Karnataka High Court
Smt. G.Kamala vs Smt. Sarswathamma on 29 October, 2024
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RFA No. 3033 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.3033 OF 2009 (DEC/INJ-)
BETWEEN:
1. SMT. G.KAMALA
AGED ABOUT 56 YEARS,
OCC: HOUSE HOLD,
2. SHRI.G.YATHEENDRA
S/O G. KAMALA,
AGE: 36 YEARS,
3. KUMARI G. MALLIKA
D/O. G. KAMALA,
AGE: 33 YEARS,
ALL ARE R/O. M.I.G-8, K.H.B.COLONY,
MOKA ROAD, GANDHI NAGAR,
ASHPAK
BELLARY - 583101.
KASHIMSA
MALAGALADINNI
...APPELLANTS
(BY SRI. A.S.PATIL, ADVOCATE)
AND:
Location:
HIGH 1. SMT. SARSWATHAMMA
COURT OF
KARNATAKA W/O. LATE R. MARISWAMY,
AGE: 59 YEARS,
OCC: HOUSE HOLD
R/O. C/O. B.M.VEERAMMA
W/O. LATE B.M.VEERAIAH
NATIAR STREET,
HARAPANAHALLI-583131
DIST: BELLARY.
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RFA No. 3033 of 2009
2. SMT. R. NEELAMMA
W/O. VEERAIAHSWAMY,
SINCE DECEASED BY HER LR'S.
2A. SRI. R. YEIRSWAMY
S/O. VEERAIAH,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O. 1ST CROSS,
NEAR KUMAR PLAZA,
S.N.PET, BELLARY-583101.
DIST: BELLARY.
2B. SRI. R. CHANDRAMOULI
S/O. VEERAIAH,
AGE: 53 YEARS,
OCC: AGRICULTURE,
R/O. 1ST CROSS,
NEAR KUMAR PLAZA,
S.N. PET, BELLARY-583101.
DIST: BELLARY.
...RESPONDENT
(BY SRI. H.R.DESHPANDE, ADVOCATE FOR R1;
SRI. M.B.HIREMATH, ADVOCATE FOR R2A)
THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE, PRAYING TO SET-ASIDE THE JUDGMENT AND
DECREE DATED 23.01.2009 PASSED BY THE HON'BLE 1ST
ADDITIONAL CIVIL JUDGE (SR. DN) BELLARY AND ACCORDINGLY TO
DISMISS THE SUIT FILED IN O.S.NO.287/2003 BY THE
RESPONDENTS NO.1 AND 2, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 3033 of 2009
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is arising from judgment and decree passed
in O.S.No.287/2003 on the file of 1st Additional Civil Judge
(Sr.Dn), Ballari.
2. The said suit filed by R.Saraswathamma, who
claimed to be the widow of R.Mariswamy is decreed with cost
declaring that plaintiff No.2 (Earlier defendant No.2, and later
transposed as plaintiff No.2) is having ½ share in the suit
property and the decree for partition is granted. Insofar as
remaining ½ share is concerned, the Trial Court has held that
in view of settlement between plaintiff No.1 -R.Saraswathamma
and defendant No.1-G.Kamala, which was recorded on
26.10.2006, ½ share of R.Saraswathamma is assigned to
defendant No.1-G.Kamala.
3. The present appeal is by defendant No.1-Kamala
and her two children, who claimed to be the 1st wife of Late
R.Mariswamy and defendants 2 and 3 the children of Kamala,
namely G.Yatheendra and G.Mallika.
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4. It is also relevant to note that one more suit is filed
in O.S.No.77/2005 before the same Court and the said suit is
filed by G.Kamala, G.Yatheendra and Mallika. The said suit is
filed against R.Saraswathamma and R.Neelamma the mother of
Mariswamy.
5. In O.S.No.77/2005, the plaintiffs namely
Smt.G.Kamala, G.yatheendra and G.Mallika claimed to be the
successor to the estate of late Mariswamy.
6. The suit property is the residential property
measuring East-West 15 Mtrs and North-South 9 Mtrs build by
Karnataka Housing Board having Door No.8 located in Moka
road, Ballari.
7. Admittedly, the suit property was allotted to late
R.Mariswamy. However, the sale deed was not executed in the
name of R.Mariswamy by the time he died in the year 1995.
8. The dispute arose after the death of R.Mariswamy,
as R.Saraswathamma, claimed to be the widow of R.Mariswamy
and G.Kamala, also claimed to be widow of R.Mariswamy.
R.Saraswathamma alleged that G.Kamala is the 2nd wife and
G.Kamala alleged that R.Saraswathamma is the 2nd wife of
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R.Mariswamy. Both the suits have clubbed together and
disposed of by common judgment.
9. It is relevant to note that when the suits were
pending, on 26.10.2006, both G-Kamala and
R.Saraswathamma, who claimed to be the legally wedded wife
of R.Mariswamy, entered into settlement and
R.Saraswathamma received an amount of Rs.3,50,000/- from
G.Kamala and gave up her claim in respect of the suit property.
