Second appeal by plaintiff whose suit for declaration of title based on a registered Will and perpetual injunction failed before both courts below. Concurrent findings that the Will was unproved, registration occurring after the executant's death, were upheld. Appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF SEPTEMBER, 2024 BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO. 2127 OF 2016 (DEC/INJ)
BETWEEN:
DEVARAJEGOWDA @ LOKESHA, S/O MUTHEGOWDA, AGED 53 YEARS, RESIDING AT CHIGALLI VILLAGE, SHANTHIGRAMA HOBLI - 573 220, HASSAN TLAUK AND DISTRICT.
…APPELLANT
(BY SRI. T.A. KARUMBAIAH, ADVOCATE)
AND:
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
SHANTHIGRAMA HOBLI - 573 220, HASSAN TALUK & DISTRICT.
HITHALA ALADAHALLI, SHANTHIGRAMA HOBLI - 573 220, HASSAN TALUK & DISTRICT.
AGED ABOUT 64 YEARS, W/O EREGOWDA, KONTHAGODANAHALLI, SHANTHIGRAMA HOBLI - 573 220, HASSAN TALUK & DISTRICT.
AGED ABOUT 54 YEARS, S/O NINGEGOWDA, HITHALA ALADAHALLI, SHANTHIGRAMA HOBLI - 573 220, HASSAN TALUK & DISTRICT.
…RESPONDENTS
(BY SRI. V. NARAYANA SWAMY, ADVOCATE FOR R1; SRI. ABHISHEK N.N, ADVOCATE FOR R2; SRI. N. SONNEGOWDA, ADVOCATE FOR R5; R3, R4 AND R6 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.08.2016 PASSED IN RA. NO.267/2013 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, HASSAN., IS DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.07.2013 PASSED IN OS. NO.57/2005 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, HASSAN.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing the legality and correctness of the
concurrent findings of facts recorded by the Courts below, the plaintiff is before this Court in the Regular Second Appeal.
before the trial Court for the sake of convenience.
and perused the material on record.
suit for declaration of title, based on the Will executed by Mariyamma in favour of the plaintiff and to declare that the judgment and decree in RSA No.846/1992 is not binding on the plaintiff and for consequential relief of perpetual injunction against the defendants with cost.
and hence, they were placed ex parte, defendant No.6 was impleaded during the pendency of the suit, however, he did not choose to file any written statement. Defendant Nos.1 and 5 resisted the suit by filing their written statement. Defendant No.1-brother of the plaintiff admitted the averments made in the written statement. Defendant No.5-daughter of Nanjegowda and sister of Lakshmamma, inter alia , contended that the suit properties were owned by her father namely, Nanjegowda and that O.S. No.222/1982 filed by her seeking share in the suit schedule properties were decreed and confirmed upto this Court in RSA.No.846/1992. Defendant No.5 denied the execution of the Will alleged to have been executed by her mother-Mariyamma in favour of the plaintiff and specifically contended that the Will is created by the plaintiff and defendant Nos.1 to 4, in order to deprive the right conferred on her in light of the judgment in RSA No.846/1992, has attained finality. That the suit is
NC: 2024:KHC:36491 RSA No. 2127 of 2016
hit by the principles of res judicata and sought for dismissal of the suit.
“1. Whether the plaintiff proves that Javaramma and Mariyamma succeeded to all the properties of their husband Late Nanjegowda after his death and they were the absolute owners in possession of the suit schedule properties?
2. Whether the plaintiff proves that Late Mariyamma became the absolute owner of the suit schedule properties after the death of Javaramma as on 4.5.1985?
3. Whether the plaintiff proves that Late Mariyamma bequeathed the suit schedule properties in favour of the plaintiff under a registered will dated 4.5.1985?
4. Whether the plaintiff proves that the 5th defendant has fraudulently obtained a decree in O.S. No.222/1982 on the file of Munsiff, Hassan and RSA 846/1992 on the file of the Hon'ble High Court of Karnataka and the same is not binding on the plaintiff?
NC: 2024:KHC:36491 RSA No. 2127 of 2016
5. Whether the plaintiff proves that he is in
lawful possession of the suit schedule properties?
6. Whether the plaintiff proves the alleged interference by the defendants?
7. Whether the 5th defendant proves that she is the absolute owner in possession of the suit schedule properties by virtue of the decree in O.S. No.222/1982 and RSA 846/1992?
