Karnataka High Court
B K Sarinath vs Nithin Kumar on 13 December, 2023
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RSA No. 1130 of 2016
C/W RSA No. 1067 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1130 OF 2016 (DEC)
C/W
REGULAR SECOND APPEAL NO. 1067 OF 2016(DEC)
IN RSA NO.1130/2016
BETWEEN:
B.K. SRINATH,
S/O KALACHAR,
AGED ABOUT 51 YEARS,
R/AT OPP. AGRICULTURAL
DEPARTMENT,
TARIKERE ROAD,
BHADRAVATHI,
SHIVAMOGGA - 577 301.
...APPELLANT
Digitally signed
by SUCHITRA (BY SRI. S.N. BHAT, ADVOCATE)
MJ
Location: High
Court of AND:
Karnataka
1. NITHIN KUMAR,
S/O SEBASTIAN,
AGED ABOUT 22 YEARS.
2. SMT. AMMANNI @ LIZY,
W/O SEBASTIAN,
AGED ABOUT 60 YEARS.
BOTH ARE PRESENTLY R/AT
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RSA No. 1130 of 2016
C/W RSA No. 1067 of 2016
BEHIND GANAPATHI TEMPLE,
NEAR BHADRA NURSING HOME,
GANDHINAGARA,
BHADRAVATHI,
SHIVAMOGGA - 577 301.
AND ALSO AT
BHOVI COLONY, 2ND CROSS,
BHADRAVATHI - 577 301.
...RESPONDENTS
(BY SRI. S.V. PRAKASH, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.03.2016 PASSED IN
R.A.NO.46/2009 ON THE FILE OF IV ADDL. DISTRICT AND
SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 24.02.2009 PASSED IN O.S.NO.136/1999
ON THE FILE OF CIVIL JUDGE (SR.DN.), JMFC, BHADRAVATHI.
IN RSA NO.1067/2016
BETWEEN:
1. B.K. SRINATH,
S/O KALACHAR,
AGED ABOUT 44 YEARS.
B.S. NAGAMANI DEVI,
W/O LATE B.L. KALACHAR,
SINCE DEAD BY HER LRS
2. B.K. MAHABALESH,
S/O LATE B.L. KALACHAR,
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RSA No. 1130 of 2016
C/W RSA No. 1067 of 2016
AGED ABOUT 63 YEARS.
3. SMT. B.K. TULASI MALA,
D/O LATE B.L. KALACHAR,
W/O RAMESH TIKOTI,
AGED ABOUT 61 YEARS.
4. SMT. B.K. SWAROOPA,
W/O SHASHISHEKAR,
AGED ABOUT 60 YEARS.
ALL ARE R/AT
OPP. AGRICULTURAL
DEPARTMENT,
TARIKERE ROAD,
BHADRAVATHI,
SHIVAMOGGA - 577 301.
...APPELLANTS
(BY SRI. S.N. BHAT, ADVOCATE)
AND:
NITHIN KUMAR,
S/O SEBASTIAN,
AGED ABOUT 22 YEARS.
BEHIND GANAPATHI TEMPLE,
NEAR BHADRA NURSING HOME,
GANDHINAGARA,
BHADRAVATHI,
SHIVAMOGGA - 577 301.
...RESPONDENT
(BY SRI. S.V. PRAKASH, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 24.03.2016
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RSA No. 1130 of 2016
C/W RSA No. 1067 of 2016
PASSED IN R.A.NO.44/2009 ON THE FILE OF IV ADDL.
DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT
BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 24.02.2009 PASSED IN
O.S.NO.1/1998 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., BHADRAVATHI.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These captioned second appeals are filed by
unsuccessful defendant No.1 in O.S.No.1/1998,
questioning concurrent findings recorded by the Trial Court
in a common judgment and decree passed in
O.S.No.1/1998 connected with O.S.No.136/1999.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court in
O.S.No.1/1998.
3. Facts leading to the case are as under:
The plaintiff-Nithin Kumar, has instituted a suit in
O.S.No.1/1998, contending that he is the son of defendant
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No.1 and grandson of B.L.Kalachar and defendant No.2-
B.S.Nagamani Devi. The plaintiff has filed the present suit
in O.S.No.1/1998 seeking declaration that he has become
owner of the suit schedule property in view of a registered
Will executed by B.L.Kalachar on 25.01.1996 and for
consequential relief of injunction.
