Karnataka High Court
Smt Jayamma vs Smt Channamma on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 833 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 833 OF 2024 (PAR-)
BETWEEN:
1. SMT. JAYAMMA
W/O LATE RAMAIAH
AGED ABOUT 77 YEARS
2. SRI PANDU
S/O LATE RAMAIAH
AGED ABOUT 50 YEARS
3. SRI NAGENDRA
S/O LATE RAMAIAH
AGED ABOUT 48 YEARS
4. PREMA
D/O LATE RAMAIAH
AGED ABOUT 37 YEARS
Digitally signed
by DEVIKA M
Location: HIGH ALL ARE RESIDING
COURT OF AT SHANKA VILLAGE
KARNATAKA
SALAGAME HOBLI,
HASSAN TALUK
HASSAN DISTRICT-573201.
5. SMT. PAVITHRA
D/O RAMAIAH
W/O VISHWANATHA
AGED ABOUT 44 YEARS
RESIDING AT HIREGOUJU
VILLAGE AND POST, LAKYA HOBLI,
CHIKKAMAGALURU TALUK
AND DISTRICT-577168.
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RSA No. 833 of 2024
6. PREETHI
D/O RAMAIAH
AGED ABOUT 42 YEARS
R/A SRIKANTHANAGARA
CHANNARAYAPATNA TALUK-573116
...APPELLANTS
(BY SRI. KALYAN R., ADVOCATE)
AND:
1. SMT. CHANNAMMA
W/O MUDALAGIRIYAIAH
AGED ABOUT 77 YEARS
RESIDING AT SHANKA VILLAGE
SALAGAME HOBLI
HASSAN TALUK AND
HASSAN DISTRICT-577168.
2. SMT. PUTTAMMA
W/O VAIRUMUDIYAIAH
AGED ABOUT 72 YEARS
RESIDING AT CHIGALLI VILAGE
SHANTHIGRAMA HOBLI
HASSAN TALUK
AND DISTRICT-573220
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 27.02.2024
PASSED IN R.A.NO.73/2023 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE, HASSAN, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.07.2023
PASSED IN O.S.NO.747/2012 ON THE FILE OF II ADDITIONAL
CIVIL JUDGE AND JMFC, HASSAN.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 833 of 2024
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that suit schedule property belong to herself
and defendants. When the said claim was made, the defendant
No.1 appeared and contended that the suit schedule property is
the self-acquired property of deceased Singriyamma and the
same was bequeathed by her in his favour under a Will dated
06.03.1972 and after the death of Singriyamma, the defendant
No.1 is in peaceful possession and enjoyment of the suit
schedule property as absolute owner and cultivating the same.
3. Having considered the pleadings of the parties, the
Trial Court framed the issues and the plaintiff, in order to prove
her case, examined herself as P.W.1 and also two witnesses as
P.Ws.2 and 3 and got marked the documents as Exs.P1 to P5.
On the other hand, the defendant No.1 examined himself as
D.W.1 and also examined one witness as D.W.2, who is not
contesting witness, but son of contesting witness and also
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examined one witness i.e., defendant No.2 as D.W.3 and got
marked the documents as Exs.D1 to D9.
4. The Trial Court having considered the material on
record, particularly when the plaintiff pleads that property
belongs to joint family, even taken into consideration the fact
that property belongs to Singriyamma and the only issue raised
before the Trial Court is with regard to very execution of the
Will. The Trial Court also while considering the Will taken note
of the admission on the part of D.W.1, wherein he categorically
admits that he was very much present at the time of execution
of the Will by Singriyamma and also taken note of evidence of
witnesses, who have attested the Will were not from the said
village and they are the witnesses from Hassan and no villagers
have attested the said Will.
5. The Trial Court also taken note that Ex.D1-Will
creates doubt in the mind of the Court, since he had
participated in getting the Will and Trial Court also taken note
of the judgment in RAMACHANDRA RAMBUX VS.
CHAMPABAI AND OTHERS reported in AIR 1965 SC 354,
wherein it is held that the propounder has taken a prominent
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part in the execution of the Will which confers substantial
benefits on him, that itself is generally treated as suspicious
circumstance attending the execution of the Will and also taken
note of the admission on the part of D.W.1 in Paragraph No.48,
wherein he categorically admits that attesting witnesses were
not present at the time of reading over the Will by the scribe.
D.W.1 has further admitted that Singriyamma was 70 years at
the time of execution of Will. He has not deposed that
Singriyamma was in sound state of mind at the time of
execution of Will. He has not obtained khatha in respect of suit
schedule property for a period of 50 years. The said Will did
not see the light of the day and considering all these aspects
into consideration, comes to the conclusion that the very
execution of the Will is suspicious.
6. The First Appellate Court also, while re-appreciating
the material on record, keeping in view the contentions urged
before the First Appellate Court taken note of the judgment of
the Apex Court in H. VENKATACHALA IYENGAR VS. B.N.
THIMMAJAMMA & OTHERS reported in AIR 1959 SC 443
which is discussed in Paragraph No.32 of the judgment and the
First Appellate Court comes to the conclusion that it is the duty
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of the deceased defendant No.1, who is the profounder of the
Will to remove all clouds and satisfy the conscience of the Court
that the instrument propounded is the last Will of the testator.
It must be satisfied by the defendant No.1 before the Court
that Ex.D1 has been validly executed by the testator, who is no
longer live and in detail discussed both oral and documentary
evidence placed on record and comes to the conclusion that the
Trial Court rightly answered issue No.3 that the Will is not
proved and so also answered issue No.2 as 'affirmative'.
Having considered the material on record, it is not in dispute
that property belongs to Singriyamma and the very Will came
into existence in suspicious circumstance has been proved and
the First Appellate Court also concurred with the findings of the
Trial Court.
7. Learned counsel for the appellants would
vehemently contend that the very approach of the Trial Court
and the First Appellate Court is erroneous. No doubt the
profounder of the Will has examined a witness D.W.2, who is
not an attesting witness, but son of attesting witness, under
Section 69 of the Evidence Act, the Court can consider the
evidence, but the very admission on the part of D.W.1 itself not
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inspires the confidence of the Court to come to the conclusion
that Ex.D1 is not surrounded with suspicious circumstance and
there is cloud in respect of the document of Ex.D1-Will. When
such finding is given by the Trial Court and the First Appellate
Court and concurrent finding is given by both the Trial Court
and the First Appellate Court based on the material on record, I
do not find any ground to invoke Section 100 of CPC to admit
the appeal and frame any substantial question of law.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
