Dismissed

Laksmhamma @ Lakshmi v. Channegowda

Karnataka HC19 Aug 2021RSA/556/2012

Case brief

AI extract

What is this about?

In a Regular Second Appeal challenging a judgment confirming a registered Will, the High Court dismissed the appeal. The Court held that the propounder successfully proved the Will under the Indian Evidence Act, removing suspicious circumstances by the regular will and the statute of limitations, considering the gruesome circumstances of the case. The appellant failed to prove that the Will was in

What did the court decide?

The Regular Second Appeal is dismissed; Judgment and decree dated 12.01.2012 is confirmed.

Laksmhamma @ Lakshmi Vs Channegowda — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.556/2012

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BETWEEN:

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LAKSHMAMMA @ LAKSHMI W/O LATE PUTTAMADAIAH AGED ABOUT 57 YEARS VEGETABLE MERCHANT BY PROFESSION R/O NO.4407, NEW NO.L-1 EASTERN PORTION OF THE PROPERTY ST. MARY’S ROAD, NEAR N R BAKERY 8^TH CROSS, N R MOHALLA MYSURU-570 021.

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... APPELLANT

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(BY SRI SYED AKBAR PASHA, ADVOCATE SRI MAHANTESH S HOSMATH, ADVOCATE)

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AND:

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CHANNEGOWDA SINCE DEAD BY LRS.

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1A. GOWRAMMA

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W/O LATE CHANNEGOWDA

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AGED ABOUT 54 YEARS

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1B. PAPANNA

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S/O LATE CHANNEGOWDA

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AGED ABOUT 34 YEARS

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1C.RAVICHANDRA S/O LATE CHANNEGOWDA AGED ABOUT 27 YEARS

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ALL ARE R/AT WESTERN PORTION OF NO.4407, NEW NO.L-1 ST. MARY’S ROAD NEAR N R BAKERY, 8^TH CROSS N R MOHALLA MYSURU-570 021.

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... RESPONDENTS

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(BY SRI J S HALASHETTY, ADVOCATE FOR R1(A) AND (C); R1(B) DECEASED; R1(A) AND (C) ARE LRS OF DECEASED R1(B))

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 12.01.2012 PASSED IN R.A.NO.1118/2010 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUGDE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.06.2010 PASSED IN OS.NO.816/2004 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU.

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THIS R.S.A. COMING ON FOR FINAL HEARING THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the defendant challenging the judgment and decree dated 12.01.2012 passed in RA.No.1118/2010 by the V Additional District and Sessions Judge, Mysore, allowing the appeal and setting aside the judgment and decree dated 19.06.2010 passed in OS.No.816/2004 by Learned Judge, Court of Small Causes and Senior Civil Judge, dismissing the suit of the plaintiffs.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that the plaintiffChannegowda is the son of late Papanna and Smt.Lakshmamma. It is further stated in the plaint that Papanna and Smt.Lakshmamma had four children, namely, Puttamadaiah, Mahadev, Channegowda and a daughterPuttamadamma. Plaintiff-Channegowda is the younger brother of husband of the defendant. It is further averred in the plaint that Smt.Lakshmamma was residing with the Channegowda. It is the case of the plaintiffs that father of his mother-Smt.Lakshmamma had gifted the suit schedule property as per the Gift Deed dated 20.08.1947 and as such, the mother of the plaintiffs had become absolute owner in possession of the suit schedule property and thereafter, Smt. Lakshmamma executed a registered Will dated 31.10.1989, bequeathing the suit schedule property in favour of the plaintiff-Channegowda. It is further

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averred in the plaint that Smt.Lakshmamma died on 11.02.2001 and pursuant to registered Will dated 31.10.1989, suit schedule property had come to the possession of Channegowda, thus, he exercised his right of ownership in respect of suit schedule property. The plaintiff further stated that, the defendant without any right in respect of suit schedule property, is interfering with the peaceful possession and enjoyment and as such, the plaintiff filed OS No.943/2002 on the file of the competent court which came to be referred to the Court of Small Causes and Senior Civil Judge, Mysore on pecuniary jurisdiction and accordingly, the suit was renumbered as OS.No.816/2004. During the pendency of the suit, the plaintiff-Channegowda died and his legal representatives were brought on record.

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After service of summons, defendant entered appearance and has filed detailed written statement denying the averments made in the plaint and contended that during the lifetime of Papanna, joint family properties

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were settled among his children and shares have been allotted accordingly. It is the specific case of the defendant that she is residing in the schedule premises as absolute owner by virtue of the settlement effected by late Papanna i.e. father-in-law and as such, she denied the execution of the registered Will dated 31.10.1989 by Smt.Lakshmamma. Accordingly, defendant sought for dismissal of suit.

