Partition suit over properties of deceased B. Krishnaiah; appellants relied on a registered will bequeathing items 1 and 2. The High Court held the will was surrounded by suspicious circumstances and unproved, the second marriage was void under the Hindu Marriage Act, confirmed concurrent findings, and dismissed the second appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 187 OF 2015 (PAR)
BETWEEN:
W/O LATE B. KRISHNAIAH, 48 YEARS,
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
All ARE R/AT D.NO.3862, WATER TANK ROAD, SHANKARANAGARA, MANDYA DISTRICT - 571401.
…APPELLANTS
(BY SRI.HARIPRASAD.M.B., ADVOCATE)
AND:
W/O THIMMAIAH, D/O LATE B. KRISHNAIAH, AGED 43 YEARS, NO.205, 4TH BLOCK, SHIVAJINAGAR, POLICE QUARTERS, BANGALORE.
…RESPONDENTS
(BY SRI. V.B.SHIVAKUMAR., ADVOCATE)
THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF CPC, PLEASED TO CALL FOR THE ENTIRE RECORDS IN R.A.NO.71/11 FROM THE FILE OF THE FAST TRACK COURT, MANDYA AND ALSO THE RECORDS IN OS NO. 194/2006 FROM
THE FILE OF THE ADDL. CIVIL JUDGE (Sr.Dn) MANDYA AND SET ASIDE THE JUDGMENT AND DECREE DATED 30-10-2014 PASSED IN R.A.No. 71/11 PASSED BY FAST TRACK COURT, MANDYA, AND THE JUDGMENT AND DECREE DATED 02.04.2011 IN O.S.NO.194/2006 PASSED BY ADDITIONAL CIVIL JUDGE (Sr.Dn.) MANDYA, IN RESPECT OF ITEM NO.1 AND 2 AND GRANT 1/3rd SHARE EACH TO PLAINTIFF NO.3, DEFENDANT NO.1 AND 2 IN RESPECT OF ITEM NO.1 AND 2 OF THE SUIT SCHEDULE PROPERTY BY MAKING PROPER SCHEDULE MENTIONED IN TITLE DEED EX.D.17 AND 18 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal has filed by the appellants challenging the judgment and decree dated 30-10-2014, passed in R.A.No.71/2011 by the Fast Track Court, Mandya, and the judgment and decree dated 0204-2011, passed in O.S.No.194/2006 by the Additional Civil Judge, Senior Division, and CJM, Mandya.
to as per their ranking before the trial court. The appellants are the defendants, and respondents are the plaintiffs.
NC: 2024:KHC:37139 RSA No. 187 of 2015
Plaintiffs have filed a suit for partition and separate possession of their 1/4th share, holding that the alleged will dated 23/11/2005 is concocted by the defendants. It is the case of the plaintiff that plaintiff No.1 is the first wife of B.Krishnaiah and plaintiff No.2 to 4 are the children of B.Krishnaiah. During the lifetime of B. Krishnaiah, he was managing the joint family affairs, and the suit schedule properties are the undivided joint family properties acquired out of the joint family nucleolus. The plaintiffs are
in the joint possession and enjoyment of the same. It is contended that B. Krishnaiah was the womanizer, and the defendant No.1, taking advantage of the weakness of deceased B. Krishnaiah, had dominated over him, and he
was under the control of defendant No. 1, Smt. Kempamma. B. Krishnaiah had absolutely no exclusive or independent right over the suit schedule properties to create any document in favor of a third person. It is contended that the defendants have created the alleged
will. It is contended that B. Krishnaiah died at the age of 76 years, and he was suffering from several ailments and was not in a sound disposing state of mind. The said alleged registered will is by playing the fraud and misrepresentation. It is contended that the plaintiffs were shocked to see that the names of the defendants were entered in the revenue records. It is contended that the defendants have not acquired any right, title, or interest by virtue of the alleged registered will executed by B. Krishnaiah in favor of the defendants. Further, it is contended that defendants caused obstruction on the process of division of the suit properties between the plaintiffs. The plaintiffs demanded the partition and separate possession. Hence, the cause of action arose for the plaintiffs to file a suit for partition and separate possession.
on 25-08-1985 at Kariyappa's temple, Muthugere village,
Mandya Taluk. It is contended that B. Krishnaiah was residing with the defendants till his death. B. Krishnaiah was in a sound disposing state of mind, and executed the registered will on 23-11-2005, wherein the defendants are the owners in possession of plaint item Nos. 1 and 2 of the suit properties. It is contended that B. Krishnaiah was in government service and the defendant moved the concerned department for pensioner benefit; the matter is still pending. The plaintiffs have no right to claim shares in items Nos. 1 and 2 of the suit schedule
properties. Hence, prayed to dismiss the suit.
NC: 2024:KHC:37139 RSA No. 187 of 2015
11) Whether the plaintiffs are entitled for relief sought for?
12) What order or decree?
