Karnataka High Court
Kamalabai vs Laxmibai on 30 June, 2009
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
DATED THIS THE 30"' DAY OF JUNE 2009
BEFORE
THE HONBLE MR. JUSTICE r<:.sREEDHAg .,
R.S.A.NO.863/2004
BETWEEN:
Kamaiabai w/o Shivalingappa P191,i.1ia,ri,z f;
Age 62 years, Occ: Household, _
R/o Dongapur village, Bha1ki'te.1uk,*~._
Bidar district.
{By Sri.R.S.Bharshett3},~Advise"W '
AND:
1. Smt.'Igmnibg1'wk/_oKai1»appa,
Age 71" years,' Occ: "Agriculture,
&;Househo1d,~R/o- Kamalriagar,
V_»23§1,1reicEwB, B.3Ld.a.1' district.
9, " w / o Kallappa,
. 'tijxgie-.47,VVye'ars, Occ: Agriculture,
W »R/ o Digg_i,5'Aurad--B, Tq: Bidar Dist.
S}1arr3',ai3ai w/o Shankarappa,
to ,,,Age"36 years, Occ: Agriculture,
it o now at Kamalanagar. Aurad~B,
"T'aiuk, Bidar district.
A "(By Sri.Sudhir Kulkami, Adv)
.._,.AppeE11:'sr1't A
.. Respondents
to This R.S.A. is filed under Section 100 of Q.P.C. against the judgment and decree dated 22.6.04VV.pa4ssed in R.A.No.lO2/O4 (R.A.40/99] on the file District Judge and Sessions Judge, Bidar, ll appeal and setting aside the judgment ll 1.10.1999 passed in O.S.No.73'/93g"'on the» filedoff--..pt'ne' Civil Judge{Jr.Dn], Aurad.
This R.S.A. coming ozi""foif"hearinglltiiis-'day, the Court delivered the _ One The appellant is the daugliterl of through first wife. The first respond,ent._llis_ " second wife of Kallappa. Res'pon_dents "2"-a1i_1__d__3 are the daughters of respondent no'; .. died in the month of June, 1993. The plaintiff' suit for partition of the share of the suit property, 'which belonged to the propositus. The ti respondents herein filed a written statement contending that the propositus has executed the will bequeathing the suit property in favour of the 3rd respondent and that the plaintiff is not entitled to any share because of the testamentary dispossession of the property by the propositus.
2. The respondents in the trial V' produced the registered will mark'ed'atp_ if the attesting witnesses to is respondent no.3. DW--2 testiF1e's.to the.factf'Dfx"eire'cution of Ex.D1--wi11 in favofurp' of_."3'r--d" is also stated that the propositufs'V_inTh1is 'was taken care of by the'-respoii'derits"arrd 'therefore in consideration of iove and"raffection,'.'.'t'iiie;will is executed in favour of respond'ent no".3.... .....
if court has found that the property is the property, therefore the propositus has no it capacity to execute the will in respect of the ancestral "property. Thus the registered will Ex.D1 is not valid. '""'iT'he suit of the plaintiff is decreed granting half share. The respondents filed an appeal in R.A.No. 102/O4." The 1st Appellate Court found that the will executed propositus is valid, although it is an ancestral * since he had no male issues: -the prop--ositus}p, is it competent to execute the will. lt°'is found as that the will is duly executep:d'~...yp Ir~I.e11ce,--..p:s"e_:t the judgment of the tria};...court'."" =.;1'hle"=.appeal'"~is5:al1oWed,l consequently the suit is.i.ldisnlisse.d;'--plaintiff is in second appeal.'
3. . the appeal has frameclithe' questions of lawzw
(a) " Vililfiallappa has validly bequeathed the property by executing a_Will whether the subject matter ~ lofithe will is a property formed out of A joint family or the self acquired . .' 'property of Kallappa'?
, (b) Whether the lower appellate Court was justified in holding that there was no joint family nucleus at the time of %/ execution of the wiil and Kallappa was justified in executing the will and thVEtta',_r=.. he is the sole surviving co--parcene,r?_ 4' »
4. It is concurrently held Courts' .ti*1éiK"[..g the will Ex.D1 is validly executeddby The evidence of DW--2 c1incI'ii.:r:Ig1y esta:b1i.she«s}the'V due it and valid execution d"ViV"heidv\ril1 is a registered will. in the ig stated that at the tirfley testator had debts to The will was executed with to be discharged by the legatee. of the said evidence, it is soughyt ato be A. argued that the respondents have not iithehdebt liability and the discharge of debt. Iv£e.ncex," ea_n't*d§;sticceed to the property under the will. The contentiponiiwis untenable. The legatee under a will, will be*~._a universal legatee. The legatee will take the Albeiqiuest subject to the encumbrance if any. If at all the ' testator was liable for any debt, it is for the creditors to 4/ take action. The proof of the debt liability and discharge of the debt liability on the part of legatee is 1.11'1I'1€C€SSE1l"y.
5. The terms of the will ciearly state that ' love and affection, the property is"'b»cque'athVed.~in.ffatiouit if of respondent no.3. It is also no.3 has taken care of the testator"dr.iring:"_his:"oldsage. if The appellant has riot plealded aiad established the suspicious circumstances' to'Vimpeach.»_'th'e_'_.veracity of the will. The of. .. is proved. The attestor to supported the case of the respondefitépnaill due execution of the will. In this of themattver, it is to be held that the will is .7 ' aralidlyv .e'Xe_cvulte.d.
6.,'"£'h«:eftestator was the sole male member of the 17arnily.V""Even if the property is the ancestral property, when there are no male co--parceners, the ancestral "property in the hands of male member would be in the av nature of the absolute property with all the rights of disposition. Therefore the contention that the"'tes.tator Was not competent to execute the will in respeet' the' ancestral property is an untenahde' argurnetit;'i '4
7. For the reasons and diseu.s'sioris"'rna.c1ve a:b0V\hIe._"i. the substantial questionst4t""'.oi" ,_1a\;'v9" 'answered accordingly against the:'app_e112artt'.'*--Atipeal dismissed. _Rtfifi.te_JUDGE Sr}.