Karnataka High Court
Rangaswamy vs Jayalakshmi @ Jayalakshmamma on 17 July, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:25106
RSA No. 596 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 596 OF 2013 (PAR)
BETWEEN:
RANGASWAMY
S/O CHIKKARANGAIAH,
AGED ABOUT 54 YEARS,
HALEUNDAVADI, ANANDUR POST,
YELWALA HOBLI,
MYSORE TALUK-570 018.
...APPELLANT
(BY SRI. V. SRINIVAS, ADVOCATE)
AND:
1. JAYALAKSHMI @ JAYALAKSHMAMMA
W/O MAHADEV,
AGED 41 YEARS,
NO.948, 1ST BLOCK, GORURU ROAD,
RAMABHAINAGAR,
Digitally signed by MYSORE-570 016.
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH 2. SAKAMMA
COURT OF
KARNATAKA W/O CHIKKARANGAIAH,
AGED ABOUT 76 YEARS,
HALEUNEDAVADI,
ANANDUR POST, YELWALA HOBLI,
MYSORE TALUK-570 018.
3. BHAGYAMMA
W/O UGRAIAH,
AGED BOUT 50 YEARS,
HOSAHALLI VILLAGE,
DORNAHALLI POST, K R NAGAR TALUK,
MYSORE TALUK-571 602
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NC: 2023:KHC:25106
RSA No. 596 of 2013
4. K.A. RAMAIAH REDDY
S/O LATE SUBBAIAH REDDY,
AGED 77 YEARS,
R/O 357, 3RD CROSS,
CAMBRIDGE LAYOUT, HALASOOR,
BANGALORE-560 008.
...RESPONDENTS
(BY SRI. SHIVAKUMAR .H.T, ADVOCATE FOR R1,
SRI. SREENIVASAN M.Y, ADVOCATE FOR R2 & R3,
R4-SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT & DECREE DATED 31.1.2013 PASSED IN
R.A.NO.146/2012 ON THE FILE OF THE PRL. DISTRICT &
SESSIONS JUDGE, MYSORE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED 6.3.2012
PASSED IN OS.NO.1370/2007 ON THE FILE OF THE I ADDL.
SENIOR CIVIL JUDGE, MYSORE.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed praying to set aside the judgment and decree dated 31.01.2013 passed in RA No.146/2012 by the Principal District and Sessions Judge, Mysuru ('First Appellate Court' for short ) and confirm the judgment and decree dated 06.03.2012 passed in O.S. No.1370/2007 by the First Additional Senior Civil Judge, Mysuru ('trial Court' for short).
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NC: 2023:KHC:25106 RSA No. 596 of 2013
2. The appellant-Sri. Rangaswamy was defendant No.2, the Respondent No.1-Jayalakshmi was the plaintiff and Respondent No.2-Smt. Sakamma, Respondent No.3- Bhagyamma and Respondent No.4-Sri. K.A. Ramaiah Reddy were Defendants No.1, 3 & 4 respectively in OS No.1370/2007.
3. The parties will be referred to as per their rankings in the trial Court.
4. The plaintiff-Smt.Jayalakshmi has filed a suit for partition and separate possession of her 1/4th share in the suit schedule properties. There are two items of the suit schedule properties. One is an agricultural land bearing Sy. No.24/P8 measuring 4 acre 10 guntas situated at Yelachahalli Village, Yelawala Hobli, Mysuru Taluk, and another is a Mangaluru Tiled House measuring 20ft.x30ft.
