Karnataka High Court
Lakkappa S/O Basappa Pudakalakatti vs Yallawwa W/O Lakkappa Betageri on 4 March, 2024
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NC: 2024:KHC-D:4812-DB
RFA No. 100136 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100136 OF 2019 (DEC/POS)
BETWEEN:
LAKKAPPA S/O. BASAPPA PUDAKALAKATTI
AGE:31 YEARS, OCC:AGRICULTURE,
R/O: TAVALAGERI 581213,
TQ:SAUNDATTI, DIST:BELAGAVI
...APPELLANT
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
1. YALLAWWA W/O. LAKKAPPA BETAGERI
AGE:59 YEARS, OCC: HOUSEHOLD WORK,
R/O: TAVALAGERI 591213,
TQ:SAUNDATTI, DIST:BELAGAVI.
Digitally signed
by SAMREEN
AYUB DESHNUR 2. SOMAPPA S/O. LAKKAPPA BETAGERI
Location: HIGH
COURT OF
KARNATAKA
AGE:33 YEARS, OCC:AGRICULTURE,
R/O: TAVALAGERI 591213,
TQ:SAUNDATTI, DIST:BELAGAVI.
...RESPONDENTS
(BY SRI. A.A. MULAWADMATH, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF
CPC., PRAYING TO MODIFY THE JUDGMENT AND DECREE
DATED:18.12.2018 PASSED IN O.S.NO.33/2018 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, SAUNDATTI, AND DECREE
THE SUIT BEARING O.S.NO.33/2018 IN ITS ENTIRETY BY
GRANTING ½ SHARE TO THE PLAINTIFF IN THE OF JUSTICE AND
EQUITY.
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RFA No. 100136 of 2019
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This First Appeal is preferred by plaintiff challenging the
judgment and decree dated 18.12.2018 passed in Original Suit
No.33/2018 on the file of the Senior Civil Judge, Saundatti (for
short, hereinafter referred to as 'Trial Court'), decreeing the
suit of the plaintiff in part holding that the plaintiff is entitled
for 1/3rd share in the suit schedule properties.
2. For the sake of convenience, the parties are referred
to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that, the original
propositus Appanna died leaving behind his wife Sattevva and
two daughters namely Lakkavva and Yallawwa (defendant
No.1). Lakkavva died leaving behind her son Lakkappa
(plaintiff). Defendant No.2 is the son of defendant No.1.
4. It is the case of the plaintiff that, the schedule
properties are joint family properties of the plaintiff and
defendants and after the demise of original propositus-
Appanna, the plaintiff is entitled for ½ share in the suit
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schedule properties and as such sought for share in the suit
schedule properties stating that the schedule properties are the
joint family properties of late Appanna.
5. It is also stated in the plaint that, after the death of
Appanna, the revenue records stands in the name of his
wife-Sattevva and therefore, it is the contention of the
defendant No.2 that the said Sattevva died leaving behind a
testament executed on 14.09.2016 and therefore, it is a
grievance of plaintiff that the said Sattevva had no power to
execute the will dated 14.09.2016 in respect of the schedule
properties as the same are the ancestral properties of the
parties. Accordingly, the plaintiff has filed O.S.No.33/2018
seeking relief of partition and separate possession in respect of
the schedule properties.
6. After service of summons, the defendants entered
appearance, however, did not choose to file written statement.
7. In order to establish his case, plaintiff himself
examined as PW.1 and produced 31 documents and same were
marked as Ex.P.1 to P.31. On the other hand no oral or
documentary evidence was adduced by the defendants.
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8. The Trial Court after considering the material on
record by judgment and decree dated 18.12.2018 decreed the
suit in part holding that the plaintiff is entitled for 1/3rd share in
the suit schedule properties. Feeling aggrieved by the same,
the plaintiff has preferred this appeal.
9. We have heard Sri. Shriharsh A. Neelopant, learned
counsel appearing for the appellant and Shri. A. A.
Mulawadmath, learned counsel appearing for the respondent.
10. Sri. Shriharsh A. Neelopant, learned counsel
appearing for the appellant contended that, the defendants
have not produced alleged will dated 14.09.2016 by filing
written statement urging that late Sattevva died leaving behind
testament, bequeathing the schedule properties in favour of
defendant No.2 and that apart, the defendants have not taken
any steps to prove the alleged will in a manner known to law
and as such he contended that the judgment and decree
passed by the Trial Court requires interference by this Court.
11. Per contra, Shri. A. A. Mulawadmath, learned
counsel appearing for the respondents supported the impugned
judgment and decree passed by the Trial Court.
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12. Having heard the learned counsel appearing for the
parties, we have examined the original records.
13. In the light of the submissions made by the learned
counsel appearing for the parties the following points are to be
answered in this appeal:
i) Whether a finding recorded by the
Trial Court requires interference by this
Court?
ii) What order?
14. In order to understand the relationship between the
parties, following genealogical tree reads as under:
Appanna (Died)
=Sattevva (Died)
Lakkavva(Died) Yellavva(D-1)
Lakkappa (Plff) Somappa(D-2)
15. Perusal of the family tree would indicate that the
original propositus-Appanna died leaving his wife Sattevva and
two daughters namely Lakkavva and Yallavva. Lakkavva died
leaving behind her son Lakkappa (plaintiff). Defendant No.2 is
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the son of defendant No.1. It is also not in dispute that, the
schedule properties are the joint family properties of Appanna.
However, the grievance of defendant No.2 that, late Sattevva
died leaving behind "will" dated 14.09.2016 bequeathing the
schedule properties in favour of defendant No.2. Indisputably
the schedule properties are not the self acquired properties of
Sattevva and therefore, she has no authority under law to
execute the will in respect of the schedule properties. That
apart, the defendants have not filed written statement,
claiming schedule properties are the subject matter under will
dated 14.09.2016. It is also to be noted that, the proponder of
the will is required to prove the execution of the will in a
manner know to law as per the judgment of the Hon'ble
Supreme Court in the case of H. Venkatachala Iyengar Vs.
B. N. Thimmajamma & Ors. reported in AIR 1959 SC 443
and in the case of Suvarnalatha Vs. Kalavathy & Ors.
reported in AIR 2022 SC 1585.
16. In that view of the matter, the Trial Court has
committed error in devolving the property into three shares
despite holding that the defendants have failed to prove the will
dated 14.09.2016.
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17. In that view of the matter, the plaintiff has made
out a case for interference in the impugned judgment and
decree passed by the Trial Court and therefore, we are of the
opinion that the plaintiff is entitled to ½ share in the suit
schedule properties along with defendant Nos. 1 and 2
together.
18. In the result, we pass the following:
ORDER
i) Regular First Appeal is allowed.
ii) Judgment and decree dated
18.12.2018 in O.S.No.33/2018 on the
file of Senior Civil Judge, Saundatti is set
aside.
iii) The plaintiff is entitled for ½ share
in the suit schedule properties and
defendant Nos.1 and 2 together entitled
for ½ share in the suit schedule
properties by metes and bounds.
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iv) Draw the preliminary decree
accordingly in the above terms.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
