Karnataka High Court

Smt Parvathamma vs Smt Suvarna on 31 March, 2022

Bench: R. Nataraj

                              1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF MARCH, 2022

                            BEFORE

           THE HON'BLE MR.JUSTICE R.NATARAJ

    REGULAR SECOND APPEAL NO.790 OF 2019 (PAR)

BETWEEN:

1. SMT. PARVATHAMMA,
   W/O LATE BHYRANNA C,
   AGED ABOUT 70 YEARS,

2. SMT. REKHA
   W/O PANCHAKSHARI
   D/O LATE C. BHYRANNA
   AGED ABOUT 49 YEARS
   R/O CHIKKAPURA VILLAGE
   MUTHAGADAHALLI POST
   MAYASANDRA HOBLI
   TURUVEKERE TALUK
   TUMKUR DISTRICT

3. SMT. MALA
   W/O NAGARAJU
   D/O BHYRANNA.C
   AGED ABOUT 47 YEARS

4. SMT. LATHA
   D/O LATE C. BHYRANNA
   AGED ABOUT 45 YEARS

5. SRI. B. DHANANJAYA
   S/O LATE C. BHYRANNA
   AGED ABOUT 43 YEARS

  DEFENDANTS 1 AND 3 TO 5 ARE
  R/AT NO.32/1, 1ST 'B' MAIN
  CAUVERY LAYOUT, MOODALAPLYA
  BENGALURU-560 072

6. SRI. M.C. CHANDRASHEKAR
   S/O LATE B. CHANNAIAH
                              2


  AGED ABOUT 57 YEARS
  R/O D NO.1885, WEALEY ROAD
  MANDI MOHALLA, MYSURU-570001
                                          ...APPELLANTS

(BY SRI. NANJUNDA SWAMY N., ADVOCATE)

AND:

1. SMT. SUVARNA,
   W/O LATE C. SOMASHEKARA
   AGED ABOUT 63 YEARS,

2. SMT. TEJASWINI. S,
   D/O LATE C. SOMASHEKARA
   AGED ABOUT 35 YEARS

3. SRI. S. CHETHA
   S/O LATE C. SOMASHEKARA
   AGED ABOUT 33 YEARS

  RESPONDENTS NO.1 TO 3 ARE
  R/AT D.NO.1883, NEW NO.58
  WESLEY ROAD, MANDI MOHALLA
  MYSURU-570001

4. SRI. MURALI
   AGED ABOUT 65 YEARS,
   R/AT D.NO.1884,

  NEW NO.58, WESLEY ROAD
  MANDI MOHALLA
  MYSURU-570001
                                          ...RESPONDENTS

       THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER
XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT     AND    DECREE   DATED   11.01.2019   PASSED   IN
R.A.NO.252/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT
JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT     AND    DECREE   DATED   18.09.2017   PASSED   IN
O.S.NO.2/2014 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SENIOR DIVISION) AND CJM., MYSURU.

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


                          JUDGMENT

This appeal is filed by the defendant Nos.1 to 6 in

O.S. No.2/2014 challenging the concurrent finding of fact

recorded by both the Courts that the suspicious

circumstances surrounding the execution of the Will -

Ex.D1 were not purged by the defendants.

2. The parties will henceforth be referred to as

they were arrayed before the Trial Court. The appellant

Nos.1 to 6 herein were defendant Nos.1 to 6 respectively

while the respondent Nos.1 to 3 herein were the plaintiffs

and respondent No.4 herein was the defendant No.7 before

the Trial Court.

3. The suit in O.S. No.2/2014 was filed for

partition and separate possession of the plaintiffs' 1/3rd

share in the suit schedule property. The plaintiffs claimed

that Smt. Shivamma and Sri Channaiah had three sons,

namely, Sri C. Bhyranna, Sri C. Somashekara and Sri

M.C.Chandrashekara (defendant No.6). Plaintiff No.1 is

the wife and plaintiff Nos.2 and 3 are the daughter and son

respectively of Sri C. Somashekara while the defendant

No.1 is the wife and defendant Nos.2 to 5 are the

daughters of Sri C. Bhyranna. The plaintiffs claimed that

during the lifetime of Smt.Shivamma, the family properties

were partitioned in terms of a partition dated 04.11.1981.

At the said partition, the suit schedule property was given

to Smt. Shivamma to be held by her during her lifetime. It

was also stated therein that after the death of Smt.

