Karnataka High Court
Sri Shashidhararaju vs Smt Kamalamma K.R on 12 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 907 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 907 OF 2020 (PAR)
BETWEEN:
1. SRI SHASHIDHARARAJU
S/OK.T.PARAMESHWARAPPA,
AGED ABOUT 41 YEARS,
AGRICULTURIST,
R/AT KARTHIKERE VILLAGE AND POST,
CHIKKAMAGALURU TALUK 570101
...APPELLANT
(BY SMT.ANUSHA ASUNDI, ADVOCATE FOR
SRI.A.MADHUSUDHANA RAO.,ADVOCATE)
AND:
1. SMT KAMALAMMA.K.R.,
W/O SRI JANAKARAJU,
AGED 68YEARS,
R/AT KARTHIKERE VILALGE AND POST,
Digitally signed CHIKKAMAGALURU TALUK-57101
by SUMA B N
Location: High
Court of 2. PUTTARAJU
Karnataka S/O LATE SRI THIMMARAJU,
AGED ABOUT 81YEARS,
AGRICULTURIST,
SINCE DECEASED, REPRESENTED BY LRS:
2(1) RANGARAJ
S/O LATE PUTTARAJU
AGED ABOUT 58 YEARS
2(2) SRI.MALLARAJ
S/O LATE PUTTARAJU
AGED ABOUT 55 YEARS
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RSA No. 907 of 2020
2(3) SRI.KESHAVARAJ
S/O LATE PUTTARAJU
AGED ABOUT 47 YEARS
2(4) SMT.SARASVATHI
D/O LATE PUTTARAJU
AGED ABOUT 50 YEARS
2(5) SMT.RANGAMMA
D/O LATE PUTTARAJU
AGED ABOUT 40 YEARS
2(1) TO 2(5) ARE R/AT
KARTHIKERE VILLAGE AND POST
CHIKKAMAGALURU TALUK,
(CAUSE TITLE AMENDED VIDE
ORDER DATED 12.02.2024)
3. KRISHNARAJU
S/O.LAE THIMMARAJU,
AGED 78 YARS, AGRICULTURIST,
4. K R JAYALAXMI
W/O.LATE K.T. PARAMESHWARARAJU,
AGED ABOUT 61 YEARS,
HOUSEWIFE,
5. GANGAMMA
W/O.LATE NINGARAJU,
AGED ABOUT 74 YEARS,
HOUSEWIFE,
RESPONDENT Nos.2 TO 5 ARE R/AT
KARTHIKERE VILLAGE AND POST,
CHIKKAMAGALURU TALUK-570107
...RESPONDENTS
(BY SRI.VARDHAMAN.V. GUNJAL., ADVOCATE FOR R1;
R3, R4, R5, R2(1), R2(2), R2(4) & R2(5) ARE SERVED)
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RSA No. 907 of 2020
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 19.11.2019
PASSED IN RA.NO.38/2018 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 25.06.2018 PASSED IN O.S.NO.138/2014
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, CHIKKAMAGALURU.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by defendant No.5, aggrieved by the
judgment and decree dated 25.06.2018 passed in
O.S.No.138/2014 on the file of Principal Senior Civil Judge
and CJM, Chikkamagaluru (for short "the trial Court")
which is confirmed by judgment and order dated
19.11.2019 passed in R.A.No.38/2018 on the file of the
Principal District and Sessions Judge, Chikkamagaluru (for
short "the First Appellate Court").
2. The above suit in O.S.No.138/2014 is filed by the
plaintiff who is respondent No.1 in this appeal seeking
relief of partition and separate possession of her 1/6th
share in the plaint schedule properties. There are 9 items
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of plaint schedule properties which consists of landed and
residential properties. It is the contention of the plaintiff
that defendant Nos.1, 2, 4 and late Rangaraju are children
of late Thimmaraju. The plaintiff and defendant No.3 are
the children of late Rangaraju who passed away in 1993
and they are the surviving legal heirs of Rangaraju. The
family of the plaintiff and defendants is a Hindu undivided
joint family governed under Mithakshara Law. That the
plaint schedule properties are the ancestral joint family
properties. It is contended that the plaintiff is in joint and
constructive possession of the plaint schedule properties.
