Dismissed

Sri Subbarayappa v. Sri. Sadappa Dead by Lrs Smt. Venkatamma

Karnataka HC25 Mar 2024RSA/1138/2020

Case brief

AI extract

What is this about?

Second appeal filed by plaintiffs challenging dismissal of suit for declaration of title based on Wills. High Court held that failure to examine attesting witnesses in the first instance and lack of proof regarding revocation resulted in no substantial question of law arising.

What did the court decide?

Appeal dismissed; judgment and decree of Trial Court and First Appellate Court confirmed.

Sri Subbarayappa Vs Sri. Sadappa Dead by Lrs… — Succession and Inheritance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 25^TH DAY OF MARCH, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1138 OF 2020 (DEC/INJ)

¶6

BETWEEN:

¶7

SRI. SUBBARAYAPPA, S/O MUNISWAMY, AGED ABOUT 67 YEARS, R/AT THIMMAPUR VILLAGE, CHIKKA ANKANDAHALLI, BANGARPET TALUK - 563 114.

¶8

SRI. KRISHNAPPA AND SMT. LAKSHMAMMA, W/O LATE KRISHNAPPA, SINCE DEAD BY LRS:-

¶9

SMT. NAGAMANI, D/O LATE KRISHNAPPA, AGED 59 YEARS.

¶10

Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

¶11

SRI. MANJUNATHA, S/O LATE KRISHNAPPA, AGED 36 YEARS.

¶12

SMT. TULASAMMA, D/O LATE KRISHNAPPA, AGED 34 YEARS.

¶13

APPELLANTS NO.3 TO 5 ARE R/AT MARUTHI EXTENSION, WARD NO.23, NEAR NEW

¶14

¶15

NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶16

HORIZON SCHOOL BAGEPALLI, CHIKKABALLAPUR DISTRICT - 561 207.

¶17

…APPELLANTS

¶18

(BY SRI. B.B. BALLARI, ADVOCATE)

¶19

AND:

¶20

SRI. SADAPPA (DEAD BY LRS) SMT. VENKATAMMA, W/O LATE SADAPPA, AGED ABOUT 74 YEARS.

¶21

SRI. GUNDAPPA, S/O LATE SADAPPA, AGED ABOUT 61 YEARS.

¶22

SRI. VENKATESH, S/O LATE SADAPPA, AGED ABOUT 58 YEARS.

¶23

SRI. KRISHNAMURTHY, S/O LATE SADAPPA, AGED ABOUT 54 YEARS.

¶24

SMT. JAYALAKSHMI, D/O LATE SADAPPA, AGED ABOUT 52 YEARS.

¶25

ALL ARE RESIDING AT THIMMAPUR VILLAGE, KASABA HOBALI, BANGARPET TALUK - 563 114.

¶26

SMT. LAKSHMAMMA W/O NARAYANAPPA

¶27

*6 SRI. NARAYANAPPA

¶28

Deleted vide Chamber order dated 20.03.2025

¶29

Inserted vide Chamber order dated 20.03.2025

¶30

3 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶31

SINCE DEAD BY LRS:-

¶32

SMT. CHINNAMMA, W/O LATE VENKATESHEPPA, AGED ABOUT 64 YEARS, R/A HNASANAHALLI VILLAGE, NEAR BANGARPET RAILWAY GATE, BANGARPET - 563 114.

¶33

SRI SRINIVASAPPA T.N., S/O NARAYANAPPA, AGED ABOUT 62 YEARS.

¶34

SRI. T.N. RAGHUPATHY, S/O NARAYANAPPA, AGED ABOUT 59 YEARS.

¶35

SMT. MUDDAMMA, D/O NARAYANAPPA, W/O RAMAPPA, AGED ABOUT 57 YEARS.

¶36

SRI. T.N. RAMAKRISHNA, S/O NARAYANAPPA, AGED ABOUT 52 YEARS.

¶37

SRI. T.N. MANJUNATHA, S/O NARAYANAPPA, AGED ABOUT 46 YEARS, (RESPONDANT NO. 8 TO 12 ARE R/AT THIMMAPUR VILLAGE, CHIKKA ANKANDAHALLI, BANGARPET TALUK - 563 114.

