Karnataka High Court
Smt. Masthamma Since Deceased By Her Lrs vs R.D. Gnanaiah on 21 February, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 239 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 239 OF 2013 (DEC/INJ)
BETWEEN:
SMT. MASTHAMMA,
SINCE DECEASED BY HER LRS.,
1. SMT.YASHODAMMA,
W/O THIMMAPPA,
AGED ABOUT 45 YEARS,
R/O LAKYA ROAD,
KALASAPURA VILLAGE AND POST,
CHIKMAGALUR TALUK
AND DISTRICT-577 001.
2. MANJUNATHA,
S/O LATE VENKATAPPA,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURIST,
R/O AMBLE VILLAGE AND POST,
CHIKMAGALUR TALUK
AND DISTRICT- 577 001.
Digitally signed by 3 . KRISHNAMURTHY,
GEETHAKUMARI S/O LATE VENKATAPPA,
PARLATTAYA S
AGED ABOUT 40 YEARS,
Location: High Court
of Karnataka OCC: AGRICULTURIST,
R/O.AMBLE VILLAGE AND POST,
CHIKMAGALUR TALUK
AND DISTRICT-577 001.
4. SMT.LAXMAMMA,
W/O KENGALAPPA,
AGED ABOUT 35 YEARS,
R/O.AMBLE VILLAGE AND POST,
CHIKMAGALUR TALUK
AND DISTRICT-577 001.
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RSA No. 239 of 2013
5. KESHAVAMURTHY,
S/O.LATE VENKATAPPA,
AGED ABOUT 34 YEARS,
OCC: AGRICULTURIST,
R/O.AMBLE VILLAGE AND POST,
CHIKMAGALUR TALUK
AND DISTRICT-577 001.
6. SMT.GOWRAMMA,
W/O CHANDRU,
AGED ABOUT 32 YEARS,
R/O KARAGADDI VILLAGE,
KASABA HOBLI, BELUR TALUK,
CHIKMAGALUR DISTRICT - 577 001.
7. SMT.LATHA,
W/O SRINIVASA,
AGED ABOUT 30 YEARS,
R/O.DORNALU VILLAGE,
TARIKERE TALUK,
CHIKMAGALUR DISTRICT-577 001.
SMT.GANGAMMA
SINCE DECEASED BY HER LRS
8. SRINIVASA,
S/O DASAPPA,
AGED ABOUT 50 YEARS,
R/O.NIDAGHATTA VILLAGE
AND POST, KADUR TALUK,
CHIKMGALUR DISTRICT-577 001.
9. YOGESHA,
S/O DASAPPA,
AGED ABOUT 48 YEARS,
OPP:ANJANEYA SWAMY TEMPLE,
R/O.NIDAGHATTA VILLAGE
AND POST, KADUR TALUK,
CHIKMAGALUR DISTRICT-577 001.
10 . SHIVAMURTHY,
S/O DASAPPA,
AGED ABOUT 47 YEARS,
OPP:GOODWILL APARTMENTS,
KRISHNA BUILDING, BANGALORE-560 021.
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RSA No. 239 of 2013
11 . SMT.SIDDAMMA,
W/O KEMPAIAH,
AGED ABOUT 52 YEARS,
R/O QUARTERS NO.14,
JNANABHARATHI CAMPUS,
BANGALORE UNIVERSITY,
BANGALORE - 560 025.
...APPELLANTS
[BY SRI GURURAJ R., ADVOCATE FOR
SRI DINESH H.M., ADVOCATE (PH)]
AND:
R.D. GNANAIAH,
S/O DODDAIAH,
AGED ABOUT 49 YEARS,
R/O FOREST QUARTERS,
KADUR TALUK,
NOW R/A FOREST QUARTERS,
KOPPA DIVISION, KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 001.
