Smt Shakuntalamma vs Smt B L Padmavathi
2024 Latest Caselaw 22114 Kant

Karnataka High Court

Smt Shakuntalamma vs Smt B L Padmavathi on 2 September, 2024

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                                                    NC: 2024:KHC:35577
                                                  RSA No. 2433 of 2010




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 2ND DAY OF SEPTEMBER, 2024

                                         BEFORE

                    THE HON'BLE MR JUSTICE ASHOK S.KINAGI

              REGULAR SECOND APPEAL NO. 2433 OF 2010 (DEC)

              BETWEEN:

              1.    SMT SHAKUNTALAMMA
                    W/O.LATE N BALAJI
                    DEAD BY HER LRS.
                    A2 TO A6

              2.    VEDAVALLI
                    D/O.LATE N BALAJI
                    R/AT.D NO.393/3, SHIVAYANA MUTT CROSS,
                    KRISHNAVILAS ROAD
                    MYSORE

                    SINCE DEAD BY LRS.

Digitally     2(a) SRI. JAGADEESH
signed by R        AGED ABOUT 47 YEARS
DEEPA              S/O ANNAD B.K.
Location:
HIGH COURT    2(b) SMT. VASUMATHI BASKAR
OF
KARNATAKA          W/O J.R.BASKAR NAIDU

                    APPELLANTS 2(a) AND 2(b) ARE
                    R/A No.113, GADDIGE ROAD, BOGADI
                    MYSURU - 570006

              3.    PANKAJAVALLI
                    D/O.LATE N BALAJI
                    R/AT.D NO.393/3, SHIVAYANA MUTT CROSS,
                    KRISHNAVILAS ROAD
                    MYSORE
                           -2-
                                     NC: 2024:KHC:35577
                                   RSA No. 2433 of 2010




4.   SHESHADRI
     DEAD BY HIS LRS

4(a) SMT SUKANYA
     W/O.LATE B SHESHADRI
     AGED 45 YEARS, R/AT.D NO.LIG NO.2,
     4TH CROSS, 1ST BLOCK, RAMAKRISHNANAGAR,
     MYSORE

4(b) SMT. DEEPASHREE
     W/O MADU
     AGED ABOUT 25 YEARS
     D.NO.377, 3RD STAGE, HEBBAL
     MYSORE

4(c) SMT. SUMALATHA
     W/O GIRISH
     AGED ABOUT 23 YEARS
     R/A GOKUL BUILDING, B BLOCK
     10TH CROSS, BASAVESHWARANAGARA
     HAVERI

4(d) SMT. SWETHA
     W/O RAGHAVENDRA
     AGED ABOUT 21 YEARS
     R/AT.D NO.LIG NO.2,
     4TH CROSS, 1ST BLOCK, RAMAKRISHNANAGAR,
     MYSORE

5.   S RADHAKRISHNA
     S/O.LATE N BALAJI
     SINCE DEAD BY LRS.

5(a) SMT. CHITRA
     AGED ABOUT 47 YEARS
     W/O LATE RADHAKRISHNA

5(b) SRI. GOWTHAM
     AGED ABOUT 29 YEARS
     S/O LATE RADHAKRISHNA
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                                       NC: 2024:KHC:35577
                                    RSA No. 2433 of 2010




5(c) SRI. KIRAN
     AGED ABOUT 24 YEARS
     S/O LATE RADHAKRISHNA

       APPELLANTS 5(a) TO 5(c) ARE
       R/AT.D NO.113, GADDIGE ROAD, BOGADI
       MYSURU - 570006

6.     B JAYANTHI D
       D/O.LATE N BALAJI
       AGED 36 YEARS
       R/AT.D NO.393/3, SHIVAYANA MUTT CROSS
       KRISHNAVILAS ROAD
       MYSORE
                                           ...APPELLANTS
(BY SRI. V. VINOD REDDY, ADV. FOR A2(a & b), A5(a-c);
    SRI. K.J.JAGADEESHA, ADV. FOR A4 & A6;
    V/O DATED 24.05.2022, A2 TO A6 ARE LRS. OF DECD. A1;
    V/O DATED 24.05.2022, APPEAL AGAINST
    A3 IS DISMISSED AS ABATED)

