Dismissed

Neelamma v. Smt. Thimmakka

Karnataka HC8 Aug 2024RSA/532/2023

Case brief

AI extract

What is this about?

Second appeal against concurrent decrees granting the plaintiff a 1/3rd share in joint family property. The appellants relied on a 1977 Will in favour of Koragappa, but the attesting witness admitted not seeing the testator affix his thumb impression, so the Will stood unproved. Appeal dismissed at admission; no substantial question of law arose.

What did the court decide?

None granted; second appeal dismissed at admission, confirming decrees granting plaintiff 1/3rd share in suit 'A' schedule property.

Neelamma Vs Smt. Thimmakka — Partition | Karnataka HC (2024)

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NC: 2024:KHC:32028 RSA No. 532 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.532 OF 2023 (PAR)

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BETWEEN:

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NEELAMMA, W/O KORAGAPPA GOWDA, SINCE DEAD BY LR'S

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SRI ISHWARA, S/O KORAGAPPA GOWDA, AGED ABOUT 55 YEARS,

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SMT. SEETHA, S/O KORAGAPPA GOWDA, AGED ABOUT 49 YEARS,

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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APPELLANTS ARE R/A MARIA HOUSE, SARVE VILLAGE AND POST PUTTUR TALUK-574 201.

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(BY SRI. SACHIN B.S., ADVOCATE)

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…APPELLANTS

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AND:

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SMT. THIMMAKKA, W/O THIMMAPPA GOWDA, D/O AITHAPPA, AGED ABOUT 87 YEARS R/A KORALTHADKA, UJRUPADE BALNADU VILLAGE, PUTTUR TALUK DAKSHINA KANNADA DISTRICT-574 201.

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NC: 2024:KHC:32028 RSA No. 532 of 2023

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SMT. RAMAKKA, D/O LATE AITHAPPA GOWDA, AGED ABOUT 89 YEARS,

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SMT. PONNAKKA, D/O KORAGAPPA GOWDA, AGED ABOUT 70 YEARS,

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SMT. GUDDAPPA, S/O KORAGAPPA GOWDA, AGED ABOUT 67 YEARS,

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R2 TO R4 ARE R/A MAIA HOUSE, SARVE VILLAGE AND POST, PUTTUR TALUK, DAKSHINA KANNADA DISTRICT - 574 201.

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…RESPONDENTS

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(R1 & R4 - SERVED UNREPRESENTED;

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NOTICE TO R2 AND R3 IS DISPENSED WITH VIDE ORDER DATED 06.08.2024.)

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THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGMENT DECREE DATED 09.11.2022 PASSED IN R.A.NO.40/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, PUTTUR TALUK, D.K, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 16.09.2014 PASSED IN OS.NO.5/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, PUTTUR.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE E.S.INDIRESH

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3 - NC: 2024:KHC:32028 RSA No. 532 of 2023

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ORAL JUDGMENT

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This appeal is preferred by defendant Nos.2, 5 and 6,

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challenging the Judgment and Decree dated 09.11.2022 in R.A. No.40/2014 on the file of the Principal Senior Civil

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Judge & JMFC, Puttur, Dakshina Kannada, confirming the Judgment and Decree dated 16.09.2014 in O.S. No.5/2009 on the file of the Principal Civil Judge & JMFC, Puttur, Dakshina Kannada, decreeing the suit of the plaintiff holding that, the plaintiff is entitled for 1/3^rd share in the suit ‘A’ schedule property.

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For the sake of convenience, parties referred to as per their ranking before the Trial Court.

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It is the case of the plaintiff that, the plaintiff defendant No.1 and husband of defendant No.2 are the children of Aithappa Gowda. Son of Aithappa GowdaKoragappa died during the year 1996 and as such, defendant Nos.2 to 6 are the children/legal representatives of the deceased Koragappa. It is the case of the plaintiff that, as the schedule property is the joint family property

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NC: 2024:KHC:32028 RSA No. 532 of 2023

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of the parties to the suit, as the schedule ‘A’ was granted to Aithappa Gowda (father of the plaintiff) by the Land Tribunal, Puttur, and as such, the plaintiff has filed the suit in O.S. No.05/2009 on the file of the Trial Court, seeking for partition and separation possession in respect of the subject matter of the suit.