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On the basis of the rival pleadings, the trial

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Court has formulated following issues for its consideration:

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“1. Whether the plaintiff proves that suit schedule property was originally acquired by his mother Lakshmamma through registered gift deed dated 20.08.1947 executed by her father Sri.Havaldar Devaiah ?

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2. Whether the plaintiff proves that he became the absolute owner of the suit schedule property through a registered Will deed dated 30.10.1999 ?

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3. Whether the suit is properly valued and proper Court fee paid ?

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4. Whether the defendant proves that she has acquired title to the suit schedule property by adverse possession ?

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5. Whether the plaintiff is entitled for the relief of declaration and possession ?

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6. To what order or decree ?”

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In order to prove their case, plaintiffs examined two witnesses as PW1 and PW2 and got marked 22 documents as Exs.P1 to P22. On the other hand, defendant examined herself as DW1 and produced 11 documents as Exs.D1 to D11. Deposition made in OS No.943/2002 were marked as CW1 and CW2, respectively.

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The trial Court, after considering the material on record, by its judgment and decree dated 19.06.2010 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA.No.1118/2010 on the file of First Appellate Court. The

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said Appeal was resisted by the defendant. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 12.01.2012 allowed the

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appeal and set aside the judgment and decree passed by the trial Court in OS.No.816/2004 dated 19.06.2010. Being aggrieved by the judgment and decree passed by the First Appellate Court, the defendant has preferred this Regular Second Appeal under Section 100 of CPC.

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Sri.Syed Akbar Pasha, learned counsel for the appellant submits the finding recorded by the First Appellate Court in decreeing the suit of the plaintiffs is without any basis. He further contended that the plaintiffs have not proved the registered Will dated 31.10.1989 as required under Section 68 of the Indian Evidence Act, 1872 and Section 63 of Indian Succession Act, 1925. He further contented that execution of the Will is surrounded with suspicious circumstances and same was not removed by the propounder of the Will. He further argued that the finding recorded by the First Appellate Court decreeing the suit of the plaintiffs is based on the registered Will dated 31.10.1989, which is contrary to the records as the testator has not disclosed anything to other children at the

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time of execution of the Will, as the testator had four children. In this context, he submitted that finding recorded by the First Appellate Court is without considering the factual aspect as required under Order XLI Rule 31 of Code of Civil Procedure. Accordingly, sought to allow the appeal.

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Sri.J.S.Halashetty, learned counsel for the respondent Nos. R1(a) and (c) submits that First Appellate Court, having considered the evidence on record, particularly, evidence of PW2, who is a attestor to the registered Will dated 31.10.1989, has arrived at a conclusion that the plaintiffs have removed the suspicious circumstances as alleged by the defendant and as such, reappreciated entire material on record considering the Gift Deed dated 20.08.1947 executed by the father of Smt.Lakshmamma as per Ex.P9. Accordingly, he argued that the finding recorded by the First Appellate Court is just and proper and does not call for interference in this appeal.

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This court by order dated 25.10.2016 has formulated following substantial question of law for its consideration:

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“Whether the Courts below were right in holding that the respondents have proved the will in accordance with the provisions of Sections 63 read with Section 68 of the Evidence Act”

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Heard the learned counsel appearing for the parties and perused the material on records.

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A careful perusal of the records would indicate that originally the schedule property belonged to Havaldar Devaiah and he has executed a Gift Deed dated 20.08.1947 as per Ex.P9 in favour of his daughter Smt.Lakshmamma. Late Papanna and Smt.Lakshmamma had three sons and one daughter namely, Puttamadaiah, Mahadev, Channegowda and Puttamadamma. PlaintiffChannegowda is the younger brother of husband of the defendant. Smt.Lakshmamma, being absolute owner of suit property, in terms of Section 14 of Hindu Succession Act 1956, executed a registered Will dated 31.10.1989 and

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died on 11.02.2001. The testator/Lakshmamma

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bequeathed the suit schedule property in favour of plaintiff-Channegowda as per Ex.P1. In this regard, it is the contention of the defendant that a settlement has been made by her father-in-law i.e. Papanna during his lifetime and the suit schedule property was given to husband of the defendant. In this regard, no cogent evidence was adduced by the defendant to prove the factum of settlement nor produced any documents to support the transfer of the schedule property in the name of her husband. On the other hand, plaintiff has examined PW2-witness to the registered Will dated 30.10.1989 and he deposed as follows:

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“31.10.1989 ¨É½UÉÎ 7 UÀAmÉUÉ ¸ÀzÀj ®PÀëöäªÀÄä £ÀªÀÄä ªÀÄ£ÉUÉ ºÁ®Ä ºÁPÀ®Ä §AzÁUÀ vÁ£ÀÄ ªÀÄÈvÀÄå ¥ÀvÀæ §gÉAiÀÄ¨ÉÃPÉA¢zÉÝÃ£É JAzÀÄ £À£Àß£ÀÄß vÁ®ÆèPÀÄ D¦üÃ¹UÉ PÀgÉzÀÄPÉÆAqÀgÀÄ ºÉÆÃzÀgÀÄ. D ¥ÀæPÁgÀ £Á£ÀÄ ªÀÄvÀÄÛ ¸ÀzÀj ®PÀëöäªÀÄä ªÉÄÊ¸ÀÆj£À vÁ®ÆèPÀÄ PÀZÉÃjUÉ §AzÉªÀÅ. D ¸ÀªÀÄAiÀÄzÀ°è ¸ÀzÀj ®PÀëöäªÀÄä¼ÉÆA¢UÉ £À£Àß£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁgÀÆ EgÀ°®è. C°è ¥ÀvÀæ §gÀºÀUÁgÀgÁzÀ gÁªÀÄ¸Áé«ÄAiÀÄªÀgÀÄ ®PÀëöäªÀÄä¼À ºÉÃ½PÉAiÀÄ ¥ÀæPÁgÀ ªÀÄÈvÀå ¥ÀvÀæªÀ£ÀÄß §gÉzÀgÀÄ. ¸ÀzÀj ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß ¨ÁAqï ¥ÉÃ¥Àgï ªÉÄÃ¯É §gÉ¢gÀÄvÁÛgÉ. DzÀgÉ JµÀÄÖ gÀÆ¥Á¬ÄUÀ¼À bÁ¥Á PÁUÀzÀzÀ ªÉÄÃ¯É §gÉ¢gÀÄvÁÛgÉAzÀÄ £À£ÀUÉ FUÀ

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ºÉÃ¼À¯ÁUÀÄªÀÅ¢®è. ¸ÀzÀj ªÀÄÈvÀå ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄ ªÀÄÄV¸À®Ä ¸ÀÄªÀiÁgÀÄ 10ªÀgÉ UÀAmÉUÉ ªÀÄÄV¬ÄvÀÄ. ¸ÀÄªÀiÁgÀÄ 11 PÁ®Ä UÀAmÉUÉ £ÉÆÃAzÀtÂ ªÀiÁr¹gÀÄvÉÛÃªÉ. ¸ÀzÀj ªÀÄÈvÀÄå ¥ÀvÀæPÉÌ £Á£ÀÄ ªÀÄvÀÄÛ J¸ï.J¯ï.zÉÃªÀgÁdÄ ¸À» ªÀiÁrgÀÄvÉÛÃªÉ. ¸ÀzÀj J¸ï.J¯ï.zÉÃªÀgÁdÄ ¥ÀvÀæ §gÀºÀUÁgÀgÁzÀ gÁªÀÄ¸Áé«ÄAiÀÄªÀgÀ ¸ÉßÃ»vÀgÀÄ. ¸ÀzÀj J¸ï.J¯ï.zÉÃªÀgÁdÄ ¸ÀºÀ ¸ÀévÀB ¥ÀvÀæ §gÀºÀUÁgÀgÁVgÀÄvÁÛgÉ. ¸ÀzÀj J¸ï.J¯ï.zÉÃªÀgÁdÄªÁUÀ°Ã, £Á£ÁUÀ°Ã ®PÀëöäªÀÄä½UÉ ¸ÀA§A¢üPÀgÀ®è. ¸ÀzÀj ®PÀëöäªÀÄä vÀ£Àß ¸ÀA¸ÁgÀzÀ PÀµÀÖ ¸ÀÄRUÀ¼À£ÀÄß £À£ÉÆßA¢UÉ DUÁUÀ ºÉÃ¼ÀÄwÛzÀÝ¼ÀÄ.

