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Karnataka High Court

Smt Vanajakshi vs Sri A B Sadashiva Setty on 10 February, 2023

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

                                        -1-
                                                  RFA No. 2138 of 2006




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 10TH DAY OF FEBRUARY, 2023

                                     BEFORE

                   THE HON'BLE MR JUSTICE N S SANJAY GOWDA

                  REGULAR FIRST APPEAL NO. 2138 OF 2006 (DEC)


            BETWEEN:

            1.    SMT VANAJAKSHI
                  AGED ABOUT 48 YEARS,
                  D/O LATE A.B. MAHADEVA SETTY,
                  AND W/O SRI SHIVASWAMY
                  R/AT 'POORNIMA NILAYA', MUNICIPAL
                  OFFICE ROAD, T NARASIPURA,
                  MYSORE DISTRICT- 571 124
                                                          ...APPELLANT

            (BY SRI. Y K NARAYANA SHARMA., ADVOCATE)

            AND:

Digitally   1.     SRI A B SADASHIVA SETTY,
signed by
PANKAJA S          SINCE DECEASED REPRESENTED BY HIS LRS.,
Location:
HIGH
COURT OF
KARNATAKA   1(a) SMT.LALITHAMMA,
                 W/O LATE A.B. SADASHIVA SETTY,
                 AGED ABOUT 50 YEARS,

            1(b) SRI S SURESH
                 S/O LATE.A.B. SADASHIVA SETTY,
                 AGED ABOUT 27 YEARS,

            1(c) SRI S ANANDA MURTHY,
                 S/O LATE.A.B. SADASHIVA SETTY,
                 AGED ABOUT 25 YEARS,
                           -2-
                                      RFA No. 2138 of 2006




     R-1(a) TO (c) ARE
     R/AT TIGALARA BEEDHI,
     T.NARASIPURA TOWN,
     MYSORE DISTRICT- 571 124.

2.   SRI S CHANDRASHEKAR,
     AGED ABOUT 29 YEARS,
     S/O LATE A.B. SADASHIVA SETTY,
     NO.35, VYSHNAVARA BEEDI,
     T.NARASIPURA,
     MYSORE DISTRICT-571124.

3.   SRI A B PARAMESHWARA SETTY
     S/O BASAVA SETTY,
     SINCE DEAD BY LRs.,

3(a) SMT. SUNDARAMMA,
     AGED ABOUT 50 YEARS,
     W/O LATE A.B.PARAMESHWARA SETTY,

3(b) SRI. GIRISH,
     AGED ABOUT 29 YEARS,
     S/O LATE A.B.PARAMESHWARA SETTY,

     R-3(a) AND (b) BOTH ARE
     RESIDING AT No.836,
     PLD BANK ROAD,
     T.NARASIPURA,
     MYSORE DISTRICT.

3(c) SMT.KATHYAYINI,
     AGED ABOUT 34 YEARS,
     W/O SRI. ANAND,
     RESIDING AT DODDABAGILU POST,
     T.NARASIPURA TALUK,
     MYSORE DISTRICT.

3(d) SMT. SATYAVATHI,
     AGED ABOUT 32 YEARS,
     D/O LATE PARAMESHWARA SETTY,
     No.836, PLD BANK ROAD,
     T.NARASIPURA,
                            -3-
                                    RFA No. 2138 of 2006




     MYSORE DISTRICT.

4.   SRI RACHEGOWDA,
     MAJOR,
     (AGE AND FATHER'S NAME
     NOT KNOWN TOTHE APPELLANT)
     RAJU GENERAL STORES NO.803,
     MADHAVA RAO ROAD,
     T.NARASIPURA,
     MYSORE DISTRICT- 571 124.

5.   SRI NAGARAJU
     AGED ABOUT 60 YEARS,
     PROPRIETOR: VINAYAKA AGENCY
     NO.803, MADHAVA RAO ROAD,
     T.NARASIPURA,
     MYSORE DISTRICT- 571 124.

6.   SRI M MALLARADHYA
     MAJOR,
     (AGE AND FATHER'S NAME
     NOT KNOWN TO THE APPELLANT)
     NO.803, MADHAVA RAO ROAD,
      T.NARASIPURA,
     MYSORE DISTRICT- 571 124.

7.   SRI SIDDARAJU
     MAJOR,
     (AGE AND FATHER'S NAME
     NOT KNOWN TO THE APPELLANT)
     NO.803, MADHAVA RAO ROAD,
     T.NARASIPURA,
     MYSORE DISTRICT - 571 124.

