Karnataka High Court
Ningamma @ Chikkaputtamma vs Siddaiah & Anr on 2 December, 2010
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT ore KARNATAKA AT BANGALQRE
DATED THIS THE 2ND DAY or DECEMBER ;2U'G1%jé " _
BEFORE %V A A
THE HoN'BLE MR. JUSTICE s»'.:N.sA'£fANA;RAYA§fA,;V 7
REGULAR SECOND APPEAL NO.E!3 6 or [1995 101520)"
Qjw REGULAR SECOND APPEA-L_NO;'93? QIf'..1fl99'5"(DEC)'VV
IN R.S.A.No.936/1995: %
BETWEEN:
NINGAMMA @ CHIKKAPUTTAMMA,
W/olate Siddaiah, 3.'/_Iajor,p" " .
Occupation: AgriQu}t.uV1'e
Household Worlgfi ~. .
Residing at NO.€B~l,5-86",". . "
Karigatta Road, 'GéI'r1j:.ar_nV, , V
Srirangapatt1%éiG; = . ii
MANDYA I)I9T§J* (j'Si.';~.. '_ ~ 5 .. APPELLANT.
(By sri%;G.s.%Bha._i;'
Siér_?1"c:e dageaiscd, by his L.Rs.,
Iia) " G'Shiyrvaé\}vafny.
j S/t)-I'f¢;t€€' Siddaiah,
Ageéiabout 38 Years.
Mb) 'fveé-:l-hodamma,
U n D/o late Siddaiah.
_ _ °';Age-d about 42 Years.
' 11:?) Indramma,
W/0 late Siddaiah.
Aged about 61 Years.
J
_M,.3"
{\)
1(d) Man aiagowri,
D/0 ate Siddaiah,
Aged about 40 Years.
1(e) Parvathi,
W/0 late Siddalah,
Aged about 36 Years.
1(f] Lokesh,
S/0 late Siddaiah.
All are residing at V
Shukravarpet Road, K
Ganjam, _ .
SrirangapatnaTaluk, _ . ~
MANDYA ms'mzefr.t_ ;
Nar1}a1ah, .
S/0 late Nanjaiah,
Age: Ma_}'oy,i__ _ A V V
Occupation:9_;i\g1'i'e.uIti;:.1f'e,""-- V. is
Residing at:"'Ka;igatta,V"~.' «.
Sukrawarpe-t., G'efi;:'1jai:1,"-
7' . .
MANDYA DISTR'iCT._. '
.. RESPONDENTS.
riiiivasa .'Ra§:havan, Adv.
f01;"R7"...l..(.a} t0 R-1"),
Sii:AR,VSemasundara, Adv. For R-2)
(By --Sri.V.aS
= *m=k__>!=_=?=m=l=_*_*
'This App"ea]F'1's filed under Section 100 of the Code of
Civii Pf0ce<j'ii1*e';" against the Judgment and Decree dated
1995 passed in R.A.No.81/1992 on the file of the Civil
.1 Sifirangapatna, dismissing the appeal and confirming
the' 'Judgment and Decree dated 17.10.1992 passed in
t ()e'S.No.444/1989 on the file of the Munsiff, Srirangapatria.
IN R.S.A.No.937/1995:
BETWEEN:
NINGAMMA @ CHIKKAPUTTAMMA,
W/o Iate Siddaiah, Major,
Occupation: Agricuiture,
Residing at No.B--15--86, 7 t
Karigatta Road, Ganjam,
Srirangapatna, '
MANDYA DISTRICT. '
(By Sr1'.G.S.Bhat, Adv.) J
AND:
Nanjaiah,
S/o late Nanjaiah, V
Aged about 59 Years_, 4_ 1.
Occupation: Agri(;t1it77;1tre,.. U
Residing at: Ka'riga'tta' "Road",-Q
Sukrawarpet, Ganjainn, 3
Srirangapatn'a"--F.ah1k, "ii _ _
MANDYA IQISERICT.-'~.. _ ' - .. RESPONDENT.
