Dismissed

Sri Sanath Kumar Padival v. Smt Vijayamma

Karnataka HC2 Nov 2023RSA/443/2016

Case brief

AI extract

What is this about?

In this regular second appeal regarding title and inheritance, the High Court dismissed the appeal. The court held that under Section 100 CPC, it cannot re-evaluate evidence where lower courts found the alleged will suspicious and lacking genuineness, finding no substantial question of law.

What did the court decide?

Second Appeal dismissed; all pending applications disposed of.

Sri Sanath Kumar Padival Vs Smt Vijayamma — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:38852 RSA No. 443 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 443 OF 2016 (DEC/INJ)

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BETWEEN:

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SRI. SANATH KUMAR PADIVAL, S/O LATE K. SHANTHIRAJ PADIVAL, AGED ABOUT 66 YEARS, R/AT MOODAYOOR HOUSE, PARENKI VILLAGE, BELTHANGADI TALUK, D.K - 574 240.

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…APPELLANT

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(BY SRI. N. SUKUMAR JAIN, ADVOCATE)

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AND:

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Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

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SMT. VIJAYAMMA, WIDOW OF K.PANIRAJA PADIVAL, HINDU, AGED ABOUT 59 YEARS, RESIDING NEAR GEETHA NURSING, BELVAI VILLAGE & POST, MANGALURU TALUK -574 213.

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SMT. SUMANGALA, WIDOW OF JAGATHPALA ALVA, D/O VIJAYAMMA, HINDU, AGED ABOUT 36 YEARS, R/AT NEAR GEETHA NURSING HOME, BELVAIL VILLAGE & POST, MANGALURU TALUK - 574 213.

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NC: 2023:KHC:38852 RSA No. 443 of 2016

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SRI. M. VIVEKANANDA PRABHU, S/O LATE MOORJE PANDURANGE PRABHU, HINDU, AGED ABOUT 43 YEARS,

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SRI. M. RAJESH PRABHU, S/O LATE MOORJE PANDURANGA PRABHU, HINDU, AGED ABOUT 41 YEARS,

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SRI. M. SHREENATH PRABHU, S/O LATE MOORJE PANDURANGA PRABHU, HINDU AGED ABOUT 39 YEARS,

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SL. NOS. 3 TO 5 ABOVE ARE RESIDING DEVADAS PRABHU TIMBER & FIREWOOD DEPOT, I.B. ROAD, BELTHANGADI KASABA - 574 214.

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…RESPONDENTS

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(BY SRI. A KESHAVA BHAT, ADVOCATE FOR R3 TO R5; R1 AND R2 ARE SERVED AND UNREPRESENTED)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.10.2015 PASSED IN RA NO. 151/2010 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, DK MANGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.10.2010 PASSED IN OS NO. 86/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE ACJM KARKALA.

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

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3 - NC: 2023:KHC:38852 RSA No. 443 of 2016

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JUDGMENT

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The captioned Second Appeal is filed by the unsuccessful plaintiff, feeling aggrieved by the concurrent judgments and decree of the Courts below, wherein the plaintiff's suit seeking relief of declaration of title on the basis of an alleged will dated 08.01.2000, executed by the plaintiff's brother, namely, K.Paniraja Padival and for consequential relief of injunction is dismissed by both the Courts. These concurrent judgments are under challenge by the plaintiff.

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For the sake of brevity, the rank of the parties are referred as they are ranked before the Trial Court.

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The present plaintiff and defendant No.1's husband, K.Paniraja Padival are full brothers. Defendant No.1 is the widow of K.Paniraja Padival and defendant No.2 is the daughter. The plaintiff is asserting title over 1/5^th share of his brother on the basis of an alleged will dated 08.01.2000. The plaintiff, on the basis of alleged

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NC: 2023:KHC:38852 RSA No. 443 of 2016

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will, also claimed that he is in lawful possession and therefore sought declaration that he has become absolute owner based on a will executed by his brother and a consequential declaration is also sought to declare the grant of occupancy rights in favour of defendants No.1 and 2 insofar as schedule B properties are concerned as invalid and illegal.