AND:

SMT B L PADMAVATHI
AGED ABOUT 46 YEARS
D/O.LATE BABY JHON
R/A NO.326, T K LAYOUT,
KUVEMPU NAGAR,
MYSORE-23
                                             ...RESPONDENT
(BY SRI. L S CHIKKANAGOUDAR & ASSTS., ADV. FOR C/R)


     THIS RSA IS FILED U/O 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 12.04.2010 PASSED IN
RA.NO.262/2006 ON THE FILE OF THE IV ADDL. DISTRICT
JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 16.06.1999 PASSED IN
O.S.NO.1692/1989 ON THE FILE OF THE IV ADDL. I CIVIL
JUDGE (JR.DN), MYSORE.
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                                                        NC: 2024:KHC:35577
                                                   RSA No. 2433 of 2010




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI


                            ORAL JUDGMENT

This regular second appeal is filed by the appellants

challenging the judgment and decree dated 12.04.2010

passed by the learned IV Additional District Judge, Mysuru

in R.A.No.262/2006 and the judgment and decree dated

16.06.1999 passed in O.S.No.1692/1989 by the learned IV

Additional Civil Judge (Jr. Dn.), Mysuru.

2. For convenience, parties are referred to as per

their ranking before the trial Court. The appellants are the

defendants, and the respondent is the plaintiff No.2.

3. The brief facts leading rise to the filing of this

appeal are as follows:

The plaintiffs filed a suit for declaration and

possession and other reliefs. It is the case of the plaintiffs

that, the plaintiff No.1 adopted daughter of one

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J.M.Sreenivasamurthy, who was PWD Contractor and his

wife Devamma @ Doddadevamma. The said

J.M.Sreenivasamurthy and Devamma jointly purchased the

pliant 'A' schedule property under a registered sale deed

dated 17.10.1946. After the purchase of the said property,

J.M.Sreenivasamurthy and Devamma reconstructed the

house and assigned door Nos.398, 398/1, 398/2 and

398/3, into four independent portions. The said

J.M.Sreenivasamurthy and Devamma have jointly sold

door Nos.398 and 398/1, and they reside in door

Nos.398/2 and 398/3. J.M.Sreenivasamurthy and

Devamma have no children, and they fostered plaintiff

No.1, who was an orphan and defendant No.1 and another

orphan, Radhamma. J.M.Sreenivasamurthy and Devamma

were philanthropic persons, and they had pity for the

orphan girls who fostered them, and they treated these

children with great affection. On 23.04.1962,

J.M.Sreenivasamurthy and Devamma jointly executed the

registered Will. As per the Will, the portion of the property

mentioned in 'B' schedule was bequeathed in favour of the

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plaintiffs; defendant No.1 and her children, i.e., Nos.2 to 6

and Radhamma were also given some portions of

properties belonging to them in the Will. Subsequently,

during J.M.Sreenivasamurthy's lifetime, he sold the

portions allotted to the defendants and Radhamma. As per

the terms of the joint Will, the dispossession made by

them under the Will shall have to take effect after the

lifetime of both of them. Devamma died on 25.08.1970,

and Srinivasa Murthy passed away on 14.05.1977.

Subsequently, after the death of Davamma and

J.M.Sreenivasamurthy, the plaintiffs were entitled to

possession of 'B' schedule property as per the Will dated

23.04.1962. The defendants are in unlawful possession of

'B' schedule property. The plaintiffs issued a legal notice

calling upon the defendants to hand over the 'B' schedule

property. The defendants replied to the legal notice stating

that they became katha holders during the year 1974-75

as per the Will dated 11.02.1974 and denied the existence

of the Will dated 11.02.1974. The defendants have denied

the execution of a Will dated 23.04.1962. Hence, a cause

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of action arose for the plaintiffs to file a suit for declaration

and possession of 'B' schedule property.

