Karnataka High Court
Umadevi vs M P Veena on 26 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 690 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 690 OF 2024 (PAR)
BETWEEN:
1. UMADEVI
W/O LATE GANGADHAR
AGED ABOUT 68 YEARS
R/AT NO 2081, 7TH MAIN,
KUVEMPU ROAD,
KUMARASWAMY LAYOUT,
2ND STAGE,
BANGALORE-560 078.
2. M G HARISH
S/O LATE GANGADHAR
AGED ABOUT 46 YEARS
R/AT NO 2081, 7TH MAIN,
Digitally signed
KUVEMPU ROAD,
by DEVIKA M KUMARASWAMY LAYOUT,
Location: HIGH 2ND STAGE,
COURT OF BANGALORE-560 078.
KARNATAKA
3. M G TEJASVI
D/O LATE GANGADHAR
AGED ABOUT 42 YEARS
R/AT NO 2081, 7TH MAIN,
KUVEMPU ROAD,
KUMARASWAMY LAYOUT,
2ND STAGE,
BANGALORE-560 078.
AT PRESENT THE APPELLANT
NOS.1 TO 3 ARE ALL
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RSA No. 690 of 2024
R/AT NO 25/2A,
HANISYAMA NILAYA,
16TH MAIN ROAD,
NEAR MARUTI GARMENTS
SRINIDHI LAYOUT AREHALLI
BANGALORE-560 061.
...APPELLANTS
(BY SRI. SANDEEP K., ADVOCATE)
AND:
1. M P VEENA
D/O LATE PUTTAHARIYAPPA
AGED ABOUT 51 YEARS
R/AT No. 1256 A BLOCK,
2ND CROSS, 60 FEET ROAD,
SAHAKARANAGAR,
BENGALURU-560 092.
2. M LAKSHMIKANTHA
S/O MARANNA
AGED ABOUT 63 YEARS,
R/AT NO.70, MAHASHREE,
3RD MAIN ROAD,
SRI GURU RAGHAVENDRANAGARA,
UPSTAIR, 7TH PHASE,
J P NAGAR,
BENGALURU-560 078.
3. PARVATHAMMA
W/O LATE M. ERALINGARAJU
AGED ABOUT 58 YEARS
4. MANASAGOWDA
D/O.LATE E. ERALINGARAJU
AGED ABOUT 36 YEARS
RESPONDENT NOS.3 AND 4 ARE
RESIDENTS OF HARIAHARANILAYA,
RAGHAVENDRA COLONY,
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RSA No. 690 of 2024
MADHUGIRI TOWN,
TUMKUR DISTRICT-572 132.
...RESPONDENTS
(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE
FOR C/R3 AND C/R4)
THIS RSA IS FILED SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 22.01.2024 PASSED IN RA
NO.5018/2023 ON THE FILE OF THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, TUMAKURU, SITTING AT MADHUGIRI,
DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 03.06.2023 PASSED IN OS NO.103/2017
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, MADHUGIRI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants and also the learned
counsel for the respondents.
2. The appellant is the plaintiff and the
appellant/plaintiff filed the suit before the Trial Court
seeking the relief of partition in respect of item Nos.1 to 5
of the suit schedule properties contending that all the
items of the suit schedule properties are the ancestral and
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joint family properties of plaintiff and defendant. Hence,
entitled for claim in the suit schedule properties.
3. The defendant No.1 also contend that he is also
entitled for share in the suit schedule property to an
extent of 1/4th share. The defendant Nos.3 and 4 have
appeared and filed written statement that item No.5 was
bequeathed by Lakshmamma in favour of her son
Eralingaraju through registered Will dated 16.06.2003.
The Trial Court having considered the material on record,
granted the relief of permanent injunction in respect of
item Nos.1 to 4 and declined to pass any share in respect
of item No.5 since the defendant Nos.3 and 4 have proved
the registered Will dated 16.06.2003.
4. Being aggrieved by the judgment and decree an
appeal is filed in R.A.No.5018/2023 before the First
Appellate Court with regard to the declining of share in
respect of item No5. The defendant No.1 has also filed an
appeal in respect of rejection share in respect of item
No.5. Both the appeals are dismissed by the First
Appellate Court concurring the finding of the Trial Court
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that the Will is registered. The witnesses who have been
examined before the Trial Court also deposes with regard
to the execution of Will that is one of the attesting witness
as well as son of scribe also examined and he identifies
the signature of his father and hence, accepted the Will.
The First Appellate Court comes to the conclusion that
there is no impediment her to execute the Will as per wish
since the property exclusively belongs to the mother and
she derived the property through a gift.
5. Being aggrieved by the concurrent finding of the
Trial Court as well as the First Appellate Court the present
second appeal is filed by the plaintiffs contending that the
very approach of the Trial Court as well as the First
Appellate Court is erroneous. Both the Courts have
committed an error in accepting the Will which is marked
as Ex.P1. The counsel appearing for the appellant also
would vehemently contend that First Appellate Court
committed an error in when the document is produced
before the First Appellate Court invoking Order 41 Rule 27
of CPC for production of additional evidence under which
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gift deed dated 08.10.2010 was sought to be produced to
demonstrate that Lingamma during her life time had
affixed her left hand thumb impression on the said
document, however on the alleged Will dated 16.06.2003,
Lingamma had affixed her signature. The counsel also
submits that when the gift deed was executed by the
plaintiffs and defendants and not discloses the very
execution of the Will. Hence, this court has to admit and
frame substantial question of law that both the Courts
disregarded the judicial admission recorded and averred
and sign by the beneficiary of the alleged Will dated
16.06.2003 that the property is an ancestral property.
