Karnataka High Court
Sri.Shantappa vs Sri.Padmaraj Parishappa Mallapur on 10 June, 2024
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RSA No. 100953 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100953 OF 2016 (DEC-INJ)
BETWEEN:
1. SRI SHANTAPPA S/O NAGAPPA MALLAPUR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: HANABARATTI, TQ: BAILHONGAL,
DIST: BELAGAVI-591102.
2. SRI MAHAVEER S/O NAGAPPA MALLAPUR,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: HANABARATTI, TQ: BAILHONGAL,
DIST: BELAGAVI-591102.
...APPELLANTS
(BY SRI P.G.CHIKKANARAGUND, ADVOCATE)
AND:
1. SRI. PADMARAJ PARISHAPPA MALLAPUR,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: HANABARATTI, TQ: BAILHONGAL,
DIST: BELAGAVI-591102.
Digitally signed
by SAROJA
HANGARAKI 2. SRI PARISHAPPA BASAPPA MALLAPUR,
Location: HIGH AGE: 70 YEARS, OCC: AGRICULTURE,
COURT OF R/O: HANABARATTI, TQ: BAILHONGAL,
KARNATAKA DIST: BELAGAVI-591102.
DHARWAD
BENCH
DHARWAD 3. SMT. SHANTAWWA W/O BASAPPA MALLAPUR,
AGE: 51 YEARS, OCC: SERVICE,
R/O: HANABARATTI, TQ: BAILHONGAL,
DIST: BELAGAVI-591102.
...RESPONDENTS
(BY SRI ABHISHEK C PATIL,
SRI AKSHAY KATTI,
SRI ANAND ASHTEKAR, ADVOCATES FOR R1, R2,
NOTICE ISSUED TO R-3 IS SERVED BUT UNREPRESENTED)
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RSA No. 100953 of 2016
THIS RSA IS FILED U/S. 100 OF CPC 1908., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 17.10.2016 IN
R.A.NO.9/2015 PASSED BY THE COURT OF THE SENIOR CIVIL
JUDGE, BAILHONGAL, AND THE JUDGMENT AND DECREE DATED
06.01.2015 IN O.S.NO.178/2009 PASSED BY THE COURT OF
ADDITIONAL CIVIL JUDGE AND JMFC, BAILHONGAL AND REJECT THE
SUIT OF THE PLAINTIFFS IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by defendant Nos.1
and 2 under Section 100 of Code of Civil Procedure, 19081
challenging the judgment and decree dated 17.10.2016 passed
in RA.No.9/2015 by the Senior Civil Judge, Bailhongal2 and the
judgment and decree dated 6.1.2015 passed in OS
No.178/2009 by the Additional Civil Judge, Bailhongal3, wherein
the suit for declaration and injunction has been decreed by the
Trial Court, which was affirmed by the first appellate Court.
2. The parties will be referred to as per their ranking
before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiffs that the original
propositus Basappa Mallapur had three sons namely, Nagappa,
Adiveppa and Parishappa (Plaintiff No.2). Plaintiff No.1 is the
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'first appellate Court'
Hereinafter referred to as the 'Trial Court'
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son of plaintiff No.2. Defendant Nos.1 and 2 are the sons of
Nagappa and defendant No.3 is the wife of deceased Basappa.
4. It is the further case of the plaintiffs that the family
of Nagappa, Adiveppa and Parishappa owned 4 items of
properties which are described in the suit schedule4. After the
death of original propositus, there was an oral partition
amongst his three sons. Accordingly, the three sons were
allotted 1/3rd share each and Adiveppa was enjoying 1/3rd
share as per the oral partition.
5. It is the further case of the plaintiffs that Adiveppa5
was suffering from liver disease since about 10 years prior to
his death and due to his ill health he was under the care and
custody of his brother, plaintiff No.2 who was looking after his
welfare by providing medical assistance and other necessities
since he had lost his wife. That out of love and affection,
Adiveppa bequeathed his 1/3rd share in the suit properties in
favour of the son of plaintiff No.2 i.e., plaintiff No.1 under a Will
dated 19.10.2007 which was registered on 22.10.2007. That
due to the ill health of Adiveppa, plaintiff No.2 was cultivating
the 1/3rd share of Adiveppa.
Hereinafter referred to as the 'suit schedule properties'
Hereinafter referred to as 'deceased/Adiverappa'
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6. It is the further case of the plaintiffs that Adiveppa
died on 26.11.2007 and on his demise, the plaintiffs gave wardi
to the concerned revenue officials to change the katha of 1/3rd
share of the suit properties in the name of plaintiff No.1.
Accordingly, ME No.11 was issued entering the name of plaintiff
No.1 in the revenue records.
7. It is the further case of the plaintiffs that at the
instigation of defendant Nos.1 and 2, defendant No.3 raised
objections to the same which was rejected by the Deputy
Tahsildar. The defendants, being aggrieved by the order
accepting the mutation in the name of plaintiff No.1, preferred
an appeal before the Assistant Commissioner which was
allowed and the mutation made in the name of plaintiff No.1
was rejected. That taking advantage of the order of the
Assistant Commissioner, the defendants have threatened to
evict plaintiff No.1 from the 1/3rd portion of the suit properties.