...RESPONDENT
[BY SRI R.C. NAGARAJ, ADVOCATE (PH)]
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT & DECREE DATED 15.12.2012 PASSED IN
R.A.NO.32/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
COURT, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DTD 03.01.2011 PASSED IN
OS.NO.210/2004 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE, CHIKMAGALUR.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 15.12.2012
passed by Presiding Officer, Fast Track Court, Chikkamagaluru
in R.A.no.32/2011 and decree dated 03.01.2011 passed by
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Additional Senior Civil Judge, Chikkamagaluru in
O.S.no.210/2004, this appeal is filed.
2. Appellants herein were plaintiffs, while respondent
herein were defendant and will be referred to as such herein.
3. O.S.no.210/2004 was filed seeking for declaration
about alleged Will executed by Smt.Ramamma on 28.07.1988
as null and void; to declare plaintiffs as absolute owners in
possession of suit schedule properties and for permanent
injunction restraining defendant from interfering with plaintiffs
possession over suit schedule properties etc.
4. In plaint, it was stated that one Kenchaiah of Lakya
village had four sons i.e. Palaraiah, Siddaiah, Krishnappa and
Adavaiah. Amongst them, Palaraiah and Adavaiah died earlier
issueless. Even Late Siddaiah's only son Gowraiah died
unmarried and issueless. Whereas, plaintiffs no.1 to 3 were
daughters of Krishnappa through first wife - Smt.Sannamma.
He had also married Smt.Ramamma, who died issueless on
15.08.2003. It was further stated that lands bearing Sy.no.124
measuring 01 acre 26 guntas standing in name of Gowraiah son
of Siddaiah and Sy.no.119, measuring 39 guntas standing in
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name of Palaraiah were ancestral properties ('suit properties'
for short). After death of Krishnappa, both his wives were
entitled for maintenance, hence, their names were entered in
revenue records. And though items 1 and 2 of suit properties
were in name of Smt.Ramamma, neither of them were owned
by her.
5. It was stated that Smt.Ramamma was residing with
plaintiff no.2 and Smt.Sannamma at Lakya village until her
death on 15.08.2003. Thereafter, when they gave application
to Tahsildar for change of khata, they realized that it was
mutated in name of defendant under alleged Will dated
20.07.1988. It was claimed that said Will was result of fraud,
coercion and undue influence and to knowledge of plaintiffs
Smt.Ramamma had not executed any document either Will or
Gift. They claimed she had no right of bequeathal. Tahsildar,
Chikmagaluru ordered that only Civil Court could decide validity
of Will. It was stated after Assistant Commissioner granted
interim order of stay, defendant tried to interfere with plaintiffs
possession over suit properties. On said cause of action, as
defendant was trying to interfere in suit properties, cause of
action arose for plaintiffs to file suit.
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6. On service of suit summons, defendant filed written
statement admitting relationship as stated by plaintiffs and
denying all other assertions. It was stated that Krishnappa
married Smt.Ramamma as second wife, during lifetime of first
wife Smt.Sannamma, as she did not have male issues. After
death of Krishnappa, khata of his properties were mutated in
names of Smt.Sannamma and Smt.Ramamma, who were
residing together. As per partition between them, khata of item
no.1 and 2 were transferred in name of Smt.Ramamma. When
she felt neglected, she left house of plaintiffs and began
residing with defendant, who was her nephew. He took good
care of her. On said consideration, she executed registered Will
in his favour. After her death, he performed her obsequies
which were not attended by plaintiffs. Thereafter, his
application before Tahsildar for mutation was allowed, but
challenged by plaintiffs before Assistant Commissioner and
same was pending. Denying plaintiffs' claim of possession of
suit properties, defendant sought dismissal of suit.
7. Based on pleading, trial Court framed following
issues and additional issues:
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ISSUES
(1) Whether plaintiffs prove that the khata of
plaint schedule properties was changed in the
names of Sannamma and Ramamma for their
maintenance?
(2) Whether plaintiffs prove that plaint schedule
properties are the ancestral properties of
Gowraiah and Palaraiah?