5. It is the case of plaintiff-Smt. Jayalakshmi before the trial Court that, the plaintiff is the younger daughter, the 3rd defendant-Smt. Bhagyamma is elder daughter, and the 2nd defendant-Sri. Rangaswamy is the -4- NC: 2023:KHC:25106 RSA No. 596 of 2013 son of late Chikkarangaiah, while the 1st defendant- Sakamma is their mother, viz., the wife of Sri. Chikkarangaiah. It is stated that the property bearing Sy. No.24/P8 measuring 4 acre 10 guntas is an absolute and self-acquired property of late Chikkarangaiah, who got the same by way of Dharkast and Item Nos. 1 & 2 are the absolute properties of late Sri.Chikkarangaiah. It is stated that, due to old age, Sri. Chikkarangaiah consented for joint khatha of the land in the name of the 2nd defendant- Sri. Rangaswamy and the 2nd defendant-Sri. Rangaswamy was managing the joint family. The plaintiff-Smt. Jayalakshmi has insisted for equal partition of suit schedule properties and demanded her share in the suit schedule properties and the 2nd defendant-Sri. Rangaswamy refused to effect partition and tried to alienate the suit schedule properties. Therefore, the plaintiff-Smt. Jayalakshmi has filed a suit.
6. Defendant No.1-Sakamma filed written statement and admitted the relationship of the parties to -5- NC: 2023:KHC:25106 RSA No. 596 of 2013 the suit as contended by the plaintiff-Smt. Jayalakshmi. But, she denied that the khatha of Item No.2 of suit schedule property was made in the joint name of her husband and the 2nd defendant-Sri. Rangaswamy, by virtue of consent of Sri. Chikkarangaiah, owing to his old age. She contended that the 2nd defendant-Sri. Rangaswamy never care to look after or maintain his father-Sri. Chikkarangaiah at any point of time. She contended that, Sri. Chikkarangaiah executed the Will dated 19.04.2007 bequeathing a portion of Item No.1 of the suit schedule property in favour of herself (Defendant No.1-Smt. Sakamma), plaintiff-Smt. Jayalakshmi and the 3rd defendant-Smt. Bhagyamma. She contended that the Will dated 30.04.2007 is not genuine and valid. She further contended that, she is entitled to 1/4th share in the suit schedule properties and she prayed to declare her share in the suit schedule properties, stating that she has paid the Court Fee.
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NC: 2023:KHC:25106 RSA No. 596 of 2013
7. The 2nd defendant-Sri. Rangaswamy in his written statement contended that the suit is not maintainable. He admitted that, the plaintiff-Smt. Jaylakshmi is the daughter and he is the son of Sri. Chikkarangaiah and the 1st defendant-Smt. Sakamma. But, he contended that the 3rd defendant is a stranger to his family. He denied that the plaintiff demanded partition. He contended that, Sri. Chikkarangaiah executed the Will on 30.04.2007 in his favour and as per the same, the revenue records stand in his name and he is in lawful possession of the suit schedule properties and prayed to dismiss the suit.
8. The 3rd defendant-Smt.Bhagyamma contended that, Sri.Chikkarangaiah has objected the mutation of khatha of Item No.1 of the property and assailed the mutation entries. She contended that, the plaintiff herein has received Rs.2,00,000/- in respect of her share and relinquished her rights over the suit schedule properties and therefore, the suit is not maintainable. She contended -7- NC: 2023:KHC:25106 RSA No. 596 of 2013 that, she is entitled to the legitimate share in the suit schedule properties.
9. On the basis of the pleadings, the trial Court has framed the following issues:-
1. zÁªÁ 1£Éà LlA D¹ÛAiÀÄÄ ªÁ¢AiÀÄ vÀAzÉAiÀiÁzÀ aPÀÌgÀAUÀAiÀÄå JA§ÄªÀªÀjUÉ zÀgÀSÁ¸ÀÄÛ ªÀÄÆ®PÀ ªÀÄAdÆgÁVgÀÄvÀÛzÉ, 2£Éà LlA D¹Û DvÀ£ÀÄ ¸ÀA¥Á¢¹zÀ ¸ÀéAvÀ D¹ÛAiÀiÁVzÉ, ¸ÀzÀj D¹ÛUÀ¼ÀÄ 2£Éà ¥ÀæwªÁ¢AiÀÄ G¸ÀÄÛªÁjAiÀÄ°ègÀÄvÀÛzÉ, vÀ£ÀUÉ CzÀgÀ°è 4 ¨sÁUÁA±À EzÉ, CzÀ£ÀÄß ¥ÀævÉåÃQ¹ ¸Áé¢üãÀPÉÆr¸À¨ÉÃPÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ¼ÉAiÉÄÃ?
