Karnataka High Court
Sri B.N. Shanthamalleshappa vs Sri S Manjunatha Swamy on 5 August, 2024
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RSA No. 860 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.860 OF 2021 (DEC/PAR)
BETWEEN:
SRI B.N. SHANTHAMALLESHAPPA
S/O LATE B C NAGAPPA
AGED ABOUT 59 YEARS
R/O DOOR No.795, 12TH MAIN ROAD
14TH CROSS, SARASWATHIPURAM
MYSORE CITY
...APPELLANT
(BY SRI D R RAJASHEKHARAPPA, ADVOCATE)
AND:
Digitally signed by
SRI S MANJUNATHA SWAMY
ARUNKUMAR M S S/O LATE B C NAGAPPA
Location: High
Court of Karnataka AGED ABOUT 54 YEARS
R/AT BADANAGUPPE VILLGE
KASABA HOBLI
CHAMARAJANAGARA TALUK AND DIST
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
31.07.2021 PASSED IN R.A.No.59/2019 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGARA
AND ETC.
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RSA No. 860 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the defendant,
challenging the judgment and decree dated 31.07.2021
passed in R.A.No.59/2019 on the file of the Senior Civil
Judge and CJM, Chamarajanagar, confirming the judgment
and decree dated 20.06.2019 passed in O.S.No.35/2008
on the file of the Additional Civil Judge and JMFC,
Chamarajanagara decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, the plaintiff
and the defendant are the children of late B C Nagappa
and late Maramma. It is stated in the plaint that, the suit
schedule properties were belonging to their father B C
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Nagappa and a partition was effected between them along
with their mother-Maramma on 20.06.2002 through a
registered Partition Deed, after the death of their father
B C Nagappa. It is stated by the plaintiff that, 1/3rd share
was assigned to their mother-Maramma and 1/3rd share
each was allotted to the plaintiff and the defendant. It is
also stated by the plaintiff that the said Maramma died on
12.10.2007. Accordingly, the share of their mother has to
be devolved equally between the plaintiff and the
defendant. Hence, the plaintiff has filed the suit in
O.S.No.35/2008, seeking equitable partition in respect of
the suit schedule properties.
4. After service of notice, the defendant entered
his appearance and filed detailed written statement
admitting the Partition Deed dated 20.06.2002 and further
contended that, his mother-Maramma had gifted the suit
schedule property in his favour on 14.02.2003, through a
unregistered Gift Deed and also executed the registered
Will dated 09.10.2007 in his favour bequeathing all the
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suit schedule properties apart from item No.3 of the suit
schedule property and the said Maramma died on
12.10.2007. Therefore, it is the contention of the
defendant that, he being the legatee of the Will dated
09.10.2007 said to have been executed by his mother-
Maramma, entitle for the entire share of his mother-
Maramma. Accordingly, sought for dismissal of the suit.
5. The Trial Court, based on the pleadings and
record has formulated the Issues for its consideration.
6. In order to establish their cases, the plaintiff
has examined three witnesses as PW1 to PW3 and
produced eight documents and the same were marked as
Ex.P1 to P8. The defendant examined six witnesses as
DW1 to DW6 and produced 12 documents and the same
were marked as Ex.D1 to D12.
7. The Trial Court, after considering the material
available on record, by its judgment and decree
20.06.2019 decreed the suit holding that the plaintiff and
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the defendant are entitled for half share in the suit
schedule properties. Being aggrieved by the same, the
defendant has preferred an appeal in R.A.No.59/2019
before the First Appellate Court and the said appeal was
resisted by the plaintiff. The First Appellate Court after
considering the material available on record, dismissed
the appeal vide judgment and decree dated 31.07.2021
and as such, confirmed the judgment and decree dated
20.06.2019 in O.S.No.35/2008. Being aggrieved by the
same, the defendant has preferred this regular second
appeal.
8. I have heard Sri D R Rajashekarappa, learned
counsel appearing for the appellant and perused the
finding recorded by both the Courts below. It is contended
by the learned counsel appearing for the appellant that,
though the Gift Deed dated 14.02.2003 is an unregistered
document, however, the same has been acted upon by the
parties and the land in question has been given to the
defendant and therefore, the learned counsel for the
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appellant sought for interference of this Court. It is also
contended by the learned counsel for the appellant that,
the finding recorded by both the Courts below that, the
Will is shrouded in a cloud of doubtful circumstances and
defendant being the propounder of the Will has not
removed the suspicious circumstances in respect of
execution of the registered Will dated 19.10.2007 and the
said finding recorded by both the Courts below requires
interference. Accordingly, sought for interference of this
Court.
