B Krishna Murthy S/O. Ganga Raju vs Kalyanam Nageshwar Rao
2023 Latest Caselaw 4715 Kant

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                                                NC: 2023:KHC-D:7567
                                                       RFA No. 4090 of 2012




                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                       DATED THIS THE 21ST DAY OF JULY, 2023

                                      BEFORE

                        THE HON'BLE MRS. JUSTICE M.G.UMA

                   REGULAR FIRST APPEAL NO. 4090 OF 2012 (RES)

            BETWEEN:

            SRI B. KRISHNA MURTHY S/O. GANGA RAJU,
            AGED ABOUT 61 YEARS, OCC: AGRICULTURE,
            R/O: JANGAMARA KALGUDI VILALGE,
            TQ: GANGAVATHI, DIST: KOPPAL - 581 10.
                                                               ...APPELLANT
            (BY SRI B. SHARANABASAWA, ADVOCATE)

            AND:

            1.   SRI KALYANAM NAGESHWAR RAO,
                 S/O. VENKATANARAYANA,
                 AGE: 56 YEARS, OCC: BUSINESS AND AGRICULTURE,
                 R/O. JANGAMARA KALGUDI VILLIAGE,
                 TQ: GANGAVATHI, DIST: KOPPAL - 58110.

            2.   SRI B. SRINIVAS S/O. KRISHNAMURTHY,
                 AGED ABOUT 33 YEARS,
                 OCC: DENTIST AND AGRICULTURIST,
Digitally
signed by        R/O: DEVINAGAR, TQ: GANGAVATHI,
VINAYAKA         DIST: KOPPAL - 58110.
BV                                                          ...RESPONDENTS
            (BY SRI J. S. SHETTY, ADVOCATE FOR R1;
            SRI M. AMAREGOUDA, ADVOCATE FOR R3;
            NOTICE TO R2 IS SERVED)

                 THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
            THE JUDGMENT AND DECREE DATED 28-11-2011 PASSED IN
            O.S.NO.02/2006 ON THE FILE OF THE DISTRICT JUDGE, AT KOPPAL,
            DECREEING THE SUIT FILED FOR GRANT OF PROBATE.

                 THIS RFA, COMING ON FOR FINAL HEARING, THIS DAY, THE
            COURT DELIVERED THE FOLLOWING:
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                                       NC: 2023:KHC-D:7567
                                            RFA No. 4090 of 2012




                           JUDGMENT

Defendant No.1 in O.S. No. 2/2006 on the file of the

learned District Judge at Koppal (hereinafter referred to as the

trial Court), is impugning the judgment and decree dated

28.11.2011, decreeing the suit in part and holding that the

plaintiff is entitled for Probate of the Will dated 14.02.2000

marked as Ex.P.3, while rejecting the claim of the plaintiff for

issuance of probate in respect of the fixed deposit for

Rs.25,000/- kept in Margadarshi Financiers, Hyderabad, as the

same was not pressed by the plaintiff.

Parties shall be referred to as per their ranks before the

trial Court.

2. Brief facts of the case are that the plaintiff filed P&SC No.

1/2004 before the trial Court seeking grant of probate u/s 276

of the Indian Succession Act, 1925. When the citation was

published in the newspaper, defendant no.1 appeared before

the Probate Court and filed his objections. Therefore, the

Probate proceedings was registered as a suit and numbered as

O.S. No. 2/206.

It is the contention of the plaintiff that Smt. Burugapalli

Bullemma wife of Gangaraju of Gangavati is the owner of 4

NC: 2023:KHC-D:7567 RFA No. 4090 of 2012

acres of land in Sy. No. 43/A3 situated at Jangamara Kalgudi

village, Gangavati. She was also having fixed deposit of

Rs.25,000/- with Margadarshi Financiers, Hyderabad. She

executed the registered Will dated 14.02.2000, appointing the

plaintiff as the executor. Therefore, he sought for grant of

Probate in his name.

