P M Hemanth Kumar vs Smt Shantha Murthy
2024 Latest Caselaw 9546 Kant

Karnataka High Court

P M Hemanth Kumar vs Smt Shantha Murthy on 2 April, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                             NC: 2024:KHC:13673
                                                             RSA No. 66 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 2ND DAY OF APRIL, 2024

                                             BEFORE
                              THE HON'BLE MR JUSTICE M.G.S. KAMAL
                          REGULAR SECOND APPEAL NO. 66 OF 2024 (PAR)

                   BETWEEN:

                   1.   P M HEMANTH KUMAR
                        S/O LATE S PARASHIVAMURTHY
                        AGED ABOUT 61 YEARS
                        R/AT KANASAWASI
                        NEAR SHANI TEMPLE
                        MADURE HOBLI
                        DODDABALLAPURA TALUKU
                        PIN CODE - 560 089

                        PRESENTLY R/AT NO 158/163
                        SRINAGARA LAYOUT
                        BASAVANAHALLI
                        NELAMANGALA
                        BENGALURU RURAL DISTRICT - 562 123
                                                                    ...APPELLANT
                   (BY SRI. RAJASHEKAR S., ADVOCATE)

                   AND:
Digitally signed
by SUMA B N        1.   SMT SHANTHA MURTHY
Location: High          W/O LATE S PARASHIVAMURTHY
Court of
Karnataka               AGED ABOUT 77 YEARS

                   2.   PREETHI
                        W/O R V PATIL
                        D/O LATE S PARASHIVAMURTHY
                        AGED ABOUT 52 YEARS

                   3.   SHILPA
                        D/O LATE S PRASHIVAMURTHY
                        AGED ABOUT 50 YEARS


                        ALL ARE R/AT "PADDU" NO.1037
                        3RD CROSS, ANAND NAGAR
                             -2-
                                         NC: 2024:KHC:13673
                                         RSA No. 66 of 2024




     R.T. NAGAR POST
     BENGALURU - 560 032

4.   PREMAKUMARI
     W/O S M PRAMESHWARAIAH
     D/O LATE S PARASHIVAMURTHY
     AGED ABOUT 64 YEARS
     R/AT NO.67, 2ND MAIN
     M L A LAYOUT
     R T NAGAR
     BENGALURU - 560 032

5.   SMT UMADEVI
     W/O HARAPRASAD
     D/O LATE S PARASHIVAMURTHY
     AGED ABOUT 58 YEARS
     R/AT BISLAHALLI
     NAGASANDRA POST
     KUDUR HOBLI
     MAGADI TALUK
     RAMANAGAR DISTRICT - 562 120

6.   SMT SAVITHA
     W/O SURESH ULLAGADDI
     D/O LATE S. PARASHIVAMURTHY
     AGED ABOUT 54 YEARS
     R/AT NO.14, 6TH MAIN
     9TH CROSS, PILLAPPA BLOCK
     GANGA NAGAR
     BENGAURU - 50032
                                              ...RESPONDENTS

(BY SRI. RAGHAVENDRA V., ADVOCATE FOR C/R1)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 06.12.2023 PASSED IN
R.A.NO.104/2023 ON THE FILE OF THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT DODDABALLAPURA, BENGALURU RURAL
DISTRICT, ALLOWING THE APPEAL AND DISMISSING THE JUDGMENT
AND DECREE DATED 30.01.2013 PASSED IN O.S.NO.223/2006 ON
THE FILE OF SENIOR CIVIL JUDGE, DODDABALLAPURA.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                                   RSA No. 66 of 2024




                              JUDGMENT

This appeal is by defendant No.1 aggrieved by the

judgment and decree dated 06.12.2023 passed in

RA.No.104/2013 on the file of IV Additional District and

Sessions Judge, Doddaballapura, Bengaluru Rural District,

Bengaluru (FAC) by which the First Appellate Court while

allowing the said appeal filed by the plaintiff set aside the

judgment and decree passed in O.S.No.223/2006 on the file

of the Senior Civil Judge at Doddaballapur, holding the

plaintiff in the suit are jointly entitled for 3/7th share in the

suit schedule property and defendants are entitled for 1/7th

each.

2. The suit in O.S.No.223/2006 was filed by the

plaintiffs, who are the respondent Nos.1 to 3 herein seeking

for relief of partition and separate possession of the suit

schedule properties, which are :

SCHEDULE

Item No.1: All that piece and parcel of agricultural property bearing Sy. No.10, situated at Nagenahalli Village.