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On service of notice, defendant Nos.2, 4 and 5 entered appearance through their counsel. Defendant No.2 and 3 were placed ex-parte. Defendant No.1 has supported the case of the plaintiff, Defendant No.2 has filed written statement and same was adopted by defendant Nos.5 and 6. It is the contention of defendant No.2 that, Aithappa Gowda, had executed the Will dated 10.10.1977 bequeathing the schedule ‘A’ property in favour of his son-Koragappa and accordingly, defendant Nos.2 to 6 have succeeded to the schedule ‘A’ property, which has been bequeathed in favour of Late Koragappa by his father-Aithappa Gowda and accordingly, sought for dismissal of the suit.

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5 - NC: 2024:KHC:32028 RSA No. 532 of 2023

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On the basis on the pleadings on record, the

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trial Court has formulated the issues for its consideration.

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In order to establish his case, the plaintiff was examined as PW-1 and got marked 7 documents and same were marked as Ex.P-1 to Ex.P-7. Defendants have examined 3 witnesses as DW-1 to DW-3 and got marked 12 documents and same were marked as Ex.D-1 to Ex.D12.

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The Trial Court after considering the material on record, by its Judgment and Decree dated 16.09.2014, decreed the suit holding that the plaintiff is entitled for 1/3^rd share in ‘A’ schedule property. However, the suit came to be dismissed insofar as ‘B’ schedule property is concerned. Feeling aggrieved by the Judgment and Decree passed by the Trial Court, defendant Nos.2, 5 and 6 have preferred R.A. No.48/2014 on the file of the First Appellate Court and the said appeal was resisted by the respondents therein. The First Appellate Court, after re-appreciating the material on record, by judgment and decree dated

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NC: 2024:KHC:32028 RSA No. 532 of 2023

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09.11.2022, dismissed the appeal and as such, confirmed the judgment and decree in O.S. No.05/2009. Feeling aggrieved by the same, defendant Nos.2, 5 and 6 have preferred this Regular Second Appeal.

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I have heard Sri. B.S. Sachin, learned counsel appearing for the appellant and respondent Nos.1 and 4 are served remain absent.

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Sri. B.S. Sachin, learned counsel appearing for the appellants contended that findings recorded by the both the Courts below in respect of the Will dated 10.10.1977 is not correct as defendant No.2 being the wife of the Late Koragappa (beneficiary of the Will) has proved the Will before the Trial Court, however, both the Courts below have erroneously taken a view that the propounder of the Will has not proved the Will in a manner known to law and accordingly, sought for interference of this Court.

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Having heard learned counsel appearing for the parties and on careful perusal of the findings recorded by both the Courts below, the findings recorded by the trial

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NC: 2024:KHC:32028 RSA No. 532 of 2023

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Court would indicate that, there is no dispute with regard to the relationship between the parties. Original propositus-Aithappa Gowda had three children viz., Ramakka(defendant No.1), Thimmakka(plaintiff) and Koragappa(husband of defendant No.2). It is also not in dispute that the schedule properties are the joint family properties of the Aithappa Gowda and his children. The case of defendant Nos.2, 5 and 6 that, the suit schedule properties are tenanted land and the Late Aithappa Gowda has executed the Will dated 10.10.1977(Ex.D-1) bequeathing the ‘A’ schedule property in favour of his sonLate Koragappa.

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In that view of the matter, only question to be answered in this appeal is whether defendant No.2 has proved the Will dated 10.10.1977 in a manner known to law. In order to prove the aforementioned Will, defendant No.2 has examined one of the witnesses to the Will DW-3, who deposed that, he has not seen Aithappa Gowda(testator) putting his thumb impression in presence

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8 - NC: 2024:KHC:32028 RSA No. 532 of 2023

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of the attestors. In that view of the matter, defendant Nos.2, 5 and 6 have failed to prove the Will in a manner known to law in terms of the judgment rendered by the Hon’ble Supreme Court in the case of the H.Venkatachala Iyengar Vs. B.N. Thimmajamma & ors. reported in AIR 1959 SC 443 . Therefore, I am of the view of that, both the Courts below have rightly came to the conclusion that the plaintiffs/appellants are entitled for 1/3^rd share in the suit schedule property. In that view of the matter, the appellant herein have not made out a case for formulation

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of the substantial que0stion of law as required under Section 100 of the Code of Civil Procedure. Hence, the Regular Second Appeal is dismissed at the stage of admission itself.

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Sd/(E.S.INDIRESH) JUDGE

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TMP

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List No.: 1 Sl No.: 43

Neelamma v. Smt. Thimmakka

Case brief

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Neelamma v. Smt. Thimmakka

Case brief

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