Allowed

Smt Swarna Latha W/O Late B R Jeevan Prakash v. Smt Shahsikala D/O a R Shivanna

Karnataka HC9 Feb 2023RFA/609/2007

Case brief

AI extract

What is this about?

The High Court allowed an appeal challenging the dismissal of a suit seeking declaration that a Will was null and void. The court held that the Will could not be used as evidence since the only attesting witness was not examined for cross-examination, upholding the suit for declaration.

What did the court decide?

The appeal was allowed and the suit filed by the appellants for a declaration that the Will is null and void was decreed.

Smt Swarna Latha W/O Late B R Jeevan Prakash Vs… — Matrimonial and Divorce | Karnataka HC (2023)

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RFA No. 609 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA REGULAR FIRST APPEAL NO.609 OF 2007 (DEC/INJ)

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BETWEEN:

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SMT SWARNA LATHA, W/O LATE B R JEEVAN PRAKASH, AGED ABOUT 57 YEARS,

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B J MAMATHA, D/O LATE B R JEEVAN PRAKASH, AGED ABOUT 30 YEARS,

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B J SAPNA, D/O LATE B R JEEVAN PRAKASH, AGED ABOUT 24 YEARS,

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ALL ARE R/AT NO.40, 4TH MAIN ROAD, SOCIETY COLONY, ADUGODI, BANGALORE 560 030.

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…APPELLANTS

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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(BY SRI. G MANIVANNAN.,ADVOCATE)

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AND:

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SMT SHAHSIKALA, D/O A R SHIVANNA AGED ABOUT 41 YEARS, R/AT NO.417, 7TH A MAIN, II STAGE, VIJAYANAGAR, BANGALORE 560 040.

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…RESPONDENT

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(BY SRI. SRINIVAS BHAT., ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:21.11.2006 PASSED IN OS.NO.2050/2001 ON THE FILE OF THE V ADDITIONAL CITY

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RFA No. 609 of 2007

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CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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

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JUDGMENT

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Smt.Swarna Latha and her two children instituted a suit against Smt.Shashikala seeking for a declaration that the Will executed by Sri.B.R.Jeevan Prakash (husband of Smt.Swarna Latha) was null and void and did not bind them. A decree of permanent injunction to restrain Smt.Swarna Latha from alienating the suit property was also sought for.

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Smt.Swarna Latha and her children pleaded that Sri.B.R.Jeevan Prakash had married Smt.Swarna Latha and out of this wedlock, they had two children Smt.B.J.Mamatha and Smt.B.J.Sapna. They stated that Sri.B.R.Jeevan Prakash had applied for allotment of a B.D.A. site in his name and the B.D.A. had also allotted a site bearing No.467 in Hennur Bellar Road Lay-out to him. Smt.Swarna Latha stated that the entire amount for the

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RFA No. 609 of 2007

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allotment was paid by her and it was essentially her property.

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She contended that her husband Sri.B.R.Jeevan Prakash had fallen into bad habits and he had in fact deserted Smt.Swarna Latha and her children and was living separately. It was stated that she had filed a suit seeking for partition in O.S.No.6100/1997 and had also secured an interim order in the said suit.

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She also went on to state that Sri.B.R.Jeevan Prakash was not in control of his senses and Smt.Shashikala taking advantage of his ill health had managed to obtain a Will as if she was the second wife, despite an order of temporary injunction that had been granted in O.S.No.6100/1997. She stated that she became aware of this Will after the death of Sri.B.R.Jeevan Prakash and since the Will was null and void, she was constrained to file a suit seeking for a declaration.

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RFA No. 609 of 2007

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Smt.Shashikala entered appearance and contested the suit. She denied the assertion of Smt.Swarna Latha that she has paid the sital value at the time of allotment. She also stated that Smt.Swarna Latha had developed an illicit intimacy with one Sri.Suresh, who was working as a conductor in B.M.T.C. and Sri.B.R.Jeevan Prakash was thereafter ill treated, humiliated and insulted and ultimately turned out of the house in 1997. She stated that as a matter of fact, a divorce agreement had also been prepared by Sri.B.R.Jeevan Prakash. She also stated that Smt.Swarna Latha had initiated a criminal proceedings against Sri.B.R.Jeevan Prakash in C.C.No.15336/1997, but the said proceedings ended in an acquittal in favour of Sri.B.R.Jeevan Prakash.