2. 1£Éà ªÀÄvÀÄÛ 3£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ vÀªÀÄUÉ ¸ÀzÀj D¹ÛAiÀÄ°è ¥ÀæwAiÉƧâjUÀÆ 1/4 ¨sÁUÀA±À EzÉ, CzÀ£ÀÄß ¥ÀævÉåÃQ¹ ¸Áé¢üãÀ PÉÆr¸À¨ÉÃPÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ¼ÉAiÉÄÃ?
3. 3£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢ 2 ®PÀë gÀÆUÀ¼À£ÀÄß vÀ£Àß D¹ÛAiÀÄ ªÉÄð£À ºÀPÀÌ£ÀÄß ©lÄÖ PÉÆqÀĪÀ ¸À®ÄªÁV ªÉÄà 2007 gÀ°è ¥ÀqÉ¢gÀÄvÁÛ¼É, ºÁUÁV DPÉUÉ AiÀiÁªÀÅzÉà ¨sÁUÀA±À EgÀĪÀÅ¢®è JA§ÄzÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ¼ÉAiÉÄÃ?
4. 2£Éà ¥ÀæwªÁ¢AiÀÄÄ vÀªÀÄä vÀAzÉAiÀÄÄ 30.04.2007 gÀ°è £ÉÆÃAzÁ¬ÄvÀ ªÀÄgÀt ±Á¸À£ÀªÀ£ÀÄß PÉÆnÖgÀÄvÁÛgÉ, »ÃUÁV vÁªÀÅ zÁªÁ D¹ÛUÀ½UÉ ªÀiÁ°ÃPÀgÁV £ÁåAiÀÄAiÀÄÄvÀ ¸Áé¢ü£À ºÉÆA¢gÀĪÀÅzÁVzÉ, DzÀ PÁgÀt ªÁ¢ ªÀÄvÀÄÛ EvÀgÉà ¥ÀæwªÁ¢UÀ½UÉ D¹ÛAiÀÄ°è AiÀiÁªÀÅzÉà ¨sÁUÁA±À E®è JA§ÄzÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ£ÉAiÉÄÃ?
5. ¥ÀPÀëUÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀðgÀÄ?
10. The plaintiff-Smt.Jayalakshmi has been examined as PW.1 and got marked Exs.P1 to P10. The defendant No.2-Sri. Rangaswamy has been examined as -8- NC: 2023:KHC:25106 RSA No. 596 of 2013 DW.1 and got examined four witnesses as DWs.2 to 5 and got marked Exs.D1 to D19. The defendant No.4, who has been added subsequently, has not contested the suit.
11. The trial Court after appreciating the evidence, has answered Issue Nos.1 to 3 in the negative and Issue No.4 in the affirmative, and dismissed the suit.
12. Aggrieved by the judgment and decree passed by the trial Court, the plaintiff filed appeal in RA No.146/2012 before the First Appellate Court viz., the Principal District and Sessions Judge, Mysuru.
