Karnataka High Court
Smt. Drakshayanamma vs Sri Shadaksharaiah on 14 March, 2023
Bench: H.P.Sandesh
-1-
RSA No. 208 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 208 OF 2020 (PAR)
BETWEEN:
1. SMT. DRAKSHAYANAMMA
W/O. GURUSIDDAIAH
SINCE DEAD BY LR
1(a) SHRI. B.G.RUDRESH
S/O. LATE GURUSIDDAIAH
AGED ABOUT 54 YEARS
OCC: AGRICULTURE
R/O. BETTADAHALLI
TQ: GUBBI, DIST: TUMAKURU.
...APPELLANT
[BY SMT. SUMANGALA GACHCHINAMATH, ADVOCATE FOR
APPELLANT NO.1(a)]
Digitally signed by
SHARANYA T AND:
Location: HIGH
COURT OF 1. SRI SHADAKSHARAIAH
KARNATAKA
S/O. LATE SIDDALINGAPPA
AGED ABOUT 60 YEARS
R/AT OORKERE AT AND POST
KASABA HOBLI - 572 106
TUMAKURU TALUK AND DISTRICT.
2. SRI GANGADHARAIAH
S/O. LATE GUBBANNA
AGED ABOUT 60 YEARS
R/AT HEYROOR VILLAGE,
HEYROOR POST
-2-
RSA No. 208 of 2020
GUBBI TALUK - 572 216
TUMAKURU DISTRICT.
3. SMT. SOWBHAGYAMMA
W/O. PANCHAKSHARAIAH
D/O. LATE GUBBANNA
AGED ABOUT 56 YEARS
R/AT HOSAHALLI KASABA HOBLI,
DIBBUR POST - 572 105
TUMAKURU DISTRICT.
4. SMT. LAKSHMIDEVAMMA
D/O. LATE GUBBANNA
AGED ABOUT 54 YEARS
R/AT HEYROOR VILLAGE
HEYROOR POST
GUBBI TALUK - 572 216
TUMAKURU DISTRICT.
5. SMT. ANNAPURNAMMA
W/O. HONNEGOWDA
AGED ABOUT 67 YEARS,
R/AT HEYROOR VILLAGE
HEYROOR POST,
GUBBI TALUK - 572 216
TUMAKURU DISTRICT.
6. SMT. SUVARNAMMA
W/O. LATE B.N. VEERABHADRAIAH
SINCE DEAD BY LRS
R-7 AND R-9 ARE THE LRS OF DECEASED R-6
VIDE ORDER DATED 16.11.2022
7. SMT. JAMUNA
D/O. LATE B.N. VEERABHADRAIAH
AGED ABOUT 52 YEARS
8. SRI SRIDHARA
S/O. LATE B.N.VEERABHADRAIAH
AGED ABOUT 42 YEARS
-3-
RSA No. 208 of 2020
9. SRI DAKSHINAMURTHY
S/O. LATE B.N.VEERABHADRAIAH
AGE: MAJOR
RESPONDENT NOS.6 TO 9 ARE
R/AT BETTADAHALLI VILLAGE
HAGALAVADI HOBLI,
GUBBI TALUK - 572 216
TUMAKURU DISTRICT.
...RESPONDENTS
[BY SRI. K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE FOR R1;
R2 TO R5, R7 & R8 ARE SERVED;
VIDE ORDER DATED 16.11.2022,
R7 & R9 ARE THE LRs OF DECEASED R6;
VIDE ORDER DATED 12.01.2023,
NOTICE TO R9 IS HELD SUFFICIENT]
THIS RSA IS FILED UNDER ORDER XLII, RULE 1 READ
WITH SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 27.08.2019 PASSED IN RA.NO.151/2012 ON
THE FILE OF THE II ADDITIONAL DISTRICT JUDGE,
TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 31.07.2012 PASSED IN
OS.NO.214/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE,
GUBBI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for the
respondents.
RSA No. 208 of 2020
2. The factual matrix of the case of the plaintiff before
the Trial Court is that one Veerappa and Ramakka of
Bettadahalli had no sons but only daughters, Gowramma,
Veeramma, Gangamma and Drakshayanamma and that
Gowramma is no more and she is survived by defendant Nos.2
to 6. It is contended that Veeramma died without marriage
and issues and Gangamma is the plaintiff and
Drakshayanamma is the first defendant and they are the only
legal representatives of Veerappa and Ramakka. It is
contended that the plaintiff and defendants constitute a Hindu
Undivided Family and the suit properties are the joint family
properties of the plaintiff and defendants and all are enjoying
them jointly. It is contended that the plaintiff and defendants
are entitled for equal share in the suit properties and that
Veerappa and Ramakka died intestate. It is contended that the
first defendant, being resident of Bettadahalli is looking after
the joint family properties who is in a position to maintain the
properties without waste and in turn the defendants are taking
advantage of the fact that the plaintiff is an aged woman and
residing away from the suit property and hence, wasting the
income for un-necessary affairs and things with an intention to
RSA No. 208 of 2020
diminish the share value of the plaintiff and also she has failed
to furnish any proper account to the plaintiff. It is contended
that, as such the plaintiff demanded her share of 1/3rd in the
suit properties about two months prior to the filing of the suit
but, the defendants have refused to allot the share of the
plaintiff.