(By
. A'.i:.w"=it'__"'=£;fi,=i=_=i¢_=s'=_~=i=
V pp Aiipeai ia"'fiE.e.d«'under Section 100 of the Code of
Ciyili Pr_oeed;ipre,A'>.against the Judgment and Decree dated
09.O2;"19Q5:pase{ed_V'ijr1 R.A.No.82/1992 on the file of the Civil
Judge;psrirangapatna, dismissing the appeal and confirming
Jucigme_nt ~. and Decree dated 17.10.1992 passed in
_4V_f_-«Q.,4S..No.-¢I;47*/V1989 on the file of the Munsiff, Srirangapatna.
eV"dfA1'he§e Appeals coming on for Dietating Judgment this
"_jda'y:,--' the Court pronounced the following:
W
JUDGMENT
These two second appeals are Smt.Ningamma, first defendant in No.6/1983) and sole defendant lo;s.N_o No.7/1983).
2. O.S.No.4-44/1989 deelaration and possession in respect of house bearing site No.B--l5/ 1986:" 'vzxnieasuring East to West 10 yards. a:;'1.djj situated Karigatta Road, Ganj..aII1A--':AV' Towrii. The said suit is filed against tlgg and another Nanjaiah, plaintiff in and owner of the western half _pr)rtion_~ siiit Vschedule..property. Shtiuitt /1989 is filed by Nanjaiah against vx*"'the appellant lierein in respect of western half portion of ..o,l'.1'i,'p1'_operty "bearing No.B--15/1986 constructed on site East to West 10 yards and North to South 24 3f'ards.situated Karigatta Road. Ganjam, Srirangapatna Town. an / , told "A 6
5. The foster son of Mayamma and Chikkarnadaiah, namely Siddaiah did not have any issues In ail_'...t:Vhe:t~t_hree marriages, therefore the said Siddaiah Mayarnma fostered three children namely and Siddaiah (Jr). Nanjaiahi'-__ Kariyammas son. whereas Ningagiah and pr.) are sons of Boraiingaiah, brother of them were residing in the said fioidse'--.1;rid:er""the'_éeare and custody of Smt.Mayamma. 'When " I Ningaiah got married and _i'ea:fing' ..se;:v'ar[ate1y',' he was sufficientiy provided Whereas Siddaiah (Jr.) and N anjaiah con_ti'mg1ed._to Mayamma. [}d.rin_g the .'1i'fct.im.e of Siddaiah (Sr.) and Mayamma, theyvttogethgeriiegfecuted a Wifl on 25.02.1961, which was ':2a,.,___registered as 'doottrnent No.22/60--6I wherein the residential 'i~.._g_ho1.fi1se btearixjigv No.B-15/86 constructed on site measuring Aitwodwest 10 yards and North to South 25 yards situated V" Kgarigatta Road, Ganjam, Srirangapatna Town, was 'r:
bequeathed in favour of Siddaiah (J11) and Nanjaiahriizrpequal shares and in the said Will, besides the property, a portion of agricultural land in their favour. On the same day. isl:sée\n"'1;h1a't l' was executed by Smt.Mayamma._ exclu-s_i'Vely Vtide-:.. No.23/196061. Under the sardltkifiiri, ehe" the life interest to Smt.NingaInmia;'w-._in ltatha No.184O and No.1027 situated Ganjam, Srirangapatna certain lands in favour of NiI1gai_ahf_re_serVi11g'll:iffe_ interest to Ningamma.
7. So far as was bequested in favour of Ningamma, appellant heiresine-and Ningaiah, S/o Boralingaiah, tt--ndei' v_»regis_tered l'W'i11 ..... bearing No.23/196061, there is al5sol1:1tely{ 11.o"disp'utes between the parties. The dispute is :"v"e.__only iizhreéspectlofril the house bearing No.15/86, situated at pflllfiarigattall which is suit schedule property in 5_"O4A,'S~§1\Iosl.l444/1989 and 447/1989. Subsequent to execution the Will, Smt.i\/Iayarnma died on O7.02.I9'?"l and Siddaiah (Sn) also died. After their death, there wasdispute between the appellant herein and plaintiff in suits. S:mt.Ningamma who was earlier residing"L-lir1s,""'th'e4_ aforesaid house along with Mayammap j vacate the same and deliver vacarrt p.osseslsio'rr~..of property to plaintiff in both ._tern.1"s.of made by Smt.Mayamma.