13. The First Appellate Court after hearing the arguments on both side, has formulated the following points for consideration:-
1. zÁªÁ MAzÀ£Éà LlA D¹ÛAiÀÄÄ ªÁ¢AiÀÄ vÀAzÉAiÀiÁzÀ aPÀÌgÀAUÀAiÀÄå JA§ÄªÀªÀjUÉ zÀgÀSÁ¸ÀÄÛ ªÀÄÆ®PÀ ªÀÄAdÆgÁVgÀÄvÀÛzÉ, 2£Éà LlA D¹Û DvÀ£ÀÄ ¸ÀA¥Á¢¹zÀ ¸ÀéAvÀ D¹ÛAiÀiÁVzÉ, ¸ÀzÀj D¹ÛUÀ¼ÀÄ 2£Éà ¥ÀæwªÁ¢AiÀÄ G¸ÀÄÛªÁjAiÀÄ°ègÀÄvÀÛzÉ, vÀ£ÀUÉ CzÀgÀ°è 4 ¨sÁUÁA±À EzÉ, CzÀ£ÀÄß ¥ÀævÉåÃQ¹ ¸Áé¢üãÀPÉÆr¸À¨ÉÃPÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ¼ÉAiÉÄÃ?-9-
NC: 2023:KHC:25106 RSA No. 596 of 2013
2. 1£Éà ªÀÄvÀÄÛ 3£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ vÀªÀÄUÉ ¸ÀzÀj D¹ÛAiÀÄ°è ¥ÀæwAiÉƧâjUÀÆ 4 ¨sÁUÀA±À EzÉ, CzÀ£ÀÄß ¥ÀævÉåÃQ¹ ¸Áé¢üãÀ PÉÆr¸À¨ÉÃPÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ¼ÉAiÉÄÃ?
3. 3£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢ 2 ®PÀë gÀÆ¥Á¬ÄUÀ¼À£ÀÄß vÀ£ßÀ D¹ÛAiÀÄ ªÉÄð£À ºÀPÀÌ£ÀÄß ©lÄÖ PÉÆqÀĪÀ ¸À®ÄªÁV ªÉÄà 2007 gÀ°è ¥ÀqÉ¢gÀÄvÁÛ¼É, »ÃUÁV DPÉUÉ AiÀiÁªÀÅzÉà ¨sÁUÀA±À EgÀĪÀÅ¢®è JA§ÄzÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ¼ÉAiÉÄÃ?
4. 2£Éà ¥ÀæwªÁ¢AiÀÄÄ vÀªÀÄä vÀAzÉAiÀÄÄ 30.04.2007 gÀ°è £ÉÆÃAzÁ¬ÄvÀ ªÀÄgÀt ±Á¸À£ÀªÀ£ÀÄß PÉÆnÖgÀÄvÁÛgÉ, »ÃUÁV vÁªÀÅ zÁªÁ D¹ÛUÀ½UÉ ªÀiÁ°ÃPÀgÁV £ÁåAiÀÄAiÀÄÄvÀ ¸Áé¢ü£À ºÉÆA¢gÀĪÀÅzÁVzÉ, DzÀ PÁgÀt ªÁ¢ ªÀÄvÀÄÛ EvÀgÉà ¥ÀæwªÁ¢UÀ½UÉ D¹ÛAiÀÄ°è AiÀiÁªÀÅzÉà ¨sÁUÁA±À E®è JA§ÄzÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ£ÉAiÉÄÃ?
5. ¥ÀPÀëUÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀðgÀÄ?
14. The First Appellate Court has answered Point No.1 in affirmative and Point No.2 in negative, and allowed the appeal and set aside the judgment and decree passed by the Trial Court and decreed the suit of the plaintiff holding that the plaintiff is entitled to 1/4th share in Item Nos. 1 & 2 of the suit schedule properties.
15. During the pendency of the said first appeal, the plaintiff has filed IA No.2 under Order VI Rule 17 of
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NC: 2023:KHC:25106 RSA No. 596 of 2013 CPC seeking amendment of the plaint and the First Appellate Court has dismissed the said application.
16. In the said amendment application, the plaintiff has intended to amend the plaint stating that there is a typographical mistake in the averments of the plaint to the effect that, 'Item No.1 is an absolute and separate property of Sri. Chikkarangaiah'. But, it ought to have been, 'Item No.1 is not an absolute and separate property of Sri. Chikkarangaiah'.
17. Defendant No.2-Sri. Rangaswamy aggrieved by the judgment and decree passed by the First Appellate Court, has filed this second appeal.
