Karnataka High Court
Smt Kempadevamma vs Sri Shivarajappa on 2 August, 2024
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NC: 2024:KHC:30581
RSA No. 1587 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.1587 OF 2016 (DEC)
BETWEEN:
SMT KEMPADEVAMMA
W/O LATE K.BASAVANNA
AGED ABOUT 73 YEARS
R/AT KONANURU VILLAGE,
KAVALANDE HOBLI
NANJANGUD TALUK
MYSURU DISTRICT - 571 301. ... APPELLANT
(BY SRI. P MAHESHA.,ADVOCATE)
AND:
1. SRI SHIVARAJAPPA
S/O BASAPPA, AGED ABOUT 38 YEARS
2. SMT. VASANTHA
W/O SHIVARAJAPPA, AGED ABOUT 33 YEARS
3. SMT. MADHURA
Digitally signed by W/O ANGADI
MAHALAKSHMI B M K.M. SHIVARAJU
Location: HIGH AGED ABOUT 40 YEARS
COURT OF
KARNATAKA
ALL ARE RESIDING AT
KONANURU VILLAGE, KAVALANDE HOBLI,
NANJANGUD TALUK-571312
MYSURU DISTRICT. ... RESPONDENTS
(BY SRI. B SHARATH KUMAR, ADVOCATE FOR R1 & R2
SRI K.N. KRISHNA RAO, ADVOCATE FOR R-3)
THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST
THE JUDGMENT AND DECREE DATED 10.06.2016 PASSED IN
RA.NO.18/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
J.M.F.C., AT NANJANGUD, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 08.03.2016
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RSA No. 1587 of 2016
PASSED IN OS.NO.161/2008 ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC., NANJANGUD.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The unsuccessful plaintiff is before this Court in the
Regular Second Appeal assailing the concurrent findings of
facts recorded by the trial Court in O.S. No.161/2008 by
Judgment and decree dated 08.03.2013 and by the first
appellate Court in R.A. No.18/2013 by Judgment and
decree dated 10.06.2016.
2. The parties herein are referred to as per their
ranking before the trial Court for the sake of convenience.
3. Suit for declaration to declare that the plaintiff
is the lawful owner of the suit schedule properties and to
evict the defendants who are in illegal possession of the
suit schedule properties and to handover vacant
possession from the defendants, for mesne profits and
other reliefs.
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4. The plaintiff is the wife of one Sri Basavanna
and the marriage of the plaintiff had taken place fifty years
ago. Due to non-cordial relationship between the plaintiff
and deceased Basavanna, the plaintiff was living
separately in her maternal home. Plaintiff had filed suit in
O.S. No.28/2001 seeking maintenance of Rs.3,000/- which
came to be dismissed on the ground that the plaintiff is
capable of maintaining herself. The appeal preferred in
R.A. No.74/2004 came to be dismissed due to the death of
her husband Basavanna who died on 25.01.2008. It is the
case of the plaintiff that prior to death of Basavanna he
was not keeping good health, was suffering from loss of
memory, taking advantage of his ill health, the defendants
have obtained signature on several documents and
created Will in favour of Defendant Nos.1 and 2 and sale
deed in favour of Defendant No.3. It is the case of the
plaintiff that she is the only legal heir of said Basavanna
and she is entitled to be declared as absolute owner.
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5. On notice, the defendants appeared and the
Defendant Nos.1 and 2 separately filed their written
statement and the Defendant No.3 filed a separate written
statement. The defendant Nos.1 and 2 inter alia admitted
the relationship between the plaintiff and deceased
Basavanna. However, it is contended that during the
lifetime of Basavanna, the plaintiff and Basavanna were
living separately as there was strained relationship.
Basavanna was being looked after by the Defendant Nos.1
and 2 and during his lifetime on 08.10.2007 through the
registered Will bequeathed item Nos.1 and 2 of the suit
schedule properties to the Defendant Nos.1 and 2 and
item No.3 through a registered Sale Deed to Defendant
No.3, and in the light of the Will executed by deceased
Basavanna, the Defendant Nos.1 and 2 are the absolute
owners in possession of the suit item Nos.1 and 2 and the
plaintiff has no right, title or interest over the suit schedule
properties.
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6. Defendant No.3, purchaser of item No.3 of the
suit schedule properties, filed separate written statement
inter alia contending that he has purchased suit item No.3
and he is in possession and enjoyment as absolute owner
and the plaintiff has no right over the suit schedule item
No.3.
7. The trial Court, on the basis of oral and
documentary evidence, framed the following Issues:
"[a] Whether the plaintiff proves that she is the
absolute owner of the items-1 & 2 of the suit
schedule property?
[b] Whether the plaintiff further proves that the
defendants are in illegal possession of Items-1 & 2
of the suit schedule property?
[c] Whether the defendants prove that they
became the absolute owners of the suit schedule
property by virtue of the Will dt.8-10-2007 which
was executed by the said Basavanna when he was
hale and healthy and he bequeathed Items-1 & 2 of
the suit schedule property to defendants-1 & 2?
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[d] Whether plaintiff proves that she is entitled
for mesne profits from the date of suit till delivery
of possession?