8. It is further stated of Mayarnma and after performan.t;el}oa': Nanjaiah, Ningaiah and Siddaiah: rinllthe house was divided jointly all 5 However, as there was no settlement Siddaiah (Sit) in respect of _house"._§l3earing l\.Iv_o;96S/A~32 situated in Sukrawarpet, wet land bearing Sy.l\lo.82l/2 of was belonging to Mayamma, the same vwas referred t.ofPanchayathdars by all three of them and also A' appellant herein and as per the decision of , }\-?ante'ha}}athdars. all of them agreed to adhere to the terms of ;..»§_)»..-E 9 two registered Will and in respect of the aforesaid pro-perties, a Sale Deed dated 08.02.1972 was ._by Siddaiah (Jr), Ningaiah and Ningamma in plaintiff in O.S.No.=<i47/1989 for and in the said panchayath at, the of was permitted to continue in 'schedule property for a period ofi_yea_:_rbs'.':_ in it
9. However, appe11ant:"h'erei:1 the house after Completion of one Kumar, who is fostereciby and who is also the son~in--1a\iv." of: 4Siddaiah's (J11), brother and beneficiary of the vseeopnd bearing document No.23 / 60--61.
V4.Appe11a1i:t fiiied-a...snuit in O.S.No.107/1982 on the file of Iviniisifiifirirangapatna on 16.06.1982 against Siddaiah (J11) V and Nanjaiah"a:1d obtained an order of temporary injunction, japhwheich vvuasviehallenged in M.A.No.13/1.982 and the said M.A., to dismissed on 22.10.1982 with an observation that V" .thou;ih the plaintiff in the said suit has a va1.id title to the suit on /Q} L' I2
11. It is her case that all these things are concocted for the sake of filing the present suits. She also denied the Celebration of marriage of Nanjaiah, Ningaiah and _S_idda.iah (Jr.) by Mayarnrna and Siddaiah [Sr.), she denied after the marriage, Ningaiah left the separately with his wife and thatimthe said... in consultation with Siddaiah, his 2 herein" and the said three (Jr.) made arrangementzvipn property under registered Will house bearing at Karigatta Road, Ganjarn, Srirangapatna, shares to plaintiffs herein tinder4'j;he.afores»aid' She also denied execution of another sarne day bequeathing some properties in favour of" defendant, i.e., herself. She also denied V if that the of the said Will were given to her in effect the ~u"dei'er1Ca€ taken by her is that of ignorance of facts and denial of of Will by Mayarnrna bequeathing the properties in E3 favour of piaintifjfs herein and also in her favour and in favour {if Ningaiah under separate Wiil.
12. The defendant herein aiso denied the held after the death of Srnt.Maya1nma in the execution of Sale Deed in respect ofotwo i.ten1-zafefddfiaie Deed belonging to Smt.Mayarrirna in favonr by herself and the plaintiff in both-...the'As:1V:ite._ denied that in the panchayathe sheVAe_wVa1's._giyenhdfivegredrs time to reside in the said house 'andd'-thervea:fter,:te_vacate the same. I-£owever.,~she, defence that as Siddaiah (Sn) andherself they brought one Rathnamma and fosteredi"-her,' No.1 continue to live with the "said and------h'er husband Kumar in the said house. 'liked by plaintiff and since they tried to interfere the affairs of the family, she filed suit in dd""~..«.._'G,.S.No. 1982. Interim order granted in the said suit was eeearfeed in Misc. Appeal} and one No.4099/1982. Therefore said decision cannot be the decision of this proceeding. We
13. Incidentally, these two suits were tried indepepdently before the Trial Court. in both the suits, issues xve1<e:'jf1fz§;I_I1ed as under:
'wJ 0 Issues in O.S.N0.444/1989 is as--'4'11r1_de:{:'4 . V mm e"a,=:§eee>e $33';-033 mm afiyscioés zsgabesafifioq aaa;'ci>"=:ea$s="t3e:7tu..
dsmsmézfiésmgdafie? ' A ' mm mt: ear: nozsa:;sdo3:;,z~;s~a%'jA'a:e:uc:<;az;a5~¢:« semi 53223033 meescm 35:236. 'isfi:3:3<-%a4*::i<':ig;Sg;;fgoafs".2~oc:5a."'€ demwaézemsmflfiefiae ? " " ._ 12 ms-mem 4 ixficfieacfiémdzaégcsbozj ~39 mass efiaziis uodzée §;'»>a5:>€':> ' " Is"sues»i191' / 1989 is as under:
was asgcse: '-sxéfieficiéafiefi é3:a<>3-353:3 mass ':a'a3eee>a 5335033 ':?i3';3®:§?_%fc$a€?x§g5: dammazafiefismmfiaise ? Q"§é'§)€25..v()2;196V1'"~--{$ 53359:) arsa:5z¢3r:5 afmmorarj 3i:?,§QO33$ 53:3; amofioaiaé mfbfi aeegmafi main a-353:5;
' A ?