                                         ...RESPONDENTS

(BY SRI. P.NATARAJU, ADVOCATE FOR C/R-2, R-1(a TO c) AND
    FOR LRs., OF R-3(a TO d)
    R-4, R-5 AND R-6 ARE SERVED AND UNREPRESENTED;
    VIDE ORDER DATED:04:08.2015, NOTICE TO R-7 IS
    DISPENSED WITH)
                           -4-
                                    RFA No. 2138 of 2006




     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED:20.07.2006 PASSED IN O.S. NO.312/2001 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.) T.NARASIPURA, DISMISSING
THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

1. Smt.Vanajakshi, the daughter of Late A.B.Mahadeva Setty, instituted a suit seeking for declaration that she was the absolute owner of the property bearing No.803 (residential property) situate at Madhava Rao Road, T.Narasipura Taluk, Mysore and another agricultural property measuring 1 acre 13 guntas of Sy.No.24/1, which was situate at Hunsur village, Kasaba Hobli, T.Narasipura Taluk, Mysore.

2. The parties would be referred to by their names instead of their ranking, for the sake of convenience.

3. It was the case of Vanajakshi that she was the only daughter of her father Mahadeva Setty who had passed away on 07.08.1994 and by virtue of being the -5- RFA No. 2138 of 2006 only daughter, she had succeeded to all his properties. She stated that her mother had pre-deceased her father and therefore, apart from her, there were no other legal heirs of Mahadeva Setty.

4. She stated that defendants 4 to 7 were the tenants in occupation of different portions of item No.1 and during the lifetime of her father, they were paying rents to him. She also stated that the agricultural property was also in the possession of her father and after his death, she was in possession of the same. She stated that on the passing away of her father, she made an application to Madhyanthara Mandala Panchayat, T.Narasipura, seeking for change of Khata, but at that stage, Panchayat refused to change the Khata on the ground that there was a dispute regarding her entitlement and advised her to approach the Civil Court.

RFA No. 2138 of 2006

5. She stated that she therefore issued a legal notice to defendants 4 to 7 and she also received a reply, in which the tenants denied her right over the properties and also informed her that her uncles' children had set up a Will to deprive of her exclusive right to succeed to the suit properties.

6. She also stated that her father was also suffering from severe Diabetes which had affected his mental balance. She also highlighted the fact that he had Gangrene in his right leg which had resulted in the amputation of his right leg. She also sought to plead that he was repeatedly being admitted to the hospitals and as a result of his severe Diabetes, his mental health was also affected and there was no way that he could have executed a Will or any testamentary document. She also sought to contend that the death of her mother had also deeply affected him. She therefore contended that she had succeeded as the -7- RFA No. 2138 of 2006 sole surviving legal heir of her father and she was entitled for a declaration.

7. The defendants entered appearance and contested the suit.

8. Defendant Nos.1 and 2 filed written statement and so also defendant No.3.

9. Defendant No.1--A.B.Sadashiva Setty was her uncle, defendant No.2 was his son--S.Chandrashekar and defendant No.3--A.B.Parameshwar Setty was another brother of her father.

10. The uncles of Vanajakshi and their son contended that Mahadeva Setty had executed a Will, which had been registered on 11.07.1994 whereby he had bequeathed portions of the suit properties in favour of his brothers and their children. They also stated that in the portion which had been bequeathed, Mahadeva Setty had started construction of two shops, but he -8- RFA No. 2138 of 2006 could not complete the same and on his death, S.Chandrashekar and his brother Suresh completed the construction and had let-out the shops to defendant Nos.4 to 7. In other words, the brothers and their children set up a Will staking a claim over the portions of the suit properties.

11. The Trial Court on consideration of the pleadings framed seven issues.

12. In support of Vanajakshi's case, she got herself examined as PW-1 and also got the Sub-Registrar examined as PW-2 and in all, twenty-one documents were admitted in evidence and marked as exhibits on her behalf.

13. On behalf of the defendants, S.Chandrashekar-- defendant No.2 got himself examined as DW-1 and two attesting witnesses to the Will were examined as DWs-2 and 3 and the scribe of the Will was examined -9- RFA No. 2138 of 2006 as DW-4. In all, twelve documents were admitted into evidence and marked them as exhibits.

