Dismissed

Smt Mamatha v. Smt Hemalatha

Karnataka HC23 Oct 2024RSA/1644/2021

Case brief

AI extract

What is this about?

The appellant challenged the lower courts' refusal to uphold a registered will favouring her exclusively, seeking partition by shares. The Court applied the law on suspicious circumstances surrounding wills, noting the appellant's prominent role in execution and failure to explain excluding other natural heirs. The appeal was dismissed and the lower court decrees confirming equal shares were affir

What did the court decide?

Appeal dismissed; judgments and decrees of the lower courts confirming equal shares in the suit schedule property are upheld.

Smt Mamatha Vs Smt Hemalatha — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1644 OF 2021 (PAR-)

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BETWEEN:

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SMT MAMATHA D/O ANNAYYA PRABHU AGED ABOUT 52 YEARS R/AT SHAKTHI NAGAR HERGA VILLAGE UDUPI-576101

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…APPELLANT

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(BY SRI. HAREESH BHANDARY T.,ADVOCATE)

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AND:

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Digitally signed by KAVYA R Location: High Court of Karnataka

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SMT HEMALATHA AGED ABOUT 60 YEARS D/O ANNAYYA PRABHU R/AT SHAKTHI NAGAR HERGA VILLAGE UDUPI-576101

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SMT PREMALATHA AGED ABOUT 57 YEARS D/O ANNAYYA PRABHU R/AT SHAKTHI NAGAR HERGA VILLAGE UDUPI-576101

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SRI GANESH AGED ABOUT 54 YEARS S/O ANNAYYA PRABHU R/AT SHAKTHI NAGAR HERGA VILLAGE UDUPI-576101

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2 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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SRI RAMESH

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AGED ABOUT 54 YEARS S/O ANNAYYA PRABHU R/AT SHAKTHI NAGAR HERGA VILLAGE UDUPI-576101

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THE BRANCH MANAGER VIJAYA BANK ATHRADY BRANCH P.O ATHRADY UDUPI TQ-576101

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.12.2020 PASSED IN RA.No.12/2017 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 16.01.2017 PASSED IN OS No.108/2002 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

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DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This R.S.A is filed challenging the Judgment and

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decree dated 08.12.2020 passed in R.A.NO.12/2017 by

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the Principal District Judge, Udupi and the Judgment and

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NC: 2024:KHC:42605 RSA No. 1644 of 2021

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decree dated 16.01.2017 passed in O.S.No.108/2002 by Additional Senior Civil Judge, Udupi.

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For convenience, parties are referred to as per their ranking before the trial Court. The Appellant is the Defendant No.1, Respondent Nos.1 to 4 are the plaintiffs, and the Respondent No.5 is the Defendant No.2.

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The Plaintiff filed the suit for partition and separate possession of their 1/5^th share each along with defendant No.1. It is the case of the plaintiffs that plaintiffs and defendant No.1 are the children of Gulabi Prabhu W/o Annayya Prabhu, on the death of Smt.Gulabi Prabhu she had Rs.13,730/- in her S.B Account No.1728 with Defendant No.2. It is contended that Gulabi Prabhu, their mother, had purchased the property bearing Sy.No.203/1 measuring 25 cents in Herga Village of Udupi Taluk under the registered sale deed dated 04.10.1979. The property is worth more than Rs.2,00,000/- and has a well. It is contended that a house is situated in the said Survey Number, and coconut trees yield 400 coconuts per year. The Plaintiffs and Defendant No.1 are successors

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4 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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and survivors of the deceased Gulabi Prabhu, having 1/5^th share each. The plaintiffs learned that, Defendant No.2 approached Defendant No.1 to withdraw the amount in SB account maintained by the 2^nd Defendant. The plaintiffs issued a notice on 26.08.2002, to which Defendant No.1 replied. It is contended that, during the lifetime of Gulabi Prabhu, the 1^st Defendant ill-treated the mother. The mother tried to commit suicide, as she was unable to bear the ill-treatment and torture given by the first defendant. It is contended that there is no reason for the mother to execute any will excluding the plaintiffs in favour of Defendant No.1. It is contended that the Plantiffs and Defendant No.1 are entitled to share in the Suit Schedule Property. Hence, pray to decree the suit.

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Though summons was duly served on

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Defendant No.2, despite the service of summons, Defendant No.2 remained absent, and was placed exparte. Defendant No.1 filed a written statement denying the averments made in the plaint and it is contended that the mother bequeathed the suit schedule properties in favour of Defendant No.1 by executing a will dated 28.07.2001.

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5 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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The mother of the plaintiff died on 29.07.2001. After the death of the mother, Defendant No.1 became the absolute owner of the Suit Schedule Property on the strength of the will executed by her mother and based on the will name of Defendant No.1 entered in the revenue records as well as in the municipal records. Hence, the plaintiffs are not entitled to any share in the Suit Schedule property. Hence, pray to dismiss the suit.