(3) Whether the plaintiffs prove that Ramamma
had no right to bequeath the plaint schedule
properties?
(4) Whether the plaintiffs prove that the Will date
20.07.1988 is a result of fraud, coercion and
undue influence and it is null and void as
contended in para 4 of the plaint?
(5) Whether the plaintiffs prove that themselves
and their mother Sannamma are in
possession of plaint schedule properties?
(6) Whether the plaintiffs prove that they are the
absolute owners of plaint schedule
properties?
(7) Whether the defendant proves that the plaint
schedule properties came to the share of
Ramamma in the partition which took place
between herself and Sannamma?
(8) What order or decree?
ADDITIONAL ISSUES:
(1) Whether the defendant proves that the said
Ramamma has voluntarily executed a
registered Will on 20.07.1988 and
bequeathed the suit schedule properties in
his favour?
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8. Thereafter, legal representative of plaintiff no.1 and
another witness were examined as PWs.1 and 2 and got
marked Exs.P1 to P18. On other hand, defendant examined
himself as DW.1 and another witness as DW.2 and got marked
Exs.D1 to D2.
9. On consideration, trial Court answered issues no.1,
3 to 5 and 7 in negative, issues no.2, 8 and additional issue
no.1 in affirmative, issue no.6 as does not survive for
consideration and issue no.9 by dismissing suit with costs.
10. Aggrieved thereby, plaintiffs preferred appeal in
R.A.no.32/2011 on several grounds namely, judgment and
decree passed by trial Court was unsustainable in law and on
facts and that trial Court had failed to appreciate oral and
documentary evidence. It was submitted trial Court failed to
notice, unlike defendant's contention that suit properties were
allotted to share of Ramamma in partition and she bequeathed
it in his favour, no partition deed was produced nor witnesses
examined to establish same. And trial Court further failed to
take note of irregularity that defendant had known contents of
Will during lifetime of Smt.Ramamma. It was further
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contended, trial Court erred in not considering Ex.P.15 and
Ex.D.1 in light of crucial admissions elicited from defendant.
11. Based on contentions, first appellate Court raised
following points for consideration:
(1) Whether the judgment and decree passed by
the Addl. Senior Civil Judge, Chikmagalur
dated 03.01.2011 in O.S.No.210/2004
dismissing the suit of the plaintiffs is illegal,
perverse and liable to be set aside?
(2) What order?
12. On consideration, it answered point no.1 in negative
and point no.2 by dismissing appeal. Aggrieved by judgment
and decree passed by both Courts, plaintiffs are in appeal.
13. Sri R Gururaj, learned counsel appearing for
Sri Dinesh H.N., advocate for appellant submitted that present
appeal was by plaintiffs arising out of suit for declaration that
Ex.P.13 - Will dated 20.07.1988 was null and void, that
plaintiffs were absolute owners in possession of suit properties
and permanent injunction against defendant. It was submitted
that Kenchaiah-grandfather of plaintiffs had four children
namely, Palaraiah, Siddaiah, Krishnappa and Adavaiah, among
whom Palaraiah and Adavaiah died unmarried and issueless.
After Siddaiah died, his only son-Gowraiah also died unmarried
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and issueless. Therefore, suit properties originally belonged to
Kenchaiah, were inherited by Krishnappa. But, Krishnappa
married Smt.Sannamma, who was mother of plaintiffs prior to
taking Smt.Ramamma as second wife, but did not have any
issues. Therefore, daughters of Smt.Sannamma i.e. plaintiffs
were only surviving natural heirs after death of Smt.Ramamma
on 15.08.2003. When they sought mutation of entries in
revenue records, they realised that defendant had got his name
entered allegedly based on illegal Will. Therefore, they filed
appeal against mutation entries, wherein they were relegated
to Civil Court. Hence, suit was filed challenging Will.
