Dismissed

Sri Lingappa Devadiga v. Devadiga Seva Vedike

Karnataka HC3 Nov 2023RSA/1044/2013

Case brief

AI extract

What is this about?

In an appeal against confirmation of a lower court's dismissal, the High Court held the appellant is not an heir under Section 8 of the Hindu Succession Act as the deceased died intestate leaving no heirs in Class I or II. The appeal is dismissed, confirming lower judgments that affirmed the Will and property transfer to the respondent.

What did the court decide?

The appeal is dismissed; judgments and decrees of courts below are confirmed; no order as to costs.

Sri Lingappa Devadiga Vs Devadiga Seva Vedike — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:39760 RSA No. 1044 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1044 OF 2013 (DEC)

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BETWEEN:

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SRI LINGAPPA DEVADIGA AGED ABOUT 68 YEARS S/O CHANDAYYA DEVADIGA R/AT BAILU HOUSE MOODUKODY VILLAGE BELTHANGADI TALUK DK DISTRICT – 574 216.

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…APPELLANT

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(BY SRI. NATARAJA BALLAL, ADVOCATE)

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AND:

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Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka

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DEVADIGA SEVA VEDIKE BELTHANGADI TALUK D K DISTIRCT, REP. BY ITS PRESIDENT SRI. SUNDARA DEVADIGA AGED ABOUT 58 YEARS

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SMT. BOGGI HENGASU AGED ABOUT 62 YEARS W/O LATE SOMAPPA DEVADIGA R/AT HANTRAIL HOUSE MOODUKODI VILLAGE BELTHANGADI TALUK DK DISTRICT – 574 216

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SMT KOOSAMMA AGED ABOUT 51 YEARS W/O THAMMAYYA DEVADIGA

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R/AT PADI HOUSE KASHIPATNA VILLAGE BELTHANGADI TALUK DK DISTRICT – 574 216

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SMT REVATHI AGED ABOUT 49 YEARS W/O B L VEERAPPA MOILLI R/AT LINGATHYARU HOUSE INDABETTU VILLAGE BANGADI POST BELTHANGADI TALUK DK DISTRICT – 574 216

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SRI KORAGAPPA DEVADIGA AGED ABOUT 82 YEARS S/O ANANTHAPPA DEVADIGA R/AT MOODUKODI GANADAKOTTIGE MOODUKODI VILLAGE &POST BELTHANGADI TALUK DK DISTRIT – 574 216

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SRI BABU DEVADIGA AGED ABOUT 80 YEARS S/O ANANTHAPPA DEVADIGA R/AT KARIMANELU VILLAGE VENUR POST, BELTHANGADI TALUK DK DISTRICT – 574 216

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SMT MUTHU AGED ABOUT 71 YEARS D/O ANANTHAPPA DEVADIGA R/AT GANADAKOTTIGE MOODUKODI VILLAGE & POST BELTHANGADI TALUK DK DISTRICT – 574 216

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…RESPONDENTS

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(BY SRI. PRAKASH HEGDE, ADVOCATE FOR R1, R5 & R7 R3, R4, R6 ARE SERVED V/O DATED 21.09.2023 THE APPEAL AGAINST R2 ABATED)

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3 - NC: 2023:KHC:39760 RSA No. 1044 of 2013

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 20.2.2013 PASSED IN R.A.NO.31/2010 ON THE FILE OF THE SENIOR CIVLL JUDGE & JMFC., BELTHANGADY, D.K, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 16.1.2010 PASSED IN OS.NO.45/1997 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., BELTHANGADY, D.K.

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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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This second appeal is filed by the appellants challenging the judgment and decree dated 20.02.2013, passed in R.A.No.31/2010 by the Senior Civil Judge & JMFC, Belthangady, D.K., confirmed by the judgment and decree dated 16.01.2010, passed in O.S.No.45/1997 by the Civil Judge (Jr.Dn.) & JMFC, Belthangady, D.K.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.