¶38

…RESPONDENTS

¶39

4 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶40

THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.01.2020 PASSED IN RA.No.168/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, KOLAR (SITTING AT KGF) DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.12.2015 PASSED IN OS.No.127/2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, BANGARPET AND ETC.,

¶41

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

¶42

JUDGMENT

¶43

This appeal is filed by the plaintiff No.1 and legal representatives of plaintiff No.2 aggrieved by the common judgment and decree dated 19-02-2015 passed in O.S.Nos.127/2004, 148/2004 and 149/2004 on the file of Prl. Civil Judge and J.M.F.C, Bangarpet (hereinafter 'the Trial Court') and which is confirmed by the judgment and order dated 30-01-2020 passed in R.A.No.168/2016 on the file of III Additional District Judge, Kolar (hereinafter 'the First Appellate Court') which was filed by the plaintiff herein against the judgment and decree passed in O.S.No.127/2004.

¶44

The above suit in O.S.No.127/2004 is filed by the plaintiffs against the defendant for relief of declaration of their title over suit A and B schedule properties under the Wills and consequential relief of permanent injunction. In the said suit defendant No.1 had made a counter claim for the relief of

¶45

5 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶46

declaration of his title and for delivery of possession of his share in the suit schedule properties as described in the written statement. Defendant No.1 has also filed suits in O.S.Nos.148/2004 and 149/2004 against the plaintiff No.1 and one Laxmamma for the relief of declaration of his title and recovery of possession of suit schedule properties.

¶47

In the suit in O.S.No.127/2004, plaintiff contended that one Sonnepallappa was their uncle he had executed two registered Wills dated 14-12-1992 in favour of plaintiffs in respect of suit schedule properties and the said Sonnepallappa died on 26-02-1996. It is their case that during his lifetime said Sonnepallappa filed a suit against the defendant No.1 for the relief of permanent injunction in O.S.No.65/1983 on the file of Civil Judge (Jr.Dn), KGF with respect to the suit schedule property. That in counterblast, defendant No.1 filed a suit in O.S.No.52/1984 for partition with respect to suit property and other properties. The Trial Court have decreed the case of Sonnepallappa in O.S.No.65/1983 and dismissed the suit of defendant No.1 in OS.No.52/1984 by common judgment and decree. Aggrieved by the same, defendant No.1 preferred appeal in RA.No.90/1989 and R.A.No.91/1989, the said appeals

¶48

6 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶49

were allowed. Thereafter the Sonnepallappa preferred regular second appeal in R.S.A.No.214/96 C/w R.S.A.No.301/96 before this Court. During the pendency of said appeals Sonnepallappa passed away on 26.02.1996. The plaintiffs herein filed applications before this Court in the said appeals in R.S.A.No.214/96 C/w R.S.A.No.301/96 seeking their impleadment as legal representatives of deceased Sonnepallappa. That this Court dismissed the said appeals reserving liberty to the plaintiffs to file separate suits to prove validity of Wills. That the defendant No.1 had filed Final Decree Proceedings in FDP No. 3/1989 for effecting division of the properties as per the preliminary decree, that was passed in O.S.No.52/1984. That since this Court while disposing R.S.A.No.214/96 C/w R.S.A.No.301/96 had reserved liberty to file the separate suit, the plaintiffs have filed the present suit for declaration and injunction.

¶50

Defendants filed their separate written statement

¶51

denying all the plaint averments and execution of Will. It is further contended that rights of the defendant No.1 to an extent of 1/3^rd share in the suit schedule property has been concluded in the judgment and decree passed in

¶52

7 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶53

R.A.No.91/1989 arising out of O.S.No.52/1984 and same has been confirmed in R.S.A.No.214/96 C/w R.S.A.No.301/96. It is further contended that plaintiff if at all has anything to claim is in remaining 2/3^rd share. That in F.D.P.No.3/1998 a Surveyor has already demarcated 1/3^rd share of suit schedule properties. Hence, the plaintiffs are not entitled to claim entire extent of suit schedule properties. The claim of the plaintiff No.1 to be the son of Muniswamy is also denied. It is contended that the Wills relied upon by the plaintiffs has not been proved. As such they do not have any right, title and interest over the suit schedule properties, their possession if any is unlawful. The defendant No.1 being the son of younger brother of Sonnepallappa is the only legal heir to the properties owned and possessed by said Sonnepallappa. The plaintiffs are liable to deliver the possession of the properties along with mesne profit. Thus defendants apart from seeking dismissal of suit filed by the plaintiffs also sought for counterclaim.

