Dismissed

Smt. Masthamma Since Deceased by Her Lrs v. R.D. Gnanaiah

Karnataka HC21 Feb 2024RSA/239/2013

Case brief

AI extract

What is this about?

Plaintiffs challenged a registered Will by which their stepmother Ramamma bequeathed suit properties to her nephew, claiming she had no right of bequeathal and the Will was tainted by fraud and suspicious circumstances. After concurrent findings against them, the High Court held she was absolute owner under Section 14 HS Act and the Will was validly executed, dismissing appeal with costs.

What did the court decide?

Appeal dismissed with costs; judgments and decrees of trial Court and first appellate Court confirmed.

Smt. Masthamma Since Deceased by Her Lrs Vs… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:7252 RSA No. 239 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 239 OF 2013 (DEC/INJ)

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BETWEEN:

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SMT. MASTHAMMA,

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SINCE DECEASED BY HER LRS.,

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1 . SMT.YASHODAMMA, W/O THIMMAPPA, AGED ABOUT 45 YEARS, R/O LAKYA ROAD,

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KALASAPURA VILLAGE AND POST, CHIKMAGALUR TALUK AND DISTRICT-577 001.

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2 . MANJUNATHA, S/O LATE VENKATAPPA, AGED ABOUT 42 YEARS, OCC: AGRICULTURIST, R/O AMBLE VILLAGE AND POST, CHIKMAGALUR TALUK AND DISTRICT- 577 001.

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3 . KRISHNAMURTHY, S/O LATE VENKATAPPA, AGED ABOUT 40 YEARS, OCC: AGRICULTURIST, R/O.AMBLE VILLAGE AND POST, CHIKMAGALUR TALUK AND DISTRICT-577 001.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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4 . SMT.LAXMAMMA,

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W/O KENGALAPPA, AGED ABOUT 35 YEARS, R/O.AMBLE VILLAGE AND POST, CHIKMAGALUR TALUK AND DISTRICT-577 001.

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5 . KESHAVAMURTHY, S/O.LATE VENKATAPPA, AGED ABOUT 34 YEARS, OCC: AGRICULTURIST, R/O.AMBLE VILLAGE AND POST, CHIKMAGALUR TALUK AND DISTRICT-577 001.

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6 . SMT.GOWRAMMA, W/O CHANDRU, AGED ABOUT 32 YEARS, R/O KARAGADDI VILLAGE, KASABA HOBLI, BELUR TALUK, CHIKMAGALUR DISTRICT - 577 001.

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7 . SMT.LATHA, W/O SRINIVASA, AGED ABOUT 30 YEARS, R/O.DORNALU VILLAGE, TARIKERE TALUK, CHIKMAGALUR DISTRICT-577 001.

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SMT.GANGAMMA SINCE DECEASED BY HER LRS

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8 . SRINIVASA, S/O DASAPPA, AGED ABOUT 50 YEARS, R/O.NIDAGHATTA VILLAGE AND POST, KADUR TALUK, CHIKMGALUR DISTRICT-577 001.

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9 . YOGESHA, S/O DASAPPA, AGED ABOUT 48 YEARS, OPP:ANJANEYA SWAMY TEMPLE, R/O.NIDAGHATTA VILLAGE AND POST, KADUR TALUK, CHIKMAGALUR DISTRICT-577 001.

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10 . SHIVAMURTHY, S/O DASAPPA, AGED ABOUT 47 YEARS, OPP:GOODWILL APARTMENTS, KRISHNA BUILDING, BANGALORE-560 021.

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11 . SMT.SIDDAMMA, W/O KEMPAIAH, AGED ABOUT 52 YEARS, R/O QUARTERS NO.14, JNANABHARATHI CAMPUS, BANGALORE UNIVERSITY, BANGALORE - 560 025.