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NC: 2023:KHC:39760 RSA No. 1044 of 2013

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for declaration that the alleged unregistered Will said to be executed by deceased Dharanappa Devadiga before the Deputy Tahsildar, Venur, is concocted and hence null and void. It is the case of the plaintiff that 'A' schedule property was granted in favour of Dharanappa Devadiga by the Land Tribunal who was unmarried and died intestate on 05.08.1995, at Venur. The parents of Dharanappa predeceased him. There were nobody to look after Dharanappa. He was residing with the plaintiff as both are closely related to each other. Plaintiff's mother and deceased Dharanappa's mother are direct sisters. The plaintiff was looking after him till his death and he has performed his last rites. The deceased Dharanappa did not utter a single word of bequeathing the suit property nor had executed any document in respect of suit schedule property. Dharanappa was telling to the plaintiff to own and possess the suit schedule property after his death. It is contended that after the death of

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Dharanappa, the plaintiff submitted an application to the revenue authorities seeking to enter his name in the RTC pertaining to suit property. The defendants filed objections alleging that deceased Dharanappa had executed a Will bequeathing suit property in favour of the defendants. On the basis of alleged Will, the defendants claiming to be the owner of the suit schedule property and name of defendants were entered in the revenue records. The order mutating the defendants' name in Record of Rights, passed by the Deputy Tahsildar was challenged by the plaintiff before the Assistant Commissioner and the Assistant Commissioner confirmed the order passed by the Deputy Tahsildar, Venur, by dismissing the appeal. Thus, cause of action arose for the plaintiff to file a suit for declaration.

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Defendants filed written statement denying the averments made in the plaint and contended that plaint 'A' schedule property was granted in favour of Dharanappa Devadiga. He was unmarried and died on 05.08.1995. The

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Dharanappa was hale and healthy and out of his free will in disposing state of mind executed unregistered Will dated 30.05.1995 in favour of defendant No.1 bequeathing the plaint schedule property and on the basis of Will dated 30.05.1995, defendant No.1 became the absolute owner of the suit schedule property and name of defendant No.1 was entered in the revenue records and the same was affirmed by the Deputy Commissioner in the revision filed by the plaintiff. Hence, on these grounds sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1) Whether the plaintiff proves that one Dharanappa Devadiga was the owner of suit 'A' schedule property and he died intestate and he had no LRs.?

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2) Whether the plaintiff proves that he is his close relative and he had looked after Dharanappa Devadiga till his death and conducted the last rites of him?

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3) Whether plaintiff proves that he is entitled to succeed and enjoy the suit 'A' schedule properties belonged to Dharanappa Devadiga?

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7 - NC: 2023:KHC:39760 RSA No. 1044 of 2013

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4) Whether the plaintiff proves that the defendants have created un-registered Will with regard to suit 'A' schedule property illegally and as such the said Will is null and void?

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5) Whether the plaintiff is entitled for the relief sought for in the suit?

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6) To what order or decree ?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got examined one witness as PW-2 and got marked 5 documents as Exs.P1 to P5. To prove the defence of the defendants, defendant No.1 examined its President as DW-1 and got examined 3 witnesses as DW-2 to DW-4 and got marked 10 documents as Exs.D1 to D10. The trial Court after considering the oral and documentary evidence of the parties, answered issue No.1 partly in affirmative; issue Nos.2 to 5 in negative; and issue No.6 as per the final order and dismissed the suit of the plaintiff.

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The plaintiff aggrieved by the judgment and

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decree passed in the above said suit, filed an appeal in

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NC: 2023:KHC:39760 RSA No. 1044 of 2013

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R.A.No.31/2010. The First Appellate Court, after hearing the parties, has framed the following points for

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consideration:

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1) Whether the appellant proves that impugned judgment and decree of the trial Court passed in O.S.No.45/1997 is contrary to law, facts, illegal perverse and probabilities of the case and as such same is liable to be interfered with?

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2) What order?

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The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point No.1 in the affirmative and consequently dismissed the appeal filed by the plaintiff, confirming the judgment and decree passed by the trial Court. The plaintiff aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.

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Heard learned counsel for the plaintiff.

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9 - NC: 2023:KHC:39760 RSA No. 1044 of 2013

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Learned counsel for the plaintiff submits that the

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land was granted in favour of Dharanappa, who was unmarried and died intestate. During the life time of Dharanappa, nobody was looking after him and he was residing with the plaintiff as closely related to each other and the plaintiff's mother and the mother of deceased Dharanappa are the direct sisters and plaintiff has performed his funeral and other last rites. Hence, the plaintiff succeeded to the suit property. He submits that both the courts below have not properly considered the material placed on record. Hence, the impugned judgments and decrees passed by the courts below are arbitrary and erroneous. Hence, he prays to allow the appeal.

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Perused the records and considered the submissions of learned counsel for the plaintiff.