53 I 9&6 mfimfiée éwdcaiocié gsasaaofisa 3335,5063 eesaimkiaoss ssesfi mm geese: ma-_i§3€$*C3@°<:3g,§ @063: V amaze-c-msmaasosae '2 aecjzm ease, awn ? '"""'l E3
4. ear: riots' 2, as »§3co.':~'a&s=":% , e:s::;"*:;:m seas eases sad msésfioaficn-dead': gamsom c3:z:s:a"?a>:-§:a"u'éa,%m;§o5:e ?
LEE 0:9 E"
3
G g:
Q 8 E5' 9 37 9 :9} (91.531
go 9 $3} :31, 36» 81 5"} F. 3:
Q 0 1} ~<'*"~ ? e
6. asssasoazow ::.~:;,;3a¢ri,z>o5a.:m:ccceiFj; _ _ V
7. mamas «.73:-23:3 £3805:-afidme '.7 :3oo5.:*;:f»A's:;;>ej.*a=:?J$3 V s. IS5:;t'.3a©Oi2- 31: ~ ?
9. 03.3253 tag afitgfim eazfiea
14. In O.S.No.444.__/ the evidence as P.W.l and he in support of his case and On behalf of the first defendantgzshe as D.W.l and examined one Ramanna in all four documents as per E_xs.D-- 1_ to H-4.
15} the Trial Court on appreciation of """'e....pleadir1g§sV,% and documentary evidence available on
-;1;;a;om, answered issue Nos.l and 2 in the affirmative, issue 4 in the negative and consequently decreed the _ofIthe plaintiff as prayed for. The first and second issues 'W! 16 is in respect of plaintiffs title to the property and his right to secure possession of the same, which are held"---"inx7.the affirmative. Issue No.3 is in respect of title of over the suit schedule property u:'1der"rigl1t .toflClon:ti1ilue'in'1'. possession of the same as absolute 'owner thereof and issue No.4 is in respect of her right adverse. over the suit property on the was in uninterrupted possessionlof~~the',"sVueit for a period of twelve years whieh'
16. V;:*t';r,:')_ in the said suit, plaintiff 1 and in addition to that he examined P.Ws.l2_to' .E5ll'an€l::_l'..'3narked in all 37 documents as V..E2;fs.P--V_i«.ito ""Qr1_...rbehalf of defendant, she examined herself'..as-,_l)i.V'Jl.j1.._and in this proceeding also, Ramanna :7"n.___adducetillevide-i1ce'Vas D.W.2 and in all she produced 21 'l=.___docurnentsl'E2{s.D--1 to B-21 which are documents produced lgyiherllilnrthe earlier suit.
. mi £7
17. The Trial Court on appreciation of pleadings, oral and documentary evidence available on record, answered Issue Nos}, 4, 5 and 6 in the negative and Issue Nos.2, 3, 7 and 8 in the affirmative. In effect, the Court below has heldgall the issues that was framed to decide the title and.'..1'igl'ii5'g:'-of,the plaintiff to seek possession are held in his issues that was framed to consider "the "title off. it Ningamma to continue in possess__io'n_ as 'vo\3\fi1erir'3f~..,pst1it schedule property and also"'--v.tol. claimg 'title 'to adverse possession are held against herwhile answering the aforesaid issues andl"con$€que§ntly'~the Tri'al"Court decreed the suit of the plaintviffill In suits were decreed as prayed for by the plainti_ff.. _ A V18; pg 3-.firs't..'defendant being aggrieved by the Judgment in aforesaid suits, O.S.Nos.444/1989 and 447/A1-989V___v'l'1as~V' tiled two separate appeals. R.A.No.81/1992 ,fi1ed'=.-tchallengirlg the Judgment and Decree dated 3992 passed in O.S.No.444/1989 and R.A.No.82/1992 filed challenging the Judgment and Decree dated 17.10.1992 passed in O.S.No.447/1989. However, inrespect of Judgment and Decree passed in O.S.No. was filed by Siddaiah in R.A.No.36/1993 aga:ins't.:Vti{ee» appellant herein. In the First Appéiiiamt filed by Smt.Ningamma, the first numbered as R.A.Nos.81/199V2"'aii'd 82"/$9952 appeal filed by Siddaiah, defendant which is numbered as R.A.No.36/ together. In the said proceedings,'iitiie Court after going through the also on appreciation of evidence the three suits, nameiy and 107'/I982 framed the following? noints for 'consideration:
..:> I' _ the plaintiff Siddaiah had proved is the owner of eastern half of the suit house'?
