Karnataka High Court
Mrs Susheela vs Mrs Kalyani on 18 April, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2024:KHC:15422-DB
RFA No. 447 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 447 OF 2009 (PAR)
BETWEEN:
MRS SUSHEELA
AGED ABOUT 64 YEARS
D/O NARAYANA DEVENGA
R/O NO.13-2-211,
AITHAPPA COMPOUND,
D.NO.13-1-211,
BEHIND B.N.S BAR
HAMPANAKATTA
MANGALORE 576201
1(A) PRITAM KUMAR S
S/O LATE B SUVARNA
AGED ABOUT 56 YEARS
R/AT L.R. NO.28, OPP:BDA
SG INTERNATIONAL SCHOOL
NANDINI LAYOUT, BANGALORE
Digitally
signed by
BHARATHI S
1(B) RAMESH ANAND S
Location:
HIGH COURT S/O LATE B SUVARNA
OF AGED ABOUT 54 YEARS
KARNATAKA R/AT FLAT NO.23, VALEERI MANOR
BRITTO LANE, FALNIR
MANGALORE
D.K. DISTRICT 575001
1(C) SUSHEELA KUMAR S
S/O LATE B SUVARNA
AGED ABOUT 53 YEARS
R/AT AITHAPPA COMPOUND
K.S. RAO ROAD, HAMPANAKATTA
MANGALORE,
D.K. DISTRICT 575001
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RFA No. 447 of 2009
1(D) REKHA PRAKASH KUMAR
D/O LATE B SUVARNA
AGED ABOUT 52 YEARS
R/AT NO.1-N-9-582/4,
SANJAN VILLA, KOTEKANI 1ST CROSS
ASHOKNAGAR POST
URVA STORES, MANGALORE,
D.K. DISTRICT 575001
...APPELLANTS
(BY SRI. B S SACHIN, ADVOCATE FOR A1(A-D))
AND:
1. MRS KALYANI
AGED ABOUT 60 YEARS
W/O LATE VITTAL RAO
R/O GIRIJA NILAYA, SITE NO.54,
I BLOCK, KATIPALLA
MANGALORE 576202
2. MISS SAPNARANI
D/O LATE VITTAL RAO
R/O GIRIJA NILAYA, SITE NO.54,
I BLOCK, KATIPALLA
MANGALORE 576202
...RESPONDENTS
(BY SRI. HAREESH BHANDARY T., ADVOCATE FOR R1 & R2)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 05.02.2009 PASSED IN OS.NO.187/2006 ON
THE FILE OF THE II ADDL. CIVIL JUDGE (SR. DN.), MANGALORE,
D.K., DECREEING THE SUIT FOR PARTITION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
POONACHA .J., DELIVERED THE FOLLOWING:
JUDGMENT
The present first appeal is filed under Section 96 of the
Code of Civil Procedure, 19081 by the legal representatives of
the deceased defendant challenging the judgment and decree
Hereinafter referred to as the 'CPC'
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dated 5.2.2009 passed in OS.No.187/2006 by the II Addl. Civil
Judge (Sr. Dn.), Mangalore, D.K.,2 whereunder the suit for
partition filed by the respondents/plaintiffs has been decreed
holding that the plaintiffs have ½ share in the suit properties.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Trial Court.
3. Before considering the case of the parties it is
relevant to notice the genealogy which is extracted hereinbelow
for ready reference:
Devi Alias Devi Bai
| | |
Vital rao K.Somashekar Susheela
(deceased) (defendant)
|
Kalyani (wife)
(Plaintiff No.1)
|
Sapna(Daughter)
(plaintiff No.2)
4. It is the case of the plaintiffs that their grand
mother Devi @ Devi Bai was the absolute owner of the suit
properties having acquired the same through a registered
Settlement Deed dated 16.6.1952. That the said Devi Bai died
Hereinafter referred to as the 'Trial Court'
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leaving behind 3 children namely, a son - Vittal Rao, whose
wife is plaintiff No.1 and daughter is plaintiff No.2; another son
- K.Somashekara and a daughter - Susheela, who is the
defendant.
5. It is the further case of the plaintiffs that the wife of
K.Somashekara died and the sole surviving legal heirs were his
siblings i.e., his brother - Vittal Rao and sister - Susheela, who
inherited his right, title and interest in the suit properties.