3. In pursuance of the suit summons, the defendants
have appeared before the Court and the defendant Nos.1 to 4
have filed a common written statement. The defendant Nos.1
to 4 have denied the plaint averments, except admitting the
relationship between the parties. It is contended that the suit
properties are both ancestral and self-acquired properties of
late Veerappa and he was in exclusive possession and
enjoyment of the same during his life time and about more
than 50 years ago, the father of the plaintiff performed her
marriage and thereafter, she is living in the house of her
husband and she has no connection whatsoever with her
parents' house. It is alleged that after 2-3 years, the marriage
of Gowramma, mother of defendant Nos.2 to 6 was performed
by Veerappa and after her marriage, late Gowramma was
residing with her husband at Herur and she was also not having
RSA No. 208 of 2020
any connection with her parents. It is contended that, after
the marriage of plaintiff and late Gowramma, first defendant
and her sister Veeramma were living with their father and
enjoying the suit properties jointly. It is also contended that as
first defendant and her sister Veeramma were unmarried and
their father was more than 55 years old and in a sound and
healthy state of mind, in order to safeguard the interest of
unmarried daughters, he had executed a registered Will dated
12.07.1959 bequeathing the suit properties and another
property bearing Sy.No.63/1A situated at Bettadahalli in favour
of first defendant and her sister Veeramma and that the father
of the plaintiff died in 1962. It is contended that, at the time
of death of their father, first defendant was unmarried and the
plaintiff and late Gowramma, who were in their husbands'
houses did not co-operate with first defendant and did not take
any initiative in the welfare of first defendant and her sister. It
is contended that, after the death of their father, the first
defendant had to face lot of suffering and the village elders
took initiative and brought the husband of first defendant and
performed the marriage of first defendant with great difficulty
in 1963 and that plaintiff nor late Gowramma helped first
RSA No. 208 of 2020
defendant in her marriage and the first defendant has taken lot
of pain in maintaining the properties and her sister, who was
handicapped and was able to manage with the assistance of her
husband, who used to live both at Bettadahalli and Oorukere.
It is contended that, in order to overcome the financial crisis,
the first defendant sold one of the properties i.e., Sy.No.63/1A
which she got under the Will in 1994 after getting the khatha
and pahani in her name. It is contended that the plaintiff and
other defendants have not questioned the above sale so far and
it shows that the plaintiff has accepted the execution of Will in
favour of first defendant and as such, the present suit of the
plaintiff is not at all maintainable and with malafide intention,
the present suit is filed.
4. The defendant Nos.1, 3, 4 and 7 have filed
additional written statement contending that the suit is barred
by limitation and that the suit for partition without seeking
declaration and cancellation of document as per Specific Relief
Act is not maintainable in law. It is also contended that the suit
is bad for non-joinder of necessary parties and that the Court
fee paid by the plaintiff is insufficient and adequate material is
not disclosed regarding joint possession of the suit properties.
RSA No. 208 of 2020
5. The defendant Nos.5 and 6 also filed a common
written statement admitting the claim of the plaintiff and
prayed to allot their shares. The defendant No.8 also filed the
separate written statement denying the plaint averments.
6. The Trial Court, after considering both oral and
documentary evidence placed on record and considering the
pleadings of the parties, framed the issues and additional
issues and allowed the parties to lead evidence and
accordingly, the plaintiff examined one witness as P.W.1 and
got marked the documents as Exs.P1 to P9. On the other
hand, the defendants have examined three witnesses as
D.Ws.1 to 3 and got marked the documents as Exs.D1 to D15.
7. The Trial Court having considered both oral and
documentary evidence placed on record, answered issue Nos.1
and 2 as 'negative', in coming to the conclusion that plaintiff
fails to prove that herself and defendants constitute Hindu
Undivided joint family and also failed to prove that suit
properties are joint family properties of herself and defendants
and the Trial Court comes to the conclusion that the defendants
have proved that Will was executed on 12.07.1959 in favour of
RSA No. 208 of 2020
the first defendant and her sister Veeramma and also answered
issue Nos.3 and 4 that the defendants have sold one of the
item of the suit properties in the year 1994 based on the said
Will and other issues are answered as 'negative'. Hence, an
appeal was filed before the First Appellate Court in
R.A.No.154/2012. The First Appellate Court, on considering the
grounds urged in the appeal memo, formulated the points
whether the Courts below erred in holding that first defendant
has proved execution of the registered Will dated 12.07.1959,
whether the Courts below erred in holding that the suit is bared
by law of limitation and whether the judgment and decree is
erroneous and it requires interference. The First Appellate
Court, on re-appreciation of both oral and documentary
evidence placed on record, allowed the appeal and granted the
relief of partition granting 1/3rd share. Hence, the present
second appeal is filed.