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…APPELLANTS

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[BY SRI GURURAJ R., ADVOCATE FOR SRI DINESH H.M., ADVOCATE (PH)]

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AND:

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R.D. GNANAIAH, S/O DODDAIAH, AGED ABOUT 49 YEARS, R/O FOREST QUARTERS, KADUR TALUK, NOW R/A FOREST QUARTERS, KOPPA DIVISION, KOPPA TALUK, CHIKMAGALUR DISTRICT-577 001.

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…RESPONDENT

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[BY SRI R.C. NAGARAJ, ADVOCATE (PH)]

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 15.12.2012 PASSED IN R.A.NO.32/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 03.01.2011 PASSED IN OS.NO.210/2004 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, CHIKMAGALUR.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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Challenging judgment and decree dated 15.12.2012 passed by Presiding Officer, Fast Track Court, Chikkamagaluru in R.A.no.32/2011 and decree dated 03.01.2011 passed by

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NC: 2024:KHC:7252 RSA No. 239 of 2013

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Additional Senior Civil Judge, Chikkamagaluru in O.S.no.210/2004, this appeal is filed.

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Appellants herein were plaintiffs, while respondent herein were defendant and will be referred to as such herein.

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O.S.no.210/2004 was filed seeking for declaration about alleged Will executed by Smt.Ramamma on 28.07.1988 as null and void; to declare plaintiffs as absolute owners in possession of suit schedule properties and for permanent injunction restraining defendant from interfering with plaintiffs possession over suit schedule properties etc.

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In plaint, it was stated that one Kenchaiah of Lakya village had four sons i.e. Palaraiah, Siddaiah, Krishnappa and Adavaiah. Amongst them, Palaraiah and Adavaiah died earlier issueless. Even Late Siddaiah's only son Gowraiah died unmarried and issueless. Whereas, plaintiffs no.1 to 3 were daughters of Krishnappa through first wife - Smt.Sannamma. He had also married Smt.Ramamma, who died issueless on 15.08.2003. It was further stated that lands bearing Sy.no.124 measuring 01 acre 26 guntas standing in name of Gowraiah son of Siddaiah and Sy.no.119, measuring 39 guntas standing in

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name of Palaraiah were ancestral properties (' suit properties ' for short). After death of Krishnappa, both his wives were entitled for maintenance, hence, their names were entered in revenue records. And though items 1 and 2 of suit properties were in name of Smt.Ramamma, neither of them were owned by her.

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It was stated that Smt.Ramamma was residing with plaintiff no.2 and Smt.Sannamma at Lakya village until her death on 15.08.2003. Thereafter, when they gave application to Tahsildar for change of khata, they realized that it was mutated in name of defendant under alleged Will dated 20.07.1988. It was claimed that said Will was result of fraud, coercion and undue influence and to knowledge of plaintiffs Smt.Ramamma had not executed any document either Will or Gift . They claimed she had no right of bequeathal. Tahsildar, Chikmagaluru ordered that only Civil Court could decide validity of Will . It was stated after Assistant Commissioner granted interim order of stay, defendant tried to interfere with plaintiffs possession over suit properties. On said cause of action, as defendant was trying to interfere in suit properties, cause of action arose for plaintiffs to file suit.

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On service of suit summons, defendant filed written statement admitting relationship as stated by plaintiffs and denying all other assertions. It was stated that Krishnappa married Smt.Ramamma as second wife, during lifetime of first wife Smt.Sannamma, as she did not have male issues. After death of Krishnappa, khata of his properties were mutated in names of Smt.Sannamma and Smt.Ramamma, who were residing together. As per partition between them, khata of item no.1 and 2 were transferred in name of Smt.Ramamma. When she felt neglected, she left house of plaintiffs and began residing with defendant, who was her nephew. He took good care of her. On said consideration, she executed registered Will in his favour. After her death, he performed her obsequies which were not attended by plaintiffs. Thereafter, his application before Tahsildar for mutation was allowed, but challenged by plaintiffs before Assistant Commissioner and same was pending. Denying plaintiffs’ claim of possession of suit properties, defendant sought dismissal of suit.

