2006. On these
grounds, the defendants sought for dismissal of the suit.
5. The Trial Court based on the pleadings
framed the following issues.
1. Do the plaintiffs prove that they
became the owners of the suit property
by virtue of a Will dated 25/11/2000 as
alleged?
2. Do the defendants prove that
Smt.Kempamma cancelled the Will
made in favour of the plaintiffs as
alleged?
3. Do the plaintiffs prove their
possession over the suit property as on
the date of the suit?
4. Do the plaintiffs prove the
interference by the defendants as
alleged?
5. Whether the plaintiffs are entitled
for the relief of declaration and
permanent injunction as prayed?
6. What order or decree?
6. The Trial Court recorded evidence. The
plaintiff No.2 examined himself as PW.1, plaintiff No.1
examined as PW.2 and also examined three additional
witnesses as PWs.3 to 5 and exhibited 25 documents
marked as Exs.P1 to P25. On the other hand, defendant
No.1 examined himself as DW.1 and examined three
additional witnesses as DWs.2 to 4 and exhibited 59
documents as Exs.D1 to D59.
7. The Trial Court, on appreciation of the
pleadings and evidence on record decreed the suit
declaring the plaintiffs to be the absolute owners in
possession of the suit schedule property by its judgment
and decree dated 04/09/2010. Being aggrieved by the
said judgment and decree, the appellants/defendants
preferred regular appeal in RA.No.83/2010 on the file of
the Presiding Officer, Fast Track Court, Kanakapura,
Ramanagara District. Based on the grounds urged in the
appeal, the first appellate court framed the following
point for its consideration:
1. Whether plaintiffs are the owners of suit
property on the strength of Will dated
25/11/2000 executed by Kempamma in their
favour?
2. Whether Kempamma has executed Will
dated 18/08/2006 by canceling earlier Will in
favour of defendant No.1 in respect of suit
property?
3. Whether the trial court is justified in
decreeing the suit?
4. Whether the judgment and decree of
the trial court is required to be interfered with
in this appeal?
8. On re-appreciating the evidence, the first
appellate court by its judgment and decree dated
14/12/2012 dismissed the appeal and confirmed the
judgment and decree dated 04/09/2010 passed by the
trial court. Being dissatisfied with the same, the
appellants/defendants are before this Court by way of
Regular Second Appeal.
9. Sri Naresh Kumar, learned counsel for the
appellants/defendants reiterating the grounds urged in
the appeal memorandum submitted that the trial court
and the first appellate court grossly erred in casting
burden on the defendants with regard to proof of
cancellation of the Will dated 25/11/2000 even without
calling upon the plaintiffs to prove the execution of the
said Will dated 25/11/2000. He submits that since the
plaintiffs having propounded the Will dated 25/11/000
under law it was duty of the plaintiffs to establish due
execution of the Will to the satisfaction of the court and
that has not been complied with. Thus the trial court and
the first appellate court grossly erred in decreeing the suit
as sought for by the plaintiffs. He further submits that
the defendants had examined three witnesses, one of
them is the scribe to the subsequent Will dated
18/06/2006 and deed of cancellation of Will dated
23/08/2006, which the trial court and the first appellate
court have not taken into consideration, thereby the
impugned judgment and decree have led to miscarriage
of justice. He further submits that for the aforesaid
factual and legal aspect of the matter, substantial
question of law is involved in the matter requiring
consideration.
10. Heard learned counsel for the
appellants/defendants.
11. The fact that the suit schedule property is the
self-acquired property of Smt. Kempamma, who is the
sister of father of plaintiffs and defendant No.1 is not in
dispute. As rightly pointed out by the trial court and the
first appellate court though in the written statement, the
defendants at first instance sought to deny the very
execution and registration of the Will dated 25/11/2000
by said Smt.Kempamma in favour of plaintiffs have
however, subsequently set up a plea that Smt.
Kempamma not being satisfied with the care taken by the
plaintiffs had executed subsequent Will dated 18/06/2006
and deed of cancellation dated 28/08/2006 bequeathing
the property in favour of the defendant No.1. It is
necessary to note that once the defendants admitted
(though initially denied) execution and registration of the
Will dated 25/11/2000 and set up a plea of cancellation of
the said Will, it was quiet but natural that legally
defendants had to establish the factum of cancellation of
Will by the said Smt.Kempamma. It is not the case of the
defendants that Smt. Kempamma was infirm or incapable
of executing the Will dated 25/11/2000. But it is their
case that she had cancelled the said Will subsequently in
terms of deed of cancellation dated 23/08/2006. This
being the factual aspect of the matter, as rightly
observed and held by the trial court and the first
appellate court, defendants ought to have established and
proved the cancellation of the Will dated 25/11/2000.
12. It is also further case of the
appellants/defendants that apart from subsequently
execution of the Will dated 18/08/2006, deed of
cancellation of earlier Will dated 23/08/2006, the said
Smt.Kempamma had executed power of attorney in
favour of defendant No.1 and based on the said power of
attorney defendant No.1 had sold the suit property to
defendant No.2 by executing and registering a deed of
sale on 28/08/2006. The said Smt.Kempamma is said to
have passed away on 06/09/2006. The turn of events
from the alleged execution of Will dated 18/06/2006,
cancellation of Will dated 23/08/2006, execution of power
of attorney dated 25/08/2006 and execution of registered
deed of sale dated 28/08/2006 and death of
Smt.Kempamma on 06/09/2006 did not evince the
credibility, rightly so, before the trial court and the first
appellate court. The plaintiffs, on the other hand apart
from producing original document of Will dated
25/11/2000, have also examined one of the witnesses
Mr.M.Sudhakara Raja as PW.4. There is substantial
compliance of Section 63 of the Evidence Act and Section
68 of the Indian Succession Act.
13. In the aforesaid factual and legal aspect of
the matter, the trial court and the first appellate court
having elaborately dealt with the facts and circumstances
and also with the requirement of law in propounding and
establishing the contents of the Will, no substantial
question of law involves in the present appeal requiring
consideration. Hence, the following.
ORDER
i) Regular Second Appeal No.645/2013
filed by the appellants/defendants is
dismissed.
ii) The judgment and decree dated
04/09/2006 passed in OS.No.535/2006
by the trial court and the judgment and
decree dated 14/12/2012 passed in
RA.No.83/2010 by the first appellate
are confirmed.
Sd/-
JUDGE
mkm