It is contended that item No.8 of the plaint schedule
property though not entered in the assessment register, it
has been in possession and enjoyment of the plaintiff's
family from time immemorial. The plaintiff is not aware of
the Will dated 13.01.1993 allegedly executed by her father
who was bed ridden for more than 3 years prior to his
death. He was not in a position to understand the worldly
affairs and was unable to recognize the relatives and his
own daughters, having lost memory. During the said
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period, it is contended that alleged Will has been created
by defendant No.3 in order to make unlawful gain. When
the father of the plaintiff had only 1/3rd share in the plaint
schedule properties, the plaintiff being one of the legal
heirs of her father was entitled for 1/6th share in the plaint
schedule properties. Since the request of the plaintiff was
refused, she filed a suit for partition.
3. Defendant Nos.1, 2 and 4 in their written statement
admitted the case of the plaintiff and consented for
granting share to the plaintiff as claimed and decree to be
passed as prayed for.
4. Defendant No.3 filed written statement admitting the
relationship and denying the plaint averments and the
allegations. It is contended that Rangaraju died on
29.04.1983. During his lifetime, he has performed the
marriage of the plaintiff and defendant No.3 by spending
huge amount and also giving gold ornaments. He had
incurred heavy debt and had spent all his earnings and
savings and also obtained hand loans from his friends and
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relatives. On 13.01.1993, he had executed the Will
allotting 26 guntas of land in item No.1 of the suit
schedule properties in favour of the plaintiff. As such,
defendant No.3 was ready to give the said 26 guntas of
land in item No.1 of the suit schedule properties. Hence,
sought for dismissal of the suit.
5. Defendant No.5 in a separate written statement
admitted the relationship of the parties and contended
that his grandfather had executed a Will in his favour and
in that Will his grandfather had bequeathed 26 guntas of
land in favour of the plaintiff and that she was entitled
only to the said extent. On this ground, sought for
dismissal of the suit.
6. The trial Court, based on the pleadings of the parties
framed the following issues:
1. Whether the plaintiff proves that the
schedule properties are her joint family
properties?
2. Whether the defendant No.3 proves that
her father executed a Will dated
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13.01.1993 and allotted 26 guntas of land
in Sy.No.277/6 in favour of plaintiff and
hence plaintiff is entitle for share only in
suit item No.1?
3. Whether the plaintiff is entitle for the
relief claimed in the above suit?
4. What order or decree?
7. The plaintiff examined herself as P.W.1 and exhibited
10 documents marked as Ex.P1 to Ex.P10. Defendant
No.3 examined herself as D.W.1 and examined one
attesting witness to the Will as D.W.2. Defendant No.5
examined himself as D.W.3 and exhibited 6 documents
marked as Ex.D1 to Ex.D6.
8. On appreciation of the pleadings and evidence, the
trial Court answered issue No.1 in the affirmative, issue
No.3 partly in the affirmative and issue No.2 in the
negative, consequently decreed the suit, declaring that the
plaintiff is having 5/32 share in the plaint schedule
properties. Further declared that defendant Nos.1 and 2
are having 10/32 shares each in all the plaint schedule
properties, defendant No.3 is having 5/32 share in all the
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plaint schedule properties, defendant No.4 having 2/32
share in all the plaint schedule properties. Being
aggrieved by the same, the appellant herein who is
defendant No.5 in the suit filed appeal in R.A.No.38/2018
before the First Appellate Court. By judgment and order
dated 19.11.2019 considering the grounds urged, the First
Appellate Court framed the following points for its
consideration:
1. Whether learned trial Judge erred in not
holding that suit properties were joint
family properties and plaintiff has share in
the said properties as on the date of suit?
2. Whether learned trial Judge erred in not
holding that late Rangaraju executed Will
dt:13.1.1993 in favour of plaintiff,
defendant Nos.3 and 5 by virtue of said
Will, suit for partition is not maintainable?
9. On re-appreciation of the evidence, the First
Appellate Court answered point Nos.1 and 2 in the
negative and consequently dismissed the appeal
confirming the judgment and decree passed by the trial
Court. Being aggrieved by the same, defendant No.5 is
before this Court in this appeal.