¶54

Defendant No.2 in her written statement admitted the earlier suit proceedings in O.S.No.65/1983 and O.S.No.52/1984 and also appeal filed before the First Appellate Court and this Court. It is also contended that she has been allotted 1/3^rd

¶55

8 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶56

share in the suit schedule properties and that Sonnepallappa had executed a registered deed of gift in her favour in respect of Sy.Nos.115 and 162 of Yelaburgi Village on 19.07.1968, which are not subject matter of partition. It is contended that, in all suit schedule properties neither the plaintiff nor the defendant No.1 have any right, title or interest over the land bearing Sy.No.162/2 or Sy.No.115. Hence, sought for dismissal of the suit.

¶57

Based on the pleadings, the Trial Court framed the following issues in O.S.No.127/2004 for its consideration:

¶58

"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

¶59

2. Whether the plaintiff further proves that the suit schedule properties are in his lawful possession as on the date of suit?

¶60

3. Whether the plaintiff proves that the alleged interference by the defendants?

¶61

4. Whether the defendant No.1 proves that he is the owner of suit schedule properties?

¶62

5. Whether the defendant No.1 is entitled to get back the possession of the suit schedule properties?

¶63

6. Whether the defendant No.1 is entitled to recover past and future mesne profits from the plaintiff?

¶64

7. Whether the defendant No.1 proves that the present suit is hit by the principles of resjudicata and it is not maintainable?

¶65

9 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶66

8. Whether the defendant No.1 further proves that the valuation of the suit schedule properties and the court fee paid by the plaintiff is not proper and legal?

¶67

9. Whether the defendant No.2 proves that he is having 1/3 share in the suit schedule properties?

¶68

10. Whether the plaintiff is entitled to the relief of declaration and permanent injunction?

¶69

11. To what order or decree?"

¶70

It also framed issues in other connected suits in O.S.No.148/2004 and O.S.No.149/2004 and clubbed all the suits and recorded common evidence. In order to prove the aforesaid Issues, the plaintiff No.1 examined himself as PW-1 and got marked Ex.P-1 to Ex.P-52. The Plaintiff No. 2(a) examined herself as PW-2. One Sri.Nanjappa, who is a local villager is examined a PW-3. On behalf of the Defendants, the Defendant No.1(b) examined himself as DW-1 and got marked Ex.D2 to Ex.D67. On appreciation of the evidence the Trial Court answered issue Nos.1 and 3 to 10 in the negative and issue No.2 in the affirmative and consequently dismissed the suit in O.S.No.127/2004 filed by the plaintiffs-appellants herein.

¶71

Being aggrieved by the same, plaintiffs filed an appeal in R.A.No.168/2016 before the First Appellate Court.

¶72

10 -

¶73

NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶74

Considering the grounds urged the First Appellate Court framed

¶75

the following points for its consideration:

¶76

"1) Whether Plaintiffs have proved the due execution of the registered Wills dated 14-12-1992 by Sonnepillappa (Ex.P-1 and Ex.P-26) in accordance with law?

¶77

2) Whether I.A.No.I filed by the Plaintiffs/Appellants under Order XLI Rule 27 of CPC deserves to be allowed?

¶78

3) Whether the cross-objections filed by the Defendants Nos. 1(a) to 1(e)/Respondent Nos. 1 to 5 deserves to be allowed?

¶79

4) Whether the impugned judgment and decree calls for any interference by this Court in exercise jurisdiction? of appellate

¶80

5) What Order?"

¶81

On re-appreciation of the evidence, the First Appellate

¶82

Court answered point Nos.1 to 4 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same appellant is before this Court.