18. This Regular Second Appeal came to be admitted to consider the following substantial questions of law:-
i) Whether the lower appellate court was justified in reversing the finding on Issue No.4 i.e., execution of registered Will dated 30.04.2007 by plaintiff's father in favour of
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NC: 2023:KHC:25106 RSA No. 596 of 2013 her brother-second defendant in the original suit?
ii) Whether lower appellate court was justified in holding that the suit schedule properties are the joint family properties and are available for partition when admittedly, first property was granted in his favour in Darkasth and second property is said to be self-acquired property of plaintiff's father?
19. Heard the arguments of learned counsel for the appellant and learned counsel for Respondent No.1.
20. Learned counsel for the appellant would contend that the plaintiff in the plaint has specifically stated that, Item No.1 of the suit schedule properties is an absolute property of late Chikkarangaiah. He further argued that, Sri. Chikkarangaiah, who had executed the Will dated 19.04.2007, has cancelled the same by Cancellation Deed dated 30.04.2007. On the date of the said Cancellation Deed, Sri. Chikkarangaiah has executed the Will-Ex.D1 on 30.04.2007 in favour of Defendant No.2-
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NC: 2023:KHC:25106 RSA No. 596 of 2013 Sri. Rangaswamy. The fact that, whether the Testator-Sri. Chikkarangaiah was sound and in disposing state of mind or not as on the date of execution of Will-Ex.D1, is not challenged by the plaintiff. DWs. 3 & 4 are the attesting witnesses and DW.5 is the scribe of the Will-Ex.D1 and their oral evidence goes to establish that, Sri. Chikkarangaiah has executed the said Will-Ex.D1 bequeathing Item Nos. 1 & 2 of suit schedule properties in favour of Defendant No.1-Sakamma, in the presence of attesting witnesses. It is his further argument that, the First Appellate Court, on two grounds has held that the Will-Ex.D1 is not valid, by stating that, there is deprivation of natural heirs viz., plaintiff and Defendants No.1 & 3 and participation of one Sri. Somashekara, the son of Defendant No.2-Sri. Rangaswamy, in execution of the Will- Ex.D1 and there are suspicious circumstances in due execution of the Will-Ex.D1. It is his further argument that, mere participation of the beneficiary in execution of the Will-Ex.D1 and depriving of natural heirs are not suspicious circumstances. On that point, he placed reliance
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NC: 2023:KHC:25106 RSA No. 596 of 2013 on a decision of the Hon'ble Supreme Court in the case of Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others reported in AIR 2005 SC 4362, wherein it is held as under: -
"27. Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321".
He further argued that, the finding of the First Appellate Court in disbelieving the Will-Ex.D1 based on the said two suspicious circumstances is erroneous.
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NC: 2023:KHC:25106 RSA No. 596 of 2013
21. Learned counsel for Respondent No.1/Defendant No.2 argued that, Item No.1 of the suit schedule property is a Dharkast Land granted in favour of Sri. Chikkarangaiah and the grant enure to the benefit of the members of the family and he is not having any right to bequeath the entire properties and therefore, the Will- Ex.D1 is not valid. He further argued that, Sri. Chikkarangaiah was belonging to Scheduled Caste and as per the provisions of Section 4 of the Karnataka SC & ST (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'SC & ST (PTCL) Act'), the transfer of granted land belonging to Scheduled Caste, is prohibited and the Will- Ex.D1, which amounts to transfer, as defined under Section 3(e) of the Act. He further argued that, at the most, the said Sri. Chikkarangaiah had a right to execute Will in respect of his share in Item No.1 of the suit schedule property and not the entire suit schedule property. The object of the said enactment is to protect the rights of the persons belonging to Scheduled Caste and Scheduled Tribes, and their economic conditions. He
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NC: 2023:KHC:25106 RSA No. 596 of 2013 further argued that, there is a similar provision under Section 61 of the Karnataka Land Reforms Act, which also prohibits alienation of the granted land. He further argued that the Will in favour of one member of the family affects the economic condition of other member of the family, who are belonging to Scheduled Caste. He further argued that, the Relinquishment Deed dated 13.02.2023 executed by Defendants 1 & 3 in favour of Defendant No.2, itself shows that Defendant Nos.1 & 3 have right and share in the suit schedule properties, which they relinquished in favour of Defendant No.2-Sri. Rangaswamy, during the pendency of this second appeal. On the points urged, he placed reliance on several decisions of this Court. He further argued that, in plaint, there is a mistake due to typographical error at the time stating that, Item No.1 of the suit schedule properties absolutely belongs to Sri. Chikkarangaiah. He further argued that, another substantial question of law arises regarding whether deceased had right to execute the Will in respect of the
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NC: 2023:KHC:25106 RSA No. 596 of 2013 entire property, in view of the provisions contained under Section 61 of the Karnataka Land Reforms Act.
