Dismissed

K v. Rajesh v K v Ramesh

Karnataka HC11 Jan 2022RSA/645/2013

Case brief

AI extract

What is this about?

In a regular second appeal concerning succession to self-acquired property, the High Court of Karnataka examined whether the defendants satisfied their burden of proving the cancellation of a will in their favor. The court held that where defendants admitted the initial will and then alleged its cancellation, they were required to prove such cancellation.

What did the court decide?

The regular second appeal was dismissed and the judgment and decree passed by the trial court and the first appellate court were confirmed.

K v Rajesh Vs K v Ramesh — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S. KAMAL

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RSA No. 645 OF 2013

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BETWEEN:

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K.V. RAJESH

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S/O LATE K.V. VENKATARAMANA SWAMY AGED ABOUT 43 YEARS

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SMT. LALITHAMMA W/O K.V. RAJESH AGED ABOUT 42 YEARS

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BOTH ARE R/AT GURIKAR MADAPPA GALLI FORT, KANAKAPURA TOWN RAMANAGARA DISTRICT - 571 511.

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... APPELLANTS

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(BY SRI.NARESH KUMAR FOR SRI. G. MANIVANNAN, ADVOCATE)

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AND:

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K.V. RAMESH

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S/O LATE K.V. VENKATARAMANA SWAMY AGED ABOUT 46 YEARS.

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DINESH KUMAR

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S/O LATE K.V. VENKATARAMANA SWAMY AGED ABOUT 45 YEARS.

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BOTH ARE RESIDING AT SERUGARARA BEEDHI FORT, KANAKAPURA TOWN RAMANAGARA DISTRICT - 571 511.

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…RESPONDENTS

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(BY SRI.T. SUBRAMANYA, ADVOCATE FOR R1 & R2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 14.12.2012 PASSED IN R.A. NO. 83/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KANAKAPURA, RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 04.09.2010 PASSED IN O.S. NO. 535/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) RAMANAGARA.

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

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JUDGMENT

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The present regular second appeal is filed under Section 100 of CPC by the appellants/defendants aggrieved by the judgment and decree dated 14/12/2012 passed in RA.No.83/2010 on the file of the Presiding Officer, Fast Track Court, Kanakapura, Ramanagara District (for short 'the First Appellate Court'), in and by which, the first appellate Court while dismissing the appeal filed by the appellants/defendants confirmed the judgment and decree dated 04/09/2010 passed in O.S.No.535/2006 on the file of the Civil Judge (Senior Division) Ramanagara, (for short 'the Trial Court) in terms of which the trial court had declared the

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respondents/plaintiffs to be the owners in possession of the suit schedule properties.

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The brief facts leading up to filing of the appeal are that; the above suit in OS.No.535/2006 is filed by the plaintiffs claiming relief of declaration declaring them to be the absolute owners in respect of the suit schedule property being a house property bearing Municipal Khatha No.627/587, approximately measuring east to west 49 ft. north to south 12 1/2 ft. consisting of a shop measuring 9 x 10 ft and a house is constructed thereon measuring 9 x 10 ft and 2 square house at the first floor situated in Ward No.25 of Kodihalli road, on the premise that the aforesaid property was bequeathed in favour of plaintiffs by its owner Smt. Kempamma by executing and registering a Will dated 25/11/2000.

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That the plaintiff Nos.1 and 2 and defendant No.1 are the brothers and the defendant No.2 is the wife of defendant No.1. That Smt. Kempamma is the daughter of late Venkataramana Shetty of Kanakapura and the sister of father of plaintiff Nos.1 and 2 and defendant

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No.1. The said Smt. Kempamma had no issues and was ailing due to her old age and infirmity as such, the plaintiff Nos.1 and 2 had taken care of said Smt. Kempamma. That one K.V.Padmalakshmi, the wife of plaintiff No.1 is the fostered daughter of Kempamma and the plaintiff No.1 married the said K.V.Padamalakshmi as per the desire of Smt. Kempamma on 15/05/1991. That apart Smt. Kempamma who had her savings Bank Account at Vijaya Bank, Kanakapura bearing Account No.1001/06317 had nominated said K.V.Padmalakshmi, the wife of the plaintiff No.1 to be her nominee. That the suit schedule property is the self-acquired property of Smt. Kempamma and in the aforesaid facts and circumstances, the said Kempamma had executed and registered a Will dated 25/11/2000 bequeathing the suit property in favour of plaintiff Nos.1 and 2. That the defendant Nos.1 and 2 being completely aware of this aspect of the matter, under the guise of providing treatment to the said Smt. Kempamma had taken her to Bengaluru and obtained signatures of said Smt.Kempamma on blank stamp papers. That said