4. The defendants filed a written statement

admitting the relationship and owning of the old house by

J.M.Sreenivasamurthy and Devamma. It is contended that,

after the demise of the defendants, J.M.Sreenivasamurthy

executed another registered Will dated 11.02.1974 and

bequeathed the house bearing No.398/3 in favour of

defendant No.1. It is contended that there is no scope for

Will of any previous date. It is contended that defendant

No.1 became the absolute owner of the property bearing

No.398/3 on the basis of Will dated 11.02.1974. Hence,

the plaintiffs have no right, title or interest over the 'B'

schedule property. Hence, prayed to dismiss the suit.

5. The Trial Court, on the basis of the above-

mentioned pleadings, framed the following issues and

additional issues:

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1. Whether the plaintiff proves that the Will dated 11.02.1974 is not genuine and not binding on the plaintiff?

2. Whether the plaintiff proves that he is the absolute owner of 'B' schedule property?

3. Whether the plaintiff proves that he is entitled for suit claim?

4. What decree or order?

Addl. Issue framed on 24.09.1998:

1. Whether the plaintiffs prove that they are entitled to the possession of the 'B' schedule property by virtue of the Will dated 23.04.1962 executed by late J.Sreenivasamurthy and his wife Smt. Devamma @ Doddadevamma?

2. Whether the defendants prove that the Will dated 11.02.1974 alleged to have been executed by late J.Sreenivasamurthy, was executed when the testator was in a sound disposing state of mind and hence valid and if so, whether the said Will have priority over the Will dated 23.04.1962 pleaded by them in their written statement?

3. Whether the defendants prove that the suit filed by plaintiffs is barred by limitation?

4. To what reliefs are the plaintiffs entitled?

Addl. Issue framed on 17.10.1998:

1. Whether this Court has pecuniary jurisdiction to try this suit?

NC: 2024:KHC:35577

6. In order to prove the case of the plaintiffs,

plaintiff No.1 was examined as PW-2 and examined one

witness as PW-2 and got marked seven documents as

Exs.P1 to P27. In rebuttal, defendant No.5 was examined

as DW-1, defendant No.4 was examined as DW.2 and one

witness was examined as DW.3 and got marked 1

document as Ex.D1. The trial Court, after recording the

evidence, hearing on both sides and on assessment of oral

and documentary evidence, answered issues Nos.1 to 3 in

the affirmative, additional issues Nos.1 and 2 framed on

24.09.1998 in the affirmative, additional issue Nos.2 to 4

in the negative and issue No.4 as per the final order. The

suit of the plaintiffs was decreed with costs. It was

declared that the plaintiffs are the absolute owners of 'B'

schedule property, and the defendants are hereby directed

to hand over the possession of 'B' schedule property to the

plaintiffs within three months from the date of judgment.

7. The defendants aggrieved by the judgment and

decree passed in O.S.No.1692/1989 preferred an appeal in

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R.A.No.262/2006 on the file of learned IV Additional

District Judge, Mysuru.

8. The First Appellate Court, after hearing the

parties, has framed the following points for consideration:

1. Whether plaintiffs-respondents prove that B schedule property was bequeathed in their favour under Will executed by Srinivasamurthy and Devamma on 23.04.1962 and it is valid Will?

2. Whether appellants-defendants prove that Srinivasamurthy has executed Will on 11.02.1974 and it is valid and genuine Will and they have become absolute owner of B schedule property in pursuance of said Will?

3. Whether appellants-defendants prove that suit of the plaintiffs is barred by limitation?

4. Whether the appellants-defendants further prove that judgment and decree of trial Court are perverse, unsustainable and interference of this Court is required?

5. What order or decree?

9. The First Appellate Court, on re-assessing the

oral and documentary evidence, answered point No.1 in

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the affirmative, points Nos.2 to 4 in the negative and point

No.5 as per the final order. The appeal filed by the

defendants was dismissed vide judgment dated

12.04.2010, and the judgment and decree passed by the

trial Court was confirmed. The defendants' aggrieved

impugned judgments and decrees filed this regular second

appeal.

10. Heard the learned counsel for the legal

representatives of the defendants and the learned counsel

appearing for the plaintiffs through video conference.