Hence, the plaintiffs has filed the suit.
8. The defendants entered appearance in the suit and
contested the same. Defendant No.2 filed his written
statement denying the case of the plaintiffs that Adiveppa
executed a registered Will dated 19.10.2007 in favour of
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plaintiff No.1 by bequeathing his 1/3rd share. It is contended
that the Will is a created one concocted by the plaintiffs in
order to grab the share of the defendants.
9. However, the relationship between the parties is
admitted. It is further admitted by the defendants that after the
death of the propositus, his sons are having 1/3rd share in the
suit properties and they were in joint possession of the same.
10. It is the specific case of the defendants that the
testator, Adiveppa was suffering from liver disease for more
than 15 years prior to his death and that his wife was looking
after him and providing all the medical assistance. That the
plaintiffs never gave any assistance to Adiveppa. That 2 years
prior to his death, Adiveppa was bed ridden and was unable to
move and due to his prolonged sickness, he was not having
good state of mind and he was not in a position to identify any
person and express his opinions. That within 30 days of the
execution of the Will, Adiveppa died which itself shows that he
was not in a position to execute any document. Hence
defendants sought for dismissal of the suit.
11. Based on the pleadings of the parties, the Trial
Court framed the following issues:
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"1. Whether the plaintiffs prove that, deceased
Adiveppa Basappa Mallapur executed a Will dated
19/10/2007 in favour of plaintiff No.1 thereby
bequeathing the suit properties in favour of
plaintiff No.1?
2. Whether the plaintiffs prove that, plaintiff No.1
is in exclusive possession over the suit properties
on the strength of Will dated 19/10/2007?
3. Whether the defendant No.1 & 2 prove that
plaintiffs and defendants are in joint possession
over the suit properties?
4. Whether the plaintiff No.1 entitled for primary
reliefs?
5. Whether the plaintiffs are entitle for alternative
reliefs?
6. What order or decree?"
12. Plaintiff No.2 has been examined as PW.1 and two
witnesses have been examined as PWs.2 and 3. Exs.P1 to P29
have been marked in evidence. Defendant No.2 has been
examined as DW.1. Exs.D1 and D2 have been marked in
evidence. The Trial Court by its judgment and decree dated
6.1.2015 decreed the suit and declared that plaintiff No.1 is the
absolute owner of the share of Adiveppa in the suit properties
in terms of the Will dated 19.10.2007 and that he is in
possession of the same.
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13. Being aggrieved, defendant Nos.1 and 2 filed RA
No.9/2015. The plaintiffs entered appearance before the first
appellate Court and contested the said appeal. The first
appellate Court framed the following points for consideration:
prove that, the deceased Adiveppa Basappa
Mallapur had executed a Will dated
19/10/2007-22/10/2007 in favour of the
plaintiff No.1 by bequeathing his 1/3d
share in the suit schedule properties?
ii. Whether the plaintiffs further prove that, at
the time of execution of the Will, the
deceased Adiveppa Basappa Mallapur had
sound disposing state of mind and he was
in a position to understanding what was
going around him?
iii. Whether the plaintiffs prove that, they are
the absolute owners of 1/3rd share of
Adiveppa in the suit schedule properties on
the basis of the Will dated 19/10/2007?
iv. Whether the defendant No.1 & 2, prove that
themselves and plaintiffs are in joint
possession and enjoyment of the suit
schedule properties?
v. Whether the plaintiffs prove that, they are
entitle for the reliefs/alternative reliefs as
claimed in the plaint?
prove that, the judgment and decree
passed by the lower court calls for
interference, since same is not sustainable
in the eye of law?
vii. What order or decree?
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14. The first appellate Court by its judgment and decree
dated 17.10.2016 dismissed the appeal and upheld the
judgment and decree passed by the Trial Court. Being
aggrieved, the present second appeal is filed.
15. The learned counsel for the appellants/defendant
Nos.1 and 2 vehemently contends that deceased Adiveppa was
unwell and bed ridden for about 2 years prior to his death and
that he did not have a sound and disposing statement of mind
at the time of execution of the alleged Will dated 19.10.2007.
The learned counsel further contends that there is difference in
the signatures of the testator in the different pages of the Will.
It is further contended that both the Court have grossly erred
in recording findings on fact which are required to be interfered
with by this Court in the present appeal. Hence, he seeks for
setting aside of the judgment and decree of both the Courts
and allowing of the above second appeal.
16. Per contra, learned counsel for respondent Nos.1
and 2/plaintiffs submits that the Will dated 19.10.2007 is a
registered one and that PWs.2 and 3 are the attesting
witnesses to the said Will. It is further contended that the Trial
Court has in detail appreciated the oral and documentary
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evidence available on record and decreed the suit. That the
first appellate Court has also properly re-appreciated the oral
and documentary evidence on record and upheld the judgment
and decree passed by the Trial Court which is not liable to be
interfered with by this Court in the present second appeal.