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Smt.Kempamma neither executed any Will in favour of defendants nor had cancelled the Will earlier executed by her in favour of the plaintiffs. That the defendants having no right over the property have been denying the entitlement of the plaintiffs. That Smt.Kempamma passed away on 06/09/2006 after brief period of treatment in the hospital. That in order to meet the expenses of her treatment, funeral and other expenses, plaintiffs had mortgaged the property in favour of one Kumar and had raised Rs.50,000/-. That the defendants had filed a police complaint claiming that said Smt.Kempamma had executed a Will in their favour and also canceled the earlier Will executed in favour of the plaintiffs. Based on the same defendants were making false claim over the suit schedule property, which constrained the plaintiffs to approach the court.

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The defendants appeared and filed written

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statement admitting the relationship of Smt.Kempamma her ownership over the suit schedule property and also admitting that said Smt.Kempamma was not having any

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issues. However, they denied that Smt.K.V.Padmalakshmi being the protected daughter of Smt.Kempamma was nominated as nominee in the bank account of Vijaya Bank. They also specifically denied that Smt.Kempamma had executed Will in favour of plaintiffs and the plaintiffs are in possession and enjoyment of the suit schedule property. Further the averments in the plaint with regard to obtaining signature of Smt.Kempamma on a blank stamp paper are also denied. It is further contended by the defendants that the suit schedule property being selfacquired property of Smt.Kempamma, who had no issues was being taken care of by the defendant No.1 along with his wife defendant No.2. The said Smt.Kempamma being satisfied with the treatment met out by the defendant Nos.1 and 2 had executed Will dated 18/06/2006 in favour of defendant No.1 in respect of the suit schedule property. In the said Will, it was recited that the previous Will dated 01/02/2002 executed in favour of plaintiffs was canceled through a deed of cancellation of Will dated 23/08/2006. That subsequent to execution of Will dated 18/08/2006 in favour of defendant No.1, Smt.Kempamma

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fell ill and in order to meet the expenses, requested the defendant No.1 to sell the suit schedule property and in furtherance thereof executed a power of attorney dated 25/08/2006 in favour of defendant No.1. That based on a said power of attorney, defendant No.1 sold the suit schedule property in favour of defendant No.2, who is the wife of defendant No.1 by executing and registering a deed of sale dated 28/08/2006. The defendant No.2 purchased the suit schedule property by obtaining loan from her office and bank as she was a Government teacher and on the strength of the said deed of sale dated 28/08/2006 the defendant No.2 is in peaceful possession and enjoyment of the suit schedule property. That Smt.Kempamma passed away on 06/09/2006. On these grounds, the defendants sought for dismissal of the suit.

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The Trial Court based on the pleadings

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framed the following issues.

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1. Do the plaintiffs prove that they became the owners of the suit property by virtue of a Will dated 25/11/2000 as alleged?

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2. Do the defendants prove that Smt.Kempamma cancelled the Will made in favour of the plaintiffs as alleged?

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3. Do the plaintiffs prove their possession over the suit property as on the date of the suit?

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4. Do the plaintiffs prove the interference by the defendants as alleged?

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5. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed?

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6. What order or decree?

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The Trial Court recorded evidence. The

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plaintiff No.2 examined himself as PW.1, plaintiff No.1 examined as PW.2 and also examined three additional witnesses as PWs.3 to 5 and exhibited 25 documents marked as Exs.P1 to P25. On the other hand, defendant No.1 examined himself as DW.1 and examined three additional witnesses as DWs.2 to 4 and exhibited 59 documents as Exs.D1 to D59.

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The Trial Court, on appreciation of the pleadings and evidence on record decreed the suit

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declaring the plaintiffs to be the absolute owners in possession of the suit schedule property by its judgment and decree dated 04/09/2010. Being aggrieved by the said judgment and decree, the appellants/defendants preferred regular appeal in RA.No.83/2010 on the file of the Presiding Officer, Fast Track Court, Kanakapura, Ramanagara District. Based on the grounds urged in the appeal, the first appellate court framed the following point for its consideration:

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1. Whether plaintiffs are the owners of suit property on the strength of Will dated 25/11/2000 executed by Kempamma in their favour?

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2. Whether Kempamma has executed Will dated 18/08/2006 by canceling earlier Will in favour of defendant No.1 in respect of suit property?