11. Learned counsel for the defendants submits

that Sreenivasamurthy executed a registered Will

bequeathing property No.398/3 under the Will dated

11.02.1974, and Sreenivasamurthy died. After his demise,

on the basis of a registered will dated 11.02.1974,

defendant No.1 became the absolute owner of the suit

schedule properties, and the name of defendant No.1 was

entered into the revenue records. He submits that in order

to prove the execution of the Will dated 11.02.1974, the

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defendants examined the son of the attesting witness, as

the attesting witness was no more, and he also submits

that the plaintiffs have failed to prove the execution of the

Will dated 23.04.1962. He also submits that by execution

of Ex.P1, Sreenivasamurthy has revoked the earlier Will.

Both the courts below have not considered the same and

proceeded to pass the impugned judgments. Hence, on

these grounds, he prays to allow the appeal.

12. Per contra, learned counsel for the plaintiffs

submits that Devamma and Sreenivasamurthy jointly

purchased the properties under the registered sale deed.

Devamma and Sreenivasamurthy have no issues. Plaintiff

No.1 was treated as a fostered daughter, and as they were

taking care of her, Sreenivasamurthy and Devamma

jointly executed the registered Will dated 23.04.1962,

wherein they have bequeathed 'B' schedule property in

favour of the plaintiffs. Defendant No.1 and her children

and one Radhamma, who were fostered by

Sreenivasamurthy and his wife, were also given some

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NC: 2024:KHC:35577

portion of properties belonging to them. After the

execution of Will, they sold some portion of the suit

properties. Devamma died on 25.08.1970, and

Sreenivasamurthy died on 14.05.1977. By virtue of a Wil

dated 23.04.1962, the plaintiffs are entitled to the

possession of the 'B' schedule property. He submits that

Devamma and Sreenivasamurthy executed a Will about 30

years ago, and there is a presumption in regard to the

execution of the document as per Section 90 of the Indian

Evidence Act of 1872. He also submits that

Sreenivasamurthy, without revoking the Will dated

23.04.1962, has no right to execute an alleged Will dated

11.02.1974. Defendant No.1 has not acquired any title by

virtue of the alleged Will dated 11.02.1974, and the said

alleged Will is not binding on the plaintiffs. He submits that

both the courts below were justified in passing the

impugned judgements. Hence, on these grounds, he prays

to dismiss the appeal.

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13. Perused the records and considered the

submissions of the learned counsel for the parties.

14. This court admitted the appeal on 13.02.2020 to

consider the following substantial question of law :

"Whether the legetee under a Will executed by the joint owner gets excluded from testamentary inheritance by virtue of cancellation of the Will by one of the joint owner, in the circumstances when joint owner is dead without meddling the Will?"

15. Substantial question of law : The plaintiffs

in order to prove their case, plaintiff No.1 was examined

as PW.1. She has deposed that suit schedule properties

were jointly purchased by Sreenivasamurthy and his wife

Devamma under a registered sale deed dated 17.10.1946

and Devamma and Sreenivasamurthy were not having any

issues and they fostered the plaintiff No.1 as an orphan

and daughter of the plaintiff and defendant No.1. Another

orphan by name Radhamma also fostered. They said

Sreenivasamurthy and Devamma had pity for the orphan

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girl fostered and brought up, and they were treating

plaintiff No.1 and defendant No.1 with great affection.

Both of them have jointly executed a registered Will dated

23.04.1962, and the original Will is with defendant No.1,

and the plaintiffs have produced the certified copy of the

registered Will dated 23.04.1962. As per the Will dated

23.04.1962, the property mentioned in 'B' schedule

property is bequeathed in favour of plaintiff No.1, and

defendant No.1 and her children, defendants Nos.2 to 6

and Radhamma were also given some portion of property

belonging to them. Devamma died on 25.08.1970 and

Srinivasa Murthy died on 25.08.1970 and

Sreenivasamurthy died on 14.05.1977. After the demise of

the testator, the plaintiffs requested the defendants to

deliver the possession of 'B' schedule property. The

defendants deliver the possession of the 'B' schedule

property. The plaintiffs issued a legal notice calling upon

the defendants to deliver the possession of 'B' schedule

property. The defendants replied to the legal notice stating

that Sreenivasamurthy executed a registered Will dated

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11.02.1974 bequeathing door No.398/3, and they are in

