Dismissed

G. Mahesh v. Smt. Lalithamma

Karnataka HC4 Sept 2023RSA/1508/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the regular second appeal filed by a legatee challenging a decree dismissing a suit for probate. The court held that since the suit involved disputed claims regarding title to ancestral/joint family property, determining the testator's right to execute the Will was proper and no error was committed by lower courts in deciding the title.

What did the court decide?

The Regular Second Appeal is dismissed with no substantial question of law being framed.

G. Mahesh Vs Smt. Lalithamma — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:31797 RSA No. 1508 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.1508 OF 2019 (RES)

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BETWEEN:

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G. MAHESH S/O. CHANNABASAPPA AGE: 39 YEARS, AGRICULTURIST, R/O. CHIKKAJOGIHALLI VILLAGE, SHIKARIPURA TQ. SHIVAMOGGA DISTRICT-577427.

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…APPELLANT

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(BY SRI. RAJENDRA M S.,ADVOCATE) AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SMT. LALITHAMMA W/O. LATE CHANNABASAPPA GADDERA (DEAD BY LRS) 1(a) SOMASHEKARAPPA S/O. CHANNABASAPPA AGE: 66 YEARS

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1(b) RUDRAPPA DEAD BY LRS 1(B)(A) SMT. VISHALAKSHMAMMA W/O. RUDRAPPA

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1(b)(b) SMT. ASHWINI D/O RUDRAPPA AGED ABOUT 48 YEARS

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1(c) SUJAATHAMMA W/O. BASAVARALAPPA, R/O. SURAGIHALLI, SHIKARIPURA TQ.-577427

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1(d) NEELAMMA W/O. HALESHAPPA, AGE: 51 YEARS, R/O. BALEKOPPA, SHIKARIPURA TQ.-577427

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1(e) SHANTHAMMA W/O. CHAANDRAPPA, AGE: 49 YEARS, R/O. CHIKKAJOGIHALLI, SHIKARIPURA TQ.-577427

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1(f) MAMATHA W/O. VIJAYKUMAR AGE: 36 YEARS, R/O. BASAPURA DAVANAGERE TQ. & DIST.-577001

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2 G.R. ABINANDANN S/O. G. RUDRAPPA AGE: 23 YEARS, R/O. CHIKKAJOGIHALLI, SHIKARIPURA TQ, SHIVAMOGGA DISTRICT-577427.

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3 PURADARA HALESHAPA S/O. GADLABASAPPA AGE: 55 YEARS, R/O. BALEKOPPA, SHIKARIPURA TQ, SHIVAMOGGA DISTRICT-577427

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…RESPONDENTS

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3 - NC: 2023:KHC:31797 RSA No. 1508 of 2019

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.01.2019 PASSED IN R.A.NO.3/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA AND ETC.

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

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J U D G M E N T

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This matter is listed for admission. Heard the learned counsel appearing for the appellants.

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The case of the plaintiff before the Trial Court that his father Channabasappa died on 07.02.2003 and during his lifetime, he had executed a registered Will on 20.03.1995 in favour of the plaintiff in respect of the suit schedule properties hence, the plaintiff being the legatee under the Will has right and interest over the said properties as he is only in possession of the same. After the death of Channabasappa, defendant No.1 who is the mother of the plaintiff got mutated the katha of the properties in her name without the knowledge of the plaintiff though she has fully aware about the registered Will executed by Channabasappa at the instigation of

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defendant No.3 who is her son-in-law and she has executed a gift deed in favour of defendant No.2 in order to bequeath the right of the plaintiff over the suit schedule properties. The plaintiff came to know about the same and he preferred two regular appeals before the Assistant Commissioner challenging the validity of M.R.No.34/200304 and M.R.No.50/2003-04 in R.A.Nos.50 and 51 / 200405. The Assistant Commissioner has granted stay to the said MR proceedings. On 10.09.2004, respondent Nos.1 and 2 came near the suit schedule property along with defendant No.3 and made a futile efforts to dispossess the plaintiff from the house situated in the suit schedule property and openly denied the execution of the Will by the deceased testator Channabasappa. As such, cause of action arose to pray for grant of probate and hence, filed the suit.

