Dismissed

Smt Kempadevamma v. Sri Shivarajappa

Karnataka HC2 Aug 2024RSA/1587/2016

Case brief

AI extract

What is this about?

In a Regular Second Appeal, the Court dismissed the appellant's challenge to lower courts' findings that a registered Will and sale deed validly transferred property to respondents. The Court held suspicious circumstances were dispelled and found no grounds for interference under Section 100 CPC.

What did the court decide?

The appeal was dismissed, and the judgment and decree of the trial and first appellate Courts were confirmed.

Smt Kempadevamma Vs Sri Shivarajappa — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:30581 RSA No. 1587 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 AUGUST, 2024 BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.1587 OF 2016 (DEC)

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BETWEEN:

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SMT KEMPADEVAMMA W/O LATE K.BASAVANNA AGED ABOUT 73 YEARS R/AT KONANURU VILLAGE, KAVALANDE HOBLI NANJANGUD TALUK MYSURU DISTRICT - 571 301. ... APPELLANT

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(BY SRI. P MAHESHA.,ADVOCATE)

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AND:

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SRI SHIVARAJAPPA S/O BASAPPA, AGED ABOUT 38 YEARS

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SMT. VASANTHA W/O SHIVARAJAPPA, AGED ABOUT 33 YEARS

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SMT. MADHURA W/O ANGADI K.M. SHIVARAJU AGED ABOUT 40 YEARS

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ALL ARE RESIDING AT KONANURU VILLAGE, KAVALANDE HOBLI, NANJANGUD TALUK-571312 MYSURU DISTRICT. ... RESPONDENTS

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(BY SRI. B SHARATH KUMAR, ADVOCATE FOR R1 & R2 SRI K.N. KRISHNA RAO, ADVOCATE FOR R-3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 10.06.2016 PASSED IN RA.NO.18/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., AT NANJANGUD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.03.2016

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NC: 2024:KHC:30581 RSA No. 1587 of 2016

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PASSED IN OS.NO.161/2008 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., NANJANGUD.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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The unsuccessful plaintiff is before this Court in the Regular Second Appeal assailing the concurrent findings of facts recorded by the trial Court in O.S. No.161/2008 by Judgment and decree dated 08.03.2013 and by the first appellate Court in R.A. No.18/2013 by Judgment and decree dated 10.06.2016.

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The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.

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Suit for declaration to declare that the plaintiff is the lawful owner of the suit schedule properties and to evict the defendants who are in illegal possession of the suit schedule properties and to handover vacant possession from the defendants, for mesne profits and other reliefs.

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3 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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The plaintiff is the wife of one Sri Basavanna and the marriage of the plaintiff had taken place fifty years ago. Due to non-cordial relationship between the plaintiff and deceased Basavanna, the plaintiff was living separately in her maternal home. Plaintiff had filed suit in O.S. No.28/2001 seeking maintenance of Rs.3,000/- which

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came to be dismissed on the ground that the plaintiff is capable of maintaining herself. The appeal preferred in R.A. No.74/2004 came to be dismissed due to the death of her husband Basavanna who died on 25.01.2008. It is the case of the plaintiff that prior to death of Basavanna he was not keeping good health, was suffering from loss of memory, taking advantage of his ill health, the defendants have obtained signature on several documents and created Will in favour of Defendant Nos.1 and 2 and sale deed in favour of Defendant No.3. It is the case of the plaintiff that she is the only legal heir of said Basavanna and she is entitled to be declared as absolute owner.

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NC: 2024:KHC:30581 RSA No. 1587 of 2016

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On notice, the defendants appeared and the

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Defendant Nos.1 and 2 separately filed their written statement and the Defendant No.3 filed a separate written statement. The defendant Nos.1 and 2 inter alia admitted the relationship between the plaintiff and deceased Basavanna. However, it is contended that during the lifetime of Basavanna, the plaintiff and Basavanna were living separately as there was strained relationship. Basavanna was being looked after by the Defendant Nos.1 and 2 and during his lifetime on 08.10.2007 through the registered Will bequeathed item Nos.1 and 2 of the suit schedule properties to the Defendant Nos.1 and 2 and item No.3 through a registered Sale Deed to Defendant No.3, and in the light of the Will executed by deceased Basavanna, the Defendant Nos.1 and 2 are the absolute owners in possession of the suit item Nos.1 and 2 and the plaintiff has no right, title or interest over the suit schedule properties.

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5 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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Defendant No.3, purchaser of item No.3 of the

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suit schedule properties, filed separate written statement inter alia contending that he has purchased suit item No.3 and he is in possession and enjoyment as absolute owner and the plaintiff has no right over the suit schedule item No.3.

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The trial Court, on the basis of oral and documentary evidence, framed the following Issues:

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"[a] Whether the plaintiff proves that she is the absolute owner of the items-1 & 2 of the suit schedule property?

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[b] Whether the plaintiff further proves that the defendants are in illegal possession of Items-1 & 2 of the suit schedule property?

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[c] Whether the defendants prove that they became the absolute owners of the suit schedule property by virtue of the Will dt.8-10-2007 which was executed by the said Basavanna when he was hale and healthy and he bequeathed Items-1 & 2 of the suit schedule property to defendants-1 & 2?

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6 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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[d] Whether plaintiff proves that she is entitled for mesne profits from the date of suit till delivery of possession?

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[e] Whether the plaintiff is entitled for the reliefs claimed?"

