Karnataka High Court
Smt Lakshmidevamma vs Sri K M Nagaraju on 6 December, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1016 OF 2018 (DEC/INJ)
BETWEEN:
1. SMT. LAKSHMIDEVAMMA
W/O. SRI NARAYANAPPA
AGED ABOUT 62 YEARS
2. SRI. RANGANATHA
S/O. SRI NARAYANAPPA
AGED ABOUT 39 YEARS
3. SRI. GOVINDARAJU
S/O. SRI NARAYANAPPA
AGED ABOUT 37 YEARS
R/O. BENDONE VILLAGE
MALLEKAVU POST
CHANNARAYANADIRGA HOBLI
KORATAGERE TALUK - 572 129.
TUMKUR DISTRICT.
4. SMT. PUSHPA
D/O. SRI. NARAYANAPPA
W/O. MUDDARAJU
AGED ABOUT 34 YEARS
R1, 2 AND 4 ARE
R/O. KOLLAPURA VILLAGE
DEVALAPURA HOBLI
KORA HOBLI - 572 128
TUMAKURU TALUK & DISTRICT.
... APPELLANTS
(BY MR: KEMPARAJU. B.G., A/W
MS: RESHMA KHANUM, ADVOCATES)
2
AND:
1. SRI K.M. NAGARAJU
S/O. MUDDAPPA
AGED ABOUT 34 YEARS
R/O. KOLLAPURA VILLAGE
DEVALAPURA HOBLI
KORA HOBLI - 572 128
TUMAKURU TALUK & DISTRICT.
2. SMT. CHANNAVEERAMMA (DEAD)
D/O. LATE. CHIKKARAMAIAH
W/O. MUDDAPPA
LR'S ALREADY ON RECORD
RESPONDENTS 1, 3, 4 AND 5
3. SRI. CHANDRASHEKHAR
S/O. MUDDAPPA
AGED ABOUT 36 YEARS
RESPONDENTS NO. 2 AND 3 ARE
R/O. KOLLAPURA VILLAGE
DEVALAPURA HOBLI
KORA HOBLI - 572 128
TUMAKURU TALUK & DIST.
4. SMT. CHANDRAKALA
D/O. MUDDAPPA
W/O. SIDDAGANGAIAH
AGED ABOUT 39 YEARS
R/AT NALLAYYANA PALYA
BELADHARA POST
KORA HOBLI - 572 128.
TUMAKURU TALUK & DIST.
5. SMT. SUMITHRA
D/O. MUDDAPPA
W/O. KUMAR
AGED ABOUT 31 YEARS
R/AT MASANIPALYA
BELADHARA POST
KORA HOBLI - 572 128.
TUMAKURU TALUK & DIST.
... RESPONDENTS
3
(BY MR: P.M. SIDDAMALLAPPA, ADVOCATE FOR R1
R2 TO R5 ARE SERVED
VIDE ORDER DATED 17.09.2021
R1 AND R3 TO R5 ARE TREATED AS LR'S DECEASED R-2)
THIS R.S.A. IS FILED UNDER ORDER XLII RULE 1 READ
WITH SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 09.04.2018 PASSED IN R.A.NO.34/2017 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 20.01.2017 PASSED IN O.S.NO.171/2014 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC-1, TUMAKURU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.12.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Even though the matter is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
2. Defendant Nos.2, 6, 7 and 8 are before this Court impugning the judgment and decree dated 09.04.2018 passed in RA No.34 of 2017 on the file of the learned Senior Civil Judge and CJM, Tumakuru (hereinafter referred to as 'the First Appellate Court' for brevity), allowing the appeal and setting aside the judgment and decree dated 20.01.2017 passed in OS No.171 of 2014 on the file of the learned Principal Civil Judge and JMFC, Tumakuru (hereinafter 4 referred to as 'the Trial Court' for brevity), and decreeing the suit of the plaintiff for declaration and permanent injunction.
3. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
4. Brief facts of the case are that, the plaintiff filed the suit OS No.171 of 2014 against defendant Nos.1 to 8 seeking declaration that he is the absolute owner in possession and enjoyment of the suit schedule properties on the strength of the registered Wills dated 29.05.2008 and 11.05.2009, executed by his grand father late Chikkaramaiah and for permanent injunction restraining defendant Nos.2, 6 to 8 and their agents, servants etc., from interfering with the possession and enjoyment of the plaintiff.
5. The schedule appended to the plaint describes
(i) the agricultural land bearing Sy.No.26/1 measuring 1 acre 3½ guntas, out of 2 acres 7 guntas situated at Kalsetgunte Village, Tumakuru Taluk, with the boundaries mentioned therein and (ii) the land bearing Sy.No.61/2 measuring 38 guntas, out of 1 acre 36 guntas consisting of 28 coconut trees, 10 mango trees, 2 jackfruit trees and a farm house 5 situated at Gangalnala village, Tumakuru Taluk with the boundaries mentioned therein.
6. It is contended by the plaintiff that the schedule properties were purchased by his grand father Chikkaramaiah and his brother Veeranna under the registered sale deed dated 06.01.1993. They got divided the schedule properties equally and the schedule 'A' and 'B' properties had fallen to the share of late Chikkaramaiah. Chikkaramaiah had two daughters i.e., defendant Nos.1 and 2. Defendant No.2 is the aunt of the plaintiff. Defendant Nos.3 to 5 are the brother and sisters of the plaintiff. Defendant Nos.6 to 8 are the children of defendant No.2.
7. It is stated that during the lifetime of Chikkaramaiah, he was residing along with the plaintiff who was looking after him till his death. Chikkaramaiah was hale and healthy and was in sound disposing state of mind and he executed two registered Wills dated 29.05.2008 and 11.05.2009 bequeathing the schedule properties in favour of the plaintiff. Chikkaramaiah died on 04.03.2011. The plaintiff succeeded to the schedule properties. When he 6 approached for change of khata, the revenue authorities insisted for production of probate. Accordingly, he filed P & SC No.54 of 2011, which came to be allowed and the probate was issued in the name of the plaintiff. Defendant No.2 filed P & SC No.81 of 2013 before the probate Court seeking to revoke the probate granted in favour of the plaintiff and the said petition came to be allowed vide order dated 28.10.2011 revoking the probate granted in favour of the plaintiff. Taking undue advantage of revokation of the probate, defendant Nos.2, 6 to 8 started interfering with peaceful possession and enjoyment of the schedule properties, by the plaintiff. Therefore, the plaintiff field the suit for declaration and for permanent injunction.
8. Defendant Nos.2, 6 to 8 have filed written statement denying the contention taken by the plaintiff. It is contended that Chikkaramaiah and his brother Veeranna purchased both the properties from out of the joint family fund. Therefore, the schedule properties are the joint family properties. It is contended that Chikkaramaiah had two daughters i.e., defendant No.1 - Channaveeramma and defendant No.2 - Lakshimdevamma. Plaintiff and defendant 7 Nos.3 to 5 are the sons and daughters of defendant No.1, whereas, defendant Nos.6 to 8 are the children of defendant No.2. It is admitted that Chikkaramaiah had no male issues. It is contended that defendant No.1 has looked after Chikkaramaiah till his death. It is also contended that the plaintiff and defendant No.1 colluding with Chikkaramaiah created and concocted the Wills. Therefore, the defendants prayed for dismissal of the suit.
9. Defendant No.8 filed a memo adopting the written statement filed by other defendants.
10. On the basis of these pleadings, the Trial Court framed the following issues for consideration:
"1. Whether plaintiff proves his title to the suit schedule properties?
2. Whether plaintiff proves his lawful possession over the schedule properties as on the date of suit?
3. Whether plaintiff proves the alleged interference caused by defendants No.2 and 6 to 8?8
4) Whether plaintiff is entitled for the
reliefs prayed for?
5) What order or decree?"
