Dismissed

Smt Lakshmamma W/O Late P Krishnappa v. Smt Vijayalakshmi

Karnataka HC10 Aug 2021RFA/422/2013

Case brief

AI extract

What is this about?

These revisional appeals challenged the trial court's judgment declaring the plaintiff the absolute owner of suit property and dismissing a partition suit. The High Court held that the plaintiff acquired valid title via a registered sale deed. The court found the claimants failed to prove execution of a will under Section 69 of the Indian Evidence Act, as they could not identify the testator's sig

What did the court decide?

Appeals dismissed with costs; original decree confirming ownership stands upheld.

Smt Lakshmamma W/O Late P Krishnappa Vs Smt Vijayalakshmi — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10TH DAY OF AUGUST, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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R.F.A. NO.421 OF 2013 (DEC)

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C/W

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R.F.A. NO.422 OF 2013 (PAR)

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IN R.F.A. NO.421/2013:

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BETWEEN:

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SMT LAKSHMAMMA W/O LATE P.KRISHNAPPA,

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AGED ABOUT 52 YEARS,

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SRI KUMAR @ MANIKUMAR S/O LATE P.KRISHNAPPA,

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AGED ABOUT 31 YEARS,

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SRI.PUTTAIAH @ ANAND S/O LATE P.KRISHNAPPA, AGED ABOUT 28 YEARS,

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ALL ARE RESIDING AT NO.12/6, 3RD CROSS, RAMASWAMY LAYOUT, BYYAPPANAHALLI EXTENSION, BANGALORE-38. ...APPELLANTS

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(BY MR.B.MANJUNATH, LEARNED COUNSEL)

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AND:

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M K PARAMASHIVAIAH S/O SRI.T.KEMPAIAH, AGED ABOUT 54 YEARS, R/AT NO.12/3, & 12/5, 3RD CROSS, RAMASWAMY LAYOUT, BANGALORE-560038. ...RESPONDENT

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(BY SRI R.C.NAGARAJ, LEARNED COUNSEL)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.11.2012 PASSED IN O.S.4064/2001 ON THE FILE OF XIV-ADDL. CITY CIVIL JUDGE, BENGALURU, DECREEING THE SUIT FOR DECLARATION AND POSSESSION.

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IN R.F.A. NO.422/2013:

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BETWEEN:

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SMT LAKSHMAMMA

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W/O LATE P.KRISHNAPPA, AGED ABOUT 53 YEARS,

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SRI KUMAR,

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S/O LATE P.KRISHNAPPA, AGED ABOUT 32 YEARS,

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SRI ANAND KUMAR,

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S/O LATE P.KRISHNAPPA, AGED ABOUT 29 YEARS,

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KUM BINDU K,

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D/O LATE P KRISHNAPPA, AGED ABOUT 19 YEARS.

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ALL ARE RESIDING AT NO.12/6, 3RD CROSS, RAMASWAMY LAYOUT, BYYAPPANAHALLI EXTENSION, BANGALORE-38. ...APPELLANTS

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(BY MR.B.MANJUNATH, ADVOCATE)

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AND:

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SMT. VIJAYALAKSHMI, W/O SRINIVAS, AGED ABOUT 36 YEARS, R/AT NO.12, MUNIKALAPPA LAYOUT, K.R.PURAM, BANGALORE - 560 018.

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M K PARAMASHIVAIAH S/O SRI.T.KEMPAIAH, AGED ABOUT 63 YEARS, R/AT NO.12/3, & 12/5, 3RD CROSS, RAMASWAMY LAYOUT, BANGALORE-560038. ...RESPONDENTS

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(BY SRI R.C.NAGARAJ, ADVOCATE, V/O DTD: 04.01.2016 NOTICE TO R1 IS HELD SUFFICIENT)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.11.2012 PASSED IN O.S.4749/2009 ON THE FILE OF XIV-ADDL. CITY CIVIL JUDGE, BENGALURU, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THESE R.F.A.s HAVING BEEN HEARD AND RESERVED ON 04.08.2021 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY HEMANT CHANDANGOUDAR J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals under Section 96 of the Code of Civil

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Procedure are filed against the common judgment and decree dated 30.11.2012 passed by the XIV-Addl. City Civil

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Judge, Bengaluru, in OS NO.4064/2001 and OS

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No.4749/2009.

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The ranking of the parties are referred as per

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their ranking before the Trial Court for convenience.

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The plaintiff in OS No.4064/2001 filed the suit for declaration, possession, mesne profits and other reliefs contending that he is the absolute owner of the suit schedule property having purchased the same through a registered sale deed dated 16.6.1992 executed by Smt.Vijayalakshmi. It was further pleaded that Smt.Vijayalakshmi acquired the suit schedule property from her father namely Sri Muniswamappa as sole surviving legal heir. It was also pleaded that the defendant - Krishnappa, who is continuing in permissive possession of the suit schedule property even after the plaintiff purchased the suit schedule property, has claimed title over the suit schedule property without having any right. Accordingly, suit was filed seeking the reliefs supra.

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The defendant - Krishanappa filed the written

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statement denying the plaintiff's title over the suit schedule

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property and further claimed to be the owner by virtue of the will dated 5.3.1968 executed by the deceased Muniswamappa.

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During the pendency of the suit, Krishnappa died and his L.Rs were brought on record.

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The legal representatives of the deceased Krishnappa filed OS No.4749/2009 against Paramashivaiah, the plaintiff in OS No.4064/2001 and his vendor Smt.Vijayalakshmi seeking the relief of partition and possession of their half share in the suit schedule property on the basis of the will executed in favour of the deceased Krishnappa by the propositus Muniswamappa. The defendants in this suit filed a written statement denying the execution of the will in favour of the deceased - Krishnappa and Mahesh Kumar and pleaded that the will is forged and has been concocted for the purpose of the suit.