22. It is not in dispute that item No.1 of the suit schedule properties is a Dharkasth land granted in the name of Sri.Chikkarangaiah. In the plaint, the plaintiff has specifically stated that item No.1 of the suit schedule properties is an absolute and self acquired properties of late Sri.Chikkarangaiah, which was got by way of Dharkasth. The plaintiff who was the appellant before the First Appellate Court filed an application seeking amendment of the said sentence in the plaint and the same came to be rejected by the First Appellate Court. The plaintiff - respondent No.1 has not challenged the said order of the First Appellate Court. Therefore, the said aspect that there is a typographical error in stating that item No.1 is an absolute and self acquired property of Sri.Chikkarangaiah as contended by the plaintiff - respondent No.1 cannot be accepted. Even as per Ex.P4,
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NC: 2023:KHC:25106 RSA No. 596 of 2013 item No.1 of the suit schedule properties is a Dharkasth land granted for an upset price to Sri.Chikkarangaiah.
23. Even as per §228 of the principles of Hindu Law by Mulla, the property granted by the Government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family.
24. Item No.1 of the suit schedule properties has been granted to Sri.Chikkarangaiah for an upset price under Dharkasth as he was cultivating the same prior to its grant. Therefore, item No.1 of the suit schedule properties is an absolute property of Sri.Chikkarangaiah. Therefore, the deceased had a right to execute the Will in respect of the suit schedule properties.
25. Learned counsel for respondent No.1 would contend that as per the provision of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for
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NC: 2023:KHC:25106 RSA No. 596 of 2013 short 'PTCL Act'), there is a prohibition for transfer of granted land.
26. Admittedly, the deceased Sri.Chikkarangaiah was belonging to Scheduled Caste and item No.1 of the suit schedule properties has been granted to him under Dharkasth. What has been prohibited under Section 4 of the PTCL Act is, 'transfer' of granted land.
27. Section 3(e) of the PTCL Act defines the transfer, which reads thus;
3(e) "transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction."
28. The above definition of "transfer" does not include the testamentary disposition. Therefore, any bequeath made by person belonging to Scheduled Caste of
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NC: 2023:KHC:25106 RSA No. 596 of 2013 the granted land does not amount to 'transfer' and is not prohibited under Section 4 of the PTCL Act.
29. Learned counsel for respondent No.1 has argued that Section 61 of the Land Reforms Act, 1961 contains certain restrictions on transfer of land, of which, the tenant has become an occupant. He further argued that item No.1 has been granted to Sri.Chikkarangaiah and there is a condition restraining him from alienating the land for a period of 15 years.
30. Whether the prohibition contained under Section 61(3) applies to the Wills, has come for consideration before this Court in the case of Koragappa Gowda Vs. Jinnappa Gowda and Others reported in ILR 1998 KAR 436, which has been relied upon by the counsel for respondent No.1. In the said case, it is held that the bequeath of land under a Will does not amount to transfer and there is no prohibition of transfer of land, occupancy of which has been granted to a tenant by Will.