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10. Smt.Anusha Asundi, learned counsel for the appellant
reiterating the grounds urged in the memorandum of
appeal submitted that the trial Court and First Appellate
Court have grossly erred in decreeing the suit, by
accepting the contentions of the plaintiff regarding the suit
schedule properties to be the joint family properties and
deceased Rangaraju not having right to execute the will in
favour de No.5. She submitted that the said reasoning
and finding arrived by the trial Court and First Appellate
Court is contrary to the categorical admission made by
respondent No.1/plaintiff in her cross-examination,
wherein she had admitted that suit schedule properties
were divided between her father and his brothers long
back and that they were in possession of their respective
shares cultivating the same. She submits that the said
evidence with regard to severance of the joint family has
not been appreciated by the trial Court and First Appellate
Court resulting in coming to an erroneous conclusion. It is
her further submission that the Will in question was
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registered and Rangaraju was in sound mind while
executing the Will. D.W.2 who is an attesting witness to
the said document has been examined in compliance of
the requirement of provisions of Evidence Act, warranting
no further proof regarding the genuineness of the Will.
She submits that the trial Court and First Appellate Court
could not have taken the matter of non-production of Will
before the Revenue Authorities after the demise of
Rangaraju to be a serious issue to decline the case of the
appellant regarding genuineness of the Will. Thus, she
submits that non-consideration of the evidence by the trial
Court and First Appellate Court has resulted in perversity
giving rise to substantial questions of law.
11. Heard. Perused the records.
12. As rightly taken note by the trial Court and First
Appellate Court, there is no dispute amongst the parties to
the suit that the suit schedule properties are the joint
family properties. The only contention being put forth by
the contesting defendant Nos.3 and 5 is that there was
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severance of the joint family status pursuant to the oral
partition that had taken place between late Rangaraju and
his brothers. That in view of the said severance of joint
family status pursuant to the oral partition, Rangaraju has
become the absolute owner of the suit schedule properties
capable of disposition. It is the further contention of the
contesting defendants that Rangaraju had indeed
bequeathed an extent of 26 guntas of land in item No.1 of
the suit schedule properties in favour of the plaintiff
indicating his sound mind of disposition. However, the
trial Court and First Appellate Court have declined to
accept the said contention of the contesting defendants
for the reasons that the contesting defendants not being
able to prove the purported oral partition by leading any
acceptable evidence. No witnesses have been examined
to prove the oral partition. Though reliance is placed
heavily on the so called admission made by the plaintiff
that Rangaraju and his brothers were residing separately
and cultivating their portions of the land purported to have
been allotted to their shares, the same would not be
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sufficient enough to substantiate the requirement to prove
the oral partition. It is settled position of law that burden
of proof of oral partition is on the one who asserts as the
said burden has to be discharged in the manner known to
law. It is equally settled position of law that oral partition
could be proved by production of public documents if the
parties have acted upon such oral partition.
13. In the instant case, as taken note of by the trial
Court and First Appellate Court, the contesting defendants
have neither given date of oral partition nor have
produced any public documents evidencing parties acting
upon such oral partition. As such, the conclusion arrived
at by the trial Court and First Appellate Court that the
properties remained as joint family properties and there
was no severance of the joint family status cannot be
found fault and the same being one question of fact.
14. As regards the Will is concerned , the trial Court and
First Appellate Court have found the same to have been
executed under the circumstances which are suspicious.
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Admittedly, deceased Rangaraju was residing with
defendant No.3. The Will though having been executed on
13.01.1993, Rangaraju stated have passed away on
29.04.1993, the suit in question has been filed in the year
2014. As rightly taken note by the trial Court and First
Appellate Court, the said Will has never seen light of the
day till the suit was filed by the plaintiff. Justification
sought to be given by the contesting defendants is that
family members were in cordial relationship and there was
no need for them to have brought the Will to claim their
share of the properties. This very contention taken by the
contesting defendants is doubtful as the Will was never
acted upon even by the contesting defendants, till the suit
was filed. If at all, their relationship was cordial, nothing
prevented the contesting defendants to have brought the
documents in public and seek for entering their names in
the revenue records to the extent of their shares
bequeathed by Rangaraju in favour of plaintiff and
defendants.
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15. The trial Court and First Appellate Court taking note
of these aspects of the matter firstly have come to the just
conclusion that the properties being the joint family
properties, Rangaraju could not have bequeathed the
property and secondly the Will having severance after 20
years could not have been considered as genuine one in
the facts and circumstances of the case.
16. In view of the aforesaid factual finding of the trial
Court and First Appellate Court, this Court under Section
100 of CPC would not find any reason to interfere with the
factual finding of the courts below. No substantial
questions of law would arise for consideration in this
appeal. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE
MPK