8. Learned counsel for the appellant would vehemently
contend that the First Appellate Court committed an error in
coming to the conclusion that the Will has not been proved and
the First Appellate Court also committed an error in coming to
the conclusion that the said Veerappa has not made any
- 10 -
RSA No. 208 of 2020
provision for other children and failed to take note of the fact
that the document of Will is more than 30 years old and under
Section 90 of Indian Evidence Act, there is a presumption and
failed to take note of Exs.D10 and D11 with regard to the
genuineness of the Will and hence, this Court has to frame
substantial questions of law with regard to the document of Will
executed on 12.07.1959 is a 30 year old document and there is
a presumption under Section 90 of the Indian Evidence Act.
The counsel would submit that, this Court has to frame
substantial question of law with regard to Exs.D10 and D11
which are ignored by the First Appellate Court and failed to
take note of the fact that Will is executed in favour of
unmarried daughters since, other daughters are married and
settled in their families. Hence, it requires interference.
9. Per contra, learned counsel for the respondents
would submit that, though it is claimed that Will was executed
in 1959, but the same did not see the light of the day and even
after 30 years of the alleged execution of the Will, property was
transferred by inheritance and not based on the Will. Hence,
there is a suspicious circumstance with regard to the Will is
concerned and merely because the same is a registered
- 11 -
RSA No. 208 of 2020
document, the same cannot be accepted and Sections 63 and
68 of Succession Act and also Evidence Act has not been
proved. Even assuming that attesting witnesses are not alive,
ought to have proved the same in terms of Section 69 of the
Evidence Act and even the scribe and attesting witnesses have
not been examined and mandatory provisions have not been
complied with. Hence, the First Appellate Court comes to the
conclusion that Will has not been proved and the very
reasoning given by the Trial Court that original Will is not
produced and there is no need to examine the scribe and
attesting witness is an erroneous approach and the same is
considered by the First Appellate Court and reversed the
findings of the Trial Court.
10. Having heard the respective counsel and also on
perusal of the material available on record, it is not in dispute
that property belongs to Veerappa and Ramakka i.e., the father
and mother of the plaintiff and there is no dispute with regard
to relationship between the parties and the said Veerappa and
Ramakka were having four daughters. It is also not in dispute
that one of the daughters passed away and she died issueless
and hence, claimed 1/3rd share. It is the main contention of
- 12 -
RSA No. 208 of 2020
the learned counsel for the appellant that, Will was executed in
the year 1959 and the executor died in 1962 and no dispute
with regard to death of the executor in the year 1962 but,
though the said Will is allegedly executed in the year 1959, the
same is not produced even for transfer of khatha in favour of
the first defendant but, it is contended that there was a Will in
favour of defendant No.1 and another sister. Having
considered the material on record, while getting the property
transferred in the year 1991 also, the transfer is based on
inheritance and not on the Will. No doubt, one of the item of
the property was sold in favour of the prospective purchaser in
the year 1994.
11. Having considered the material available on record
none of the attesting witness and the scribe also examined
before the Trial Court. It is mandatory on the part of the Court,
when the propounder of the Will contended that the Will was
executed and the same has to be proved and one of the
attesting witness has to be examined. Even if the attesting
witness is not alive, the defendants ought to have examined
the persons, who are having acquaintance with the signature
of the attesting witness in terms of Section 69 of the Evidence
- 13 -
RSA No. 208 of 2020
Act; the same is also not done. When such being the case,
even the original Will is also not produced, but the original
register has been summoned from the office of the Sub-
Registrar and the Sub Registrar is also examined and that is
only with regard to the registration of the document not with
regard to proving of execution of the Will as propounded.
When such being the case, I do not find any error committed
by the First Appellate Court in reversing the finding of the Trial
Court.
12. The very contention of the learned counsel
appearing for the appellant is that this Court has to frame the
substantial question of law with regard to the documents were
of 30 years old. There is a presumption under Section 90 of the
Indian Evidence Act. Hence, the said contention also cannot be
accepted. None of the attesting witness has been examined in
order to prove the Will and the same is mandatory under
Section 63 of the Hindu Succession Act as well as Section 68 of
the Evidence Act. The learned counsel would vehemently
contend that this Court has to frame the substantial question of
law with regard to the documents - Exs.D10 and D11 which
have been marked through the witness.
- 14 -
RSA No. 208 of 2020
13. I have already pointed out that the same is also
only with regard to proving of registration of the Will, but not
with regard to proving of very execution of the Will. When such
being the case, when the attesting witnesses were not
examined and also not invoked Section 69 of the Evidence Act
in order to prove the execution of the Will, I do not find any
force in the contention of the learned counsel for the appellant
that this Court has to frame the substantial question of law and
admit the appeal.
14. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.As, if any do not
survive for consideration, the same stands disposed of.
Sd/-
JUDGE
ST,CP