14. The other defendants did not contest the matter.

15. The Trial Court, on consideration of the pleadings and evidence adduced, came to the conclusion that Vanajakshi had failed to prove that she had succeeded to the suit properties absolutely. The Trial Court also held that she had failed to prove that defendants 4 to 7 were her tenants and they were paying her monthly rents. The Trial Court also held that the registered Will dated 11.07.1994 whereby item No.1 of the suit properties had been bequeathed in favour of S.Chandrashekar--defendant No.2, Girish--the son of defendant No.3 and other two brothers viz., Suresh and Ananda Murthy, and there was also a bequest of item No.2 of the suit properties in favour of Girish s/o.Parameshwara Setty had been duly proved.

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16. The Trial Court also held that in the light of the above, Vanajakshi was not entitled to recover the rents from the tenants. The Trial Court accordingly dismissed the suit.

17. Being aggrieved, Vanajakshi is in appeal.

18. Learned counsel for Vanajakshi, Sri.Y.K.Narayana Sharma, contended that the Trial Court had committed a serious error in accepting that the Will had been duly proved. He stated that the evidence on record clearly indicated that Mahadeva Setty was not in a sound state of mind and the evidence on record also proved that he had been admitted to the hospital just prior to his death and having regard to the proximity of his death and the date of the execution of the Will, it was clear that the execution of the Will was surrounded by suspicious circumstances and the Will therefore had to be disbelieved. The learned counsel

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also sought to highlight several discrepancies in the evidence of the attesting witnesses and the scribe to contend that the execution of the Will had not been proved.

19. Sri.P.Nataraju, learned counsel for the contesting defendants, on the other hand, submitted that the judgment and decree of the Trial Court could not be found fault with. He placed reliance on the very evidence of Vanajakshi, in which she had herself stated that her father was discharging his functions as the President of the Society and was attending all his meetings and also signing the registers till his death. He also sought to highlight the fact that the evidence of Vanajakshi herself established that Mahadeva Setty and his brothers were in cordial terms and there was absolutely no evidence indicative of the involvement of any of the legatees in the preparation or execution of

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the Will. He therefore submitted that the Trial Court was absolutely justified in dismissing the suit.

20. In the light of the arguments advanced by the learned counsel for both parties, the only point that requires consideration in this appeal is as to whether the Trial Court was justified in coming to the conclusion that Mahadeva Setty had executed the Will dated 11.07.1994 and was registered on 13.07.1994 in favour of his brothers and their children.

21. It is well settled law that the execution of the Will would have to be established by the examination of the attesting witnesses even if the Will is registered. In this case, both the attesting witnesses were examined and they have clearly and categorically admitted that they saw the testator sign the Will and

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they thereafter attested the signature of the testator by affixing their signatures on the Will.

22. As noticed by the Trial Court, nothing is elicited from the evidence of these attesting witnesses to indicate that the Will had not been executed.

23. The Scribe of the Will was also examined as DW.4. He has also stated that he drafted the Will on the instruction of the testator. A perusal of his cross- examination would indicate that Mahadeva Setty had given instructions for drafting the Will and there was nothing elicited during his cross-examination which would indicate either directly or indirectly that Mahadeva Setty was incapable of giving instructions. It is therefore clear that the execution of the Will, as required under law, by the examination of the attesting witnesses has been satisfactorily proved.

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24. The contention, however, advanced by Vanajakshi was that her father was not capable of executing the testament. In the course of her cross- examination, she has stated as follows:

"... £ÀªÀÄä vÀAzÉAiÀĪÀgÀÄ ¥ËwAiÀiÁUÀĪÀªÀgÉ«UÀÆ vÁ¯ÉÆèÃPÀÄ UÁtÂUÀgÀ ¸ÀAWÀzÀ CzsÀåPÀógÁVzÀÝgÀÄ JA§ÄzÀÄ ¤d. £À£Àß vÀAzÉAiÀĪÀgÀÄ ¸ÀzÀj ¸ÀAWÀzÀ ZÀlĪÀnPÉUÀ¼À°è CªÀgÀÄ ¸ÁAiÀÄĪÀªÀgÉUÀÆ ¨sÁUÀªÀ»¸ÀÄwÛzÀÝgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¤dªÀ®è. £À£Àß vÀAzÉAiÀĪÀgÀÄ ¸ÀzÀj ¸ÀAWÀzÀ J¯Áè «ÄÃnAUïUÀ¼À°è ¨sÁUÀªÀ»¹ ¸ÀAWÀzÀ «ÄÃnAUï ¥ÀĸÀÛPÀPÉÌ ºÁUÀÆ UÉÆvÀÄÛªÀ½UÀ½UÉ ¸À» ªÀiÁqÀÄwÛzÀÝgÀÄ JA§ÄzÀÄ ¤d. ..."