11. The plaintiff examined himself as PW1, got
examined PWs.2 and 3 and got marked Exs.P1 to 14 in support of his contention. Defendant No.2 examined herself as DW1 and got marked Exs.D1 to 8 in support of his defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 4 in the Negative and came to the conclusion that the plaintiff is not entitled for the relief and dismissed the suit of the plaintiff.
12. Being aggrieved by the same, the plaintiff preferred RA No.34 of 2017. The First Appellate Court on re- appreciation of the materials on record allowed the appeal and set aside the impugned judgment and decree passed by the Trial Court and the suit of the plaintiff was decreed, declaring him as the absolute owner in possession and enjoyment of the schedule properties on the basis of Wills relied on him and granted permanent injunction restraining defendant Nos.2, 6 to 8 from interfering with the peaceful possession and 9 enjoyment of the schedule properties. Being aggrieved by the same, defendant Nos.2, 6 to 8 have preferred this appeal.
13. Heard Sri B G Kemparaju, learned counsel for the appellants and Sri P M Siddamallappa, learned counsel for respondent No.1. Perused the materials on record including the Trial Court records.
14. Learned counsel for the appellants contended that the schedule properties are the joint family properties of Chikkaramaiah and his brother. Therefore, late Chikkaramaiah had no authority to bequeath the properties in favour of the plaintiff. There are several suspicious circumstances surrounding the execution of Wills, which are noted by the Trial Court. The evidence of the attesting witnesses who are examined as PWs.2 and 3 are doubtful. The near and dear legal representatives of Chikkaramaiah were excluded, which is also a strong suspicious circumstances. Even though, it is contended by the plaintiff that there was partition amongst Chikkaramaiah and his brother, there are no materials to substantiate the same. Mental stability of Chikkaramaiah was also not established. 10 The plaintiff was not granted probate by the probate Court. Under such circumstances, the First Appellate Court committed an error in decreeing the suit of the plaintiff. The Trial Court on proper appreciation of the materials of record, has dismissed the suit with valid reasons. Therefore, learned counsel prays for allowing the appeal by setting aside the impugned judgment and decree passed by the First Appellate Court and to restore the impugned judgment and decree passed by the Trial Court.
15. Per contra, learned counsel for respondent No.1 opposing the appeal submitted that the plaintiff is the legatee under the Wills Exs.P13 and 14. It was the plaintiff who looked after the deceased Chikkaramaiah during his life time. Out of love and affection, the schedule properties were bequeathed in favour of the plaintiff. Therefore, only half portion out of the entire extent of land purchased by Chikkaramaiah and his brother Veeranna were bequeathed. Chikkaramaiah was hale and healthy till his death. The contention of the defendants that he was suffering from mental ailment or physical illness is not proved. The attesting witnesses to the Wills are examined as PWs.2 and 3. In spite 11 of lengthy cross examination, nothing has been elicited from any of these witnesses. There are no suspicious circumstances surrounding the execution of the registered Wills. The revocation of probate was under the circumstances as stated in the plaint and it was not on merits. The Trial Court raised flimsy grounds as suspicious circumstances surrounding the execution of Wills. The First Appellate Court on re-appreciation of the materials on record rightly held that there are no suspicious circumstances in execution of the Wills. Accordingly, the suit of the plaintiff is decreed. There are no reason to interfere with the impugned judgment and decree. Therefore, he prays for dismissal of the appeal.
16. Perused the materials on record in the light of the submissions made by learned counsel for both the parties.
17. It is the specific contention of the plaintiff that the larger extent of land referred to in Schedule 'A' and 'B' were purchased by Chikkaramaiah and his brother under the registered sale deed dated 06.01.1953. The sale deed is produced by the plaintiff as per Ex.P1, which supports the contention of the plaintiff. Even though the defendants have 12 taken the contention that the properties were purchased from out of the joint family fund and that they were joint family properties, there is nothing on record in support of such defence.