9. Having heard the learned counsel appearing for
the appellant, there is no dispute with regard to the
relationship between the parties. The genealogical tree of
the parties is extracted below:
ªÀA±ÀªÀÈPÀë
ZÁªÀÄgÁd£ÀUÀgÀ vÁ || PÀ¸À¨Á ºÉÆç½, §zÀ£ÀUÀÄ¥Éà UÁæªÀÄ (20)
©.¹. £ÁUÀ¥Àà (¥Ëw)
ªÀÄgÀªÀÄä (¥Ëw)
©.J£ï.±ÁAvÀªÀįÉèñÀ¥Àà (ªÀÄUÀ) ©.J£ï.ªÀÄAdÄ£ÁxÀ¸Áé«Ä (ªÀÄUÀ)
45 ªÀµÀðUÀ¼ÀÄ 40 ªÀµÀðUÀ¼ÀÄ
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10. Perusal of the genealogical tree indicate that,
the plaintiff and the defendant are children of late B C
Nagappa and late Maramma. It is also forthcoming from
the finding recorded by both the Courts below that, the
partition was effected between the parties to the suit
along with their mother - Maramma on 20.06.2002, after
the death of their father B C Nagappa. It is the case of
the plaintiff that, 1/3rd share was allotted to his mother-
Maramma at the time of execution of the registered
Partition Deed dated 20.06.2002. The further case of the
plaintiff that, as the mother of the plaintiff and defendant
died on 12.10.2007 and therefore, the plaintiff and the
defendant are entitled for equal share in the property of
their mother-Maramma. In this regard, the case of the
defendant is that, their mother had executed the Gift
Deed on 14.02.2003 and the same has been acted upon
by the parties. However, on perusal of the findings
recorded by the Courts below would indicate that, the said
Gift Deed dated 14.02.2003 is an unregistered document,
thus, the same cannot be accepted under law. Insofar as
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the contention raised by the defendant that his mother -
Maramma died leaving behind the registered Will dated
09.10.2007 and it is not in dispute with regard to the fact
that their mother-Maramma died on 12.10.2007, that
means after three days of the execution of the registered
Will dated 09.10.2007.
11. It is also forthcoming from the finding recorded
by the Courts below that, DW1 has deposed that his
mother was hospitalized from 01.10.2007 till 11.10.2007
and thereafter, she was shifted to BGS Apollo hospital,
Mysuru on 11.10.2007 and she died on 12.10.2007 in the
hospital and death summary of said Maramma is produced
at Ex.D3. On perusal of medical records of the said
Maramma show that, the said Maramma had poor health
and her state of mind cannot permit her to execute the
Will dated 09.10.2007 and there is no record placed
before the Trial Court with regard to whether the said
Maramma was taken to the Sub-Registrar office with the
permission of the doctor. That apart, one of the witness to
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the Will, Chikkathayamma (DW2) has deposed before the
Court that she has affixed her signature on the Will at the
instance of defendant. In that view of the matter, both
the Courts below have rightly held that the defendant fails
to prove the execution of the Will and both the plaintiff
and defendant are entitled for half share in the suit
schedule property which belonged to their mother-
Maramma. In this regard, it is relevant to follow the
declaration of law made by the Apex Court in the case of
VENKATACHALA IYENGAR vs B N THIMMAJAMMA
AND OTEHRS reported in AIR 1959 SC 443, wherein,
the Hon'ble Apex Court has held that, the propounder of
the Will has to prove its genuineness with regard to
execution of the Will. But, in the case on hand, the
propounder of the Will had failed to prove the Will in a
manner known to law. Therefore, I am of the view that,
both the Courts below rightly arrived at a conclusion to
grant half share in the suit schedule property in favour of
the plaintiff. In that view of the matter, the appellant has
not made out a case for framing of substantial questions
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of law as required under Section 100 of CPC. Accordingly,
the Regular Second Appeal is dismissed at the stage of
admission, itself.
12. In view of dismissal of the main appeal, I.A. if
any, does not survive for consideration and the same
stands disposed of.
SD/-
(E.S.INDIRESH)
JUDGE
SN
