Karnataka High Court
C Rangaswamy vs Guddaiah on 25 September, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL NO.50/2009 (PAR)
BETWEEN
1. C.RANGASWAMY,
S/O SRI. CHALUVARANGAYYA,
AGED ABOUT 64 YEARS.
2. H.MAHADEVA,
S/O HANUMANTHAPPA,
SINCE DEAD BY LR'S.
2(A). SAVITHA,
W/O MAHADEVA,
AGED ABOUT 34 YEARS.
2(B). M.VISHWAS,
S/O MAHADEVA,
AGED ABOUT 15 YEARS.
2(C). M.MEGHANA,
D/O MAHADEVA,
AGED ABOUT 13 YEARS.
ALL RESIDING BEHIND
MES SCHOOL, 6TH MAIN,
MEENAKSHI NAGAR,
KAMKSHI PLAAYA,
BANGALORE-79. ... APPELLANTS
(BY SRI PRAVEEN RAVIKOTE FOR SRI MANIKAPPPA
PATIL, ADV.)
2
AND
1. GUDDAIAH,
AGED ABOUT 65 YEARS.
2. GUDDADIAH,
AGED ABOUT 61 YEARS.
3. SRI C.KRISHNA,
AGED ABOUT 59 YEARS.
ALL ARE SONS OF CHELURAMGAIAH,
RESIDING AT NO.176,
6TH MAIN, MEENAKSHI NAGAR,
KAMKSHI PALYA,
BANGALORE-79. ... RESPONDENTS
(BY SRI C.G.GOPALSWAMY, ADV. FOR C/R1-R3)
THIS RFA FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED:03.10.2008 PASSED IN
O.S.No.8313/2003 ON THE FILE OF THE I-ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING
THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant Nos.1 and 2 are the appellant Nos.1 and 2 herein have preferred this appeal challenging the judgment and decree passed in O.S.No.8313/2003 on the file of the I-Addl. City Civil & Sessions Judge, Bangalore city (CCH.No.2).
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2. The respondents are the plaintiffs therein filed the suit for partition and separate possession.
3. It is the case of the respondent/plaintiffs that in a family arrangement, item No.10 of the property was allotted to late Sanjeevamma as per the partition deed dated 11.07.1972. She died on 26.08.1990 intestate. On her death, the said item No.10 property which is a piece and parcel of property bearing No.103, 6th Main, Meenakshinagar, Corporation Ward No.18, Bangalore-560 079 (formerly part of the property bearing Khata No.127/2 and before that Sy.No.71 situated in Saneguruvanahalli Dakhle, Yeshwanthpura hobli, Bangalore North Taluk. Since, late Sanjeevamma died intestate that property became the family property available for partition. Hence, the suit was filed.
4. The suitors are the brothers and late Sanjeevamma was their mother. The plaintiffs and defendant No.1 are the brothers and defendant No.2 is the son of defendant No.1 and foster son of Hanumanthaiah 4 who is another brother of plaintiffs and defendant No.1. On the death of their mother Sanjeevamma, the suit item No.10 of the property is to be partitioned among the plaintiffs and the defendant No.1.
5. The appellants have filed written statement and contended that item No.10 of the property referred in the partition deed dated 11.07.1972 was given to Sanjeevamma which measures 165 ft x 80 ft. After the partition, late Sanjeevamma was always residing with her son/defendant No.1. Late Sanjeevamma died on 26.08.1990. But it is denied that she died intestate. She had bequeathed portion of her property to defendant No.2 out of love and affection by executing a registered Will Deed dated 08.08.1986. The Will was registered in the Office of Sub-Registrar, Bangalore North Taluk.
6. The Court below has framed the issues of which issues No.1 and 2 are as follows:
"1. What is the effect of the partition deed dated 4.2.2003 referred to in the plaint?5
2. Whether the defendant proves the execution of Will by Sanjeevamma on 08.08.1986 referred to in the Written Statement?"
Issue No.2 was answered in the negative and issue No.1 has been held as binding on both the parties. Aggrieved by the same, the defendants have preferred this appeal.
7. Learned counsel for the appellants submits that as it is stated in the written statement that late Sanjeevamma-the mother of defendant No.1 executed the registered Will in favour of defendant No.2 on 08.08.1986 for which defendant No.1 is the attesting witness. In order to prove the Will, defendant No.1 has examined as DW.2 and though he has been examined, nothing has been elicited by the plaintiffs. As against this, the Trial Court has answered in Para.9 that the defendants have not examined the attesting witnesses and further, the defendant No.1 is not the attesting witness. He also further reads the 6 deposition of DW.2. The deposition of DW.2 of para.3 which is to the effect that late Sanjeevamma executed the registered Will in favour of defendant No.2 on 08.08.1986. She was having good health and with her consent, the contents of the Will has been read out and thereafter late. Sanjeevamma signed the Will. Sri K. Sadhashiva another witness was also present at the time of execution of the Will and he also put his signature to the Will deed as a witness.
7. The learned counsel for the respondent submitted to dismiss this appeal on the following grounds:
Firstly the Will said to have been executed by late Sanjeevamma which has been alleged by defendant No1 and 2 has not been produced and marked. Secondly, Ex.D1 a certified copy of the Will cannot be accepted and marked for the purpose of proving the Will. Ex.D1 is the secondary evidence and where about the original Will has not been stated by the defendants.
8. The points that arise for my consideration are: 7
"1. Whether the Court below has committed an error in permitting the defendants to mark the certified copy of the Will as Ex.D1?"
2. Whether the Court below has committed an error in decreeing the suit by holding that the defendants have not examined the attesting witnesses?"
9. My answer would be as follows:
The case of the plaintiffs is that the defendant No.1 himself is the beneficiary of the Will and the defendants have not examined the attesting witnesses. If the original Will is produced, then on the basis of the same, the witnesses should have been examined. The said submission cannot be accepted for the reasons that the defendants have filed I.A.9 seeking permission to produce the certified copy of the Will as secondary evidence. The said I.A has been allowed. Consequently, the certified copy of the registered Will has been marked as secondary evidence. Secondly, the reasons of the Trial Court is that the attesting witnesses to the Will have not been examined 8 and defendant No.1 himself is the attestor to the Will alongwith another person by name Sri.K.Sadhashiva who is not the beneficiary under the Will.
10. Para.3 of the deposition of DW.2 is as under:
"I state that out of love and affection of late Sanjeevamma over defendant No.2 executed a Will deed on 08.08.1986, voluntarily without anybody's influence, pressure or coercion in favour of the defendant No.2 which was duly registered in the office of Sub-Registrar, Bangalore North Taluk. I have witnessed the execution of the Will deed by Sanjeevamma and I have also signed on the Will deed as witness in the office of the Sub- Registrar, Bangalore North Taluk"
11. This piece of evidence of attesting witness has been ignored by the Trial Court.
12. The submission of the respondent/plaintiffs that the defendant No.1 himself is the beneficiary of the said Will. The said submission has been examined from Ex.D1 and found that the documents was executed in favour of defendant No.2 and this registered document is in 9 accordance with law and defendant No.1 is not disentitled to sign the document as a witness.
13. Under these circumstances, I am of the opinion that the matter requires for reconsideration by the Court below. The evidence of DW.2 has to be reconsidered and matter has to be disposed of a fresh.
14. Accordingly, the appeal is disposed of.
15. For the convenience of the Court below, the judgment and decree is set aside. The Trial court is directed to consider the deposition of the DW.2 and dispose of the case in accordance with law. Liberty is reserved to the parties to adduce any further evidence if necessary.
Sd/-
JUDGE VM