Karnataka High Court
Kodabala Siddappa S/O. Dodda ... vs Magi Honnavva W/O. Channa Basappa on 19 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.6136/2012 (PAR)
BETWEEN
1. SRI KODABALA SIDDAPPA
S/O. DODDA BASAPPA
AGED ABOUT 48 YEARS,
R/O. HOLALU VILLAGE,
HADAGALI TALUK,
BALLARI DISTRICT-583217.
2. SRI KODABALA HULIYAVVA (HOLIYAVVA)
W/O. KODABALA DODDABASAPPA,
SINCE DECEASED BY HIS L.RS.,
2A. SRI GONEPPA,
S/O. DODDA BASAPPA,
AGE: 43 YEARS,
R/O. HOLALU VILLAGE,
HADAGALI TALUKA,
DISTRICT: BALLARI -583217.
2B. SMT.DYAMAVVA
W/O. HANUMAPPA
AGE: 42 YEARS,
R/O. HOLAALU VILLAGE,
HADAGALI TALUK,
DISTRICT: BALLARI -583217.
4. SANGAPPA
S/O. DODDABASAPPA
AGE: 39 YEARS,
2
R/O. HOLAALU VILLAGE,
HADAGALI TALU,
DISTRICT: BALLARI -583217
...APPELLANTS
(BY SRI J.S.SHETTY & SRI DEEPAK SHETTY, ADVOCATES)
AND
MAGI HONNAVVA
W/O CHANNA BASAPPA
SINCE DECEASED BY HER LRS.,
1A. SRI MAGI MANJUNATH
S/O CHANNABASAPPA,
AGE: 45 YEARS,
R/O. HOLALU,
TQ: HUVINAHADAGALI,
DIST: BALLARI.
... RESPONDENT
(BY SRI F.R.GALAGANATH & U.G.KATTIMAI, FOR R.1A)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 17.06.2011
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE & JMFC,
HOSAPETE IN REGULAR APPEAL NO.42/2010 AND THE
JUDGMENT AND DECREE DATED 17.09.2010 PASSED BY THE
CIVIL JUDGE AND JMFC, HUVINAHADAGALI IN O.S.NO.42/2009,
MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL WITH
COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
: JUDGMENT :
The captioned second appeal is filed by the
defendant No.2 questioning the concurrent findings of
the Courts below. Original plaintiff namely Magi
Honnavva filed a suit for partition and separate
possession in O.S.No.42/2009.
2. The genealogy would be relevant to resolve
the list between the parties and the same is as
follows:
Magi Sangappa
Kodabala Holiyavva Magi Honnavva
Siddappa Goneppa Dyamavva Sangappa
3. The original plaintiff Magi Honnavva and
Kodabala Holiyavva are the daughters of Magi
Sangappa. It is contended that Magi Sangappa was
the owner of the suit schedule property and that he
had no male issues. The original plaintiff Magi
Honnavva contended that she along with her sister
have inherited the property from her father.
Therefore, she has legitimate half share in the suit
schedule property. The original/plaintiff was compelled
to file suit for partition and separate possession in
O.S.No.42/2009.
4. The present appellant contested the
proceedings by specifically contending that the
propositus Magi Sangappa has bequeathed suit
schedule property under a registered Will dated
28.02.1966 and therefore sought for dismissal of the
suit filed by the original plaintiff Magi Honnavva. The
present appellant is none other than elder son of
Kodabala Holiyavva. Kodabala Holiyavva and Magi
Honnava are full sisters.
5. The Trial Court on assessing oral and
documentary evidence, held that the present
appellant/defendant No.2 has failed to prove due
execution of the alleged registered Will dated
28.02.1966 and therefore proceeded to award half
share in the suit schedule property to the deceased
plaintiff.
6. Feeling aggrieved by the judgment and
decree of the Trial Court, the present appellant
preferred appeal before the Principal Senior Civil Judge
and J.M.F.C, Hosapete ("The Appellate Court" for
short). The Appellate Court having independently
assessed the oral and documentary evidence
concurred with the reasons assigned by the Trial Court
in regard to the Will executed by Magi Sangappa in
favour of the present appellant. The Appellate Court
was of the view that even if Will is found to be
registered 30 years ago, no presumption can be
attached to it as a compliance of Section 90 of Indian
Evidence Act. The Appellate Court was of the view that
unless and until all suspicious circumstances are
removed by leading clinching rebuttal evidence, the
Will cannot be held to be proved in accordance with
the provisions of Section 68 of Indian Evidence Act
coupled with Section 63 of Indian Succession Act. In
that view of the matter, the Appellate Court has
proceeded to concur with the findings recorded by the
Trial Court on Issue No.2. It is against this concurrent
judgment and decree of the Courts below, the present
appellant is before this Court.
7. Learned counsel Sri J.S.Shetty strenuously
argued and contended before this Court that the
original propositus Magi Sangappa has bequeathed his
properties by way of registered Will dated 28.02.1966
and after his death the present appellant name was
duly mutated based on registered Will and the same
was within the knowledge of the original plaintiff and
therefore he would submit to this Court that the
concurrent finding of the Courts below in answering
Issue No.2 in the negative is perverse and contrary to
clinching evidence on record. He would also
strenuously argue and contend that the document is
registered 30 years ago and since both the attesting
witness were not alive, the appellant/defendant has
taken all possible recourse that were available to him
by examining son of one of the attesting witnesses as
DW.3 who has identified the signature of his father
and therefore he would submit to this Court that there
is not only compliance, but all suspicious
circumstances are also removed. On these set of
grounds, he would submit to this Court that
substantial question of law would arise in the present
case on hand.
8. Heard learned counsel for the appellant.
Perused the judgments under challenge.
9. The facts are not dispute. Propositus Magi
Sangappa had two daughters namely Kodabala
Holiyavva and Magi Honnavva. The present appellant
claims to be the son of eldest daughter namely
Kodabala Holiyavva. Therefore, it is the grandson who
is set up a Will by contending that his maternal
grandfather has bequeathed suit schedule property in
his favour under registered Will dated 28.02.1966.
10. Both the Courts have concurrently held that
the Will is shrouded with suspicious circumstances and
therefore have proceeded to answer Issue No.2 in the
negative by recording a finding that the appellant/
defendant has failed to prove due execution of Will in
his favour. The original plaintiff was one of the
daughters of propositus Magi Sangappa. If there is
absolutely no evidence indicating exclusion of Class-I
heirs and if there is concurrent finding by the Courts
below on proper appreciation of evidence that the Will
is not proved in accordance with law, there is no
further scope to re-appreciate the evidence on record
under Section 100 of CPC. This Court has to bear in
mind that two daughters have succeeded estate of
their father. They have equally inherited the property
left behind their father. Therefore, this Court is of the
view that, this not a fit case to interfere under Section
100 of CPC and examine the concurrent finding of the
Courts below in regard to the dispute Will executed in
favour of appellant. Though this Court is not in a
position to concur with the findings of the Appellate
Court regarding interpretation of Section 6 of the
Hindu Succession Act, however what this court has to
examine is whether the judgment and decree of the
Courts below suffers from perversity. The present
appellants intent to non-suit the plaint who is the
daughter of propositus Magi Sangappa on the ground
that there is a Will. If both the Courts have held that
the Will is not proved, this Court cannot examine
disputed question of facts under section 100 of CPC.
11. The other findings recorded by the
Appellate Court in regard to interpretation of Section 6
of the Hindu Succession Act, would be of no relevance.
The appeal is devoid of merits. No substantial question
of law arises and accordingly appeal stands
dismissed.
Sd/-
JUDGE
EM