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NC: 2023:KHC:25106 RSA No. 596 of 2013
31. The validity of a Will - Ex.D1 dated 30.04.2007 is in question in this appeal.
32. The Trial Court has held that the Will - Ex.D1 said to have been executed by Sri.Chikkarangaiah in favour of defendant No.2 is held proved, relying upon the evidence of the attesting witnesses DWs.3 and 4 and the scribe DW.5. The First Appellate Court has reversed the finding of the Trial Court on issue No.4 ie., execution of a registered Will dated 30.04.2007 (Ex.D1). The First Appellate Court re-appreciating the evidence of DWs.1 and 3 to 5 has held that there is inconsistency in their evidence. The First Appellate Court has held that the absence of provision for the wife and the reason for dis-inheriting the daughters, cancellation of earlier Will, coupled with the strained relation between Sri.Chikkarangaiah and his son defendant No.2, leading to the proceedings before the Assistant Commissioner, creates a doubt as to the execution of the Will - Ex.D1. The First Appellate Court has also taken into consideration
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NC: 2023:KHC:25106 RSA No. 596 of 2013 the participation of defendant No.2 and his son Sri.Somashekar in execution of the Will - Ex.D1 is also one of the suspicious circumstances in execution of the said Will.
33. On reading of the deposition of DWs.1 and 3 to 5, it reveal that defendant No.2 and his son Sri.Somashekar were present on the date of execution of the Will - Ex.D1 in the office of the Sub Registrar, where the Will came to be executed and registered. Even Ex.D1
- Will contains the signature of Sri.Somashekar, S/o defendant No.2 as a person who identified the testator on the back of page No.2 of the Will - Ex.D1. Defendant No.2 is the sole beneficiary under the Will - Ex.D1. Defendant No.2 and his son Sri.Somashekar were present on the date of execution of the Will - Ex.D1 and at the time of its registration.
34. Apart from that the testator-Sri.Chikkarangaiah who earlier bequeathed 30 guntas of land each to the plaintiff, defendant Nos.1 and 3 in item No.2 of the suit
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NC: 2023:KHC:25106 RSA No. 596 of 2013 schedule properties under a Will dated 19.04.2007 (Ex.D18) has cancelled that Will under cancellation deed - Ex.D19 dated 30.04.2007 and exclusively bequeathed item Nos.1 and 2 in favour of defendant No.2 under a Will - Ex.D1. The Testator was aged 80 years as on the date of the Will - Ex.D1, is not in dispute. Whether the execution of the Will - Ex.D1 is surrounded with suspicious circumstances is required to be considered.
35. A circumstance is considered "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. Illustrative instances of suspicious circumstances could be a shaky or doubtful signature of the testator; feeble or uncertain mind of the testator; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary.
36. What was the real wish of the testator is required to be considered by the Court by applying the celebrated Rule called "Arm Chair Rule" of interpretation of
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NC: 2023:KHC:25106 RSA No. 596 of 2013 a Will which says, "you may place yourself, to speak in ("the testators") arm chair and consider the circumstances by which he was surrounded when he made his Will, to assist you in arriving at his intention".
37. The testator - Sri.Chikkarangaiah has executed a Will- Ex.D18 on 19.04.2007 and it is a registered Will. Under the said Will - Ex.D18, three portions of item No.1 of the suit schedule properties ie., 30 guntas each has been bequeathed to the plaintiff, defendant No.1 and defendant No.3. After bequeathing of the said portions, there also remains portion in item No.1 of the suit schedule properties. The said Will - Ex.D18 has been executed by Sri.Chikkarangaiah and registered the same on 19.04.2007 ie., 11 days prior the Will in question - Ex.D1 dated 30.04.2007. Defendant No.1 - wife of the testator - Sri.Chikkarangaiah, the plaintiff and defendant No.3 are his daughters to whom he bequeathed, 25 guntas to his wife Smt.Sakamma (defendant No.1), 30 guntas to his daughter Smt. Bhagyamma (defendant
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NC: 2023:KHC:25106 RSA No. 596 of 2013 No.3), 30 guntas to his another daughter Smt.Jayalakshmamma (the plaintiff). The said Will - Ex.D18 has been cancelled by a registered cancellation deed dated 30.04.2007 (Ex.D19). The reason mentioned in the said cancellation is that he did not find earlier Will proper. What made the testator to cancel his earlier Will - Ex.D18 within the period of 11 days is not forthcoming in the cancellation deed - Ex.D19.