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Based on pleading, trial Court framed following

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issues and additional issues:

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ISSUES

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(1) Whether plaintiffs prove that the khata of plaint schedule properties was changed in the names of Sannamma and Ramamma for their maintenance?

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(2) Whether plaintiffs prove that plaint schedule properties are the ancestral properties of Gowraiah and Palaraiah?

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(3) Whether the plaintiffs prove that Ramamma had no right to bequeath the plaint schedule properties?

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(4) Whether the plaintiffs prove that the Will date 20.07.1988 is a result of fraud, coercion and undue influence and it is null and void as contended in para 4 of the plaint?

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(5) Whether the plaintiffs prove that themselves and their mother Sannamma are in possession of plaint schedule properties?

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(6) Whether the plaintiffs prove that they are the absolute owners of plaint schedule properties?

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(7) Whether the defendant proves that the plaint schedule properties came to the share of Ramamma in the partition which took place between herself and Sannamma?

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(8) What order or decree?

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ADDITIONAL ISSUES:

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(1) Whether the defendant proves that the said Ramamma has voluntarily executed a registered Will on 20.07.1988 and bequeathed the suit schedule properties in his favour?

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Thereafter, legal representative of plaintiff no.1 and another witness were examined as PWs.1 and 2 and got marked Exs.P1 to P18. On other hand, defendant examined himself as DW.1 and another witness as DW.2 and got marked Exs.D1 to D2.

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On consideration, trial Court answered issues no.1, 3 to 5 and 7 in negative, issues no.2, 8 and additional issue no.1 in affirmative, issue no.6 as does not survive for consideration and issue no.9 by dismissing suit with costs.

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Aggrieved thereby, plaintiffs preferred appeal in R.A.no.32/2011 on several grounds namely, judgment and decree passed by trial Court was unsustainable in law and on facts and that trial Court had failed to appreciate oral and documentary evidence. It was submitted trial Court failed to notice, unlike defendant’s contention that suit properties were allotted to share of Ramamma in partition and she bequeathed it in his favour, no partition deed was produced nor witnesses examined to establish same. And trial Court further failed to take note of irregularity that defendant had known contents of Will during lifetime of Smt.Ramamma. It was further

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contended, trial Court erred in not considering Ex.P.15 and Ex.D.1 in light of crucial admissions elicited from defendant.

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Based on contentions, first appellate Court raised following points for consideration:

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(1) Whether the judgment and decree passed by the Addl. Senior Civil Judge, Chikmagalur dated 03.01.2011 in O.S.No.210/2004 dismissing the suit of the plaintiffs is illegal, perverse and liable to be set aside?

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(2) What order?

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12. On consideration, it answered point no.1 in negative

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and point no.2 by dismissing appeal. Aggrieved by judgment and decree passed by both Courts, plaintiffs are in appeal.

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Sri R Gururaj, learned counsel appearing for Sri Dinesh H.N., advocate for appellant submitted that present appeal was by plaintiffs arising out of suit for declaration that Ex.P.13 - Will dated 20.07.1988 was null and void, that plaintiffs were absolute owners in possession of suit properties and permanent injunction against defendant. It was submitted that Kenchaiah-grandfather of plaintiffs had four children namely, Palaraiah, Siddaiah, Krishnappa and Adavaiah, among whom Palaraiah and Adavaiah died unmarried and issueless. After Siddaiah died, his only son-Gowraiah also died unmarried

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and issueless. Therefore, suit properties originally belonged to Kenchaiah, were inherited by Krishnappa. But, Krishnappa married Smt.Sannamma, who was mother of plaintiffs prior to taking Smt.Ramamma as second wife, but did not have any issues. Therefore, daughters of Smt.Sannamma i.e. plaintiffs were only surviving natural heirs after death of Smt.Ramamma on 15.08.2003. When they sought mutation of entries in revenue records, they realised that defendant had got his name entered allegedly based on illegal Will . Therefore, they filed appeal against mutation entries, wherein they were relegated to Civil Court. Hence, suit was filed challenging Will.