14. It was submitted that though Will suffered from
several suspicious circumstances, namely, testator was
uneducated, suffering from Cancer an incurable decease, DW.2
- attestor had stated that he did not see her while giving
instructions for preparation of Will and defendant - Gnanaiah
was employee in Forest Department etc. It was further
submitted that execution of Will by testator was against natural
succession. Without satisfactory explanation of suspicious
circumstances, both Courts erred in accepting claim of
defendant under Will.
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15. It was submitted, DW.2, examined as attester of
Will firstly admitted that he knew defendant since he was 14
years and secondly, that he had not seen testator giving
instructions to scribe for preparation of Will. It was further
submitted that PW.1 had deposed that Smt.Ramamma was
residing with plaintiff no.2 after death of Krishnappa and
defendant may had played fraud, taking advantage of her
ignorance and got created Will, when she visited maternal
home. Even PW.2 deposed that Smt.Ramamma was residing
with plaintiff no.2 and died in her maternal home, which would
corroborate case of plaintiffs. It was further submitted,
plaintiffs were in possession of suit properties. It was submitted
that judgment and decree passed by both Courts were contrary
to decision in Sri J.T. Surappa and Anr. Vs. Sri
Satchidhanandendra Saraswathi Swamyji Public
Charitable Trust and Anr.,1 wherein requirements for
establishing Will were enumerated.
16. He also relied upon decision of Hon'ble Supreme
Court in Murthy and Ors., vs. C. Saradambal and Ors.2,
ILR 2008 KAR 2115
2022 (3) SCC 209
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wherein manner of appreciation of suspicious circumstances
was laid down. Based on above, it was submitted as trial Court
and first appellate Court failed to properly appreciate evidence
about suspicious circumstances, substantial questions of law
framed were required to be answered in favour of plaintiffs and
allowed appeal by decreeing suit.
17. On other hand, Sri R.C. Nagaraj, learned counsel
for defendant opposed appeal. At outset, it was submitted that
plaintiffs had suffered concurrent findings of fact and were not
entitled to challenge same in second appeal. It was submitted
that defendant had not only produced original Will, but also
examined attester and scribe and thus complied with
requirements in law to establish Will. It was submitted except
making vague and unsubstantiated allegations of suspicious
circumstances, plaintiffs failed to disprove Will. Admittedly,
testator died nearly 15 years after date of execution of Will,
therefore ill-health of testator cannot be a suspicious
circumstance. Insofar as contention about authority of testator
to execute Will, both PWs 1 and 2 admitted that after death of
Krishnappa, Smt.Sannamma and Smt.Ramamma were residing
together and partitioned suit properties. Thereafter,
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Smt.Ramamma had executed Will. Claim of plaintiffs about
testator residing with plaintiffs stood disproved, as Ex.P14 -
death certificate of testator showed place of death as
defendant's house. It was submitted, PW.2 admitted that after
death of Krishnappa there was mutation in revenue records
recognising right to maintenance of Smt.Sannamma and
Smt.Ramamma, which would flower into absolute right as per
Section 14 of Hindu Succession Act, 1956 (for short 'HS Act').
On above contentions, learned counsel sought for answering
substantial questions of law against appellants and to dismiss
appeal.
18. Heard learned counsel, perused impugned
judgment and decree and records.
19. This appeal was admitted on 12.06.2014 to
consider following substantial questions of law:
a) Whether courts below were right in holding that suit
schedule properties had fallen to share of Smt.Ramamma
and though she is second wife she had absolute right to
bequeath suit properties in favour of defendant/
respondent?
b) Whether the courts below were right in holding that
Will dated 20.07.1988 executed by Smt.Ramamma has
been proved though same was an outcome of fraud,
coercion and undue influence and its execution is
shrouded with suspicious circumstances?
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c) Whether the courts below have failed to consider the
crucial admissions given by DW1 And DW2 regarding
execution of the Will and possession over the suit
schedule properties?
d) Whether the courts below right in holding that
Smt.Ramamma became the absolute owner of suit
schedule properties as per provisions of Section 14 of
Hindu Succession Act, 1956 overlooking the inheritance of
properties by natural succession?