possession of door No.398/3 on the basis of Will dated

11.02.1974. The plaintiffs in order to establish there case,

they produced the documents marked as Ex.P1 is the

certified copy of the registered sale deed dated

17.10.1946, which discloses that Devamma and

Sreenivasamurthy jointly purchased the properties under

the registered sale deed, Exs.P2 and P3 is the original

registered Will dated 23.04.1962, Ex.P3 is the certified

copy of the Will, Ex.P4 is the death certificate of

Devamma, which discloses that Devamma died on

25.08.1970 and Ex.P5 is the death certificate of

Sreenivasamurthy, which discloses that Sreenivasamurthy

died on 14.05.1977, Ex.P6 is the copy of legal notice

issued to the defendants calling upon the defendants to

hand over the vacant possession of 'B' schedule property,

Ex.P7 is the copy of reply notice, which discloses that the

defendants have replied to the legal notice stating that

Sreenivasamurthy executed a registered Will bequeathing

the door No.398/3 and after the demise of

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Sreenivasamurthy, they became the absolute owner of the

door No.398/3. It was suggested to PW.1 that

Sreenivasamurthy had executed a registered Will dated

11.02.1974 bequeathing door No.398/3, and the said

suggestion was denied by PW.1, and he also denied the

execution of the Will by Sreenivasamurthy and denied the

signature of Sreenivasamurthy on the Will dated

11.02.1974. He admits that after the death of

Sreenivasamurthy, the defendants continued in possession

of the suit schedule properties. Further, the plaintiffs, in

order to prove the execution of the Will-Ex.P2, have

examined the son of an attesting witness. He has deposed

that his father was working as a priest in Prasanna

Nanjundeshwara Temple, Santhepet, Mysore, and his

father is no more. He passed away about 12 years back,

and he knows the signature of his father; he identified the

signature of his father on Ex.P2. In the course of cross-

examination, he stated that he did not know when and

where his father put his signature.

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16. In rebuttal, defendant No.5 was examined as

DW.1, and he reiterated the written statement averments

in the examination-in-chief and contended that

Sreenivasamurthy executed a registered Will in the year

1974. After the demise of Sreenivasamurthy, they

continued in possession of the suit schedule properties. It

is contended that the plaintiffs are not in possession of the

suit schedule properties, and in order to establish that,

Sreenivasamurthy executed a registered Will. The

defendants have produced the documents, i.e., Ex.D1

registered Will, which discloses that Sreenivasamurthy

executed a registered Will in bequeathing door No.398/3.

In the course of cross-examination, DW.1 admitted that

Sreenivasamurthy and Devamma have fostered the

plaintiff and Dadadevamma along with defendant No.1 and

also, both of them have jointly purchased the 'B' schedule

property along with adjacent properties in 1946. It is also

contended that they have demolished and reconstructed

the structure into four portions were allotted numbers 398,

398/1, 398/2 and 398/3, and they sold 398 and 398/1 in

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the year 1949 to one Nagarajashetty, and it was elicited

that he was well aware of Will, executed by

Sreenivasamurthy and Devamma on 23.04.1962 as per

Ex.P2 and door No.398/3 was bequeathed in favour of the

plaintiffs and the portion of the properties was given to his

mother, i.e., defendant No.1 indoor No.398/2 and garage

portion in door No.398/2 was given to Radhamma and

Ex.P2 is in the handwriting of Sreenivasamurthy or not

and he has identified the signature of Srinivasa Murthy

and Devamma on Ex, P2 and marked as Ex.P2 (a) and (b)

and they also admitted that there is a recital in Ex.P2 that

legaties have to take possession of the property allotted to

the share. After the death of Srinivasa Murthy and

Devamma, Devamma and Devamma passed away in

1970, and Srinivasa Murthy passed away in 1977. It was

suggested to PW.1 that Srinivasa Murthy and Devamma

during the lifetime have not cancelled Ex.P2. It is elicited

that Ex.D1 was not written in his presence, and witnesses

have not put their signatures in his presence. Further,

defendant No.4 was examined as DW.2, and he reiterated

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examination in chief of DW.1. In the course of cross-