AA z "Whether the plaintiff Nanjaiah had proved it that he is the owner of Western portion of the suit house'?
Smt.NingarnIna seeking" permanent injunction and the Cross Objection which was filed in by Smt.Ningam1na was also dismissed. in effect upheld all the contentions of the dlthe if. A contentions of the first defendant, " ' A
20. The first in O.S.N0s.444/1989 44??/s.iP§89.lc'vivll'Rand plaintiff in O.S.N0.1O7/1982 being aggfie'§red.Jey of the First Appellate C011_.rt,§'«l, Judgment and Decree passed Appeals on the file of the First Appeilalte"llC'Qn'rtsepilrithree'lRSA Nos, as under:
This Secc11d";l§lppeal in RSA 936/1995 is filed eoncnrrent findings of the court beiow in OS. decr'e.eing the suit of the plaintiff, which is No.81/1992 on the file of the First .jl'lAi'_:':Appellate Ceurt, Srirangapatna. Similarly, RSA No.93?'/1995, _i_st.filed by the defendant in 0.8. No.44?/1989, Where H of the plaintiff is decreed and confirmed in RA. 1% No.82/1992 filed by the appellant herein against the concurrent findings of both the courts.
21. Incidentally. RSA No.986/199§ and os37i';199f5 respect of very same property, one :infres.per:t" offeasijem .
portion and one in respe(:tw'io£.._Western vportio1'1...,of .3house"
property bearing No.B--15/1985_4_i:situated iinafiivarigatta Road, Ganjam, Srirangapatna, V M a7n,dy_a : "
22. Initially, .twoA__A appeal in RSA No.894/1995 fiiét1.'V.'b3f'::'Sn'tt."Ningamma challenging the judggsaiiéanejfaVnei:7§_'a¢'¢i~§¢ in RA. No.36/1993 wherein passed in her favour in O.S. No.10?/V1982,i4'"Was taken together for arguments by this :.f'oo'a.rt 2,.A'a1i"i--these" 'appeals were disposed of by judgment dated §u9V3:,:'j.Against which, a Special Leave Petition in i N'o%V72vQ2'{f7:'2'{i4/1999 was preferred before the Hon'b1e " ~ -T 'Supreme °""'w.
23. In the said proceedings, Special Leave was the said petitions were registered as Civil Apperd No-sto 5723/1999 and all the three appe'als"wei:e xthebf'. Apex Court by its order dated 04.
there was technical error in in much as, the substantial~.c§uestionnr--:ol% framed at the time of admitting the fralning the substantial questionfiof three appeals were disposed of on the said technical error, the Apex for fresh consideration, only on expressing its opinion regardirggi rneritsiofirthe."-case. The observation made by the Apex V Court 'is under:
judgment, we find that the lid_ecisi0nl':ii"il::the Second Appeals is rendered, with H re'spel<:t,.v'without keeping in View the limited C " jurisdiction under Section 100 of the Code of Civil it rocedure. Only on this short ground. these appeals are allowed without expressing Laflny 23 opinion on the merits of the controversy between the parties. The impugned judgment and are set aside. Second Appeal l\§os.894. 937 of 1995 are restored to the file of H Court with a request to red.eci.de merits in accordance with the limited jurisdiction under 4S_ectionl'1OO of Civil Procedure."