Shivamma, the suit property would be divided amongst

her three sons equally. The plaintiffs alleged that after the

death of her eldest son - Sri C. Somashekara, Smt.

Shivamma was residing with the defendant No.6 till her

death. During the lifetime of Smt. Shivamma, the

defendant No.7 had taken the suit property on a monthly

rent of Rs.5,500/- to run a play home in the suit property.

After the death of Smt.Shivamma, the plaintiffs requested

the defendant Nos.1 to 6 to partition the suit property, but

the defendants postponed the same on one or the other

reason. Thereafter, the defendants filed a caveat petition

in which they claimed that Smt. Shivamma had executed a

Will dated 02.02.2010 and that the suit properties were

divided between the legal heirs of Sri. C. Bhyranna and

defendant No.6 on 11.01.2013. The plaintiffs were

therefore constrained to demand their 1/3rd share in the

suit schedule property and when the defendant No.6

replied claiming that the plaintiffs had no subsisting right

in the suit property, they filed the suit for partition.

4. Defendant Nos.5 and 6 contested the suit by

filing the written statement, which was adopted by the

defendant Nos.1, 3, 4 and 7. Defendant Nos.5 and 6

admitted the relationship and contended that under

partition deed dated 04.11.1981, the limited right given to

Smt.Shivamma blossomed to absolute right and she was

the absolute owner of the suit property. They denied that

the plaintiffs were entitled to claim share in the suit

property. They also denied that the suit schedule property

was leased to the defendant No.7 on a monthly rent of

Rs.5,500/-. They claimed that just the way the sons of

Smt.Shivamma enjoyed their property separately, Smt.

Shivamma was also enjoying the suit property absolutely

and therefore, she became the owner of the suit property

by virtue of Section 14 of the Hindu Succession Act, 1956

(henceforth referred to as 'the Act of 1956'). They claimed

that the defendant No.6 and his family members took care

of Smt. Shivamma and she was residing with them. They

claimed that defendant No.6 and his family members

maintained and protected Smt. Shivamma during her old

age. The defendant No.5 also claimed to have helped the

defendant No.6 in maintaining their mother, Smt.

Shivamma. They alleged that the plaintiffs had never

helped or maintained Smt. Shivamma in any manner

whatsoever and they were residing separately. They

claimed that out of natural love and affection, Smt.

Shivamma executed a Will dated 01.02.2010 bequeathing

the suit property in favour of Sri C.Bhyranna and

defendant No.6 which was duly registered before the Sub-

Registrar, Mysuru, on 02.02.2010. They claimed that upon

the death of Smt.Shivamma on 08.08.2012, the defendant

Nos.1 to 5 and 6 became the owners of the suit property

and therefore, the plaintiffs had no share therein.

5. Based on these rival contentions, the Trial

Court framed the following issues:

"1) Whether the Plaintiffs prove that they and Defendant No.1 to 6 constituted members of the Hindu Joint Family and Suit Schedule Property is their joint family property?

2) Whether the Defendant No.5 and 6 prove that the Suit Schedule Property is the absolute property of Late Smt. Shivamma?

3) Whether the Defendant No.5 and 6 further prove that father of the Defendant No.5 and Defendant No.6 acquired the Suit Schedule Property under the registered Will dated 01.02.2010 executed by Smt. Shivamma?

4) Whether the Defendant No.5 and 6 further prove that the Suit Schedule Property was partitioned amongst Defendant No.1 to 6 as per register partition deed dated:11.01.2013?

5) Whether the suit of the Plaintiffs is barred by limitation?

6) Whether the court fee paid is sufficient ?

7) Whether the Plaintiffs are entitled for the relief of partition as claimed in the present suit?

8) What order or decree?"

6. The plaintiff No.3 was examined as PW.1, who

marked documents as Exs.P1 to P18. He also examined a

witness as PW.2, who spoke about the physical health of

Smt. Shivamma at the time of her death. Defendant No.6

was examined as DW.1 and he marked documents as

Exs.D1 to D5. Defendant No.5 was examined as DW.2,

who marked documents as Exs.D6 to D9. A Second

Division Assistant from the office of the Sub-Registrar,

Mysuru, was examined as DW.3, who marked the

documents as Exs.D10 and D11. A scribe of the Will was

examined as DW.4 and an attesting witness was examined

as DW.5.