¶83

Sri.B.B.Ballari, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that the Trial Court and the First Appellate Court grossly erred in dismissing the suit of the plaintiffs merely because the plaintiffs did not examine the attesting witnesses to the Will dated 14.02.1992. He submits that this

¶84

11 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶85

Court in R.S.A.No.214/96 C/w R.S.A.No.301/96 had directed the Trial Court in O.S.No.52/1984 to record evidence with regard to their claim of they being legal representatives of deceased Sonnepallappa. Thereupon an enquiry was conducted in O.S.No.52/1984, wherein the plaintiffs had examined the two attesting witnesses and one Scribe. However, he submits that evidence recorded by the parties in the said suit ought to have been taken into consideration in the present suit in terms of Section 33 of the Evidence Act. He submits that nonexamination of the witness therefore ought not to have been held against the plaintiffs in the light of availability of the evidence recorded by the Court of competent jurisdiction in the earlier round of proceedings. Thus he submits that nonconsideration of said material evidence has resulted in perversity in passing of judgment and decree giving rise to substantial question of law.

¶86

Heard. Perused the records.

¶87

The admitted facts are that Sonnepallappa had earlier filed a suit in O.S.No.65/1983 for relief of injunction which was decreed, against which defendant No.1 herein had filed an

¶88

12 -

¶89

NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶90

appeal in R.A.No.90/1989. Suit in O.S.No.52/1984 was filed by defendant No.1 herein for declaration and partition which was also dismissed against which was also dismissed as against defendant No.1 herein who filed an appeal in R.A.No.91/1989. Both the aforesaid regular appeals in RA.No.90/1989 and R.A.No.91/1989 were allowed. Aggrieved by the same Sonnepallappa had filed two regular second appeals in R.S.A.No.214/96 (against the judgment and decree passed in RA.No.90/1989) and R.S.A.No.301/96 (against the judgment and decree passed in RA.No.90/1989). That during the pendency of the said two appeals Sonnepallappa passed away on 26.02.1996. There upon appellants/plaintiffs herein filed an application to implead themselves as legal representatives of Sonnepallappa. This Court had directed for an enquiry to be conducted by the Civil Judge (Jr.Dn), KGF in O.S.No.52/1984 to ascertain if the plaintiffs herein were entitled to come on record as the legal representatives of deceased Sonnepallappa, on the basis of Will set-up by them. Pursuant thereof, enquiry was conducted giving opportunity to plaintiffs and defendants to prove the execution and validity of the alleged Wills. After recording the evidence and hearing both the sides, the Trial

¶91

13 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶92

Court had given a finding that the plaintiffs herein had failed to prove the execution of the Will dated 14-12-1992 in their favour in respect of the properties involved in O.S.No.52/1984 (R.A.No.91/1989 and R.S.A.No.214/1996) and submitted its report to this Court. This Court had accepted the said report of

¶93

the Trial Court and accordingly dismissed the appeal. Thereafter, the Plaintiff No.1 had filed an application before the Trial Court in F.D.P.No.2/2004 under Order 1 Rule 10(2) of C.P.C. claiming to be the son of late Muniswamy and Byyamma seeking permission to come on record as additional defendant. A detailed enquiry was held in the said application by the F.D.P. Court and same was dismissed by the Order dated 16.01.2008 holding that the plaintiff Subbarayappa was not the son of Muniswamy and Byyamma. As against which a Writ Petition in W.P.No.4142/2008 was filed before this Court, which is also dismissed. The Trial Court at paragraph No.18 of its judgment has taken note of these proceedings and also extracted the observation made by this Court which reads as under:

¶94

"The first defendant -Sonnepillappa being aggrieved by the Judgment and decree in RA No.91/1989 filed a second appeal before this Court in RSA No.214/1996. During the pendency of this second appeal RSA No.214/1996 Sonne Pillappa died. Thereafter the petitioners herein filed an application to come on record

¶95

14 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶96

as the legal representatives of deceased Sonnepillappa and the same was opposed by the respondents in the said second appeal. This court referred the application to the Civil Judge (Jr.Dn) at KGF to conduct an enquiry and to submit a finding on the application filed by the petitioners herein. Accordingly on the enquiry the Civil Judge (Jr.Dn) KGF submitted a finding to this court stating that petitioner is not the legal representatives of Sonne Pillappa and also Muniswamy the husband of Byamma. This court by accepting that report submitted by the Civil Judge (Jr.Dn), KGF vide order dated 27-21998 finally dismissed the RSA No.214/1996. this finding given by the Civil Judge (Jr.Dn) KGF on the application filed by the petitioner herein and accepted by this Court in RSA No.214/1996 holding that the petitioner is not the legal representatives of deceased Sonne Pillappa or Muniswmay had become final."