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It was submitted that though Will suffered from several suspicious circumstances, namely, testator was uneducated, suffering from Cancer an incurable decease, DW.2 - attestor had stated that he did not see her while giving instructions for preparation of Will and defendant - Gnanaiah was employee in Forest Department etc. It was further submitted that execution of Will by testator was against natural succession. Without satisfactory explanation of suspicious circumstances, both Courts erred in accepting claim of defendant under Will .

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It was submitted, DW.2, examined as attester of Will firstly admitted that he knew defendant since he was 14 years and secondly, that he had not seen testator giving instructions to scribe for preparation of Will . It was further submitted that PW.1 had deposed that Smt.Ramamma was residing with plaintiff no.2 after death of Krishnappa and defendant may had played fraud, taking advantage of her ignorance and got created Will , when she visited maternal home. Even PW.2 deposed that Smt.Ramamma was residing with plaintiff no.2 and died in her maternal home, which would corroborate case of plaintiffs. It was further submitted, plaintiffs were in possession of suit properties. It was submitted that judgment and decree passed by both Courts were contrary to decision in Sri J.T. Surappa and Anr. Vs. Sri Satchidhanandendra Saraswathi Swamyji Public Charitable Trust and Anr. ,¹ wherein requirements for establishing Will were enumerated.

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He also relied upon decision of Hon'ble Supreme Court in Murthy and Ors., vs. C. Saradambal and Ors.² ,

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1 ILR 2008 KAR 2115

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2 2022 (3) SCC 209

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wherein manner of appreciation of suspicious circumstances was laid down. Based on above, it was submitted as trial Court and first appellate Court failed to properly appreciate evidence about suspicious circumstances, substantial questions of law framed were required to be answered in favour of plaintiffs and allowed appeal by decreeing suit.

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On other hand, Sri R.C. Nagaraj, learned counsel for defendant opposed appeal. At outset, it was submitted that plaintiffs had suffered concurrent findings of fact and were not entitled to challenge same in second appeal. It was submitted that defendant had not only produced original Will , but also examined attester and scribe and thus complied with requirements in law to establish Will . It was submitted except making vague and unsubstantiated allegations of suspicious circumstances, plaintiffs failed to disprove Will . Admittedly, testator died nearly 15 years after date of execution of Will, therefore ill-health of testator cannot be a suspicious circumstance. Insofar as contention about authority of testator to execute Will , both PWs 1 and 2 admitted that after death of Krishnappa, Smt.Sannamma and Smt.Ramamma were residing together and partitioned suit properties. Thereafter,

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Smt.Ramamma had executed Will. Claim of plaintiffs about testator residing with plaintiffs stood disproved, as Ex.P14 - death certificate of testator showed place of death as defendant's house. It was submitted, PW.2 admitted that after death of Krishnappa there was mutation in revenue records recognising right to maintenance of Smt.Sannamma and Smt.Ramamma, which would flower into absolute right as per Section 14 of Hindu Succession Act, 1956 (for short ' HS Act '). On above contentions, learned counsel sought for answering substantial questions of law against appellants and to dismiss appeal.

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Heard learned counsel, perused impugned

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judgment and decree and records.

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This appeal was admitted on 12.06.2014 to consider following substantial questions of law:

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a) Whether courts below were right in holding that suit schedule properties had fallen to share of Smt.Ramamma and though she is second wife she had absolute right to bequeath suit properties in favour of defendant/ respondent?

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b) Whether the courts below were right in holding that Will dated 20.07.1988 executed by Smt.Ramamma has been proved though same was an outcome of fraud, coercion and undue influence and its execution is shrouded with suspicious circumstances?