4. Defendant No.1-B.K.Srinath (plaintiff in
O.S.No.136/1999), disputing the status of plaintiff-Nithin
Kumar, also filed a suit for declaration and injunction in
O.S.No.136/1999. Defendant No.1 seriously disputed the
paternity of plaintiff-Nithin Kumar and alleged that since
his father-Kalachar was suffering from mental agony
tension, plaintiff's mother, by taking undue advantage of
his health and playing fraud on him, has created a
concocted document styled as a Will. Defendant No.1-
B.K.Srinath has sought a declaration that Nithin Kumar
(plaintiff in O.S.No.1/1998) is the son of one Sebastian
and Ammanni @ Lizy and he is nowhere concerned to him.
Defendant No.1 also sought a declaration that Will set up
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by plaintiff in O.S.No.1/1998 is illegal and obtained by
fraud and criminal intimidation and therefore, Will is not
binding on him.
5. Plaintiff and defendant No.1 to substantiate
their respective claims have let in oral and documentary
evidence. The plaintiff in O.S.No.1/1998 to substantiate
the genuineness of Will, examined the attesting witness as
P.W.2 and scribe as P.W.3 and produced the Will, which is
marked as Ex.P.1. The plaintiff also relied on Exs.P.9, 10
and 19 to demonstrate that he is the son born on account
of live-in relationship between defendant No.1 and his
mother Ammanni @ Lizy.
6. Per contra, defendant No.1, to counter the
alleged Will set up by plaintiff, examined himself as D.W.1
and examined one independent witness to demonstrate
that plaintiff is the son born in the wedlock of one
Sebastian and Ammanni @ Lizy.
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7. The Trial Court, having assessed the oral and
documentary evidence let in by both the parties, decreed
the suit filed by the plaintiff in O.S.No.1/1998. While
decreeing the suit, the Trial Court held that plaintiff has
succeeded in proving that testator Kalachar has
bequeathed his property under registered Will on
25.01.1996. While answering issue No.1 in the affirmative
in O.S.No.1/1998, the Trial Court held that the plaintiff,
being the propounder of the Will, has successfully proved
that the Will is not shrouded with any suspicious
circumstances.
8. While answering issue No.3, in
O.S.No.136/1999 in negative, the Trial Court held that
defendant No.1 has failed to prove that plaintiff-Nithin
Kumar is the son born in the wedlock of one Sebastian and
Ammanni @ Lizy. Consequently, suit filed by defendant
No.1 in O.S.No.136/1999 is dismissed.
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9. Feeling aggrieved by the judgment and decree
granted in O.S.No.1/1998 and by the dismissal of his suit
in O.S.No.136/1999, Defendant No.1 preferred two
independent appeals before the appellate Court in
R.A.No.44/2009 and R.A.No.46/2009. The Appellate Court,
as a final fact finding authority, has independently
assessed the evidence relating to proof of Will and has
also meticulously examined the claim of defendant No.1,
wherein he has sought a declaration that plaintiff-Nithin
Kumar is the son born to Sebastian and Ammanni @ Lizy.
On an independent assessment of the entire evidence on
record, the Appellate Court was also of the view that
plaintiff has succeeded in proving the testamentary
arrangement made by one Kalachar in favour of plaintiff.
The Appellate Court held that plaintiff has succeeded in
proving the Will dated 25.01.1996, vide Ex.P.1. The
Appellate Court therefore proceeded to hold that plaintiff
has become owner pursuant to Will executed by one
Kalachar in his favour and therefore, plaintiff being an
owner and in possession, is entitled for declaration as well
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as consequential relief of an injunction. While dismissing
the appeal arising out of judgment and decree rendered in
O.S.No.136/1999, the Appellate Court concurred with the
reasons and conclusions recorded by the Trial Court on
issue No.3 formulated in O.S.No.136/1999. Consequently,
both the appeals are dismissed. These concurrent findings
rendered in both the suits are under challenge by
defendant No.1.
10. Heard learned counsel appearing for defendant
No.1 and learned counsel appearing for the plaintiff. I
have given my anxious consideration to the concurrent
judgments rendered by both the Courts in both the suits.
11. In O.S.No.1/1998, plaintiff-Nithin Kumar is
asserting title on the basis of a registered Will executed by
one Kalachar, which is dated 25.01.1996. The testator is
none other than the father of defendant No.1-B.K.Srinath.