The defendant filed his written statement denying the

contentions of the plaintiff. The contentions of the plaintiff that

Smt. Burugapalli Bullemma has executed the Will in respect of

the property mentioned therein is denied. It is contended that

Sy. No. 43/A3 of Jangamara Kalgudi village belongs to

defendant no.1. The testator Smt. Burugapalli Bullemma is the

mother of defendant no.1 and it is the defendant who

purchased 4 acres of land in Sy. No. 43/A3 by paying

consideration. However, out of love and affection the sale deed

was registered in the name of Smt. Burugapalli Bullemma.

Therefore, she had no right to execute the Will bequeathing the

said property in favour of others. It is the first defendant who

is in possession and enjoyment of the property. It is also

contended that the plaintiff has not sought as to who is the

beneficiary under the Will said to have been executed by Smt.

NC: 2023:KHC-D:7567 RFA No. 4090 of 2012

Burugapalli Bullemma. The property was never bequeathed in

favour of the plaintiff. Under such circumstances, he is not

entitled for any claim. Accordingly, prays for dismissal of the

suit.

3. On the basis of these pleadings, the trial Court framed

the following issues and additional issues:

ISSUES

1. Whether petitioner proves that late Burugapalli Bullemma w/o Gangaraju executed will on 14.2.2000?

2. If so, whether petitioner proves that testator was in sound disposing state of mind?

3. Whether petitioner is entitled to probate in respect of disputed Will?

4. What order?

Additional Issue:

Whether the petitioner/ plaintiff proves that the testator had the right over the bequeathed properties to execute the will deed dated 14.02.2000?

---

Plaintiff examined himself as PW1, got examined PW2 and

got marked Ex.P.1 to 12 in support of his contention.

Defendant no.1 examined himself as DW1 and got marked

Ex.D.1 to 42 in support of his contention. The trial Court after

taking into consideration all these materials on record, decreed

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the suit of the plaintiff in part, holding that plaintiff is entitled

for issuance of probate of the Will dated 14.02.2000, marked

as Ex.P.3, in respect of land bearing Sy. No. 43/A3 measuring 4

acres, situated at Jangamara Kalgudi village, Gangavati Taluk.

However, claim of the plaintiff for Probate in respect of the

fixed deposit of Rs.25,000/-was not pressed by the plaintiff and

accordingly the same was rejected. Being aggrieved by

decreeing of the suit and ordered to issue Probate in favour of

the plaintiff, the defendant no.1 is before this Court.

4. Heard Sri B. Sharanabasawa, learned counsel for the

appellant, Sri J.S. Shetty, learned counsel for respondent no.1

and Sri M. Amaregouda, learned counsel for respondent no.3.

5. Learned counsel for the appellant contended that frame

of the suit itself is bad in law. It lacks material particulars.

Plaintiff has not stated as to who is the beneficiary under the

Will in question. No right is assigned in favour of the plaintiff

under the Will. He could not have sought for Probate in his

name.

6. Learned counsel submitted that the property in question

was purchased by the defendant no.1 by paying the

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consideration amount in the name of his mother. Therefore,

the original sale deed was in the custody of defendant No.1 and

he produced it as per Ex.D.1. There was no reason as to why

the defendant no.1 is to be excluded from inheriting the

property when admittedly he is the son of the testator.

7. Learned counsel further submit that the testator Smt.

Burugapalli Bullemma said to have executed registered gift

deed dated 21.07.1998 produced as per Ex.P.9 bequeathing

the entire property in favour of her grandson. Under such

circumstances, she could not have bequeathed the property

once again in favour of any other person, since she was not

having any interest over the same.

8. Learned counsel submit that even though the donee

under the gift deed said to have executed by Smt. Burugapalli

Bullemma filed suit O.S. No. 3/2010, defendant no.1 is not

arrayed as a party. However, the plaintiff is arrayed as

defendant, but he never contested the matter. Thus the suit

was came to be decreed on 20.08.2018. It is a collusive suit

filed at the behest of the plaintiff. The trial Court ignored all

these facts and circumstances and proceeded to decree the suit

NC: 2023:KHC-D:7567 RFA No. 4090 of 2012

without any basis. Hence, he prays for allowing the appeal and

set aside the impugned judgment and decree passed by the

trial Court.