Recording the said settlement, the Trial Court held that
G.Kamala is entitled to ½ share of R.Saraswathamma. The Trial
Court has also concluded that R.Saraswathamma is the first
wife and G.Kamala is the 2nd wife. Accordingly, the suit filed by
Saraswathamma in O.S.No.287/2003 is decreed and suit filed
by G.Kamala in O.S.No.77/2005 is dismissed.
10. Kamala and her two children also claimed right over
the property based on the Will dated 14.06.93 alleged to have
been executed by Mariswamy. The trial Court held that the said
Will is not proved.
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11. This Court has considered the contentions raised at
the bar and perused the records. The following points arise for
consideration.
(i) Whether the appellants establish that they
are Class-I heirs of late R.Mariswamy?
(ii) Whether the appellants establish that
R.Mariswamy has executed a Will on
14.06.1993 in favour of the appellants?
12. It is also relevant to note that G-Kamala has filed
appeal against the judgment and decree in O.S.No.287/2003
declaring that R.Saraswathamma as the legally wedded wife of
R.Mariswamy and granting ½ share to the mother of
Mariswamy namely Neelamma. The judgment and decree
dismissing the suit of G.Kamala and her two children in
O.S.No.77/2005 are not questioned. The said decree has
attained finality.
13. It is also relevant to note in O.S.No.77/2005 the
Court has held that G.Yatheendra and G.Mallika are not
children of G.Kamala from her relationship with R.Mariswamy.
It is the admission of G.Kamala that G.Yatheendra and
G.Mallika are born to her through Mallikarjungouda. This finding
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has attained finality as decree in O.S.No.77/2005 is not
questioned.
14. This being the position, this Court is of the view
that plaintiffs in O.S.No.77/2005 namely G.Kamala,
G.Yatheendra and G.Mallika who have suffered a decree of
dismissal in O.S.No.77/2005 cannot maintain a claim that G-
Kamala is the legally wedded wife of late R.Mariswamy as the
judgment and decree dismissing O.S.No.77/2005 have attained
finality.
15. It is also relevant to note that in O.S.No.77/2005,
the judgment in P & SC.No.7/1996 is marked as Ex.D1. In the
said P & SC No.7/1996, the 1st issue is whether petitioner
R.Saraswathamma is the legally wedded wife of late
R.Mariswamy and 2nd issue is whether respondent No.5
(G-Kamala) is the legally wedded wife of late R.Mariswamy. The
1st issue is answered in favour of R.Saraswathamma and 2nd
issue is answered against G.Kamala. The order passed in the
said proceeding is not questioned and has attained finality.
Under these circumstances, the present appellants cannot
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maintain the present appeal claiming to be the successors to
the property of Neelamma, the mother of late R.Mariswamy.
16. Defendants No.1 to 3 namely Kamala, Yatheendra
and Mallika claimed to be the testamentary heirs of late
R.Mariswamy in terms of Will dated 14.06.1993. The trial Court
on appreciation of the evidence has concluded that attesting
witness and the scribe of the document examined on behalf of
defendants in O.S.No.287/2003 have not supported the case of
present appellants and the Trial Court has concluded that
execution of Will is not proved. It is also relevant to note that in
P & SC proceedings referred to above, the said Will dated
14.06.1993 is not even pleaded and the contentions based on
the alleged 'Will' dated 14.06.1993 are raised for the first time
before the Trial Court in O.S. No.287/2003 and also in the suit
in O.S. No.77/2005. The Trial Court has held that not disclosing
the defence based on the alleged Will dated 14.06.1993 in P &
SC No.7/1996 is one of the suspicious circumstances
surrounding the alleged execution of the Will. These findings of
the Trial Court are based on the well established principles of
law governing proof of execution of Will.
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17. Under these circumstances, this Court does not find
any reason to interfere with the judgment and decree passed
by the Trial Court in dismissing O.S. No.77/2005 and in
decreeing O.S.No.287/2003. As already noticed, the decree of
dismissal in O.S.No.77/2005 is not questioned, as such the
present appellant No.1 has no locus to maintain a claim to
inherit the property of Neelamma who died during the
pendency of the suit. After the death of Neelamma, the legal
representatives of Neelamma viz., brother of late R.Mariswamy
have been impleaded and they succeed to half share of
Neelamma in the suit property. As far as the remaining half
share is concerned, as already noticed, in terms of the
preliminary decree dated 26.10.2006, is already assigned to
the present appellant.
18. Hence, the present appellants are entitled to half
share in the suit properties and the legal representatives of
Neelamma viz., R.Yeriswamy and R.Chandramouli, who are
respondents No.2 (a) & (b) in this appeal, are entitled to half
share. This is the finding of the Trial Court as well.
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For the aforementioned reasons, the appeal is
dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM/KMS
CT:ANB