Despite a requests and demands for partition of the suit
properties, since the same was not acceded to by the
defendant, the plaintiffs who are the legal heirs of Vittal Rao
filed a suit for partition claiming ½ share in the suit properties.
6. The defendant entered appearance in the said suit
and contested the same by filing a written statement wherein it
is specifically contended that the brother of the defendant -
K.Somashekara died leaving behind a Will dated 12.10.2003,
wherein his right, title and interest in the suit properties was
bequeathed in favour of the defendant and her children.
Hence, the defendant has denied that the plaintiff is entitled to
½ share in the suit properties. The defendant has also
contended that the suit is bad for non joinder of necessary
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parties since the children of the defendant who are the
beneficiaries under the Will dated 12.10.2003 were not arrayed
as parties to the suit.
7. Consequent to the pleadings of the parties, the Trial
Court framed the following issues and additional issue:
"1) Whether the plaintiff proves that they are entitled for
50% share in plaint schedule property ?
2) Whether the defendant proves that K. Somashekar
executed his Last will and testament dated 12.10.2003 in
favour of himself and his children ?
3) Whether the defendant proves that suit is bad for
non-joinder of necessary parties ?
4) Whether the plaintiff is entitled for reliefs as prayed
for ?
5) What order or decree ?
Addl. Issue dt.30.10.07.
Whether the suit of the plaintiff is valued properly and
court fee paid is sufficient ? "
8. The second plaintiff examined herself as PW.1.
Exs.P1 to P6 were marked in evidence. The Power of Attorney
Holder of the defendant examined himself as DW.1. The Power
of Attorney was marked as Ex.D1 in the evidence. The Trial
Court by its judgment and decree dated 5.2.2009 decreed the
suit of the plaintiffs and passed the following order:
"Suit of the plaintiffs is decreed as prayed in the plaint
that they have got ½ share in the suit schedule 'A'
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properties. The plaintiffs are entitle get their ½ share
carved out under the amended provisions of Section 54
of C.P.C. by initiating the Final Decree Proceedings.
Draw a Preliminary Decree accordingly.
Parties to the suit are hereby directed to bear their own
costs."
9. Sri B.S.Sachin, learned counsel for the
appellants/legal representatives of the deceased defendant
vehemently contended that the Will dated 12.10.2003 of the
deceased K.Somashekara was produced by the defendant along
with her written statement. However, the defendant was
unable to prove the said Will since the witnesses were not
examined and hence, contends that another opportunity is
required to be afforded to the defendant to prove the Will. He
further submits that the Trial Court has erred in disbelieving
the case of the defendant regarding the Will by recording a
finding that the defendant has not examined herself and
instead has adduced the evidence of her Power of Attorney
Holder. He further submits that the Will having been produced
before the Trial Court ought to have been marked in evidence.
Hence, he seeks for allowing of the appeal and granting of the
reliefs sought for.
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10. Per contra, learned counsel Smt. Tanima Bekal for
Sri Hareesh Bhandary, learned counsel for the
respondents/plaintiffs justifies the judgment and decree passed
by the Trial Court and submits that the defendant having failed
to prove due execution of the Will before the Trial Court and
not having examined any attesting witness, the judgment and
decree passed by the Trial Court is just and proper. Hence, she
seeks for dismissal of the appeal.
11. The submissions of both the learned counsel have
been considered and the material on record including the
records of the Trial Court have been perused. The questions
that arise for consideration are:
i. Whether the finding of the Trial Court that the
defendant has not proved the due execution of the Will
dated 12.10.2003 is erroneous and liable to be interfered
with?
ii. Whether the judgment and decree passed by the
Trial Court is liable to be set aside?
Re. question Nos.(i) and (ii):
12. The essential fact situation regarding the ownership
of the suit properties and the relationship between the parties
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is undisputed. It is further undisputed that Devi @ Devi Bai
died leaving behind her sons namely, Vittal Rao,
K.Somashekara and a daughter, Susheela as her legal
representatives. It is further undisputed that the said
K.Somashekara died leaving behind his siblings i.e., Vittal Rao
and Susheela as his sole surviving legal heirs is also
undisputed.