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The plaintiff examined himself as PW.1 and reiterated the plaint averments in the examination in chief and produced the documents i.e., Ex.P1 is the certified

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10 - NC: 2023:KHC:39760 RSA No. 1044 of 2013

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copy of Land Tribunal Order, Ex.P2 is the certified copy of Form No.10, Ex.P3 is the RTC of Sy.No.168/1B, Ex.P4 is the death certificate of Dharanappa Devadiga, Ex.P5 is the order copy of A.C.Court.

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In rebuttal, the defendants examined four witnesses and produced documents i.e., Ex.D1 is the copy of original Will, Ex.D1(a) is the signature of Koragappa Devadiga, Exs.D1(b) to D1(e) are the signature of Dharanappa Devadiga, Ex.D1(f) is the signature of Koragu Shetty, Ex.D1(g) is the signature of Niranjarao Erdoor, Ex.D2 is the death certificate of Dharanappa Devadiga, Ex.D3 is the certified copy of Land Tribunal Order, Ex.D4 is the copy of form No.10, Ex.D5 is the copy of form No.7, Ex.D6 is the order copy of the Deputy Tahsildar, Venur, Ex.D17 is the order copy of A.C.Court, Ex.D8 is the list of movables, Ex.D9 is the copy of Mahazar and Ex.D10 is the ration card.

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From the perusal of evidence of the parties, it is clear that the land was granted in favour of Dharanappa

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and on the strength of Land Tribunal order, the name of Dharanappa was entered in the revenue records and form No.10 was issued. Dharanappa during his lifetime, executed unregistered Will in favour of defendant No.1 and defendant No.1 has produced original Will marked as Ex.D1. Dharanappa died on 05.08.1995. After the death of Dharanappa, defendant No.1 on the basis of Will dated 30.05.1995, got transferred the suit property. The plaintiff aggrieved by the entries in the name of defendant No.1, preferred an appeal before the Assistant Commissioner and revision petition before the Deputy Commissioner. The Authorities affirmed the entries in the name of defendant No.1. The defendants in order to prove the execution of Will, examined the attesting witnesses as DW.2 and DW.3, who have deposed about the execution of Will by Dharanappa in favour of defendant No.1. DW.4 is the scribe, who has deposed that on the instruction of Dharanappa, he has drafted the Will and read over the contents of the Will to Dharanappa and after understanding the contents of Will, Dharanappa affixed his

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NC: 2023:KHC:39760 RSA No. 1044 of 2013

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signature on Ex.D1. DW.2 to DW.4 have admitted the signature of Dharanappa in Ex.D1 and their signatures are marked as Ex.D1 (a) to D1(g). Thus, from the perusal of the records, it is clear that the defendants have proved that Dharanappa executed a Will in favour of defendant No.1.

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It is the case of the plaintiff that, defendant No.1 cannot acquire agricultural land under Section 79B of the Karnataka Land Reforms Act, 1961 (for short 'the Act'). During the pendency of this appeal, the Act was enacted wherein sections 70, 72, 79A to 79C of the Act are omitted by amendment called as Karnataka Land Reforms (Amendment) Act, 2020. In view of the Karnataka Land Reforms (Amendment) Act, 2020 (for short 'the Act of 2020'), the issue becomes redundant and it does not arise for consideration.

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The plaintiff's mother and mother of

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Dharanappa are direct sisters. After the death of Dharanappa, the plaintiff has succeeded the property

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NC: 2023:KHC:39760 RSA No. 1044 of 2013

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under Section 8 of Hindu Succession Act, 1956 (for short 'the Act of 1956'). From the perusal of Section 8 of the Act of 1956, if a male Hindu dies intestate leaving behind the heirs shown in clause I and II of Schedule, the said heirs will succeed to the property. From the perusal of clause I and II of Schedule of the Act of 1956, the plaintiff does not

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fall in any of the category of clause I or II heirs of Schedule. Thus, the plaintiff is not entitled to claim the property of the deceased Dharanappa under Section 8 of the Act of 1956. The plaintiff has not acquired any right title or interest over the schedule property. The courts below on the assessment and reassessment of the oral and documentary evidence, rightly passed the impugned judgments and decrees. Hence, I do not find any grounds to interfere with the impugned judgments and decrees and no substantial question that arises for consideration in this appeal.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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NC: 2023:KHC:39760 RSA No. 1044 of 2013

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ORDER

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The appeal is dismissed.

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Consequently, the judgments and decrees passed by the courts below are hereby confirmed.

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No order as to the costs.

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SD/JUDGE

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ssb

Sri Lingappa Devadiga v. Devadiga Seva Vedike

Case brief

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Sri Lingappa Devadiga v. Devadiga Seva Vedike

Case brief

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