No.1 was examined as PW.1, plaintiff No.3 was examined as PW.2, and got marked 6 documents at Ex.P.1 to 6. The defendant No.1 was examined herself as DW.1 and
examined 6 witnesses as DW.2 to DW.8, and got marked 35 documents as Ex.D.1 to 35. The trial court after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence answered
NC: 2024:KHC:37139 RSA No. 187 of 2015
issue Nos. 1,3,4,10, and 11 in the affirmative, issue No.2 partly in the affirmative, issue Nos.5 and 8 does not survive for consideration, issue Nos.6 and 7 in the negative, issue No.9 was deleted, issue No.12 as per the final order. The suit of the plaintiff was decreed. It is declared and ordered that the plaintiff Nos.2 to 4 are entitled for 1/4th share each in item No.4 of the suit schedule property. In the remaining 1/4th share of B.Krishnaiah the plaintiffs and defendants No.2 and 3 are entitled for 1/6th each in the 4th item of the suit schedule properties by metes and bounds. The plaintiffs and defendant Nos. 2 and 3 are entitled for 1/6th share each in item Nos. 1 and 2 of the suit schedule properties and dismissed the suit in respect of item No.3 of the plaint schedule property.
7) What order?
counsel for the parties and on re-assessing the oral and documentary evidence, answered point Nos.1 and 3 in the
affirmative, point Nos.2 and 5 partly in the affirmative, point Nos.4 and 6 in the negative, point No.7 as per the final order. The First Appellate Court has dismissed the appeal filed by the defendants vide judgment dated 30.10.2014, and the first appellate court modified the judgment and decree passed by the trial court by exercising power under order 41 Rule 33 of the Civil Procedure Code. The defendants aggrieved by the impugned judgments filed this regular second appeal.
the trial court, placing reliance on the affidavit, passed the impugned judgment. He submits that the said affidavit is not marked; the trial court committed an error in considering the affidavit and came to a wrong conclusion. He also submits that in order to prove the execution of will dated 23.11.2005, the defendants examined the attesting witness. The trial court has not properly appreciated the attesting witness for the registered will. He also submits that, item No. 4 is concerned; it is ancestral property, and further he contended that the suit of the plaintiffs was dismissed in so far as item No. 3 of the suit schedule property is concerned. The plaintiff has not filed any appeal against the dismissal of the suit, in respect of item No. 3 of the suit schedule property, and he also submits that the defendants have removed all the suspicious circumstances surrounding the execution of the will. Hence, the courts below have committed an error in discarding the evidence of attesting witnesses. Hence, on these grounds, pray to allow the appeal.
NC: 2024:KHC:37139 RSA No. 187 of 2015
Whether both the court below committed any error and depriving the share of the defendant No. 1 in respect of item Nos. 1 and 2 of suit schedule properties on the basis of the said properties acquired by defendant No. 1 and it is the self-acquired property without considering section 16(3) of the Hindu Marriage Act, 1955 and contrary to the law laid down by the Hon'ble Apex Court in civil appeal No. 2844/2011 disposed of on 01.09.2023?
of learned counsel for the parties.
1 was examined as pw. 1, and she has reiterated the plaint averments in the examination in chief and contended that suit item Nos. 1 and 2 are the ancestral properties of the plaintiff and B. Krishnaiah and members of the Hindu Undivided Family, and there is no partition effected between the plaintiffs and B. Krishnaiah. She has deposed that B. Krishnaiah had no right, title, or interest
to execute a registered will, bequeathing item Nos. 1 and 2 of suit schedule properties in favor of defendants, and she has deposed that the will is surrounded by suspicious circumstances. Hence, in order to prove that the suit schedule properties are the ancestral properties of the plaintiffs and B. Krishnaiah, the plaintiff has produced the documents, marked at Ex.P.1 to 6. Ex.P.1 is the assessment of the list of building, which discloses that the name of the occupier is B. Krishnaiah in respect of property bearing No. 1615; Ex.P.2 is the assessment list of buildings in respect of property bearing No. 1614, wherein the name of the occupier is shown as B. Krishnaiah. Ex.P.3 is the assessment list of the building in respect of property No. 759, which stands in the name of B. Krishnaiah. Ex.P.4 is the RTC extract of land bearing No. 156/3B stands in the name of B. Krishnaiah. Ex.P.5 and 6 are the service registers that disclose B. Krishnaiah was working in the government department. During the course of crossexamination, it was suggested to PW.1 that item Nos. 1 and 2 of the suit schedule properties are the self-acquired
properties of B. Krishnaiah, and he had executed a registered will bequeathing item Nos. 1 and 2 in favor of defendants by PW.1. The said suggestion was denied by the PW.1. The Plaintiff No. 3 was examined as PW.2, and he reiterated the examination in chief of PW.1.