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The Trial Court, based on the pleadings of the parties, framed the issues separately in OS No.4064/2001 and OS No.4749/2009.

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The plaintiff - Paramashivaiah examined himself as PW1 and marked the documents as Exs.P1 to P72 in OS No.4064/2001 and defendants examined the defendant No.1(a) as DW1 and Sri Govindappa as DW2 and marked the documents at Exs.D1 to 13. The plaintiffs in OS No.4749/2009 examined the 1st plaintiff as PW1 and marked the documents at Exs.P1 to P23. The defendants in the said suit examined 1st defendant as DW1 and marked the documents at Exs.D1 to D67.

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The Trial Court clubbed both the suits and disposed of the same by common judgment decreeing OS No.4064/2001 by declaring that the plaintiff therein as absolute owner of the suit schedule property and also directed the defendants therein to quit and vacate the suit schedule property. The suit in OS No.4749/2009 for partition was dismissed. Being aggrieved, these appeals are filed.

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The learned counsel for the appellants submitted

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that the appellants have proved the execution of will by Muniswamappa in favour of the deceased - Krishnappa and Mahesh Kumar, who was the absolute owner of the suit

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schedule property. However, the Trial Court without considering the same and also on the basis of stray admissions given by the deceased - Krishnappa in Guardians and Wards proceedings has rejected the claim of the appellants and the same is contrary to the evidence on record. He further submitted that Smt.Vijayalaxmi had no right to execute the sale deed to the extent of the share of the deceased Krishnappa. Hence, sought for allowing the appeal.

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Learned counsel for the respondents submitted that the Trial court has rightly decreed the suit declaring the plaintiff - Paramashivaiah as absolute owner and also entitled for possession by virtue of the sale deed executed in his favour. He further submitted that the legal representatives of the deceased Krishnappa have not proved the execution of the will as required under Section 69 of the Indian Evidence Act, 1872.

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We have considered the submissions of the learned counsel for the parties and perused the records.

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The issues involved in this appeal are (i) whether Smt.Vijayalakshmi, the daughter of the propositus Muniswamappa had the authority to execute the sale deed in respect of the suit schedule property in favour of plaintiff Paramashivaiah; ii) whether the legal representatives of the deceased - Krishnappa are entitled for half a share in the suit schedule property;

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It is not in dispute that Muniswamappa was the absolute owner of the suit schedule property and he died on 15.10.1951 leaving behind his wife - Smt.Muniyamma, son - Mahesh Kumar and daughter - Vijayalakshmi as legal heirs. It is not in dispute that Muniyappa died on 24.3.1975 and Mahesh Kumar died on 13.5.1979. Therefore, Smt.Vijayalskmi is the sole surviving legal heir and successor of Muniswamappa.

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In G and W No.125/1979 filed for appointment of guardian to Vijayalakshmi, the defendant - Krishnappa admitted that he has not claimed any right in the properties of Smt.Vijayalakshmi, who was the minor then and he would

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look after the child with love and affection. In view of the

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said admission, the petition was withdrawn.

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After attaining the majority, Smt.Vijayalakshmi executed a registered sale deed in favour of plaintiff - Paramashivaiah on 16.6.1992 at Ex.P-18. Since the deceased - Krishnappa refused to vacate the suit schedule property and claimed right over the same, the plaintiff - Paramashivaiah filed the suit for declaration and possession. During the pendency of the suit, Krishnappa died and his legal representatives filed a separate suit claiming half a share in the suit schedule property by virtue of the will executed in favour of Krishnappa.

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The legal representatives of the deceased Krishnappa examined Govindappa as DW2 - the son of late Katappa an alleged attesting witness to the will at Ex.D2. In his evidence, DW2 has identified the signature of his father, however, he has not identified the signature of the testator i.e. deceased - Muniswamappa.

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Section 69 of the Indian Evidence Act reads as

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under:

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“Section 69. proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the hand writing of that person.”

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In the present case, though DW2 has identified the signature of his father, who is alleged to be the attesting witness to the will at Ex.D2, however, has not identified the signature of the testator. The defendants have not proved the execution of the will by examining any witness for identifying the signature of the testator i.e. Muniswamappa. Further no explanation is offered as to why the deceased - Krishnappa never claimed any right over the suit property under the will in the G & W proceedings. Hence, it is held that the legal representatives of the deceased - Krishnappa have not proved the execution of the will as required under Section 69 of the Indian Evidence Act.

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Smt.Vijayalaksmi as sole surviving legal heir of

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the deceased Muniswamappa acquired title over the suit

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schedule property and after attaining majority has sold the property in favour of the plaintiff - Paramashivaiah by executing a registered sale deed at Ex.P-18. The plaintiffParamashivaiah by virtue of the sale deed executed by Smt.Vijayalaxmi acquired title of the absolute owner of the suit property .

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For the foregoing discussions , we are of the considered view that the plaintiff -Paramashivaiah is the absolute owner of the suit property and legal heirs of the deceased Krishnappa have failed to prove the execution of will by the propositus Paramashivaiah. The Trial Court after meticulous appreciation of evidence on record has passed the common impugned judgment and decree and the same does not warrant any interference. There is no merit in these appeals.

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In the result, the appeals stand dismissed with costs.

Sd/JUDGE

Sd/-

JUDGE

bkm

Smt Lakshmamma W/O Late P Krishnappa v. Smt Vijayalakshmi

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Smt Lakshmamma W/O Late P Krishnappa v. Smt Vijayalakshmi

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