25. A reading of this passage would indicate that Mahadeva Setty was the President of Taluka Ganigara Society and he was an active participant in all the activities of the Society right up to his death. The fact that Vanajakshi admitted that her father used to attend all the meetings and he also used to sign the meeting books, by itself, proves that he had a sound disposition of mind at the time of his death.

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26. Learned counsel for Vanajakshi however contended that this evidence would have to be read in the context of the fact that Vanajakshi was referring to the signatures of his father executed in the month of February 1994.

27. However, a reading of the entire paragraph would indicate that Vanajakshi was actually stating that her father was active in the affairs of the Society that he headed as the President. If a businessman who is heading a Society is admitted to be an active participant in the Society, it cannot really be urged that he did not have the testamentary capacity to execute the Will.

28. It has to be noticed here that Vanajakshi was married in the year 1972 and Mahadeva Setty was residing in the suit property along with his wife who had pre-deceased him about four months prior to his

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death. The evidence of Vanajakshi is also to the effect that the relationship of her father with all his brothers and their children was cordial. If the relationship of Mahadeva Setty with his brothers and their children was cordial, the execution of the Will in their favour cannot be considered as unnatural.

29. It has to be noticed here that under the Will, Mahadeva Setty gave the House property bearing No.803 measuring 20 feet x 10 feet and 35 guntas of land in Sy.No.24/1 in favour of Girish--the son of Parameshwara Setty (Schedule "A" of the Will); two shops measuring 10 feet x 10 feet each in favour of S.Chandrashekar--defendant No.2 and S.Suresh, who were the sons of A.B.Sadashiva Setty (Schedules "B" & "C" of the Will); the other portion that was bequeathed in item No.1 was to S.Ananda Murthy who was another son of A.B.Sadashiva Setty (Schedule "D" of the Will). One Subba Setty was bequeathed a house

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bearing No.596 measuring 30 feet x 16½ feet along with abutting vacant site measuring 3 feet x 16½ feet (Schedule "E" of the Will).

30. It is also to be noticed that the remaining property was in fact bequeathed to Vanajakshi herself and according to the recitals of the Will, this was a two-storey structure in a site measuring 74 feet x 60 feet and the remaining property in No.596 (Schedule "F" of the Will).

31. It is therefore clear that Mahadeva Setty had not deprived his daughter of his property in its entirety. Mahadeva Setty had essentially bequeathed small portions of the property and the agricultural property to his brothers and their children and had bequeathed a larger extent of the residential property to Vanajakshi, which indicates that he had distributed his properties to all the family members.

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32. Having regard to the fact that Vanajakshi had been married in the year 1972 and was residing with her husband, the bequest made in favour of Mahadeva Setty's brothers and their children, who were in cordial terms with him, cannot be termed as unnatural.

33. It has to be stated here that though contentions were raised that Mahadeva Setty was unwell, there was no credible proof to establish that Mahadeva Setty was not aware of the consequences of his action. Even if this contention is to be accepted, all that is established is that Mahadeva Setty was suffering from severe Diabetes. The evidence also indicates that he had suffered Gangrene to his right leg and his right leg was amputated about four to five years prior to his death. It was therefore clear that notwithstanding the amputation of his right leg due to Gangrene and Diabetes, he had survived for five years

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and as admitted by Vanajakshi, he was an active participant in the affairs of the Society. This, by itself, indicates that he was active and also in a sound state of mind at the time of his death.

34. In my view, the Trial Court has considered the evidence on record in its totality and has come to the conclusion that Vanajakshi had not been able to establish that the Will executed by her father-- Mahadeva Setty was surrounded by suspicious circumstances or that he was coerced to execute the Will.

35. The alleged discrepancies sought to be highlighted by the learned counsel, Sri.Y.K.Narayana Sharma, would be really of no consequence since there was nothing on record to establish that Mahadeva Setty was under the influence of his

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brothers or their children and that he was forced to sign the Will.

36. The appeal being devoid of merits is dismissed.

Sd/-

JUDGE RK List No.: 2 Sl No.: 2