Basappa Veerabasappa ... vs Parvatewwa
2022 Latest Caselaw 922 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 20TH DAY OF JANUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                RSA.NO.5330/2013 (DEC/INJ)
BETWEEN

     BASAPPA VEERABASAPPA HOSAHULLATTI
     @ BENAKANAKONDA,
     SINCE DECEASED BY HIS LRS

1.   MALLAVVA W/O. BASAPPA HOSAHULLATTI,
     AGE: 68 YEARS,
     R/O. HIREMORAB, HIREKERUR

2.   SHARADAVVA W/O. CHANDRAPPA BAKKANAVAR
     AGE:52 YEARS,
     R/O. HIREMORAB, HIREKERUR

3.   ANUSUYAKKA BASAPPA HOSAHULLATTI
     W/O. CHANDRAPPA BAKKANAVAR
     AGE: 48 YEARS,
     R/O. HIREMORAB, HIREKERUR

4.   HANAMAGOUDA BASAPPA HOSAHULLATTI
     S/O. BASAPPA HOSAHULLATTI,
     AGE: 50 YEARS,
     R/O. HIREMORAB, HIREKERUR

5.   SMT.MANGALAWWA B HOSAHULLATTI
     W/O. RAVEENDRA BANDER,
     AGE: 41 YEARS,
     R/O. HIREMORAB, HIREKERUR


                                               ... APPELLANTS

(BY SMT.V.VIDYA & SRI.K.RAGHAVENDRA RAO, ADVS.)
                              2




AND

1.    PARVATEWWA
      ALLEGED W/O. BAILAPPA HOSAHULLATTI,
      AGE: 56 YEARS,
      R/O. HIREMORAB, HIREKERUR

      BAILAPPA S/O. VEERABASAPPA HOSAHULLATTI
      SINCE DECEASED BY HIS LRS

      SMT.DYAMAVVA W/O. BAILAPPA HOSAHULLATTI,
      DEAD BY HER LRS

2.    SMT.VANAJAKSHI W/O. SANNAGOUDA UJJANNANAVAR
      AGE: 37 YEARS,
      R/O. SHIRAGAMBI, HIREKERUR

3.    SHIVANAGOUDA S/O. BASAPPA HOSAHULLATTI
      AGE: 42 YEARS,
      R/O. HIREMORAB, HIREKERUR
      DIST: HAVERI

                                            ... RESPONDENTS

(BY SRI.AVINASH BANAKAR, ADV. FOR R1,
    R2 & R3 SERVED AND UNREPRESENTED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.40/2011
DATED 13.12.2012 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
HIREKERUR AND ALSO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC, HIREKERUR IN
O.S.NO.44/1997 DATED 16.04.2007 AND ALLOW THIS APPAL WITH
COSTS.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                      3




                               JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful defendants who are questioning the

concurrent judgment and decree passed by the courts

below in decreeing the suit filed by respondent

No.1/plaintiff declaring that respondent/plaintiff as

absolute owner to an extent of 1/3rd share of Smt.Basavva

in the suit schedule property, pursuant to Will executed by

Smt.Basavva in plaintiff's favour on 02.05.1985 and further

declaration is also granted declaring that plaintiff has

acquired right to execute the decree obtained in

O.S.No.38/1979 and to take possession of deceased

Basavva's 1/3rd share in the suit schedule properties.

2. The brief facts of the case are that, respondent

No.1/plaintiff filed a suit for declaration and consequential

relief of injunction by claiming that her mother-in-law

Basavva bequeathed her 1/3rd share in the suit schedule

property under registered Will dated 02.05.1985 thereby

bequeathing her 1/3rd share in favour of respondent

No.1/plaintiff. Respondent No.1/plaintiff also contended

that, on the basis of the Will dated 02.06.1985, she has

also acquired right to execute decree obtained in

O.S.No.38/1979. Hence, filed the present suit for

declaration and consequential relief of injunction.

3. The present appellants/defendants on receipt of

summons contested the proceedings by filing written

statement denying the entire averments made in the

plaint. Appellants/defendants also seriously disputed the

status of respondent No.1/plaintiff with Bailappa. Both the

parties in support of their claim led in evidence and also

produced documentary evidence. The trial court having

assessed oral and documentary evidence answered issue

Nos.1 and 2 in the affirmative and issue No.5 partly in the

affirmative, thereby decreed the suit by holding that

respondent No.1/plaintiff has succeeded in proving due

execution of the Will by her mother-in-law Basavva in her

favour and therefore, granted further declaration to the

effect that respondent No.1/plaintiff based on the Will

dated 02.05.1985 is entitled to execute decree passed in

O.S.No.38/1979. Therefore, respondent No.1/plaintiff being

the legate is entitled to take possession of deceased's

Basavva's 1/3rd share.

4. Feeling aggrieved by the judgment and decree

of the trial court, the present appellants preferred an

appeal before the first appellate court in R.A.No.40/2011.

The first appellate court having independently assessed

oral evidence has meticulously examined the ocular

evidence of P.W.1 and the evidence of P.Ws.2 and 3 who

are attesting witness and scribe respectively. On re-

appreciation, the first appellate court was of the view that

Will as per Ex.P6 executed by testator Basavva in favour of

her daughter-in-law i.e., present respondent No.1/plaintiff

is not shrouded with any suspicious circumstance and

respondent No.1/plaintiff has succeeded in proving the due

execution of the Will as per Ex.P6, thereby the first

appellate court concurred with the finding and conclusion

arrived at by the trial court. On these set of reasoning, the

first appellate court has dismissed the appeal filed by the

appellants/defendants.

5. It is against these concurrent findings of the

courts below, the appellants/defendants are before this

court.

6. Heard the learned counsel for the appellants and

learned counsel for the respondents. Perused the

judgments under challenge.

7. Respondent No.1/plaintiff to establish her right

under the Will vide Ex.P6 has examined attesting witness

as P.W.2 and scribe as P.W.3. Both the courts below having

meticulously examined ocular and documentary evidence

on record have come to the conclusion that respondent

No.1/plaintiff has succeeded in proving that deceased

Basavva has executed a registered Will dated 02.05.1985

bequeathing her 1/3rd share in the suit schedule property.

Both the courts have concurrently held that though

attesting witness and scribe were exhaustively cross-

examined, nothing material contradictions are elicited in

the cross-examination and both the witnesses have

withstood the test of cross-examination. Both the courts

below have concurrently come to the conclusion that

propounder of Will has succeeded in repelling all suspicious

circumstances surrounding the Will and has succeeded in

proving gaminess of Will. The attesting witness who is

examined as P.W.2 has stated in unequivocal terms that he

was summoned by the testator and in his presence, the

Will came to be drafted and after preparation of the Will,

the testator having understood the contents of the Will

signed it and after he signed the Will, the attesting witness

P.W.2 has put his signature. During the trial, both the

courts below taken note of this fact that attesting witness

has identified testator signature on Will at Ex.P6. Though

some contradictions were elicited while referring serial

number pertaining to P.W.2, however, both courts below

have rightly ignored those contradiction on the premise

that it is not fatal to the case of respondent/plaintiff and

would not itself dislodge the entitlement of

respondent/plaintiff.

8. If both courts below have concurrently held that

surrounding factors lend themselves to a legitimate

acceptance of validity of Will and Will is proved, then this

court under Section 100 of CPC cannot venture into

examine the evidence on record, which is impermissible.

9. No substantial question of law arises for

consideration in the present case on hand. Accordingly, the

appeal stands dismissed.

Sd/-

JUDGE MBS/-