In O.S.No.1/1998, the plaintiff, though in the pleadings,
claimed to be the son of defendant No.1, but the relief of
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declaration is sought on the basis of a registered Will
executed by Kalachar. In proof of will, the plaintiff has
examined the attesting witness and a scribe. Both the
Courts have elaborately discussed the evidence let in by
the plaintiff in proof of Will. Both the Courts referring to
the evidence let in by the plaintiff and in absence of
rebuttal evidence let in by defendant No.1, have
concurrently held that plaintiff has succeeded in proving
the registered Will in his favour, which is dated
25.01.1996. The Trial Court, referring to P.W.1, coupled
with the birth certificate produced at Ex.P.9, a photograph
evidencing that plaintiff is found in the said photograph
with the testator, has come to the conclusion that plaintiff
has succeeded in substantiating under what compelling
reasons the testator has made an arrangement bearing in
mind the interest of a minor plaintiff. Referring to the
recitals found in the Will, coupled with evidence of
attesting witness, who is examined as P.W.2 and evidence
of a scribe, who is examined as P.W.3, both the Courts
have concurrently held that propounder of the Will has
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succeeded in dispelling all suspicious circumstances and
the Will is genuine, and accordingly, suit filed in
O.S.No.1/1998 is dismissed.
12. Defendant No.1 is litigating this lis with all
vigour only to see that plaintiff cannot assert right as a
son. In O.S.No.136/1999, defendant No.1 has not only
questioned the Will on the ground that it is a fraudulent
document, but he has also sought a declaration that
plaintiff in O.S.No.1/1998 is the son born in the wedlock of
Sebastian and Ammannai @ Lizy. Though there is
sufficient evidence on record that gives an indication that
the plaintiff's mother, Ammanni @ Lizy was married to
Sebastian, however, defendant No.1 has not led in any
evidence to substantiate that the present plaintiff is born
in the wedlock of Sebastian and Ammanni @ Lizy. Both the
Courts were called upon to enquire as to whether plaintiff
is the son of one Sebastian and Ammanni @ Lizy. Both the
Courts, while answering issue No.3 in the negative, have
come to the conclusion that defendant No.1 has failed to
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prove that plaintiff-Nithin Kumar is the son of Sebastian
and Ammanni @ Lizy. In the absence of cogent evidence,
both the courts were not inclined to rely on oral evidence
let in by defendant No.1. Though defendant No.1 has
made an attempt by examining an independent witness as
D.W.2 to substantiate that plaintiff is the son born in the
wedlock of one Sebastian and Ammanni @ Lizy, the oral
evidence placed on record by both the parties gives a faint
hint that plaintiff is not a son of one Sebastian and
Ammanni @ Lizy. Therefore, both the Courts were justified
in answering issue No.3 in the negative. In all probability,
defendant No.1 has an apprehension that dismissal of the
suit filed in O.S.No.136/1999, may confer legitimacy on
plaintiff's status with defendant No.1. On examining the
pleadings and issues raised in both suits, this Court is
more than satisfied that the said apprehension of
defendant No.1 is found to be totally misconceived. What
defendant No.1 has failed to substantiate is that plaintiff-
Nithin Kumar is the son born in the wedlock of Sebastian
and Ammanni @ Lizy. Even if the evidence on record leads
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to the inference that plaintiff's mother-Ammanni @ Lizy,
continued to be the wife of one Sebastian, there is no
further evidence to substantiate that plaintiff is the
biological son of the said Sebastian and Ammanni @ Lizy.
Merely because both the Courts have answered issue No.3
in the negative, it does not lead to an ultimate conclusion
that plaintiff is the sons of defendant No.1.
13. In the light of discussion made supra, the
findings recorded by both the Courts on issue No.3 in
O.S.No.136/1999 relating to the status of plaintiff with one
Sebastian and Ammanni @ Lizy is on account of lack of
clinching evidence let in by defendant No.1. Therefore, I
am of the view that both the Courts were justified in
dismissing the suit filed by defendant No.1 in
O.S.No.136/1999. The concurrent findings recorded by the
Courts in regard to genuineness of Will in O.S.No.1/1998
and concurrent findings recorded by the Courts on issue
No.3 in O.S.No.136/1999, do not suffer from any serious
infirmities. Therefore, I am of the view that no substantial
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question of law would arise for consideration. The regular
second appeals are devoid of merits and accordingly
stands dismissed.
In view of dismissal of second appeals, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