13. It is the case of the defendant that said
K.Somashekara executed a Will dated 12.10.2003 whereunder
he bequeathed his right, title and interest in the suit properties
in favour of the defendant and her children. In this regard, it is
relevant to note that the defendant, consequent to filing of the
written statement, wherein the defence regarding execution of
the Will by K.Somashekara has been taken, has subsequently
produced the original Will before the Trial Court.
14. It is forthcoming that there are two witnesses to the
said Will namely Jyothi Prakash Shetty and Charles Stephens.
In order to prove the execution of the will, the defendant is
required to examine atleast one attesting witness as stipulated
under Section 68 of the Indian Evidence Act, 18723.
Hereinafter referred to as the 'Act of 1872'
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15. In the present case, the son of the defendant has
been examined himself as DW.1. He has deposed that he is
the Power of Attorney Holder of the defendant. The said Power
of Attorney executed by the defendant in favour of her son has
been marked as Ex.D1 in the evidence. Although in the
evidence of DW.1 he has stated regarding the execution of the
Will dated 12.10.2003 by K.Somashekara, as noticed by the
Trial Court, in the cross-examination he has stated that he does
not have any personal knowledge regarding execution of the
said Will and as to who were the witnesses to the said Will.
16. It is forthcoming that the defendant was afforded
an opportunity to prove the Will. However, no attesting
witnesses have been examined to prove the Will. It is further
forthcoming from the records of the Trial Court that the
defendant filed IA No.8 on 3.4.2008 to summon a witness to
the Will namely Charles Stephens which was allowed by the
Trial Court vide order dated 7.6.2008. However, pursuant to
the same, the witness was not examined. It is forthcoming
that the defendant has filed various interim applications on
various grounds.
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17. Thereafter, the defendant filed IA.13 before the
Trial Court on 22.10.2008 for leading further evidence and the
said application was allowed by the Trial Court vide order dated
14.11.2008 on cost of `250/-. Thereafter, the defendant filed
IA.14 to summon Charles Stephens, the witness to the Will.
The said IA.14 was rejected by the Trial Court vide order dated
10.12.2008 by noticing that the defendant had filed an
application on 3.4.2008 and summons to the witnesses were
issued and the same was served on the witnesses, who did not
thereafter appear before the Court. That the defendant has not
taken appropriate steps and took several adjournments. The
Trial Court having recorded a finding that the defendant having
been granted various opportunities to adduce evidence to prove
the Will did not adduce necessary evidence and hence, the
matter was posted for arguments. It is further relevant to note
that the defendant once again filed IA.15 to reopen the case for
the purpose of leading further evidence, which was rejected by
order dated 7.1.2009 by imposing cost of `250/-.
18. It is forthcoming from the aforementioned, that
adequate opportunity has been granted by the Trial Court to
the defendant for the purpose of proving her case. However,
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despite the said opportunity, the defendant has not proved the
Will.
19. It is clear and forthcoming from the aforementioned
that the relevant facts with regard to the nature of the property
and the relationship between the parties being undisputed, in
the absence of the defendant proving Will, the plaintiffs are
jointly entitled to ½ share in the suit properties. The defendant
although having taken the defence that K.Somashekara having
executed a Will dated 12.10.2003, has failed in adducing
evidence of even one attesting witness to the said Will so as to
prove the same in terms of Section 68 of the Act. The
defendant has failed in utilizing the many opportunities afforded
by the Trial Court to prove the Will. In view of the same, it is
not open for the defendant to contend that she is entitled to
another opportunity to prove the Will.
20. Having regard to the fact that the defendant has
failed to prove the Will, the Trial Court was justified in awarding
½ share in the suit properties to the plaintiffs.
21. The appellants have failed in demonstrating that the
judgment and decree passed by the Trial Court is without
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considering any specific material on record. Hence, question
Nos.(i) and (ii) are answered in the negative.
22. In view of the aforementioned, the following:
ORDER
i. The above appeal is dismissed;
ii. The judgment and decree dated 5.2.2009 passed in
OS.No.187/2006 by the file of the II Addl. Civil Judge
(Sr. Dn.), Mangalore, D.K., is affirmed.
No costs.
SD/-
JUDGE
SD/-
JUDGE
ND