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PW2-witness to the registered Will, further deposed as under:

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“¸ÀzÀj ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß ®PÀëöäªÀÄä §gÉ¸ÀÄªÁUÀ zÁªÁ D¹ÛAiÀÄ zÁ£À ¥ÀvÀæªÀ£ÀÄß vÀ£ÉÆßA¢UÉ vÀA¢zÀÝ¼ÀÄ. ¸ÀzÀj zÁ£À ¥ÀvÀæzÀ ¢£ÁAPÀªÀ£ÀÄß £À£ÀUÉ ºÉÃ¼À¯ÁUÀÄªÀÅ¢®è. ¸ÀzÀj ®PÀëöäªÀÄä½UÉ ªÀÄÈvÀÄå ¥ÀvÀæ §gÉ¸ÀÄªÁUÀ AiÀiÁªÀÅzÉÃ PÁ»¯ÉUÀ¼ÁUÀ°Ã EgÀ°®è. CAzÀgÉ JzÉ£ÉÆÃªÀÅ, gÀPÀÛzÉÆvÀÛqÀ ¸ÀºÀ EgÀ°®è. F jÃwAiÀiÁV ¸ÀzÀj ªÀÄÈvÀÄå ¥ÀvÀæzÀ°è §gÉ¢gÀ°®è. ¸ÀzÀj ®PÀëöäªÀÄä ªÀÄÈvÀ ªÁ¢ ZÉ£ÉßÃUËqÀ£ÉÆA¢UÉ ªÁ¸ÀªÁVzÀÝ¼ÀÄ.”

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I have also noticed the recitals in the registered

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Will-Ex.P1 which would clearly establish the fact that the plaintiff-Channegowda was taking care of health of his mother-Lakshmamma. Having re-assessed the entire material on record, I am of the considered view that the finding recorded by the First Appellate Court reversing the

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judgment and decree passed by the trial Court is just and proper.

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Though the learned counsel appearing for the

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appellant placed reliance on the judgment of Hon’ble Apex Court in the case of Ram Piari V/s. Bhagwanth and others reported in AIR 1990 SC 1742 to contend that the testator has not disclosed anything regarding exclusion of the brothers and sisters of the plaintiff in the registered Will-Ex.P1 dated 31.10.1989, however, careful reading of the aforementioned judgment would indicate that the disclosure of excluding the children by the testator is not a hard and fast rule, however, same is one of the factors to arrive at a conclusion regarding suspicious circumstance and therefore, taking into consideration the factual aspect of the case, I am the considered view that the aforementioned judgment is not applicable to the case on hand. In the case of Leela Rajagopal Vs.Kamala Menon cocharan reported in AIR 2015 SC 107 , Hon’ble Apex Court observed that, exclusion of the legal heirs does not

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come in the way of proving the Will. At this juncture, it is relevant to follow the guideline laid down by the Hon’ble Apex Court with regard to the proof of Will. It is well established principle of law that propounder of Will has to remove all the suspicious circumstances to satisfy that the Will was duly executed by the testator with cogent and convincing explanation of suspicious circumstances shrouded with while making the Will. Hon’ble Apex Court in the case of Bharpur Singh and others V/s. Shamsher Singh reported in AIR 2009 SC 1766 at paragraphs 17 and 18 of its judgment observed as follows:

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“17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:

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i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

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ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.

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iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

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iv. The dispositions may not appear to be the result of the testator's free will and mind.

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v. The propounder takes a prominent part in the execution of the Will.

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vi. The testator used to sign blank papers.

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vii. The Will did not see the light of the day for long.

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viii. Incorrect recitals of essential facts.

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18. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not.

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It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with.”

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Applying the principle laid down by the Hon’ble

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Apex Court referred supra, in the instant case, the propounder of the Will has proved the Will beyond suspicious circumstances in terms of Section 68 of Evidence Act and removed all such suspicious

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circumstances with cogent evidence on record and on the other hand, the Will in question is registered one and therefore, registration of the Will would add benefit to the propounder to remove one such suspicious circumstance, which may arise due to execution of the Will by the testator and the state of mind. Therefore, in my considered view, the First Appellate Court, after reassessing the entire material on record, rightly, arrived at a conclusion that the trial Court committed an error while appreciating the material on record, consequently, set aside the judgment and decree passed by the trial court as required under Order XLI Rule 31 of Code of Civil Procedure. Therefore, the contentions raised by the learned counsel appearing for the appellant cannot be accepted and the appeal is devoid of merits and liable to be dismissed. Accordingly, the substantial question of law framed above by this Court favours the plaintiff. Hence the following:

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ORDER

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a. The Regular Second Appeal is hereby dismissed;

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b. Judgment and decree dated 12.01.2012 passed

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by the V Additional District and Sessions Judge,

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Mysore in RA No.1118/2010 is confirmed.

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