Karnataka High Court
Smt K S Sowbhagya vs Smt K S Kavitha on 5 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:625
RSA No. 831 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 831 OF 2022 (PAR)
BETWEEN:
SMT. K.S. SOWBHAGYA,
D/O LATE SRIKANTARAJU,
AGED ABOUT 44 YEARS,
W/O VENKATESH RAJU,
NO.44, PIPELINE ROAD,
GANIGARAHALLI, CHIKKABANAVARA POST,
BENGALURU NORTH - 560 090.
...APPELLANT
(BY SMT. THANIMA BEKAL, ADVOCATE)
AND:
1. SMT. K.S. KAVITHA,
AGED ABOUT 42 YEARS,
Digitally signed D/O LATE K.S. SRIKANTARAJU,
by SUMA B N #705, SOMANATHA NILAYAM,
Location: High
Court of 2ND CROSS, BEHIND GOVT.
Karnataka HIGH SCHOOL, 2ND FLOOR,
HEBBAL, BENGALURU - 24.
2. SMT. K.S. SWARNALATHA,
AGED ABOUT 40 YEARS,
D/O LATE SRIKANTARAJU,
R/AT NO.3RD FLOOR, NO.304,
SIRI RESIDENCY, FIRST CROSS,
PAPANNA LAYOUT, V. NAGENAHALLI MAIN ROAD,
HEBBAL, BENGALURU - 24.
-2-
NC: 2024:KHC:625
RSA No. 831 of 2022
3. SRI. K.S. JAGADISH BABU,
S/O LATE SRIKANTARAJU,
AGED ABOUT 34 YEARS,
HOUSE NO.203, FLAT NO.120 E,
SAPTHASRINIVASA APARTMENT,
SHANTHINIKETHAN LAYOUT, AREKERE,
BANNERGHATTA ROAD,
BENGALURU - 560 076.
...RESPONDENTS
(BY SRI. T.M. VENKATA REDDY, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 23.02.2022 PASSED IN
RA.NO.104/2018 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JDUGE, CHIKKABALLAPURA,
DISMISSING THE APPEAL, AND CONFIRMING JUDGMENT AND
DECREE DATED 10.08.2018 PASSED IN OS.NO. 247/2014 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
GOWRIBIDANUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendant in O.S.No.247/2014 filed
by the respondent on the file of Senior Civil Judge and J.M.F.C,
Gowribidanur, seeking relief of partition and separate
possession in respect of suit schedule properties.
NC: 2024:KHC:625
2. The suit was decreed. Defendant aggrieved by the
same filed Regular Appeal No.104/2018 on the file of III
Additional District and Session Judge, Chikkaballapur. by
judgment and order dated 23.02.2022, the First Appellate
Court dismissed the appeal confirming the judgment and
decree of the trial Court. Being aggrieved by the same, the
appellant has filed Regular Second Appeal before this Court.
3. Relationship between the plaintiffs and defendant
being that of children of one Sri.K.S Srikantaraju and Smt.M.S
Vimalamma is not in dispute. It is also not in dispute that
schedule properties belongs to parents of the defendant and
plaintiffs and that after their demise the plaintiffs and
defendant became entitled for equal share in the properties.
4. The plaintiffs filed the suit contending that the
defendant had not come forward for partition of the properties
while constrained them to approach the Court. The defendant
in the written statement set up a plea that the mother of the
plaintiffs and defendant, during her life time, had executed a
Will dated 13.02.2003-Ex.D2, bequeathing her properties
namely item Nos.1 and 2 of suit properties in favour of their
NC: 2024:KHC:625
father and that upon the death of the mother on 25.06.2003
the father became the owner of said properties that the item
Nos.3 to 6 were acquired by their father and he had also
executed a will dated 22.05.2007-Ex.D3 bequeathing item
Nos.1 to 6 exclusively in favour of the defendant and upon the
death of the father on 11.01.2010, the defendant became
absolute owner of all the suit schedule properties.
5. Trial Court framed issues, casting burden of proof of
Will on the defendant and recorded the evidence. The Trial
Court has at paragraphs 39, 40, 41 and 42 of its judgment,
appreciated the fact that the defendant had failed to establish
the authenticity/genuineness or otherwise of the alleged Wills-
Ex.D2 and D3. Having taken note of the fact that defendant
had failed to establish the execution of Wills declined to accept
the case of the defendant. The First Appellate Court, on re-
appreciating the evidence, taking into consideration the factual
aspects of the matter, confirmed the said judgment of the Trial
Court.
6. Learned counsel for the appellant reiterating the
grounds urged in the appeal submits that though the son of the
NC: 2024:KHC:625
attesting witness to the Ex.D2 was examined, in the cross-
examination he has not supported the case of the defendant.
He also submits that one of the attesting witness to Ex.D3 had
even filed affidavit. Even the said witness has not supported
the case of the appellant.
7. The Trial Court and the first appellate Court have
found that DW3 son of one of the attesting witness to the Will
dated 13.02.2003-Ex.D2 has deposed that his father
Sri.Shivashankarappa died in the year 1985, whereas the said
Will was of the year 2003 as such there was no possibility of he
being the attesting witness to the said Will.
8. As regards Will at Ex.D3 executed by Sri.K.S
Srikantaraju., since, DW4-Sri. A.M. Rama Murthy Reddy,
advocate has deposed that said Sri.K.S Srikantaraju had
brought a written Will, the Courts have found that the said DW4
is not the scribe of the Will.
9. Another witness DW2-Sri.C.K. Venkatesh has
deposed that husband of the defendant brought the Will for his
signature and he does not remember where he signed the
NC: 2024:KHC:625
document and that he does not know the parents of the
defendant and that he has not seen father of the defendant
affixing the signature to the Will.
10. In view of the aforesaid aspects of the matter and
in view of the fact that the Wills set up by the defendant not
having been proved in the manner known to law, no
interference is called for with the conclusion arrived at by the
Courts below.
11. Admittedly, the properties belong to parents of the
plaintiffs and defendant and in the absence of the Wills, the
plaintiffs and defendant being only the legal heirs of the
deceased parents are entitled for equal shares in the suit
schedule properties. Taking note of the factual and legal
situation, Trial Court and First Appellate Court have decreed the
suit.
12. In view of the fact that the defendant has failed to
establish the execution of the Will no substantial question of
law would arise in this appeal.
NC: 2024:KHC:625
13. Accordingly, the appeal is dismissed confirming the
judgment and decree passed by the Trial Court and the First
Appellate Court.
Sd/-
JUDGE
AT
CT: BHK