38. In Ex.D1 - Will dated 30.04.2007, the entire item Nos.1 and 2 of the suit schedule properties have been bequeathed in favour of defendant No.2 alone, excluding his wife and two daughters who are defendant Nos.1, 3 and the plaintiff. The reasons mentioned for excluding the plaintiff and defendant Nos.1 and 3 is that he had performed their marriages and given them whatever had to be given. There is no reason why he excluded his wife Smt.Sakamma (defendant No.1) in the Will - Ex.D1. When he has already bequeathed the portions of item No.1 of the suit schedule properties in
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NC: 2023:KHC:25106 RSA No. 596 of 2013 favour of his wife Smt.Sakamma, daughters Smt.Jayalakshmamma and Smt.Bhagyamma in the Will - Ex.D18, changing the same, cancelling the bequeath made in their favour and bequeathing his entire properties in favour of defendant No.2 without assigning any reason also leads to suspicion. Therefore, the exclusion of the plaintiff, defendant Nos.1 and 3 is unjust exclusion without any reason.
39. Admittedly, as per the evidence of DWs.1, 3 to 5, defendant No.2 and his son Sri.Somashekar were present at the time of execution of Ex.D1 - Will. The testator Sri.Chikkarangaiah was aged 80 years and as he was an illiterate, he affixed his LTM. Active participation of defendant No.2 and his son Sri.Somashekar in execution of the Will - Ex.D1 leads to suspicion regarding executing the Will - Ex.D1, since defendant No.2 is the sole beneficiary under the Will - Ex.D1 by exclusion of defendant Nos.1, 3 and the plaintiff.
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NC: 2023:KHC:25106 RSA No. 596 of 2013
40. In Ex.D1, at the end before the signature of the testator, there is no any endorsement of the scribe, that the contents of the Will have been read over to Sri.Chikkarangaiah. The said Sri.Chikkarangaiah, the testator is an illiterate, aged about 80 years, who used to affix his LTM. Even there is no endorsement of the registering authority that the contents of the Will have been read over to the testator - Sri.Chikkaranagaiah.
41. Even in the cancellation deed - Ex.D19, there is no endorsement that the contents of the said cancellation have been read over to Sri.Chikkarangaiah. There is also no endorsement by the registering authorities that the contents of the document have been read over to the testator - Sri.Chikkarangaiah. Therefore, all these aspects creates suspicion in execution of the Will - Ex.D1.
42. The First Appellate Court considering all these aspects has rightly held that defendant No.2-Sri. Rangaswamy has failed to prove due execution of the Will and reversed the finding of the Trial Court on issue No.4.
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NC: 2023:KHC:25106 RSA No. 596 of 2013 The First Appellate Court has further held that the suit schedule properties are separate and absolute properties of Sri.Chikkarangaiah and on his death, the properties devolves on Class-I heirs ie., the plaintiff-Smt. Jayalakshmi and defendant Nos.1 to 3 and they are entitled to 1/4th share each in item Nos.1 and 2 of the suit schedule properties. The First Appellate Court has not held that the suit schedule properties are the joint family properties as noted in the second substantial question of law. Hence, both the substantial questions of law are answered accordingly and the appeal is dismissed.
In view of dismissal of the appeal, I.A.Nos.1 to 3 of 2023 does not survive for consideration and stand disposed of.
Sd/-
JUDGE KGR/GH List No.: 1 Sl No.: 35