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MadhureHobli. D.B.PurTq.. measuring to an extent of 30 guntas& bounded on

East by : Gowramma's property West by: Inamthi Land North by: Inamthi Land South by: Basavaraju's property

Item No.2 All that piece and parcel of agricultural property bearing Sy. No:11. situated at Nagenahalli Village, Madhurettobli, D.B.PuraTq. measuring to an extent of 05 guntas and bounded on

East by Private property West by Private property North by Private property South by: Private property

Item No.3: All that piece and parcel of agricultural property bearing Sy. No.16. situated at Nagenahalli Village. MadhureHobli. D.B.PuraTq. measuring to an extent of 38 guntas and bounded on

East by: Private property West by: Private property North by: Private property South by: Private property

Item No.4: All that piece and parcel of agricultural property bearing Sy. No.17, situated at Nagenahalli Village. MadhureHobli, D.B.PuraTq, measuring to an extent of 1 acre gunta and bounded on

East by Private property Private property west by Private property North by South by Private property

Item No.5: All that piece and parcel of agricultural property bearing Sy. No.21/1, situated at Nagenahalli Village. Madhure Hobli, D.B.PuraTq. measuring to an extent of 07guntas and bounded on

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East by GanduThoper West by Basavaraju'sproperty North by ! Dhananjaya sproperty South by: Renukaiah'sproperty

Item No.6: All that piece and parcel of agricultural property bearing Sy. No.21/2, situated at Nagenahalli Village. MadhureHobli, D.B.PuraTq, measuring to an 06guntas and bounded on extent of

East by GanduThoper West by: Basavaraju's property North by: Dhananjaya's property South by: Renukaiah's property

Item No.7 All that piece and parcel of agricultural property bearing Sy. No.21/6, situated at Nagenahalli Village, Madhure Hobli. D.B. PuraTq. measuring to an extent of 1 acre, Sguntas and bounded on

East by Huchabasavaiah's property West by Basavaraju's property North by Dhananjaya's property South by Renukaiah's property

Item No.8: All that piece and parcel of agricultural property bearing Sy. No.21/8, situated at Nagenahalli Village. MadhureHobli. D.B.PuraTq, measuring to an extent of 31 guntas and bounded on

East by 2 Huchabasavaiah'sproperty West by Basavaraju's property North by: Dhananjaya's property South by: Renukaiah's property

Item No.9: All that piece and parcel of agricultural property bearing Sy. No.21/9, situated at Nagenahalli Village. MadhureHobli. D.B.PuraTq. measuring to an extent of 29 guntas and bounded on

East by Huchabasavaiah'sproperty West by Batavaraju's property

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North by Dhananjaya's property south by Renukalah's property

Item No.10 All that piece and parcel of agricultural property bearing Sy. No.21/12, situated at Nagenahalli Village. Madhure Hobli. D.B.PuraTq, measuring to an extent of 01 guntas and bounded on

East by Giriyappa sproperty West by: Renukaiah'sproperty North by: Giriyappa's property South by: Veeranna's property

Item No.11: All that piece and parcel of agricultural property bearing Sy. No.102, situated at Kanınamangala Village. Madhure Hobli, D.B.PuraTq, measuring to an extent of 1 acre 20guntas and bounded on

East by Private property West by: Private property North by: Private property South by: Private property

Item No. 12 All that piece and parcel of agriculte property bearing Sy. No.105/1, situated at Kannamangala Madhure Hobl., D.B.Puraq, measuring to an extent of 3l guntas and bounded on

East by Private property West by Private property North by Private property South by: Private property

Item No.13: All that piece and parcel of agricultural property bearing Sy. No.106/1, situated at Kannamangala Village, MadhureHobli, D.B. PuraTq. measuring to an extent of 18 guntas and bounded on

East by: Private property West by: Private property North by: Private property South by: Private property

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3. It is contended by the plaintiff that one

Parashivamurthy, is the propositus of the joint family

consisting of plaintiffs and defendants. The said

Parashivamurthy had wives namely Smt. Vishalakshamma

Smt. Shanthamurthy. Defendant No.1 - Hemantha Kumar,

defendant No.2 - Prema Kumari, defendant No.3 - Umadevi

and defendant No.4 - Savitha are born through his first wife

Smt. Vishalakshamma. The said Smt. Vishalakshamma,

passed away in the year 1972. Thereafter, Parashivamurthy

got second marriage with plaintiff No.1 - Smt.