¶97

Thus, taking note of the aforesaid events and the Orders passed on the applications filed by the defendant, the Trial Court came to the conclusion, the plaintiffs had failed to prove themselves to be the legal representatives of Muniswamy.

¶98

Further, as regards the proof of Will dated 14.12.1992 the plaintiffs did not examine any witnesses as required under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The Trial Court has referred to the aforesaid provisions of law. A submission was also made before the Trial Court with regard to reliance to be placed on the evidence under Section 33 of the Indian Evidence Act, 1872. The Trial Court declined to accept

¶99

15 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶100

the said submission as Section 33 contemplates the situation of non-availability of the witnesses on account of their demise or not being found or they being incapable of providing evidence or having been kept out of way by the opposite party. There is no whisper in the plaint or otherwise by the plaintiff regarding non-availability of the attesting witnesses as required under Section 33 of the Indian Evidence Act, 1872. As such the Trial Court, declined to accept the submission on behalf of the plaintiffs to the evidence recorded in the earlier proceedings to be taken on record under Section 33 of the Indian Evidence Act, 1872 and consequently dismissed the suit.

¶101

The First Appellate Court on re-appreciation of the evidence concurred with the findings given by the Trial Court. The First Appellate Court at paragraph Nos.31 and 32 of its judgment has taken note of the fact that the plaintiffs though have examined three witnesses in the suit, none of them were the attesting witnesses. The First Appellate Court also taken note of the fact that there is neither any pleading nor any explanation by PW.1 to PW.3 regarding non-availability of the attesting witnesses to the Wills at Ex.P1 and Ex.P26. Since the plaintiffs failed to comply with the mandatory requirement of

¶102

16 - NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶103

Section 68 of the Indian Evidence Act, 1872 by examining the attesting witnesses the Trial Court declined to accept the evidence that was adduced in O.S.No.52/1984. The First Appellate Court also taken note of the precedents in the matter requiring consideration of the evidence under Section 33 of the Indian Evidence Act, 1872.

¶104

The contention was also urged before the First Appellate Court with regard to plea raised by the defendant of subsequent Will being executed by deceased purportedly revoking the earlier Will. Based on the same, it was contended that since there was an admission on part of the defendants of the execution of Will by deceased Sonnepallappa, no need for the plaintiffs to prove the Will. The First Appellate Court at paragraph Nos.41 and 42 of its judgment has declined to accept the said submission as the revocation of the Will was not proved. Based on the said reasoning and conclusion the First Appellate Court declined to consider the case of appellants and accordingly dismissed the appeal.

¶105

Since the Trial Court and the First Appellate Court have come to the just and proper conclusion that plaintiffs not

¶106

17 -

¶107

NC: 2024:KHC:12168 RSA No. 1138 of 2020

¶108

having been able to prove the execution of the Will by Sonnepallappa in the manner known to law by examining the attesting witnesses in the first instance. The findings and conclusion arrived at by the Trial Court and confirmed by the First Appellate Court cannot be found fault with .

¶109

In that view of the matter, no substantial question of law would arise for consideration in this appeal. Accordingly, appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

¶110

Sd/JUDGE

¶111

List No.: 2 Sl No.: 16

¶112

Sri Subbarayappa v. Sri. Sadappa Dead by Lrs Smt. Venkatamma

Case brief

What is this about?

What did the court decide?

Sri Subbarayappa v. Sri. Sadappa Dead by Lrs Smt. Venkatamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Abdul Rehaman @ Althaf Vs the Tahsildar

Smt Anisingaraju Venkata Ramanamma Vs Nil

Smt. Siddamma Vs Jamiya Masjid

Sri.M.R Rajath, Vs Sri. Shivanna

Muddappa S/O Basappa Vs Shivanna

Sri Krishnamurthy @ Vasu Vs Sri M D Narayanappa