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The defendants appeared through their

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respective counsel and filed the written statement denying the execution of the Will. Defendant No.1 and 2 have filed

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their objections which are similar and defendant No.3 adopted the written statement of defendant No.1. It is contended by defendant No.1 that the alleged Will dated 20.03.1995 said to have been executed by Channabasappa Gaddera is not valid and the same is void under law as the said Channabasappa has no absolute right over the suit schedule properties to bequeath the same in favour of plaintiff and there is no division of the properties by the Channabasappa Gaddera and his children and he died leaving behind his legal heirs. All the daughters are married and the first son Somashekhara has left the house about 23-24 years ago and his whereabouts is unknown. But his wife and children are residing at Chikkajogihalli village. The second son-Rudrappa also left the house in the year 1992-93 by marrying second time and he is not residing at Chikkajogihalli village but his wife and children are residing at Chikkajogihalli village. Defendant No.2 is the grandson of Channabasappa Gaddera and defendant No.1. It is further contended that the suit schedule properties are the ancestral and joint

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family properties of the plaintiff and defendants and there is no actual division of the properties by metes and bounds. Hence, prayed this Court to dismiss the suit on the ground that the plaintiff has obtained the said Will fraudulently from Channabasappa.

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The Trial Court after considering the pleadings of the parties framed the issues and allowed the parties to lead their evidence. The Trial Court after considering both

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oral and documentary evidence placed on record in paragraph 20 comes to the conclusion that the said Channabasappa Gaddera i.e., the father of the plaintiff got the property in the family partition at best the said Channabasappa can execute the Will in favour of the plaintiff only in respect of his share and not in respect of the entire property and dismissed the suit of the plaintiff. Being aggrieved by the said order, an appeal was preferred by the plaintiff before the First Appellate Court contending that the Trial Court has committed an error in dismissing the suit of the plaintiff when the Trial Court

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answered the issue No.2 partly in the affirmative, it ought to have decreed the suit of the plaintiff instead of passing

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an order of dismissal of the suit. The First Appellate Court also considering the grounds urged in the appeal, formulated the point that whether the order of the Trial Court requires interference. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record held that the petitioner who seeks the probate or letter of administration would be treated as the plaintiffs and the person opposing the claim as the defendant and the proceedings would assume the form of an original suit. When the case is tried as original suit them definitely the question of title is also to be decided by the civil Court and the decision referred by the counsel for the appellant is also clear on that point. Hence, confirmed the judgment and decree of the Trial Court.

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The counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in declaring the title of the testator in a suit and

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relied upon the judgment of this Court reported in 2018 (1) KAR L R 543 in the case of NARAYAN HANMANTRAO GUDUR SINCE DECEASED BY HIS LR'S AND OTHERS vs ANILKUMAR HANMANTRAO GUDUR

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AND ANOTHER and the counsel referring this judgment would vehemently contend that the Trial Court ought not to have decided the title of the testator and ought to have consider only the possession and letter of administration and hence, committed an error. The counsel also would vehemently contend that this Court has to frame the substantial questions of law with regard to that whether both the Courts have committed an error in deciding the title between the parties and ought not to have decided with regard to the title is concerned.

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Having heard the learned counsel appearing for

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the appellant and also on perusal of the material on record, it is not in dispute that the case earlier filed by the appellant is treated as original suit consequent upon the defence taken up by the respondents and hence, framed

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the issue with regard to that whether Channabasappa Gaddera was the absolute owner having transferable right, title, interest over the suit schedule property in order to execute the Will and also the contention of the defendants that the suit schedule properties are the ancestral and joint family properties and father was not having any absolute right to execute the Will. The Trial Court having considered the admission and also mentioning the document at Ex.P2 that is the original registered Will dated 20.03.1995 specifically recited that property had partitioned hence, comes to the conclusion that father had no absolute right to execute the Will in respect of the entire property and only he can execute the Will in favour of his share. It is also emerged in the evidence that the property is allotted to the father by a partition and the same is also admitted from the document at Ex.P2 executed by the father and recitals are also taken note of that the father had derived the property through a partition. When such being the material on record, the Trial Court has rightly comes to the conclusion that he was

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having only right to execute a Will in favour of the plaintiff in respect of his share and not in respect of entire property and here it is not the question of title to ask whether he has got right to execute the Will and the property is not the absolute property of the father as contended by the defendants. When such being the case, the judgment relied upon by the counsel for the appellant is not applicable to the case on hand and the same is not in respect of deciding the title is concerned whether he has got the right to execute Will in entirety since he has got the property by partition only and he has not having absolute right to convey any share or interest in favour of anyone either by executing the Will or by any document. Having taken note of the reasons given by the Trial Court and also the First Appellate Court that the father of the plaintiff was not the absolute owner having transferable right or interest over the suit schedule property as on the date of the Will since the same was not belongs to him as the same is not exclusive property of the father. Hence, I do not find any error committed by both the Courts in

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NC: 2023:KHC:31797 RSA No. 1508 of 2019

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11 -

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dismissing the suit. Hence, I do not find any ground to admit the appeal and to frame the substantial questions of law.

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In view of the discussions made above, I pass the following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal, I.A. if any,

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does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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G. Mahesh v. Smt. Lalithamma

Case brief

What is this about?

What did the court decide?

G. Mahesh v. Smt. Lalithamma

Case brief

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