7. Based on the oral and documentary evidence,

the Trial Court held that the suit property was given to

Smt. Shivamma in lieu of her maintenance. Therefore, it

held that by virtue of Section 14(1) of the Act of 1956, she

became the absolute owner of the suit property. Thus, it

held that Smt. Shivamma had absolute right to dispose off

the property under a testament. In so far as the valid

execution of the Will (Ex.D1), the Trial Court noticed the

suspicious circumstances, namely: (i) Smt. Shivamma was

under the care and control of defendant Nos.5 and 6; (ii)

she was aged 80 years at the time of the alleged Will; (iii)

the suit property is situate between the property allotted

to the share of Sri C. Bhyranna/defendant Nos.1 to 5 and

defendant No.6; (iv) defendant No.5 was also one of the

attestors of the Will; (v) defendant No.6 and Sri C.

Bhyranna, who were beneficiaries under the Will took a

prominent role in execution of the Will and (vi) the

attesting witness - DW.5 was secured by defendant No.5

to attest the Will.

8. The Trial Court held that the Will could not

have been executed by Smt. Shivamma, who was then

aged 80 years without the assistance of Sri C. Bhyranna

and defendant No.6. The Trial Court, therefore, held that

the Will (Ex.D1) was fraught with suspicious circumstances

which were not purged by the defendants. Hence, it

decreed the suit and declared that the plaintiffs together

are entitled to 1/3rd share in the suit schedule property.

9. Being aggrieved by the aforesaid Judgment

and Decree, the defendant Nos.1 to 6 filed Regular Appeal

No.252/2017.

10. The Court of V Additional District Judge,

Mysuru, (henceforth referred to as the 'First Appellate

Court') secured the records of the Trial Court, heard the

learned counsel for the parties and framed the following

points for consideration:

"1. Whether the appellants prove that the judgment and decree passed by the trial Court in respect of the Will is erroneous and requires interference at the hands of the Appellate Court ?

2. Whether the respondents prove that the trial Court has erred in answering issues 1 and 2 and caused mis-carriage of justice and thereby requires interference at the hands of the appellate Court ?

3. What order?"

11. The plaintiffs and defendant No.7 also filed cross-

objection challenging the findings of the Trial Court on

issue No.1 and issue No.2, namely, that the suit property

was the absolute property of Smt. Shivamma. The First

Appellate Court held that Smt. Shivamma received the suit

property under the partition dated 04.11.1981 and agreed

to retain it during her lifetime and after her life time, it

would devolve upon her three sons. The First Appellate

Court held that the suit property was allotted to Smt.

Shivamma for her maintenance and therefore, her limited

interest in the suit property blossomed into full interest by

virtue of Section 14(1) of the Act of 1956 and therefore,

Smt.Shivamma became the owner of the suit property.

However, in so far as the lawful execution of the Will

(Ex.D1) is concerned, the First Appellate Court saw various

circumstances which indicated that the Will was not

executed lawfully by Smt. Shivamma. The First Appellate

Court, therefore, dismissed the cross-objections filed by

the plaintiffs and defendant No.7 and dismissed the appeal

filed by the defendant Nos.1 to 6 thereby confirming the

Judgment and Decree of the Trial Court.

12. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

13. The learned counsel for the defendant Nos.1 to

6 / appellants submitted that when once the suit property

was held to be the absolute property of Smt. Shivamma,

there is no reason as to why the Will executed by Smt.

Shivamma could be suspected. The learned counsel

contended that the plaintiffs were not looking after Smt.

Shivamma and it was only defendant No.6 who was

looking after her and therefore, out of natural love and

affection, she had executed a Will in favour of defendant

No.6. He further submitted that if one of the sons of Smt.

Shivamma had attested the Will, that in itself would not

become a suspicious circumstance. He, therefore,

submitted that the impugned Judgment/s and Decree/s of

the Trial Court and the First Appellate Court is based on

misreading of the evidence leading to a mis-determination

that the execution of Will was surrounded by suspicious

circumstances and therefore, the same are liable to be set

aside.

14. The learned counsel relied upon the judgment

of the Hon'ble Supreme Court in the case of Savithri and

Others vs. Karthyayani Amma and Others [(2007) 11

Supreme Court Cases 621].

15. The plaintiffs have not challenged the finding

recorded by the Trial Court and the First Appellate Court

that the limited interest conferred upon Smt. Shivamma

blossomed into full interest by virtue of Section 14(1) of

the Act of 1956. Therefore, the only substantial question

that arises for consideration in this appeal is as under:

"Whether the suspicious circumstances which the Trial Court noticed and which were confirmed by the First Appellate Court deserve any interference by this Court?"