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The trial court based on the pleadings of the parties, framed the relevant issues. The Plaintiffs to prove their case, plaintiff No.3 was examined as PW1 and marked 6 documents at Ex.P1 to Ex.P6. The Defendant got examined himself as DW1 and examined two witnesses as DW2 and DW3 and got marked 11 documents at Ex.D1 to Ex.D11. The trial court, on the assessment of oral and documentary evidence, decreed the suit of the suit of the plaintiff in part. It is ordered that the plaintiff Nos.1 to 4, along with Defendant No.1, are entitled to 1/5^th share each by metes and bounds.

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Defendant No.1, aggrieved by the judgment and preliminary decree passed in O.S.

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6 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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No.108/2002, preferred appeal in R.A.No.12/2017 on the file of Principal District Judge Udupi. The appellate court on reassessment of oral and documentary evidence dismissed the appeal vide judgment dated 08.12.2020. Defendant No.1, aggrieved by the impugned judgments filed this Regular Second Appeal.

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Heard the learned counsel for the Defendant No.1. Learned counsel for defendant No.1 submits that mother of Defendant No.1 executed the will defeating the suit schedule property in favour of Defendant No.1. He submits that, to prove the execution of will, Defendant examined the Sub Registrar as DW2 and also examined DW3 who is an advocate who identified his signature on Ex.D11. The Courts below have not properly appreciated the evidence of DW2 and DW3 regarding the execution of the will by the mother bequeathing the Suit Schedule Properties in favour of Defendant No.1, and he submits that there are no suspicious circumstances regarding to the execution of the will. Hence, on these grounds, he prays to allow the appeal.

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NC: 2024:KHC:42605 RSA No. 1644 of 2021

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Perused the records and considered the

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submissions of the learned counsel for the parties. There is

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no dispute regarding to the relationship between the plaintiff and Defendant No.1, and there are the children of Gulabi Prabhu. It is also not in dispute that the Suit Schedule Property is standing in the name of Gulabi Prabhu. The plaintiff in order to substantiate their case, the said property was owned and possessed by mother Gulabi Prabhu, who has produced the records. The Defence of the Defendant No.1 is that the mother had executed the will bequeathing the Suit Schedule Property in favour of Defendant No.1 under a Registered will dated 28.07.2001. The deed is marked as Ex.D9 and the said will

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was executed in the presence of Ojanath Nayak and DW3. as per the instruction given by the mother, he drafted the will and who is said to be the alleged attesting witness to Ex.D9. DW3 has admitted during cross examination that Defendant No.1 had taken a prominent role at the time of execution of a registered will, and further, defendant No.1 did not explain the reason for this disinheriting the plaintiff from allotting any property by Gulabi Prabhu, i.e. testator.

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8 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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The said will is surrounded by a suspicious circumstances and in view of the law laid down by the Hon'ble Apex Court

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in the case of BHARPUR SINGH AND OTHERS V/S SHAMSHER SINGH reported in AIR 2009 SUPREME

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COURT page 1766 which reads as under:

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"Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:

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i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

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ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.

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iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

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iv. The dispositions may not appear to be the result of the testator's free will and mind.

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v. The propounder takes a prominent part in the execution of the Will.

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vi. The testator used to sign blank papers.

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vii. The Will did not see the light of the day for long.

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viii. Incorrect recitals of essential facts."

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From the law laid down by the Hon'ble

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Apex Court, if the propounder takes a prominent part in

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9 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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the execution of the will, it is also a suspicious circumstance. Further, Defendant No.1 failed to remove the suspicious circumstances. Both the Courts below have concurrently recorded the finding of facts and suspicious circumstances surrounded the will, and rightly disbelieved the Defendant's defence and rightly held that the plaintiffs

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are entitled to a share in the Suit Schedule Property and rightly decreed the suit. The Appellate Court, on reassessing the oral and documentary evidence, held that Defendant No.1 failed to prove the execution of the will by Gulabi Prabhu W/o Annaya Prabhu. The plaintiffs and Defendant No.1 have an equal share. I do not find any error in the Impugned Judgments or any substantial question of law that arises for consideration in this appeal. Accordingly, I proceed to pass the following order.

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ORDER

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i) Appeal is dismissed .

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ii) The Judgments and decrees passed by the

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courts below are hereby confirmed.

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10 - NC: 2024:KHC:42605 RSA No. 1644 of 2021

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iii) No order as to the cost.

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iv) In view of the dismissal of the

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appeal,I.A.No.1/2021 does not survive for consideration.

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Sd/(ASHOK S.KINAGI) JUDGE

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RCK List No.: 1 Sl No.: 9

Smt Mamatha v. Smt Hemalatha

Case brief

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Smt Mamatha v. Smt Hemalatha

Case brief

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