8. Whether the plaintiff is entitled for the judgment decree as prayed for ?
Additional Issues:
1. Whether the defendant No.5 proves that the suit is hit by the principle of res judicata?
2. Whether the defendant No.5 proves that the will dated 4.5.1985 is hit by the principles of lis pendence?
3. Whether the defendant No.5 proves that the suit is barred by limitation?”
three witnesses were examined as PWs.2 to 4 and marked the documents at EXs.P1 to P28. The first defendant
NC: 2024:KHC:36491 RSA No. 2127 of 2016
examined himself as DW.1 and one Eregowda as DW.2
and got marked documents at EXs.D1 to D10.
and documentary evidence arrived at a conclusion that:
(i) The plaintiff has failed to prove that Javaramma and Mariyamma succeeded to all the properties of their husband late Nanjegowda, and after his death, they are the absolute owners of the suit properties,
(ii) The plaintiff failed to prove that late Mariyamma had become the absolute owner of the suit schedule properties after the death of Javaramma on 04.05.1985,
(iii) The plaintiff has failed to prove that late Mariyamma bequeathed the suit schedule properties in favour of the plaintiff under registered Will dated 04.05.1985,
(iv) The plaintiff has failed to prove that defendant No.5
has fraudulently obtained the decree in OS No.222/1982, confirmed in RSA No.846/1992.
NC: 2024:KHC:36491 RSA No. 2127 of 2016
9. The trial Court by the Judgment and Decree
dismissed the suit of the plaintiff with cost. Aggrieved, the plaintiff preferred appeal, the First Appellate Court while reconsidering and re-appreciating the entire oral and documentary evidence, concurred with the judgment and decree of the trial Court. Aggrieved, the plaintiff is before this Court.
Ningegowda (died 1952)
Javaramma Mariyamma
(Jan 1985) (April 1985)
Lakshmamma Nanjamma
(Died-17/03/1985) Def. No.5
Ramesh Plaintiff- Saroja Revathi
Def. No.1 Devarajegowda Def. No.4
Def. No.2
Kantha Varamahalakshmi
Def. No.3 Def. No.4
mother of defendant No.5 and grand-mother of plaintiff has executed a registered will in her favour on 04.05.1985. Before the trial Court, the plaintiff produced the certified copy of the registered will dated 04.05.1985 as per EX.P1. The plaintiff examined the witnesses C.Nanjappa and Gangappagowda as PWs.2 and 3, and one Ningegowda as PW.4, who claim to be the attesting witnesses of EX.P.1. It is relevant to note here that, EX.P1 is the certified copy of the Will said to have been executed by Mariyamma in favour of the plaintiff, which was registered on 04.05.1985, after the death of Mariyamma. The trial Court before whom the entire evidence was available considering that the plaintiff has not produced the original and that the registration of the Will has taken place after the death of Mariyamma disbelieved the claim of the plaintiff seeking declaration on the basis of the Will alleged to have been executed by Mariyamma. Since the suit for declaration of title over
immovable properties, burden of proof is on the plaintiff to establish that he is entitled for declaration. The plaintiff also sought for a declaration that the judgment and decree in RSA No.846/1992 is not binding on the plaintiff. OS No.222/1982 filed by defendant No.5 seeking partition and separate possession in respect of the suit schedule properties against Lakshmamma, the mother of the plaintiff, the mother of the plaintiff died during the pendency of the suit and her legal representatives were brought on record. It is the contention of the plaintiff that the plaintiff was a minor as on the date of the suit and the Regular Second Appeal, and as such, the judgment and decree of the Regular Second Appeal does not bind on the plaintiff. It is relevant to note here that, the brother of the plaintiff - defendant Nos.1 and 2 were representing the estate of Lakshmamma after her death, and the suit for partition by Nanjamma - defendant No.5 was against the branch of Lakshmamma, suit was decreed declaring that Nanjamma defendant No.5 is entitled for half share and confirmed upto this Court in RSA No.846/1992 on
18.07.1988 and the same has attained finality. It is also relevant to note that the review petition filed by defendant Nos.1 and 2 also came to be dismissed. When O.S. No.222/1982, RA No.51/1985 and RSA No.846/1992 were pending, and Lakshmamma having died during the pendency of these proceedings, there was not even a whisper by the branch of Lakshmamma contending that there is a registered Will in favour of the plaintiff executed by Mariyamma who died in April, 1985. The trial Court, taking into consideration the oral and documentary evidence, has rightly dismissed the suit of the plaintiff. The first appellate Court being the last fact finding Court, re-appreciated and reconsidered the entire oral and documentary evidence and the manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the same does not warrant any interference under Section 100 CPC and this Court pass the following -
ORDER
confirmed.
Sd/(K.S. HEMALEKHA) JUDGE
YKL List No.: 2 Sl No.: 6 CT: BHK
2 issues framed by the court
Whether the plaintiff proved title to the suit properties under a registered Will dated 04.05.1985 executed by Mariyamma?
Whether the decree in OS No.222/1982 confirmed in RSA No.846/1992 was fraudulently obtained and not binding on the plaintiff?
1 provisions across 1 enactments
Devarajegowda @ Lokesha
C.M. Ramesh
Saroja
Kantha
Varamahalakshmi
Nanjamma
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