Shanthamurthy. Plaintiff Nos.2 and 3 are the children born

through his second wife Plaintiff No.1 - Smt. Shanthamurthy.

4. The suit schedule property is a joint family

property. Parashivamurthy passed away intestate on

25.10.2005 leaving behind him the plaintiffs and defendants

as his legal heirs to succeed to his estate.

5. The plaintiffs together are entitled for 2/7th share

in the suit schedule property, as such, they filed suit for

partition.

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6 Defendant No.1 filed written statement denying

the plaint averments. It is contended by defendant No.1

that the suit schedule property originally belonged to the

grand father of defendant No.1 namely Shivarudraiah son of

Nanjaiah, who acquired the same in terms of a registered

Will deed dated 28.08.1970 executed by his mother-in-law -

Honnamma. It is further contended that grandmother Smt.

Muddiramma of plaintiff No.1 predeceased her husband

Shivarudraiah. Shivarudraiah had executed the Will deed

dated 31.10.1988 bequeathing all the suit schedule

properties in favour of defendant No.1 and in favour of other

children of his uncle Chandrashekharaiah. Thus, it is

submitted that the properties are not available for the

partition and the plaintiff are not entitled for partition.

7. Defendant No.2 supported the case of the plaintiff

and undertook to pay the Court fee when the shares were

allotted.

8. Based on the pleadings, the trial Court framed the

following issues:

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i. Whether the plaintiffs prove that suit schedule properties are joint family properties of the plaintiffs and defendants?

ii. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties?

iii. Whether the first defendant proves that he has performed the marriages of plaintiffs 2 and 3 and defendants 2 to 4 by spent huge money?

iv. Whether plaintiffs are entitled for share in the suit schedule properties as prayed for?

       v.     What order or decree?

Additional Issues:

      i.     Whether the defendants prove that first defendant

grand father executed a registered Will on 31.10.1988 for all the suit schedule properties in favour of first defendant and also other properties to the children of his uncle Chandrashekaraiah?

ii. Whether the first defendant proves that the properties obtained by the Will and all the suit schedule properties are self acquired properties?

9. Plaintiff examined one witness and got marked

documents Exs.P1 to P14, defendants examined two

witnesses and got marked documents Exs.D1 to D16.

10. On appreciation of evidence, the trial Court

answered issue Nos.1 to 4 in the 'Negative' and additional

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NC: 2024:KHC:13673

issue Nos.1 and 2 in the 'Affirmative' and consequently,

dismissed the suit. Aggrieved by the same, plaintiff No.1

preferred RA.No.104/2013.

11. Considering the grounds urged therein, the First

Appellate Court framed the following points for

consideration:

i. Whether the plaintiffs prove that suit schedule properties are joint family properties of the plaintiffs and defendants.

ii. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties?

iii. Whether the first defendant proves that he has performed the marriage of plaintiff Nos.2 and

iv. Whether the plaintiffs are entitled share in the suit schedule properties as prayed for?

v. What order or decree?

12. On re-appreciation of the material evidence, the

First Appellate Court answered point Nos.1 to 3 in the

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'Affirmative' and consequently decreed the suit as prayed for.

Aggrieved by the same, defendant No.1 is before this Court.

13. Learned counsel for the appellant reiterating the

grounds urged in the appeal submitted that the First

Appellate Court has failed to appreciate that under the Will

dated 28.08.1970, Smt. Honnamma had bequeathed her

properties in favour of her daughter Smt. Muddiramma and

son-in-law - Shivarudraiah, who is the husband of

Smt.Muddiramma, that Smt. Muddiramma, predeceased

Smt. Honnamma, as such, the property, which was

bequeathed in favour of Smt. Honnamma also devolved upon

and vested with Shivarudraiah. It was further submitted that

Shivarudriah being absolute owner of the property executed

a Will dated 31.10.1988, further, bequeathing the same in

favour of defendant No.1 and the children of his uncle

namely Chandrashekariah. Thus, he submits that the First

Appellate Court grossly erred in not appreciating this aspect

of the matter, giving rest to substantial question of law.