20. It is seen that substantial questions of law (a) and
(d) are analogous to each other, likewise, (b) and (c), therefore
they are taken up together.
Re. Substantial questions of law (a) & (d):
21. Insofar as issue, whether Smt.Ramamma became
absolute owner of properties prior to bequeathing same in
favour of defendant, settled legal position3 is that unless wife
was conferred right to maintenance, she would not become
absolute owner under Section 14 (1) of HS Act. But, in para
no.3 of plaint, it was stated after death of Krishnappa, names
of Smt.Sannamma and Smt.Ramamma were mutated in
revenue records recognising their right to maintenance. Same
is reiterated by PW.1 in his deposition. Furthe, there is no bar
against second wife being entitled for maintenance on death of
[V.Tulasamma Vs. Shesha Reddy reported in 1977 (3) SCC 99]
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her husband. PWs.1 and 2 have both admitted that after death
of Krishnappa, there was division of properties between
Smt.Sannamma and Smt.Ramamma and they fell to share of
Smt.Ramamma. These factors invite ratio in Tulasamma's
case (supra) read with Section 14(1) of HS Act and testator
would become absolute owner, thereby entitled to bequeath.
22. Therefore, substantial questions of law (a) and (d)
have to be answered in affirmative.
Re. Substantial questions of law (b) & (c):
23. Insofar as Will being shrouded with suspicious
circumstances, material pleading is that it was executed when
testator was visiting her matrimonial home. Both Courts have
also considered plea of testator suffering from cancer, fact that
testator died on 15.08.2003, fifteen years after execution of
Will i.e. on 20.07.1988, was found to dilute, if not divest said
contention of substance. There is no evidence about said
factors materially affecting her judgment at time of bequeathal
or rendering her incapable of understanding consequences of
her actions.
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24. Mere admission elicited from depositions of DWs.1
and 2, that DW.2 - attester had not seen while testator giving
instructions to scribe for preparation of Will, will not be
sufficient. Insofar as Will being against natural succession,
there is sufficient material to establish that bequethal was in
favour of her nephew, who had taken care of testator, availed
treatment to her and that she was residing with him. Therefore,
unless a strong case of undue influence is made out, above
ground would not be sufficient to overturn findings of both
Courts.
25. Hon'ble Apex Court in Murthy's case (supra) noted
that testator therein died within a period of fifteen days from
date of execution of Will, and had mentioned illness as reason
for executing Will, which was found to substantiate suspicious
circumstance. In absence of proper explanation or contra
medical evidence or examination of doctor who was treating
testator prior to his death, Will was held to be shrouded with
suspicious circumstances and as such not acceptable. But, in
instant case, testator had died nearly fifteen years after
executing Will. In case, it was executed while she was visiting
her matrimonial home under influence of defendant, nothing
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prevented her from cancelling it or changing it, as according to
plaintiffs, she was residing with plaintiff no.2.
26. Likewise, in Sri J.T. Surappa's case (supra), it was
held duty was cast on Court to verify in five steps regarding
validity of Will. In order to hold Will to be valid, it should be
reduced into writing, signed by testator and attested by two or
more witnesses and at least one attesting witness has to be
examined. First step therefore would be to verify satisfaction of
these legal requirements; Second step is when legal heirs are
disinherited, Court has to scrutinize evidence with greater
degree of care than usual; Third step would be to find out
whether testator was in a sound state of mind at time of
executing Will; Fourth step would be to find out whether there
exists any suspicious circumstances surrounding execution of
Will and Fifth step is to consider whether Will to be executed is
in accordance with Section 63 of Act read with Section 68 of
Evidence Act. As observed by both Courts, Will on hand would
comply with all above requirements.
27. Therefore, substantial questions of law (b) & (c) are
also required to be answered in negative.
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28. Consequently, appeal is devoid of merit and stands
dismissed with costs.
Sd/-
JUDGE
PSG/GRD