Both the Courts have committed an error in coming to the
conclusion that the Will dated 16.06.2003 has been proved
and also this Court has to frame substantial question of
law with regard to the rejection of application filed under
Order 41 Rule 27 of CPC.
6. Per Contra, the counsel appearing for the
respondent/Plaintiff would vehemently contend that the
Trial Court in detail discussed the both oral and
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documentary evidence placed on record particularly
proving of the Will, though it is contended that Will is
disputed, in paragraph No.15 of the judgment taken note
of the admission on the part of the plaintiff and
particularly the admission of gift deed made in favour of
her grand mother Lakshmamma by her great grand
mother. She further admits that out of 4 sons only
Eralingaraju was residing in Madhugiri and remaingin 3 sos
were government employees and had permanently settled
in Bengaluru. The reason for assigning the Will also stated
and the same also taken note of by the Trial Court even
detail discussion was made in paragraph Nos.15 and 16
and even taken note of the evidence of witnesses who
have been examined to prove the Will in paragraph No.17
that is attesting witness was examined as DW4 and DW3
is the practicing Advocate, he has deposed that his parent
uncle by name Suryanarayana.H.T was working as deed
writer and now he is no more and hence he came and
identified the signature of his uncle. All these aspects were
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taken note of by the Trial Court and rightly comes to the
conclusion that Will has been proved.
7. The counsel also would vehemently contend that
First Appellate Court re-assessed the material available on
record with regard to the very execution of the Will and
having considered the grounds urged in the appeal memo,
framed point for consideration as whether the Will Ex.D1
has been proved and while re-assessing the material on
record, taken note of evidence of the DW5 in paragraph
No.16 admits with regard to the mental condition of the
executant of the Will and also taken note of the answer
elicited from the mouth of the Plaintiff while appreciating
the evidence available on record and also in paragraph
No.23 extracted the cross-examination of DW2 wherein he
categorically denied with regard to the mental condition of
the executant and also while answering point No.3 taken
note of in paragraph No.26 that the condition of executant
and even though the answer elicited that he was suffering
from cancer and the same cannot be a ground to
disbelieve the execution of the Will and also it is observed
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that during the said period, she was residing with legatee
and defendant No.3 was taking care of about her
treatment the defendant No.2 also admitted the execution
of the Will and there is no any impediment to her to
execute Will and confirmed the judgment of the Trial
Court.
8. Having considered the submissions of appellants'
counsel and also the counsel appearing for the
respondents, there is no dispute with regard to the
granting of share in respect of item Nos.1 to 4 and only
the dispute is with regard to the item No.5 is concerned.
The plaintiffs as well as defendant No.1 claims the share in
respect of item No.5 also. In respect of item No.5, the
defendant Nos.3 and 4 have categorically contend that Will
was executed and also it is not in dispute that property
devolves upon the testator through the gift deed and also
counsel would vehemently contend that when there was a
admission in the earlier proceedings that the same was
admitted as ancestral property and Court has to look into
the material available on record when the property was
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gifted in favour of testator and testator become an
absolute owner of the property under Section 14 of Hindu
Succession Act and she was having absolute right to
execute the Will and it is also emerged during the course
of evidence also that legatee was residing along with the
executor and also even suggestion was made that she was
suffering from cancer and she was also taken care of by
the legatee. Even the Trial Court also taken note of the
fact that remaining 3 sons were government employees
and they are permanently settled in Bengaluru. In
paragraph No.15 in detail discussed the reason for
bequeathing the property in favour of the legatee. The
First Appellate Court also re-assessed the material
available on record and in order to prove the Will also, the
attesting witness has been examined as PW4 and PW3 is
also identified the signature of his father who has prepared
the Will that he is a deed writer, since he was no more and
hence the son who is practicing Advocate has been
examined before the Trial Court and proved even under
Section 69 of the Evidence Act that person who is having
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acquaintance with signature of the deed writer has been
examined and when such being the case, I do not find any
ground to accept the contention of the appellant's counsel
that both the Courts have committed an error in accepting
the Will. The other contention is that the gift deed is also
produced before the First Appellate Court along with an
application filed under Order 41 Rule 27 of CPC and the
same is only for the purpose of non mentioning of the
execution of earlier Will since the gift deed was executed
by the plaintiff and defendants subsequently and the said
document is not clinches the issues involved between the
parties and mere non mentioning of the execution of the
earlier Will cannot be a ground to decide a germane issues
involved between the parties by invoking Order 41 Rule 27
of CPC, since the Will is registered one. Having considered
the material available on record, I do not find any error
committed by both the Courts and both the Courts have
taken note of the material available on record and when
the execution of the Will has been proved and the same is
also a registered Will and attesting witnesses have been
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examined and nothing is elicited with regard to
disbelieving the same. Hence, I do not find any ground to
admit and frame substantial question of law in respect of
item No.5 of the suit schedule property which has been
excluded by the Trial Court as well as First Appellate Court
in granting the relief of partition.
9. In view of the discussions made above, I pass the
following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same stands disposed
of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