24. However, it is seen' remand of all three matters, herein in RSA i\io.894/19952:'ljutligeinent passed in RA.
No.36/ and decree in O.S.No.1(lV'3?/lli.l98'2l, was withdrawn by the appellant. Thle':=eforev,';.onlylthe aforesaid two appeals are now Q"rea1ajnir1g,_forconsideration of this court in this appeal. entire records of both the courts and after the grounds of appeal and the findings of court -below in both Regular Appeals, as well as original "*3 suit, the following substantial question of law was frajned as arising for consideration of this Court:
"Whether the Will executed by Siddaia.h,lV_(_hns:h:and xv' l of appellant Srnt.Ninganima) ismhlad for that his foster mother him in execution of thelV_'s--ar11e and h the respondent Nanjaiah lwhfo are respondents in botlfivthesgellappealfis"and nephews of Siddaiah - husband' 'not entitled to claim p_ort_ions"""of property bequeathed in3'tiheir"fattour?_V j. V dd
26. Thereafter;:c~oi1'rt'lieard the aforesaid appeals in the presence of lconfise1l:."a.ppeari_ng for the appellant and _vrespon"d;fents. On" 'appreciation of the findings of the court light of the grounds urged in these two appeals: answers the aforesaid substantial questioun of law' in negative for the following reasons:
REASONS 2?. ""§Iilel1A"ore proceeding to answer the substantial question of relation of the parties to the proceedings are to be are placed on record, which will enable this Court to assess the Correctness or otherwise of the findings of COuI'f:'b_élQV;? in deciding the substantial questions of law on:_."th.eiilgieilidlériele available on record.
28. The testator of the Will'V_i'n_.dis}oLilte who is wife of Chil<kamadaiahlV__;llhe_reeord' that the said Chikkamadaiah issues and they fostered one Siddaiah whollis of Kirangoor Village. His Mayamrna with her who died subsequently without said Siddaiah was married to one Mariyarnrria;v Thelsaid.:l~Mariyamma also died without any "'V'issue.sj.':"i. 'l'hereafter;'---t.h..e appellant herein, Ningamma, was V'rn_'arri.ed_ lneidentally, Ningamma is none other than vdaxiigiiter of 1VIayarn1na's elder brother Kariyanna.
"~..«.._E3Ven in the said marriage also, there was no issues. '1llhereafter, Mayamma and her fostered son Siddaiah brought more children to be fostered and brought up by them §.«:'\,I 26 they are. Nanjaiah who is Mayarnrnas sister. Kariyamma's son and other two boys namely; Ningaiah, and Siddaiah (J11). (Since Mayarr1ma's first son is also named Siddaiah, be referred to as Siddaiah Junior). These Boralingajah, who is none other "than ,h'i"tr)t}1e1'. of Siddaiah (S12).
29. With these, it is clearly<is'e.en the closely knit and each of them are"-related arlothier in more than one way. It is alsolseelnyfronjp that Siddaiah (Sr.) was not keeping in good"'he--a:lth" not capable of conducting either"'t'hel .,a'gr_iEultural activities or any other activities of lthyel be seen from the pleadings
-and eifidence on reCOIf_d__,o it is also seen that it is only Ningaiah. llfilanjaiah--ar1dfSiddaiah (Jr) who were attending to all the affairshllolf and family i.e., looking after agricultural V:*~..___a::tivities..an;d also other activities of the house. It is also seen records that neither Siddaiah {Sr.) nor Ningaiah, it and Siddaiah (J12) had any independent properties "W:
of their own. So also. the appellant Smt. Ningamma,_.___wh0 is third wife of Siddaiah (Sr.]. It is also seen from the marriage of all the three boys were S_itnt;.fl Mayarnma that immediately after rrzarriagelu 'started' j living separately. He was also provided could be seen from the reoordséfilmt.hVhhiayammaiysllllhdsband Chikkamadaiah died ionrg;..V.bacls"ei»;enlllfieforelthe 'marriage of Siddaiah (812). Therefore; ll it who was managing the the assistance of fostered sons and thereafter with the and Siddaiah (Jr.).
30. Mayamina dield__on_ 1971 prior to her death, when
-she and lliiealthy, and when she was managing the lezatire"affai.rs~ro'f.ltl"1e family, she has executed two Wills on the sameddaly 25.02.1961. One of the Will. which is in 'la,.,__.Ciis_putelin proceedings is the Will which is registered as .lDo_tJ._iment No.22/196061 and marked as Exhibit -- P2 in V' ..._C)'§lS.lljNo.444/1989. This Will is executed by Mayamma along '"-r/"E 28 with her foster son Siddaiah {Sr.) and the said WE}-I is in respect of two items of the property 1'.e.. house 15/1986 situated in Karigatta Road, Ganjarri,Siriranéapatria and another land bearing survey 4 acres situated in Karaburashetty Iria.1li'-.Vil1ag'e.t. tfaxfoui' Siddaiah (Jr) and Nanjaiah, piaifierf in'o;As.s.*N{§t,444/1989 and 447/1989.