Hence, he seeks for dismissal of the above appeal.
17. The submissions of both the learned counsels have
been considered and the material on record has been perused.
18. It is forthcoming that the Trial Court, upon an
appreciation of the oral and documentary evidence available on
record, has noticed that the original Will dated 19.10.2007 is a
registered document and has been marked in the evidence as
Ex.P1. Further, PWs.2 and 3 who are the attesting witnesses to
the Will (Ex.P1) have been examined and they have stated with
regard to the fact that they were present at the time of the
execution of the Will as also before the Office of the Sub
Registrar at the time of registration of the Will. The Trial Court,
upon an adequate appreciation of the oral and documentary
evidence available on record has recorded a finding that the
plaintiffs have proved due execution of the Will.
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19. The first appellate Court, while considering the
appeal filed by defendant Nos.1 and 2 by its judgment and
decree dated 17.10.2016 has noticed the admitted facts which
are as follows:
1. The plaintiff No.1 is the beneficiary under the Will i.e.,
propounder.
2. The original propositus Basappa Mallapur had three
sons, namely Nagappa-died on 10/09/2006 leaving
behind him the defendant No.1 Shantappa, defendant
No.2-Mahaveer and another son Basappa-predeceased
to him leaving his wife Shantawwa as defendant No.3.
3. The second son Adiveppa had a wife predeceased to him
and he has no issues. (He bequeathed his 1/3rd share in
favour of plaintiff No.1).
4. The third son Parishappa is arrayed as plaintiff No.2 and
his son Padmaraj is the plaintiff No.1 (beneficiary under
the Will).
5. The suit schedule properties are originally belonged to
propositus Basappa Mallapur.
6. The testator Adiveppa had executed registered Will
dated 19/10/2007 bequeathing his 1/3rd share in the
suit schedule properties in favour of plaintiff No.1.
7. It is also admitted fact that the deceased Adiveppa was
suffering from prolonged liver diseases.
20. Further, the first appellate Court has noticed that
the Will has been marked as Ex.P1 and the attesting witnesses
have been examined as PWs.2 and 3. Further, the first
appellate Court considering the contention of the defendants
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regarding the inconsistencies that were sought to be pointed
out by the defendants, has noticed the fact that the Will has
been registered before the Sub Registrar and the attesting
witnesses who have signed the Will who were also present
before the Office of the Sub Registrar have been examined as
PWs.2 and 3 and hence held that all the requirements of law
have been complied with.
21. The first appellate Court, further considered the
contention that the Will was written on 19.10.2007 but was not
registered on the same day. However, the first appellate Court
noticing the fact that the next two days after the execution of
the Will were government holidays and on the third day the Will
was registered, has held that merely due to the fact that after
two days the document was presented for registration, is not a
ground for suspicion.
22. The first appellate Court, considering the contention
of defendant Nos.1 and 2 that the deceased testator, Adiveppa
was suffering from various health ailments has noticed that
Adiveppa was suffering from liver disease and that there was
no material on record to demonstrate that he was suffering
from any mental condition. Hence, the contention putforth by
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the defendants that the deceased was not in a sound and
disposing state of mind at the time of execution of the Will was
not accepted.
23. The contention raised by the defendants that the
deceased died 30 days after the execution of the Will has also
been considered by the first appellate Court and the said
ground has been rejected by holding that when the deceased
having reached the final condition, he might have thought it fit
to execute the Will.
24. It is clear from the aforementioned that the Trial
Court having appreciated the oral and documentary material on
record decreed the suit and in the appeal filed by the
defendants, all the grounds urged by defendant Nos.1 and 2
challenging the judgment and decree of the Trial Court have
been adequately dealt with by the first appellate Court. It is
further noticed that the first appellate Court has properly re-
appreciated the oral and documentary evidence on record while
dismissing the appeal filed by defendant Nos.1 and 2.
25. It is forthcoming from the aforementioned that the
Will dated 19.10.2007 of the deceased was a registered one
and the same was marked as Ex.P1. That the attesting
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witnesses i.e., PWs.2 and 3 have also been examined before
the Trial Court. Both the Courts have recorded concurrent
findings that the Will has been adequately proved.
26. Although, learned counsel for the appellants
attempted to demonstrate that the judgment passed by the
Trial Court and the first appellate Court are liable to be
interfered with by this Court, the appellants have failed in
demonstrating that the concurrent finding of fact has been
recorded without considering any specific material on record. In
view of the aforementioned, the appellants have failed in
demonstrating that any substantial question of law arises for
consideration in the above appeal. Hence, the above appeal is
dismissed as being devoid of merits at the stage of admission
itself.
27. In view of the dismissal of the above appeal,
IA.I/2016 filed for stay is also dismissed.
No costs.
Sd/-
JUDGE
nd
CT:GSM