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c) Whether the courts below have failed to consider the crucial admissions given by DW1 And DW2 regarding execution of the Will and possession over the suit schedule properties?

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d) Whether the courts below right in holding that Smt.Ramamma became the absolute owner of suit schedule properties as per provisions of Section 14 of Hindu Succession Act, 1956 overlooking the inheritance of properties by natural succession?

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It is seen that substantial questions of law (a) and (d) are analogous to each other, likewise, (b) and (c), therefore they are taken up together.

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Re. Substantial questions of law (a) & (d) :

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Insofar as issue, whether Smt.Ramamma became absolute owner of properties prior to bequeathing same in favour of defendant, settled legal position³ is that unless wife was conferred right to maintenance, she would not become absolute owner under Section 14 (1) of HS Act. But, in para no.3 of plaint, it was stated after death of Krishnappa, names of Smt.Sannamma and Smt.Ramamma were mutated in revenue records recognising their right to maintenance. Same is reiterated by PW.1 in his deposition. Furthe, there is no bar against second wife being entitled for maintenance on death of

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3[ V . Tulasamma Vs. Shesha Reddy reported in 1977 (3) SCC 99 ]

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her husband. PWs.1 and 2 have both admitted that after death of Krishnappa, there was division of properties between Smt.Sannamma and Smt.Ramamma and they fell to share of Smt.Ramamma. These factors invite ratio in Tulasamma 's case ( supra ) read with Section 14(1) of HS Act and testator would become absolute owner, thereby entitled to bequeath.

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Therefore, substantial questions of law (a) and (d) have to be answered in affirmative.

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Re. Substantial questions of law (b) & (c) :

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Insofar as Will being shrouded with suspicious circumstances, material pleading is that it was executed when testator was visiting her matrimonial home. Both Courts have also considered plea of testator suffering from cancer, fact that testator died on 15.08.2003, fifteen years after execution of Will i.e. on 20.07.1988, was found to dilute, if not divest said contention of substance. There is no evidence about said factors materially affecting her judgment at time of bequeathal or rendering her incapable of understanding consequences of her actions.

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NC: 2024:KHC:7252 RSA No. 239 of 2013

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Mere admission elicited from depositions of DWs.1 and 2, that DW.2 - attester had not seen while testator giving instructions to scribe for preparation of Will , will not be sufficient. Insofar as Will being against natural succession, there is sufficient material to establish that bequethal was in favour of her nephew, who had taken care of testator, availed treatment to her and that she was residing with him. Therefore, unless a strong case of undue influence is made out, above ground would not be sufficient to overturn findings of both Courts.

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Hon’ble Apex Court in Murthy ’s case (supra) n oted that testator therein died within a period of fifteen days from date of execution of Will, and had mentioned illness as reason for executing Will, which was found to substantiate suspicious circumstance. In absence of proper explanation or contra medical evidence or examination of doctor who was treating testator prior to his death, Will was held to be shrouded with suspicious circumstances and as such not acceptable. But, in instant case, testator had died nearly fifteen years after executing Will. In case, it was executed while she was visiting her matrimonial home under influence of defendant, nothing

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prevented her from cancelling it or changing it, as according to plaintiffs, she was residing with plaintiff no.2.

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Likewise, in Sri J.T. Surappa ’s case (supra), it was held duty was cast on Court to verify in five steps regarding validity of Will. In order to hold Will to be valid, it should be reduced into writing, signed by testator and attested by two or more witnesses and at least one attesting witness has to be examined. First step therefore would be to verify satisfaction of these legal requirements; Second step is when legal heirs are disinherited, Court has to scrutinize evidence with greater degree of care than usual; Third step would be to find out whether testator was in a sound state of mind at time of executing Will; Fourth step would be to find out whether there exists any suspicious circumstances surrounding execution of Will and Fifth step is to consider whether Will to be executed is in accordance with Section 63 of Act read with Section 68 of Evidence Act. As observed by both Courts, Will on hand would comply with all above requirements.