18. The plaintiff produced Exs.P13 and 14 - the registered Wills dated 29.05.2008 and 11.05.2009. He has deposed before the Trial Court as PW1. He was cross examined at length by the learned counsel for the defendants, but nothing has been elicited from him to disbelieve his version. Plaintiff got examined PWs.2 and 3 who are the attesting witnesses to the Wills. They have also withstood the cross examination by deposing that they were present when the Wills were executed and they have seen the testator signing the Wills.
19. The Trial Court on appreciation of the materials on record, referred to several suspicious circumstances surrounding the execution of Wills. It has commented that even though PWs.2 and 3 are said to be illiterates, they have subscribed their signatures in Kannada on the Wills and therefore, the execution of the Wills cannot be believed. It is pertinent to note that both the witnesses have signed the 13 deposition after deposing before the Trial Court. The signatures found on the depositions appears to be of the persons who are illiterate. There is no cross examination of PWs.2 and 3 as to how they are signing in Kannada when they are illiterates. When no such defence was taken by the defendants, the same cannot be a suspicious circumstance to reject the Wills out-rightly.
20. The defendants even though have taken a contention that the properties are joint family properties, they have not placed any materials in support of their contention contrary to Ex.P1. Under such circumstances, there was no legal impediment for Chikkaramaiah to bequeath the properties in favour of any person of his choice. A specific contention is taken by the plaintiff that he was looking after Chikkaramaiah till his death. Even though, the defendants have denied this fact, there is nothing on record to disbelieve the version of the plaintiff or to accept the contention of the defendants.
21. The Trial Court has raised suspicion regarding the mental condition of the deceased Chikkaramaiah. It was on 14 the basis of evidence of PW1 that Chikkaramaiah used to visit Hidagalajji Betta near Ganganala as Munisanchari. During that period Chikkaramaiah used to observe silence and he was not talking with anybody. This evidence of PW1 cannot lead to a reasonable conclusion that Chikkaramaiah was not having sound disposing state of mind at the time of executing the Wills. By no stretch of imagination, it can be said that observing silence is a sign of unsoundness of mind. The defendants contended that Chikkaramaiah was suffering from illness and he was got treated by them. There is no scrap of paper in support of such contention. The Trial Court also mentioned about the two Wills executed by Chikkaramaiah and questioned as to why he had not bequeathed both the schedule properties under one Will. This is to be answered by the testator himself. But that itself will not be a suspicious circumstances to reject the Wills.
22. It is also commented that the schedule properties were allotted in favour of the plaintiff even though Chikkaramaiah and his brother have purchased the properties. But it is pertinent to note that only half of the 15 properties purchased under Ex.P1 were bequeathed in favour of the plaintiff and not the entire extent of land.
23. The defendants have raised specific contention that the plaintiff has created and concocted the Wills Exs.P13 and 14. There is no details of such concoction and nothing has been elicited from any of the witnesses examined on behalf of the plaintiff in support of such contention. Under such circumstances, the Trial Court was not right in raising flimsy grounds as suspicious circumstances, which are not reasonable to be eliminated by the plaintiff. On looking at Exs.P13 and 14, which are the registered Wills, in the light of the evidence of PWs.1 to 3, I am of the opinion that the plaintiff has proved the due execution of Wills.
24. The First Appellate Court on proper appreciation of the materials on record arrived at a right conclusion. Therefore, I am of the opinion that the impugned judgment and decree passed by the Trial Court is liable to be set aside. I do not find any reason to interfere with the judgment passed by the First Appellate Court. There are no substantial 16 question of law that would arise for consideration in this appeal and no grounds are made out to admit the appeal.
25. Hence, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 09.04.2018 passed in RA No.34 of 2017 on the file of the learned Senior Civil Judge and CJM, Tumakuru, is hereby confirmed.
(iii) The judgment and decree dated 20.01.2017 passed in OS No.171 of 2014 on the file of the learned Principal Civil Judge and JMFC, Tumakuru, is hereby set aside.
Consequently, the suit of the plaintiff is decreed.
Registry to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE *bgn/-