Karnataka High Court
G. Mahesh vs Smt. Lalithamma on 4 September, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:31797
RSA No. 1508 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1508 OF 2019 (RES)
BETWEEN:
G. MAHESH
S/O. CHANNABASAPPA
AGE: 39 YEARS, AGRICULTURIST,
R/O. CHIKKAJOGIHALLI VILLAGE,
SHIKARIPURA TQ.
SHIVAMOGGA DISTRICT-577427.
...APPELLANT
(BY SRI. RAJENDRA M S.,ADVOCATE)
AND:
1. SMT. LALITHAMMA
Digitally signed W/O. LATE CHANNABASAPPA GADDERA
by SHARANYA T
(DEAD BY LRS)
Location: HIGH
COURT OF 1(a) SOMASHEKARAPPA
KARNATAKA S/O. CHANNABASAPPA
AGE: 66 YEARS
1(b) RUDRAPPA
DEAD BY LRS
1(B)(A) SMT. VISHALAKSHMAMMA
W/O. RUDRAPPA
1(b)(b) SMT. ASHWINI
D/O RUDRAPPA
AGED ABOUT 48 YEARS
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RSA No. 1508 of 2019
1(c) SUJAATHAMMA
W/O. BASAVARALAPPA,
R/O. SURAGIHALLI,
SHIKARIPURA TQ.-577427
1(d) NEELAMMA
W/O. HALESHAPPA,
AGE: 51 YEARS,
R/O. BALEKOPPA,
SHIKARIPURA TQ.-577427
1(e) SHANTHAMMA
W/O. CHAANDRAPPA,
AGE: 49 YEARS,
R/O. CHIKKAJOGIHALLI,
SHIKARIPURA TQ.-577427
1(f) MAMATHA
W/O. VIJAYKUMAR
AGE: 36 YEARS,
R/O. BASAPURA
DAVANAGERE TQ. & DIST.-577001
2 G.R. ABINANDANN
S/O. G. RUDRAPPA
AGE: 23 YEARS,
R/O. CHIKKAJOGIHALLI,
SHIKARIPURA TQ,
SHIVAMOGGA DISTRICT-577427.
3 PURADARA HALESHAPA
S/O. GADLABASAPPA
AGE: 55 YEARS,
R/O. BALEKOPPA,
SHIKARIPURA TQ,
SHIVAMOGGA DISTRICT-577427
...RESPONDENTS
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RSA No. 1508 of 2019
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.01.2019
PASSED IN R.A.NO.3/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SHIKARIPURA AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
2. The case of the plaintiff before the Trial Court
that his father Channabasappa died on 07.02.2003 and
during his lifetime, he had executed a registered Will on
20.03.1995 in favour of the plaintiff in respect of the suit
schedule properties hence, the plaintiff being the legatee
under the Will has right and interest over the said
properties as he is only in possession of the same. After
the death of Channabasappa, defendant No.1 who is the
mother of the plaintiff got mutated the katha of the
properties in her name without the knowledge of the
plaintiff though she has fully aware about the registered
Will executed by Channabasappa at the instigation of
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defendant No.3 who is her son-in-law and she has
executed a gift deed in favour of defendant No.2 in order
to bequeath the right of the plaintiff over the suit schedule
properties. The plaintiff came to know about the same and
he preferred two regular appeals before the Assistant
Commissioner challenging the validity of M.R.No.34/2003-
04 and M.R.No.50/2003-04 in R.A.Nos.50 and 51 / 2004-
05. The Assistant Commissioner has granted stay to the
said MR proceedings. On 10.09.2004, respondent Nos.1
and 2 came near the suit schedule property along with
defendant No.3 and made a futile efforts to dispossess the
plaintiff from the house situated in the suit schedule
property and openly denied the execution of the Will by
the deceased testator Channabasappa. As such, cause of
action arose to pray for grant of probate and hence, filed
the suit.
3. The defendants appeared through their
respective counsel and filed the written statement denying
the execution of the Will. Defendant No.1 and 2 have filed
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their objections which are similar and defendant No.3
adopted the written statement of defendant No.1. It is
contended by defendant No.1 that the alleged Will dated
20.03.1995 said to have been executed by
Channabasappa Gaddera is not valid and the same is void
under law as the said Channabasappa has no absolute
right over the suit schedule properties to bequeath the
same in favour of plaintiff and there is no division of the
properties by the Channabasappa Gaddera and his
children and he died leaving behind his legal heirs. All the
daughters are married and the first son Somashekhara has
left the house about 23-24 years ago and his whereabouts
is unknown. But his wife and children are residing at
Chikkajogihalli village. The second son-Rudrappa also left
the house in the year 1992-93 by marrying second time
and he is not residing at Chikkajogihalli village but his wife
and children are residing at Chikkajogihalli village.