defendant No.1 was performed with B.Krishnaiah on 2508-1985, Ex.D.3 is the lagnakundali, Ex.D.4 is the 11th day ceremony card, and Ex.D.5 is the admission ticket of the 2nd defendant, which discloses her mother's name as Kempamma and her father name as B. Krishnaiah. Ex.D.6 is the character certificate of B. Krishnaiah issued by the department on 16-07-2004, Ex.D.7 is the child census student information, Ex.D.8 is the progress report of defendant No.2, Ex.D.9 is the certificate issued in the name of defendant No.3, Ex.D.10 is the NCR, Ex.D.11 is the notice, and Ex.D.12 is the registered will alleged to have been executed by B. Krishnaiah in favor of defendants bequeathing item Nos. 1 and 2 of the suit schedule properties. Ex.D.13 is the letter communication addressed by Shankar advocate to the defendant No. 1, Ex.D.14 is the postal cover, Ex.D.15 is the original registered sale deed, which discloses that the defendant No.1 has purchased item No.3 of the suit schedule property in her name for valid consideration, and Ex.D.16 is the memorandum, which discloses that the Government
has granted permission to B. Krishnaiah for purchasing site bearing No.44, measuring 60x30 feet at Shankar Nagar Extension, Mandya city. Ex.D.17 to 20 are the registered sale deeds, which disclose that B. Krishnaiah had purchased items Nos. 1, 2, and 4 of suit schedule properties. Ex.D.21 is the panchayath paluparikath, Ex.D.22 to 24 are the endorsement of change of khatha, Ex.D.25 is the EC, Ex.D.26 is the mutation register extract, Ex.D.27 is the pahani, Ex.D.28 to 30 are patta receipt books, and Ex.D.31 to 35 are photos.
junior advocate of defendant No. 5. Defendant No.5 is the senior member of the bar, and both of them have deposed that on the instructions of B. Krishnaiah, the said will was drafted, and thereafter the contents of the said will were read over and explained to B. Krishnaiah. After having understood the contents of the will, B. Krishnaiah has affixed his signature on Ex.D.12, and thereafter they had been to the sub-registrar office to register the will. In the course of examination of DW.4, he admits that defendant No.1 used to come to the office of DW.5, as such he knew the defendant No.1. On perusal of evidence of DW.5 senior
of DW.4, he has stated that he does not know the defendant No. 1, and he has stated that in the premises of the sub-registrar, he has written Ex.D.12 will at 11.30 a.m., witnesses by name Shankar, Kamath B. Krishnaiah, were present. DW.5 Kamath has stated that he has signed the will at noon, when he had been to the sub-registrar office, to attend his personal work, and the said will was in the custody of the scribe, i.e., DW.4, and he has addressed the communication to the Kempamma
as per Ex.D.13 and his signature marked as Ex.D.13(a). The said letter does not bear the date on which the DW.4 has addressed the letter to defendant No.1. The said letter created a doubt when the letter was addressed by DW.4 to the Kempamma. Further Ex.D.12 does not disclose as to why B. Krishnaiah has not bequeath any properties in favor of plaintiff Nos. 2 and 3. Further in view of the law laid down by the Hon’ble Apex Court in the case of Bharpur Singh and Ors. v/s Shamsher Singh reported in AIR 2009 SC 1766 held in para No.17, which reads as under:
“17. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable, or unfair in the light of relevant circumstances, like the exclusion of or absence of adequate provisions for the natural heirs without any reason.
NC: 2024:KHC:37139 RSA No. 187 of 2015
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the will.
vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.“
recorded the finding of facts. The defendants have failed to prove the execution of a registered will by B. Krishnaiah
in favor of defendants.
B. Krishnaiah as per Section 16(3) of the Hindu Marriage Act.
NC: 2024:KHC:37139 RSA No. 187 of 2015
Act. Accordingly, I answer substantial questions of law in
the negative.
error in the impugned judgment. Accordingly, I proceed to pass the following:
ORDER
i) The appeal is dismissed;
ii) The judgment and decree passed by the
First Appellate Court is hereby confirmed.
iii) No order as to the cost;
Sd/- (ASHOK S.KINAGI) JUDGE
SRK
List No.: 2 Sl No.: 4
3 issues framed by the court
Whether the defendants proved the registered will dated 23.11.2005 bequeathing items 1 and 2 to them.
Whether the second wife is entitled to a share in B. Krishnaiah's properties given the void marriage.
Whether the courts below erred in distributing the suit schedule properties among the heirs.
Colour shows how this judgement treated each authority
Bharpur Singh and Ors. v/s Shamsher SinghRelied on¶17
AIR 2009 SC 1766 · Who else cites this
civil appeal No. 2844/2011 disposed of on 01.09.2023Referred¶12
4 provisions across 2 enactments
Smt. Kemappamma
K. Arunachala
K. Varalakshmi (minor, rep. by mother Kemappamma)
Renuka
K. Keerthi
Yashodha
Ashok S. Kinagi
As recorded by the court registry
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