31. On the same alfiotheir isiiexecuted by her vzde office of the Sub-
Registrar _ the house property bearing kai.ha'-- in Sukarvarpet Ganjam, Srirangapatna', also property along with construetio1qi"of vaeant,.__1ar1d including therein and also land bearirig'*suwvey:i1io}85 measuring 2 acre 20 guntas situated in Chinua.h'ayakariahai1i and these two properties under the in._aforesaid"1'eéistered Will was bequeathed in favour of one of 'i._"the:~?_'foste1=ed son Ningaiah and also with life interest to 'V.'jy~Nir1';gau;ma and right to Ningaiah to take over the property M after her death. So far this Will is concerned, there is no dispute. Further, the appellant has denied the of this Will and giving life interest in the said lbyvt." in her favour.
32. It is also necessary to men.tion"'at"'this the written statement Ningarn1'riaV:._V'has' defence that during the life time [Sr.) her husband and herself fosteted daughter of Ningajah who of Siddaiah (S11) and Ninganinia ctonltention that the said RathnarnLtna__isA one Kumar and she is staying in the suit schedule with them.
i\:tlow:,.C:0Ining tovthevwill the validity of which is required toc,i_.beli_de-sided'4Vh'byl}.deciding the substantial question of law
-- is seen that though the execution of the in document No.22/1961 is denied by the appellant "herein, is seen from records. there was a panchayat, which place after the death of Mayamma. In the said L1,/i...-E 30 Panchayat. a decision was taken to resolve the-"wdispute between the parties in respect of their rightsV.Ato-Vthe properties pursuant to the registered Will registered as Document No.22/19f5iA'Var1d._ a_is0 No.23/ 1961 (which is not the subjectrriatter iitig'a'tioVr1},'
34. It is pleaded that in the decision was taken to dispose of Mayamma and which were not tywo Wills. As per the decision of ioroperties were jointly conveyed herein and Ningajah another '-- width Mayarnma under the registered Wiltdoctzrnenti.::_"No.23/I961 and Siddaiah [J12] V..t0g€th€1'~%,é?§é('1itedhVth.F:____SaI6 deed in favour of Nanjajah for Valuable' consideration of Rs.2,500/--. The said sale deed was :7W,__ registered efi7ioiseo2.1972 as document No.1830/1971-72 "which is meriee as Exhibit P14 in o.s. No.444/ 1.989. ' ''-V_VA'reading of the said sale deed ciearly discloses that the it 'defence of Suit. Ningamma that Mayamma had not executed Vs' execution of Will dated 22.02.1961 by Mayamina and Siddaiah {Sr.] in favour of the plaintiffs herein. defendant Ningamma has not taken any d.e:fen-she"e:"'i1e11T.'_"'i*1er<_ written statement to the effect the;t'"the.W'.i11 havej been executed by Mayammappw jofintifififor bequeath of suit schedule prope'rt:y.in plaintiff' both the suits on the gtotind_«"hth_éit:'jst1it._pschedtiieyfproperty is se1f--acquired property the first time in the second raised as if it is substantial i§eqt1ired to be decided and in upon the following decisions"ren4dered._.h§!the-:141113133: Court:
i.; ' " SanjiV;;i'@ Seinjiva Bhandary vs. Vasantha & Ors. «~~« '' 1990(3) . (Supp) 311 [HCMDB] V iii' indu Bala Bose and Ors. vs. Manindra s ' f'Cha.ndra Bose and Anr. - AIR 1982 so 133 fxtfath Nath Das and Ors. vs. Smt. Bijali Bala " V A';Moda1 ~ AIR 1982 CAL 236 V. _ Ram Piari vs. Bhagwant and Ors. W AIR 1990 so '" 1742 "ex 33 V. Madam Lal vs. Mst. Gopi and Ant. -» AIR 1980 SC 1754 vi. Jagdish Singh vs. Natthu Singh ~ AIR H 1604 " ._ ' .
vii. Major Singh vs. Rattan Si_n.gh_ {Dead} i" V Ors -~ ILR 199'? KAR 2373 vm\@mNMmmmManmww@mR%mme 2316 ._ _ Contending that standing in the name of Siddaia1'1vA,.{53.f_.:}., the same from out of Kh~;,»1\'iir'e executed the said W111. Since execution of the said Will. the said the strict sense, it is not open for the appellant hereindto': up this contention for the first time in 'second ..appeai.
time of addressing the arguments, which was under the Will dated 22.02.1961 by the ..ffjgj'"dOC{1ment.V__i*€'o.22/1961, the said Wili was executed only in A Schedule Property in both the suits. Therefore, the aforesaid substantial question of law was framed and taken E/'3yx;«§ 34 up for consideration, subsequently, after hearing Vboth the parties on the said substantial question of law. 'Tl
39. The counsel appearing for the respondent-jpoiritedpwozit this court the submissions made be:l'1alf of to the effect that the disputed V-'Jiil.._VeXeeu..ted Siddaiah (sr.] only in p'_respect:uof:_'spit ' house is incorrect and that house three other propertieé .h'c1»'?ngi;'1g""t:§4:: included in the said Will anti pa §fo:int"h.eqfiu.e'atli by them.