Defendant No.2 is the grandson of Channabasappa
Gaddera and defendant No.1. It is further contended that
the suit schedule properties are the ancestral and joint
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family properties of the plaintiff and defendants and there
is no actual division of the properties by metes and
bounds. Hence, prayed this Court to dismiss the suit on
the ground that the plaintiff has obtained the said Will
fraudulently from Channabasappa.
4. The Trial Court after considering the pleadings
of the parties framed the issues and allowed the parties to
lead their evidence. The Trial Court after considering both
oral and documentary evidence placed on record in
paragraph 20 comes to the conclusion that the said
Channabasappa Gaddera i.e., the father of the plaintiff got
the property in the family partition at best the said
Channabasappa can execute the Will in favour of the
plaintiff only in respect of his share and not in respect of
the entire property and dismissed the suit of the plaintiff.
Being aggrieved by the said order, an appeal was
preferred by the plaintiff before the First Appellate Court
contending that the Trial Court has committed an error in
dismissing the suit of the plaintiff when the Trial Court
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answered the issue No.2 partly in the affirmative, it ought
to have decreed the suit of the plaintiff instead of passing
an order of dismissal of the suit. The First Appellate Court
also considering the grounds urged in the appeal,
formulated the point that whether the order of the Trial
Court requires interference. The First Appellate Court on
re-appreciation of both oral and documentary evidence
placed on record held that the petitioner who seeks the
probate or letter of administration would be treated as the
plaintiffs and the person opposing the claim as the
defendant and the proceedings would assume the form of
an original suit. When the case is tried as original suit
them definitely the question of title is also to be decided
by the civil Court and the decision referred by the counsel
for the appellant is also clear on that point. Hence,
confirmed the judgment and decree of the Trial Court.
5. The counsel appearing for the appellant would
vehemently contend that both the Courts have committed
an error in declaring the title of the testator in a suit and
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relied upon the judgment of this Court reported in 2018
(1) KAR L R 543 in the case of NARAYAN
HANMANTRAO GUDUR SINCE DECEASED BY HIS LR'S
AND OTHERS vs ANILKUMAR HANMANTRAO GUDUR
AND ANOTHER and the counsel referring this judgment
would vehemently contend that the Trial Court ought not
to have decided the title of the testator and ought to have
consider only the possession and letter of administration
and hence, committed an error. The counsel also would
vehemently contend that this Court has to frame the
substantial questions of law with regard to that whether
both the Courts have committed an error in deciding the
title between the parties and ought not to have decided
with regard to the title is concerned.
6. Having heard the learned counsel appearing for
the appellant and also on perusal of the material on
record, it is not in dispute that the case earlier filed by the
appellant is treated as original suit consequent upon the
defence taken up by the respondents and hence, framed
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the issue with regard to that whether Channabasappa
Gaddera was the absolute owner having transferable right,
title, interest over the suit schedule property in order to
execute the Will and also the contention of the defendants
that the suit schedule properties are the ancestral and
joint family properties and father was not having any
absolute right to execute the Will. The Trial Court having
considered the admission and also mentioning the
document at Ex.P2 that is the original registered Will dated
20.03.1995 specifically recited that property had
partitioned hence, comes to the conclusion that father had
no absolute right to execute the Will in respect of the
entire property and only he can execute the Will in favour
of his share. It is also emerged in the evidence that the
property is allotted to the father by a partition and the
same is also admitted from the document at Ex.P2
executed by the father and recitals are also taken note of
that the father had derived the property through a
partition. When such being the material on record, the
Trial Court has rightly comes to the conclusion that he was
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having only right to execute a Will in favour of the plaintiff
in respect of his share and not in respect of entire property
and here it is not the question of title to ask whether he
has got right to execute the Will and the property is not
the absolute property of the father as contended by the
defendants. When such being the case, the judgment
relied upon by the counsel for the appellant is not
applicable to the case on hand and the same is not in
respect of deciding the title is concerned whether he has
got the right to execute Will in entirety since he has got
the property by partition only and he has not having
absolute right to convey any share or interest in favour of
anyone either by executing the Will or by any document.
Having taken note of the reasons given by the Trial Court
and also the First Appellate Court that the father of the
plaintiff was not the absolute owner having transferable
right or interest over the suit schedule property as on the
date of the Will since the same was not belongs to him as
the same is not exclusive property of the father. Hence, I
do not find any error committed by both the Courts in
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dismissing the suit. Hence, I do not find any ground to
admit the appeal and to frame the substantial questions of
law.
7. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same
stands disposed of.
Sd/-
JUDGE
SN