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14. Per contra, learned counsel for respondent

submits that though the defendant had set up two Wills, first

dated 28.08.1970 purported to be executed by Smt.

Honnamma and second one dated 31.10.1988 executed by

Shivarudraiah. Neither originals of said Wills have been

produced nor the proof of the said Wills have been produced.

It is the further submission that when the defendant filed

written statement in the first instance, there is no whisper

about the execution of the Will dated 28.08.1970 by

Smt. Honnamma. However, subsequent to amending the

written statement, defendant No.1 propounded the theory of

Smt. Honnamma executing the Will dated 28.08.1970. He

further submits that no witnesses have been examined in

support of the contention of the execution of the Will by

Smt. Honnamma. Similarly, though one witness has been

examined as DW1, who is stated to be the witness in respect

of Will dated 31.10.1988, the said witness has not identified

the Will. Thus, he submits that Wills have not been proved in

the manner known to law. As such, the finding and

conclusion by the trial Court was unjustified, which was

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rightly reversed by the First Appellate Court according to the

relief as sought for by the plaintiff. Hence, he submits that

substantial question of law would arise for consideration.

15. Heard. Perused the records.

16. The relationship between the parties is not in

dispute. The fact that the property belongs to Smt.

Honnamma is also not in dispute. It is necessary to note

that defendant No.1 set up the theory of Smt. Honnamma

executing the Will dated 28.08.1970 bequeathing the suit

properties in favour of her daughter Smt. Muddiramma and

her husband Shivarudraiah. It is the case of defendant No.1

that Smt. Muddiramma predeceased Smt. Honnamma and

that the bequeath that was made in favour of Smt.

Muddiramma to Smt. Honnamma devolved upon

Shivarudraiah, thereby he became the absolute owner of the

properties. It is the further case of defendant No.1 that

Shivarudraiah, being the owner of the property, on

31.10.1988 had executed the Will, further bequeathing the

property in favour of defendant No.1 and in favour of children

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of his brother. Necessary at this juncture to note the dates

of death of Smt. Honnamma and Smt. Muddiramma.

Smt.Muddiramma is stated to have passed away on

29.12.1992 and Smt. Honnamma is stated to have passed

away on 17.06.1994. Though the date of death of

Smt. Honnamma is denied, the fact remains Smt. Honnamma

passed subsequent to death of her daughter Smt.

Muddiramma. Interesting question that arises for

consideration is: Whether in such circumstances,

Shivarudraiah could have claimed to be the owner of the suit

properties in terms of the Will executed by

Smt. Honnamma and thereafter, could he have executed the

Will dated 31.10.1988? In other words, during the lifetime of

Smt. Honnamma as well as Smt. Muddiramma, could

Shivarudraiah claim to be the owner of the property and

executed the Will bequeathing the property in favour of

defendant No.1? It is this aspect of the matter, the First

Appellate Court has gone into the detail at paragraph Nos.57

to 66 of the judgment in detail. The First Appellate Court has

found that assuming there was Will executed by Smt.

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Honnamma on 28.08.1970 and the same had not come into

effect till her demise and as such Shivarudraiah could not

have claimed to be the owner of the property, such that he

was able to execute the Will dated 31.10.1988.

17. That apart, the First Appellate Court has also

found that no witness has been examined in respect of the

Will dated 28.08.1970 and though DW2 has been examined

in furtherance to claim of he being attesting witness to will

dated 31.10.1988, admittedly he has neither identified the

will not the signature of Shivarudraiah therein. Thus, from

the records, it is clear, that there is no compliance of

requirements of Section 63 (c) of Indian Succession Act,

1925 and Section 68 of Indian Evidence Act, 1872. The

claim made by defendant No.1 based on the Will has thus

remained inconclusive and not proved in the manner known

to law. As rightly taken note of by the First Appellate Court,

the trial Court has missed out this factual and legal aspect of

the matter while dismissing the suit.

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18. The First Appellate Court in the considered view

of this Court has come to just and proper conclusion in

declining to accept the case of the defendant based on the

purported Wills dated 28.08.1970 and 31.10.1988. What

therefore remains is only the normal course of inheritance or

devolution of the property as the legal heir, which has been

identified and granted by the First Appellate Court. No error

or illegality can be found in the judgment and decree passed

by the First Appellate Court. No substantial question of law

now arise for consideration. The appeal is therefore

dismissed.

Sd/-

JUDGE

AG