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In proving the contentions, the plaintiff examined herself as PW.1 and two other witnesses as PW.2 and PW.3 and marked documents at Exs.P1 to P6.

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The Defendant No.1 examined himself as DW.1 and four other witnesses as DW.2 to DW.5. The Defendant No.3 examined himself as DW.5 and marked documents as Exs.D1 to D9.

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The trial Court on the basis of the pleadings,

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oral and documentary evidence held,

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[a] that the plaintiff had failed to prove that she is the absolute owner of item Nos.1 and 2 of the suit schedule properties;

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NC: 2024:KHC:30581 RSA No. 1587 of 2016

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[b] that the plaintiff failed to prove that the Defendant Nos.1 and 2 are in illegal possession of item Nos.1 and 2 of the suit schedule properties;

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[c] that the defendants proved that they have become absolute owners of item Nos. 1 and 2 of the suit schedule properties by virtue of the Will dated 08.10.2007 executed by deceased Basavanna and he has bequeathed item Nos.1 and 2 of the suit schedule properties to Defendant Nos.1 and 2;

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[d] that the Defendant No.3 proved that she is the bonafide purchaser of item No.3 of the suit schedule properties, and by virtue of the Judgment and decree, the trial Court dismissed the suit of the plaintiff.

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The aggrieved plaintiff preferred appeal before

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the first appellate Court. The first appellate Court, while re-appreciating the entire oral and documentary evidence,

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8 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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concurred with the Judgment and decree of the trial Court.

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The aggrieved plaintiff is before this Court.

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Heard the learned counsel appearing for the

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appellant and the learned counsel appearing for the respondents.

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The undisputed facts are,

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[a] that the plaintiff is wife of deceased Basavanna and the relationship between them was strained and proceedings for maintenance was filed by the plaintiff against Basavanna;

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[b] that on 08.10.2007, a registered Will was executed in favour of the Defendant Nos.1 and 2 in respect of item Nos.1 and 2 of the suit schedule properties;

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[c] that the Defendant No.3 purchased item No.3 of the suit schedule properties on 31.10.2007.

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It is the contention of the plaintiff that deceased

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Basavanna was suffering from multiple diseases and he was not in his sound state of mind at the time of execution

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9 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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of the Will, more particularly, the registered Will in favour of Defendant Nos.1 and 2 on 08.10.2007, and it is the submission of the learned counsel appearing for the appellant that the trial Court and the first appellate Court have totally lost sight of the said aspect. The plaintiff, as stated supra, was wife of deceased Basavanna. In the absence of the Will and a Sale Deed in favour of Defendant Nos.1 to 3, the plaintiff would be the absolute owner of the suit schedule properties. The natural flow of right is shifted to the defendants in the light of the registered Will in favour of the Defendant Nos.1 and 2 and the sale deed in favour of the Defendant No.3. The defendants in order to prove execution of the Will as per Section 68 of the Indian Evidence Act, 1872 examined the witness and the Scribe as PW.2 and PW.3, who categorically deposed about the signature of the Testator being affixed and their signature on the Will. The suspicious circumstances as contended by the plaintiff has been dispelled by the defendants as Basavanna was staying along with the Defendant Nos.1 and 2 and they were looking after the

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10 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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deceased Basavanna. As stated supra, the relationship between the plaintiff and Basavanna was strained and the execution of the Will in favour of the Defendant Nos.1 and 2 was proved as per Section 63[c] of the Indian Succession Act and Section 68 of the Indian Evidence Act.

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Regarding the sale in favour of the Defendant No.3: The suit schedule properties were exclusive properties of deceased Basavanna and to meet his medical and agricultural expenses, the item No.3 of the suit properties was sold to Defendant No.3 and he is a bonafide purchaser of item No.3 of the suit schedule properties has been proved by the Defendant No.3 by placing cogent evidence, no evidence is forthcoming on behalf of the plaintiff to disbelieve the version of the Defendant No.3.

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The trial Court on the basis of the pleadings, oral and documentary, analyzed the entire aspect and arrived at a conclusion that the plaintiff is not entitled for declaration. The first appellate Court being the last fact

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11 - NC: 2024:KHC:30581 RSA No. 1587 of 2016

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finding Court, has reassessed the entire oral and documentary evidence and has held that the Will at Ex.D1

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has been proved by the Defendant Nos.1 and 2 in accordance with Section 63[c] of the Indian Succession Act and Section 68 of the Indian Evidence Act and the suspicious circumstances has been dispelled and further held that Defendant No.3 is the absolute owner and bonafide purchaser in the light of the sale deed executed in his favour by deceased Basavanna. The plaintiff other than the bald allegation made in the plaint, nothing is forthcoming to disbelieve or to make Ex.D1 to be under suspicious circumstances. The manner in which the trial Court and the first appellate Court have assessed both oral and documentary evidence, this Court is of the considered view that the concurrent findings of facts does not warrant any interference by this Court under Section 100 of the Civil Procedure Code. Accordingly, this Court has passed the following:

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ORDER

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[a] The appeal is hereby dismissed.

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12 -

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NC: 2024:KHC:30581 RSA No. 1587 of 2016

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[b] The Judgment and decree of the trial Court and the

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first appellate Court stands confirmed.

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Sd/(K.S. HEMALEKHA) JUDGE

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AN/-

Smt Kempadevamma v. Sri Shivarajappa

Case brief

What is this about?

What did the court decide?

Smt Kempadevamma v. Sri Shivarajappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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