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Smt.Shashikala denied the assertion that she was a maid servant. She stated that she was introduced to Sri.B.R.Jeevan Prakash from a marriage bureau and as per the Lingayath customs, she was accepted as the wife of Sri.B.R.Jeevan Prakash and the Will executed by

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RFA No. 609 of 2007

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Sri.B.R.Jeevan Prakash recorded the said fact clearly and categorically and therefore, the suit of Sri.Swarna Latha

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and her children could not be maintained.

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The Trial Court framed three issues. Sri.Swarna Latha examined herself as PW1 and got eight documents admitted in evidence which were also marked as exhibits.

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Smt.Shashikala examined herself as DW1 and she also got examined one of the attesting witnesses Sri.Anand as DW2. Eight documents were admitted in evidence and marked as exhibits.

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The Trial Court on consideration of the evidence adduced, came to the conclusion that Smt.Swarna Latha had failed to prove that the Will executed in favour of Smt.Shashikala by Sri.B.R.Jeevan Prakash was null and void. It accordingly proceeded to dismiss the suit.

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The Trial Court in support of its judgment stated that the evidence rendered by Smt.Shashikala was not challenged by Smt.Swarna Latha, by subjecting her to

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RFA No. 609 of 2007

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cross examination. It therefore, took the view that the assertion of Smt.Shashikala that the Will had been executed would have to be accepted. The Trial Court also proceeded to reject the prayer for injunction, on the ground that a mere execution of a Will would not amount to alienating the property.

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11. Being aggrieved by the dismissal of the suit,

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Smt.Swarna Latha and her children are in appeal.

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Learned counsel for Smt.Swarna Latha and her children contended that the Trial Court has seriously erred in dismissing the suit. He submitted that it is no doubt true that the evidence of Smt.Shashikala was not subjected to cross examination, but, the evidence of Smt.Shashikala would be of very little significance, since she had set up a Will and it was incumbent upon her to prove the Will in accordance with law. She submitted that the attesting witness Sri.Anand who had been examined was not tendered for cross examination and therefore, it was clear that the Will had not been proved in accordance

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RFA No. 609 of 2007

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with law and as a consequence, it will have to be held that there was no legal rights flowing through Smt.Shashikala by virtue of the Will.

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Learned counsel appearing for Smt.Shashikala, on the other hand contended that since Smt.Shashikala pleaded that a Will had been set up and executed in her favour and as her evidence was not challenged, it will have to be assumed that the execution of the Will stood proved.

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In the light of the arguments advanced, the only point that arises for consideration in this appeal is as to whether the Trial Court was justified in dismissing the suit on the ground that the Will set up by Smt.Shashikala had been proved in a manner known to law?

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From the facts narrated above, it is clear that the only issue between the parties was regarding the execution of the Will. If it is found that the execution of the Will had been proved, only then the assertion of

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RFA No. 609 of 2007

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Smt.Swarna Latha that she had paid for the site would have to be considered.

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It is not in dispute that the Will was a registered Will

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which has been attested by Sri.Y.V.Shiva Reddy and Sri.Anand. It is also not in dispute that only Sri.Anand had been examined in support of the Will. However, the said Sri.Anand did not tender himself for cross examination and as a consequence, in the eye of law, there would be no evidence at all regarding attestation of the Will by the attesting witnesses.

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In law, unless the attesting witnesses are examined to prove the execution of the Will, the Will cannot be used in the evidence and would be of no consequence. Since, there is no evidence of the attesting witnesses testifying to the fact that Sri.B.R.Jeevan Prakash had executed the Will, Smt.Swarna Latha and her children would be entitled for a declaration that the Will was null and void and was not binding on them.

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RFA No. 609 of 2007

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The Trial Court has committed a serious error in

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giving a contrary finding. It is therefore set-aside and the suit filed by Sri.Swarna Latha and her children is decreed as prayed for.

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Accordingly, the appeal is allowed .

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Sd/JUDGE

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List No.: 2 Sl No.: 3

Smt Swarna Latha W/O Late B R Jeevan Prakash v. Smt Shahsikala D/O a R Shivanna

Case brief

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Smt Swarna Latha W/O Late B R Jeevan Prakash v. Smt Shahsikala D/O a R Shivanna

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