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Defendants No.1 and 2, on receipt of summons, tendered appearance, filed written statement and stoutly denied the entire averments made in the plaint. The widow and daughter have seriously disputed the alleged will set up by the plaintiff. Defendants No.1 and 2, on the contrary, have claimed that their relationship with K.Paniraja Padival was very cordial and they were all residing together till his death. Defendants No.1 and 2 also contended that, insofar as schedule B properties are concerned, the same were granted to defendants No.1 and 2 jointly. On this set of defence, defendants sought for dismissal of the suit.

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NC: 2023:KHC:38852 RSA No. 443 of 2016

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Plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence.

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The Trial Court, having examined the pleadings and having meticulously assessed the oral and documentary evidence on record, answered issue Nos. 3 to 7 in the negative and against the plaintiff. The Trial Court, having examined the evidence adduced by the plaintiff concerning the genuineness of will, however was not inclined to accept the claim made by the plaintiff based on will dated 08.01.2000. Having examined the evidence of witnesses to the alleged will dated 08.01.2001, the Trial Court held that the said alleged disputed will is shrouded with suspicious circumstances and the propounder of the will has failed to dispel the suspicious circumstances surrounding the will. Having answered issue Nos.3 and 5 in the negative, the Trial Court proceeded to dismiss the suit.

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6 - NC: 2023:KHC:38852 RSA No. 443 of 2016

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Plaintiff, feeling aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the appellate Court. The Appellate Court has independently assessed the evidence relating to the dispute over the will set up by the plaintiff. The Appellate Court, being the final fact finding authority, has also independently examined the evidence relating to the will. The Appellate Court has culled out several admissions elicited in cross-examination of the attesting witnesses, who is examined as P.W.2 and P.W.3, who is the son of other attesting witness. The Appellate Court, having independently assessed the evidence on record, has come to the conclusion that the facts are found to be contradictory to one another. The Appellate Court has also come to the conclusion that the manner in which the plaintiff has set up a narrative as to how he secured the custody of the will is also held to be a false narrative. Concurring with the views rendered by the Trial Court, the Appellate Court was also of the view that the plaintiff has failed to prove the genuineness of the will

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NC: 2023:KHC:38852 RSA No. 443 of 2016

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under challenge. The Appellate Court has proceeded to dismiss the appeal.

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Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. Perused the concurrent findings of the Courts below.

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The plaintiff has laid a claim over 1/5^th share of his brother's in schedule A properties and he is also laying a claim over schedule B properties, which are admittedly tenanted land and his brother claimed tenancy rights over schedule B properties. On examining the rebuttal evidence, it is clearly evident that after the death of K.Paniraja Padival, defendant No.1, who is a widow, along with her daughter/defendant No.2 prosecuted the proceedings before the land tribunal and the land tribunal has conferred occupancy rights in favour of defendants No.1 and 2. Insofar as the will is concerned, both the Courts have independently assessed the evidence concerning the will. Both the Courts after testing the

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8 - NC: 2023:KHC:38852 RSA No. 443 of 2016

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evidence on record have come to the conclusion that the will is shrouded with suspicious circumstances. There are categorical findings recorded by both the Courts that the propounder the will has failed to dispel the suspicious circumstances surrounding the will. Both the Courts have also come to the conclusion that the signatures found on the alleged will and the admitted signatures are not similar. If both the Courts have concurrently held that the plaintiff has failed to prove the will in accordance with law, this Court cannot re-visit and re-assess the evidence relating to the genuineness of the will. Such a recourse is not permissible under Section 100 of C.P.C.

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Be that as it may. The appellant is not in a position to demonstrate that the findings recorded by the Courts below on will is perverse. If both the Courts have independently assessed the evidence on record and have come to the conclusion that the will is shrouded with suspicious circumstances, no further indulgence is

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NC: 2023:KHC:38852 RSA No. 443 of 2016

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warranted at the hands of this Court under Section 100 of CPC.

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Therefore, no substantial question of law would arise for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 11 CT: BHK

Sri Sanath Kumar Padival v. Smt Vijayamma

Case brief

What is this about?

What did the court decide?

Sri Sanath Kumar Padival v. Smt Vijayamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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