Second appeal against dismissal of suit concerning succession to an unregistered will. Dismissed for failure to establish execution of will due to lack of substantial legal question.
Second appeal dismissed at the stage of admission under Section 100 of CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF AUGUST 2021
BEFORE
THE HON’BLE MR. JUSTICE E.S.INDIRESH
R.S.A. No.1300/2013 (DEC/INJ)
BETWEEN:
SMT. RATHNAMMA, D/O. LATE NANJUNDAPPA, AGED ABOUT 43 YEARS, R/AT KESTHUR VILLAGE, KORA HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572128.
... APPELLANT
(BY SRI.S. NAGARAJA, ADVOCATE)
AND:
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KORATAGERE TALUK, TUMKUR DISTRICT-572140.
... RESPONDENTS
(SERVED UNREPRESENTED)
THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 27/11/2012 PASSED IN R.A.NO. 64/2012 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC AT MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20/04/2012 PASSED IN OS.NO. 119/2004 ON THE FILE OF CIVIL JUDGE AND JMFC AT KORATAGERE.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, MADE THE FOLLOWING:
J U D G M E N T
This appeal is filed challenging the judgment and decree dated 27/11/2012 passed in RA.No.64/2012 on the file of the Additional Senior Civil Judge and JMFC at Madhugiri, dismissing the appeal and confirming the judgment and decree dated 20/04/2012 passed in OS.No.119/2004 on the file of the Civil Judge and JMFC, Koratagere.
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plaintiff Nos.1 and 2-Nanjundappa was defendant in OS.No.42/1998 filed by respondent No.1 herein. It is the case of the plaintiffs that they were not aware about the proceedings in OS No.42/1998 and therefore, judgment and decree passed in OS No.42/1998 is not binding on them and accordingly, their prayer in the suit is challenging the judgment and decree dated 24.10.2002 passed in OS No.42/1998 and also sought for consequential relief of permanent injunction.
contested the matter by filing written statement contending that the father of the plaintiff Nos.1 and 2- Nanjundappa has contested the said suit and after suffered the judgment and decree in the said suit, Nanjundappa has filed RA No.83/2003 before Civil Judge (Sr.Dn), Madhurgiri which came to be dismissed and as such, the plaintiffs are not entitled for any relief
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sought for by them. Accordingly, defendant prayed for dismissal of the suit.
was examined as PW1 and examined another witness as PW2. Plaintiffs produced 33 documents and same were marked as Exs.P1 to P33. The defendant examined two witnesses as DW1 and DW2 and produced three documents which are marked as Ex.D1 to Ex.D3.
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appeal and confirmed the judgment and decree passed by the trial Court in OS.No.119/2004.
R.A.No.64/2012, the appellants have preferred this Regular Second Appeal under Section 100 of CPC.
is a suit for recovery of money filed by the defendant, however, on instructions, he is not pressing the said relief in this appeal, and thereby, he contended that the contentions raised by the plaintiffs that the judgment and decree passed in OS No.42/1998 cannot be considered in this appeal. Further, he contended that the grand mother of the plaintiff Nos.1 and 2 - Mallakka died leaving behind the Will dated 06.06.1976 (Ex.P28). He further argued that, there is additional Issue No.1 before the trial Court with regard to the
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legality of the said Will dated 06.06.1976. He further contended that the finding recorded by the trial Court with regard to the said unregistered Will dated 06.06.1976 is not correct. Accordingly, he contended that the impugned judgment and decree passed by the Courts below requires to be interfered in this appeal.
remained unrepresented.