9. Per contra, learned counsel for the respondent opposing

the appeal submitted that the Will dated 14.02.2000 is a

registered Will. PW2 is the attesting witness. Plaintiff has

proved execution of the will by the testator Smt. Burugapalli

Bullemma. For getting the Probate, the plaintiff has to prove

the execution of the Will by the testator and nothing more is to

be proved by him. Admittedly, nothing has been granted in

favour of the defendant either under the gift deed or under the

will. Under such circumstances, defendant could not have

opposed grant of probate. The trial Court rightly granted

Probate in favour of the plaintiff and there is no reason to

interfere with the said judgment and decree which is impugned

herein. Therefore, he prays for dismissal of the appeal with

costs.

10. Perused the material on record including the trial Court

records.

11. The point that arises for consideration in this appeal is:

NC: 2023:KHC-D:7567 RFA No. 4090 of 2012

Whether the judgment and decree passed by the trial

Court calls for interference?

12. My answer to the above point is 'in the affirmative' for the

following:

REASONS

13. It is the specific contention of the plaintiff before the trial

Court that Smt. Burugapalli Bullemma executed the registered

Will dated 14.02.2000 marked as Ex.P.3 appointing him as an

executor. Therefore, he is entitled to get Probate in his name.

Initially Probate Petition was filed seeking grant of Probate,

wherein it is stated that the petitioner is the executor

mentioned in the Will. There is no other details about the right

of the testator nor anything is stated as to who is the

beneficiary under the Will. However, defendant no.1 has

disputed execution of the Will as per Ex.P.3 by filing objections

and thereafter Probate Petition was came to be registered as a

suit.

14. The peculiar facts and circumstances of the present case

is that the property in question, i.e., 4 acres of land in Sy.

No.43/A3 situated at Jangamara Kalgudi village was purchased

by the testator under the registered Sale Deed produced as per

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Ex.D.1 and she bequeathed the same under the registered gift

deed dated 21.07.1998 marked as Ex.P.9 in favour of her

grandson. It is only thereafter the very same property was

said to have been bequeathed under the registered Will dated

14.02.2000 marked as Ex.P.3 appointing the plaintiff as the

executor. Now the question arises as to whether the testator

had any authority or right over the property in question to

bequeath the same under the registered will.

15. It is not in dispute that Ex.P.9, registered Gift Deed was

executed by Smt. Burugapalli Bullemma on 21.07.1998

bequeathing the very same property in favour of her grandson.

In turn, the donee filed suit O.S. No. 3/2018 against the

plaintiff herein seeking declaration that the gift deed dated

21.07.1998 is valid and for permanent injunction. Admittedly,

the said suit was came to be decreed vide judgment and decree

dated 20.08.2018. When such is the position, definitely the

testator would not have any right, title or interest subsisting

over the schedule property to bequeath the same by executing

the Will Ex.P.3. Under such circumstances, without going into

the other grounds that are highlighted by the learned counsel

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NC: 2023:KHC-D:7567 RFA No. 4090 of 2012

for the appellant, I am of the opinion that claim of the plaintiff

for grant of Probate is to be rejected.

16. The trial Court has not taken into consideration these

admitted facts and proceeded to appreciate the oral and

documentary evidence on record to decree the suit of the

plaintiff for grant of Probate. I am of the opinion that the

impugned judgment and decree passed by the trial Court

suffers from illegality and the same calls for interference.

Accordingly, I answer the above point 'in the affirmative' and

proceed to pass the following:

ORDER

Appeal is allowed with costs.

Judgment and decree passed in O.S. No. 2/2006 dated

28.11.2011 by the learned District Judge at Koppal, is hereby

set aside.

Draw decree accordingly.

Send back the trial Court records along with copy of the

judgment and decree.

SD/-

JUDGE