40. Evert process of considering the facts and circuir1istar1ces.A':of.lth.e"'«c'ase, it is seen that all the properties that V.:Vi's'vli)ec§ueathed in both the Will that is / and 23/ 1961 are in respect of by Mayamma and Chikkamaclaiah in l their lriagne"annci" also in the name of Siddaiah (Sr.).
lefE'ven otherwise, the said properties were acquired for fpbenefit of the fostered sons of the family, therefore "W1 3 Mayamma has right to bequeath the same in favoupof any person, along with her foster son Siddaiah (Six), tyonld not vitiate the Will. Further in the facts and 4_ the disputed Will in document No.22?"196p}".:be_ixn:gVI.ggpteeéijtetlpin ; respect of properties out of which,»':'one_V_prope;jty'~ the name of Siddaiah (Sr.) in the name of Mayamma;..yffhe.:*te'fo:tei pexeeiitioni of the said Will jointly by them suit property, bequeathing the the§._pf:a'intiff here does not vitiate the V.
42. In the" facts, the decision of the Apex Court referitedpiito "appellant herein will have no bearing .--=,t.Q de._¢i3de3p_the,p_suhistantial question of law, which is required to be «;2¢=;c:de:1p':~n' Case.
V .43. otherwise, it is seen that on appreciation of the by the counsel appearing for the appellant and .j_fi'.re'spoI"1:<:1ent and on perusal of Exhibit P2 in (3.8.
"-«::No.444/1989, it is seen that the Will executed by both 'W:
36
i\/{ayamma and Siddaiah (six) is in order for the reason that in the said Will, both the properties of Siddaiah (six) and Mayaninza was involved. it is fiirther seen that'i~bfe§tieath made in the said Will in respect of Nanjaiah.""aricl (J12) is perfectly justifieel and it cannot' .
Hence, the substantial question o:f«éVlai$f negative. if f if f
44. It is further seen that "othe:wise; 'th.en..Ec;oncurrent findings of both the proper in the facts and circnrnstan_ces¥"offthe it is seen that the appellant_he:einf'fii1 deny the rightful share of the plaintiff in set up false and frivolous claim in both_§thee.suit a sole intention of denying the legitimate and to see that the property bequeathed in theirV'i"ao:oiirV'f_is__ afjpropriated in favour of Kumar and his wife V is none other than daughter of Ningaiah beneficiary along with her under Wiii registered as % e;:io¢:;ieén: No.23/1961.
ml.
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45. in the course of arguments, both the counselvT'».s'uebmits that the property which was bequeathed in e:4'of]'t.he appellant Ningamrna under Will dated as document No.32/1961 is now possession' Though in the Will it is Ningamina "has Ningaiah is required to take her seen that the property is now of ul\Tihgaiah and Ningamma is an una1,1.t.h'or.is.e.d of the suit schedule ' of Ningaiah, namely, husband Sri. Kurnar who is fostered by death of Mayamrna.
46. It is sheen ifrorh the that, it is to benefit these two people,_§:&&lVlizi.. Kuhiarv and Rathnarnma, the appeilant herein is trying to take this defence. Therefore, thereisfno jaujs.tilfi.cation on the part of this court to interfere in the "of the courts below. This Court further confirm ptrrsulant to the judgment and decree passed by the Trial O.S. Nos.44~-41/1989 and 447/1989 and upheld in 38 RA. Nos.81/ 1992 and 82/ 1992, the plaintiffs in bot_h___the suit are owners of eastern and Western part of the stint"-siefietdule property and they are entitled to take possess;ionVof% mnhwuh. ~""~
47. Aocordingiy, the appeal -.f__iaIedA'"
dismissed by imposing exempietfir /~ in each appeai. It is also ordeted' Ningamma shali deposit the cost within failing Which. the respondents suit are entitled to recover Sd/-
JUDGE