the learned counsel for the appellant and on perusal of oral and documentary evidence on record, it is not in dispute that the father of the plaintiff Nos.1 and 2 and husband of plaintiff No.3-Nanjudappa was the defendant in OS No.42/1998 filed by the respondent No.1 herein, and said suit came to be decreed on 24.10.2002. Being aggrieved by the same, Nanjundappa had filed RA No.83/2003 on the file of First Appellate Court which came to be dismissed and as such, the judgment and decree passed in OS
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No.42/1988 came to be affirmed. It is the case of the plaintiffs that they were not aware of the proceedings in OS No.42/1998 and as such, the judgment and decree passed in the said suit is not binding on them. In this regard, learned counsel for the appellant submits that he is not pressing the relief insofar as prayer made with regard to bindingness of judgment and decree passed in OS No.42/1998 and as such, same is accepted and judgment and decree passed by the both the Courts below is upheld. However, the main contention of the learned counsel for the appellant is that the trial Court has not properly appreciated the evidence on record to prove the Will dated 06.06.1976 executed by the grandmother of plaintiff Nos.1 and 2-Mallakka. In this regard, the plaintiffs examined the attestor to the said Will as PW2. Admittedly, OS No.42/1998 was filed by the defendant against the father of the plaintiff Nos.1 and 2 which came to be decreed on 24.10.2002 and same was confirmed in RA No.83/2003 by the First Appellate
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Court, against which no appeal was preferred before this Court and as such, though the plaintiffs have stated that the said judgment and decree passed by the both Courts below are not binding on them, however, looking into the fact that, subject matter of the property is the subject matter of the Will dated 06.06.1976 and as such, the additional Issue No.1 was framed by the trial Court. In this regard, I have perused the Ex.P28, which is an unregistered Will dated 06.06.1976. The First Appellate Court has considered this aspect of the matter and arrived at conclusion that plaintiff No.1 was born on 19.06.1972 and plaintiff No.2 was born on 01.06.1976 and the alleged Will is dated 06.06.1976 which is an unregistered one.
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earlier suit i.e. OS No.42/1998 which was filed by the
defendant, seeking relief of performance of the Agreement of Sale dated 10.11.1997. Though the plaintiffs have contended that Agreement of Sale was created one and was also subject matter of the Will dated 06.06.1976, however, the finding recorded by the trial Court that there is no recital in the Agreement of Sale with regard to the Will dated 06.06.1976 as well as no discussion was made in the earlier suit i.e. OS No.42/1998 is to be accepted as legal. In this regard, the trial Court has come to the conclusion that alleged Will dated 06.06.1976 is created under suspicious circumstances and the plaintiffs have failed to prove the said Will beyond reasonable doubt. In that view of the matter, the finding recorded by the trial Court on additional issue is hereby affirmed.
by the First Appellate Court, wherein, the First Appellate Court having re-appreciated the material on
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record had come to a conclusion that the plaintiff No.1 was aged about 4 years and plaintiff No.2 was just 5 days old at the time of execution of the Will dated 06.06.1976 and also the plaintiffs have failed to prove the execution of the said Will as per Section 63 of Evidence Act, 1872 and Section 68 of the Indian Succession Act, 1925 and as such, considering the law declared by the Hon’ble Supreme Case in the case of Bharpur Singh and others Vs. Shamsher Singh reported in AIR 2009 SC 1766 , the First Appellate Court dismissed the appeal and thereby, confirmed the judgment and decree passed by the trial Court.
by both the Courts below, in fact, the plaintiffs have failed to prove the Will dated 06.06.1976 (Ex.P28) and on perusal of the plaint, it is clear that the plaintiffs have not only in the pleadings but also in the evidence mentioned the date on which the said Nanjundappa or their grandmother-Mallakka died.
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Sd/JUDGE
SB
2 issues framed by the court
Whether the trial Court properly appreciated evidence regarding an unregistered will executed when beneficiaries were minors.
Whether the higher Courts ought to interfere dismissing an appeal under Section 100 of CPC as no substantial question of law was made out.
Colour shows how this judgement treated each authority
Bharpur Singh and others Vs. Shamsher Singh, AIR 2009 SC 1766Applied¶57
3 provisions across 3 enactments
SMT. RATHNAMMA, D/O. LATE NANJUNDAPPA
SMT. PUTTATHAYAMMA, W/O. LATE CHIKKERAPPA
SMT. JAGADAMBA, D/O. LATE NANJUNDAPPA
SMT. MANGALAMMA, W/O. LATE NANJUNDAPPA
E.S.INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court