examination, he admits that Srinivasa Murthy and

Devamma jointly purchased the schedule premises in the

year 1945 and they built a house in the premises

purchased by them and sold door No.398 and 398/1 to

one Nagarajshetty in the year 1949 and also examined

one witness by name N. R Puttaswami as per DW.3 who is

the son of attesting witness by name N.R.Ramiah who

passed away in the year 1976 and he had identified his

signature of his father on Ex.D1 and his father signature is

marked as Ex.D1(d), who is the scribe of Ex.D1. In the

course of cross-examination, it was elicited that he has not

produced any documents before the court which bear the

signature of his father, and he was not present when his

father put his signature on Ex.D1, and he was not aware

of who is the author of Ex.D1 who executed a Will and said

transaction and his father never told him that he had

affixed his signature on Ex.D1. From the oral perusal of

the entire evidence placed on record, it is clear that the

Devamma and Srinivasa Murthy jointly purchased the

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property under a registered sale deed in the year 1945.

After purchasing the said property, they demolished the

structure and constructed four houses, which are

renumbered as door Nos.398, 398/1, 398/2 and 398/3.

Devamma and Srinivasa Murthy have treated plaintiff No.1

and defendant No.1 and one Radhamma as a festered, and

during their lifetime, they have jointly sold the door

No.398 and 398/1 Nagarajappa under a registered sale

deed to one Nagarajappa, and they have retained the door

No.398/2 and 398/3. During their lifetime, both Srinivasa

Murthy and Devamma jointly executed a registered sale

deed dated 23.04.1962 as per Ex.P2. On perusal of Ex.P2,

it discloses that door No.398/3 was bequeathed in favour

of plaintiff No.1 and other portion of the property was

bequeathed in favour of defendant No.2, i.e., door

No.398/2 and garage portion in door No.398/2 was

bequeathed in favour of Radhamma. After the execution of

the registered Will as per Ex.P2, Devamma died in the

year 1970, and Sreenivasamurthy died in the year 1977.

After the demise of Sreenivasamurthy, the plaintiffs

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approached the defendants to hand over the possession of

'B' schedule property in terms of Ex.P2. The defendants

refused to hand over the possession of "B' schedule

property. The plaintiffs were issued a legal notice as per

Ex.P6, calling upon the defendants to hand over the 'B'

schedule property. The defendants replied to the legal

notice as per Ex.P7, and it is stated that

Sreenivasamurthy, during his lifetime, executed a

registered Will dated 11.02.1974 bequeathing the property

in favour of defendant No.1, and after his demise, they

have continued to be in possession of 'B' schedule

property. From the perusal of Ex.D1, it does not disclose

regarding revocation of Ex.P2. Unless and until the earlier

Will is revoked. Sreenivasamurthy has no right to execute

a Will dated 11.02.1974. Further, the defendants have not

examined any attesting witness to Ex.D1. The plaintiffs

have produced Ex.P2, which was executed in the year

1962 jointly by Devamma and Sreenivasamurthy. The

defendants have admitted regarding the execution of the

Will marked as Ex.P2, but the plaintiffs have disputed with

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regard to the execution of the registered Will marked as

Ex.D1. It is an established principles of law that "the

existence of two Wills where there are two Wills, the latter

prevails over the executants of the second Will in respect

of same property had taken care to see the second Will

was prepared by the scribe, who had attested the earlier

one and the attester deposed to the execution of the later

Will and stood the test of cross-examination it cannot be

said that second Will is valid."

17. As observed above, the defendants have not

examined any attesting witnesses to Ex.D1. Ex.D1 clearly

reveals that Sreenivasamurthy has not cancelled earlier

Will, and there is no mention of the cancellation of Ex.P2

in Ex.D1. By virtue of the execution of the alleged second

will, it is not excluded from the testamentary inheritance

by way of cancellation of the will by one of the joint

owners. In view of the above discussion, I answer the

substantial question of law in the negative.

18. Accordingly, I proceed to pass the following:

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Order

The appeal is dismissed.

The judgments and decrees passed by the

courts below are hereby confirmed.

No order as to the costs.

SD/-

(ASHOK S. KINAGI) JUDGE

ssb