[e] Whether the plaintiff is entitled for the reliefs
claimed?"
8. In proving the contentions, the plaintiff
examined herself as PW.1 and two other witnesses as
PW.2 and PW.3 and marked documents at Exs.P1 to P6.
The Defendant No.1 examined himself as DW.1 and four
other witnesses as DW.2 to DW.5. The Defendant No.3
examined himself as DW.5 and marked documents as
Exs.D1 to D9.
9. The trial Court on the basis of the pleadings,
oral and documentary evidence held,
[a] that the plaintiff had failed to prove that she is the
absolute owner of item Nos.1 and 2 of the suit
schedule properties;
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[b] that the plaintiff failed to prove that the Defendant
Nos.1 and 2 are in illegal possession of item Nos.1
and 2 of the suit schedule properties;
[c] that the defendants proved that they have become
absolute owners of item Nos. 1 and 2 of the suit
schedule properties by virtue of the Will dated
08.10.2007 executed by deceased Basavanna and he
has bequeathed item Nos.1 and 2 of the suit
schedule properties to Defendant Nos.1 and 2;
[d] that the Defendant No.3 proved that she is the
bonafide purchaser of item No.3 of the suit schedule
properties, and by virtue of the Judgment and
decree, the trial Court dismissed the suit of the
plaintiff.
10. The aggrieved plaintiff preferred appeal before
the first appellate Court. The first appellate Court, while
re-appreciating the entire oral and documentary evidence,
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concurred with the Judgment and decree of the trial Court.
The aggrieved plaintiff is before this Court.
11. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondents.
12. The undisputed facts are,
[a] that the plaintiff is wife of deceased Basavanna and
the relationship between them was strained and
proceedings for maintenance was filed by the plaintiff
against Basavanna;
[b] that on 08.10.2007, a registered Will was executed in
favour of the Defendant Nos.1 and 2 in respect of
item Nos.1 and 2 of the suit schedule properties;
[c] that the Defendant No.3 purchased item No.3 of the
suit schedule properties on 31.10.2007.
13. It is the contention of the plaintiff that deceased
Basavanna was suffering from multiple diseases and he
was not in his sound state of mind at the time of execution
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of the Will, more particularly, the registered Will in favour
of Defendant Nos.1 and 2 on 08.10.2007, and it is the
submission of the learned counsel appearing for the
appellant that the trial Court and the first appellate Court
have totally lost sight of the said aspect. The plaintiff, as
stated supra, was wife of deceased Basavanna. In the
absence of the Will and a Sale Deed in favour of Defendant
Nos.1 to 3, the plaintiff would be the absolute owner of the
suit schedule properties. The natural flow of right is
shifted to the defendants in the light of the registered Will
in favour of the Defendant Nos.1 and 2 and the sale deed
in favour of the Defendant No.3. The defendants in order
to prove execution of the Will as per Section 68 of the
Indian Evidence Act, 1872 examined the witness and the
Scribe as PW.2 and PW.3, who categorically deposed
about the signature of the Testator being affixed and their
signature on the Will. The suspicious circumstances as
contended by the plaintiff has been dispelled by the
defendants as Basavanna was staying along with the
Defendant Nos.1 and 2 and they were looking after the
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deceased Basavanna. As stated supra, the relationship
between the plaintiff and Basavanna was strained and the
execution of the Will in favour of the Defendant Nos.1 and
2 was proved as per Section 63[c] of the Indian
Succession Act and Section 68 of the Indian Evidence Act.
14. Regarding the sale in favour of the Defendant
No.3: The suit schedule properties were exclusive
properties of deceased Basavanna and to meet his medical
and agricultural expenses, the item No.3 of the suit
properties was sold to Defendant No.3 and he is a
bonafide purchaser of item No.3 of the suit schedule
properties has been proved by the Defendant No.3 by
placing cogent evidence, no evidence is forthcoming on
behalf of the plaintiff to disbelieve the version of the
Defendant No.3.
15. The trial Court on the basis of the pleadings,
oral and documentary, analyzed the entire aspect and
arrived at a conclusion that the plaintiff is not entitled for
declaration. The first appellate Court being the last fact
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finding Court, has reassessed the entire oral and
documentary evidence and has held that the Will at Ex.D1
has been proved by the Defendant Nos.1 and 2 in
accordance with Section 63[c] of the Indian Succession Act
and Section 68 of the Indian Evidence Act and the
suspicious circumstances has been dispelled and further
held that Defendant No.3 is the absolute owner and
bonafide purchaser in the light of the sale deed executed
in his favour by deceased Basavanna. The plaintiff other
than the bald allegation made in the plaint, nothing is
forthcoming to disbelieve or to make Ex.D1 to be under
suspicious circumstances. The manner in which the trial
Court and the first appellate Court have assessed both oral
and documentary evidence, this Court is of the considered
view that the concurrent findings of facts does not warrant
any interference by this Court under Section 100 of the
Civil Procedure Code. Accordingly, this Court has passed
the following:
ORDER
[a] The appeal is hereby dismissed.
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[b] The Judgment and decree of the trial Court and the
first appellate Court stands confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
AN/-