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3. Whether the trial court is justified in decreeing the suit?

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4. Whether the judgment and decree of the trial court is required to be interfered with in this appeal?

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On re-appreciating the evidence, the first

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appellate court by its judgment and decree dated

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14/12/2012 dismissed the appeal and confirmed the

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judgment and decree dated 04/09/2010 passed by the trial court. Being dissatisfied with the same, the appellants/defendants are before this Court by way of Regular Second Appeal.

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Sri Naresh Kumar, learned counsel for the appellants/defendants reiterating the grounds urged in the appeal memorandum submitted that the trial court and the first appellate court grossly erred in casting burden on the defendants with regard to proof of cancellation of the Will dated 25/11/2000 even without calling upon the plaintiffs to prove the execution of the said Will dated 25/11/2000. He submits that since the plaintiffs having propounded the Will dated 25/11/000 under law it was duty of the plaintiffs to establish due execution of the Will to the satisfaction of the court and that has not been complied with. Thus the trial court and the first appellate court grossly erred in decreeing the suit as sought for by the plaintiffs. He further submits that the defendants had examined three witnesses, one of them is the scribe to the subsequent Will dated

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18/06/2006 and deed of cancellation of Will dated 23/08/2006, which the trial court and the first appellate court have not taken into consideration, thereby the impugned judgment and decree have led to miscarriage of justice. He further submits that for the aforesaid factual and legal aspect of the matter, substantial question of law is involved in the matter requiring consideration.

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appellants/defendants.

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The fact that the suit schedule property is the self-acquired property of Smt. Kempamma, who is the sister of father of plaintiffs and defendant No.1 is not in dispute. As rightly pointed out by the trial court and the first appellate court though in the written statement, the defendants at first instance sought to deny the very execution and registration of the Will dated 25/11/2000 by said Smt.Kempamma in favour of plaintiffs have however, subsequently set up a plea that Smt. Kempamma not being satisfied with the care taken by the

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plaintiffs had executed subsequent Will dated 18/06/2006 and deed of cancellation dated 28/08/2006 bequeathing the property in favour of the defendant No.1. It is necessary to note that once the defendants admitted (though initially denied) execution and registration of the Will dated 25/11/2000 and set up a plea of cancellation of the said Will, it was quiet but natural that legally defendants had to establish the factum of cancellation of Will by the said Smt.Kempamma. It is not the case of the defendants that Smt. Kempamma was infirm or incapable of executing the Will dated 25/11/2000. But it is their case that she had cancelled the said Will subsequently in terms of deed of cancellation dated 23/08/2006. This being the factual aspect of the matter, as rightly observed and held by the trial court and the first appellate court, defendants ought to have established and proved the cancellation of the Will dated 25/11/2000.

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It is also further case of the

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appellants/defendants that apart from subsequently execution of the Will dated 18/08/2006, deed of

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cancellation of earlier Will dated 23/08/2006, the said Smt.Kempamma had executed power of attorney in favour of defendant No.1 and based on the said power of attorney defendant No.1 had sold the suit property to defendant No.2 by executing and registering a deed of sale on 28/08/2006. The said Smt.Kempamma is said to have passed away on 06/09/2006. The turn of events from the alleged execution of Will dated 18/06/2006, cancellation of Will dated 23/08/2006, execution of power of attorney dated 25/08/2006 and execution of registered deed of sale dated 28/08/2006 and death of Smt.Kempamma on 06/09/2006 did not evince the credibility, rightly so, before the trial court and the first appellate court. The plaintiffs, on the other hand apart from producing original document of Will dated 25/11/2000, have also examined one of the witnesses Mr.M.Sudhakara Raja as PW.4. There is substantial compliance of Section 63 of the Evidence Act and Section 68 of the Indian Succession Act.

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In the aforesaid factual and legal aspect of the matter, the trial court and the first appellate court having elaborately dealt with the facts and circumstances and also with the requirement of law in propounding and establishing the contents of the Will, no substantial question of law involves in the present appeal requiring consideration. Hence, the following.

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ORDER

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i) Regular Second Appeal No.645/2013 filed by the appellants/defendants is dismissed.

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ii) The judgment and decree dated 04/09/2006 passed in OS.No.535/2006 by the trial court and the judgment and decree dated 14/12/2012 passed in RA.No.83/2010 by the first appellate are confirmed.

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Sd/JUDGE

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mkm

K v. Rajesh v K v Ramesh

Case brief

What is this about?

What did the court decide?

K v. Rajesh v K v Ramesh

Case brief

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