sites in the High Court of Karnataka dismissed a second appeal since the court found no substantial questions of law under Section 100 CPC. The court held that the testator retained absolute right to the partitioned property and could validly execute a later Will in favour of the defendant.
Second appeal dismissed; Interim Application disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.628 OF 2020 (DEC/INJ)
BETWEEN:
BOTH ARE R/ AT HOSADURGA VILLAGE Y N HOSAKOTE HOBLI, PAVAGADA TALUK TUMKUR DISTRICT – 572 141
…APPELLANTS
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
(BY SRI S VISWESWARAIAH, ADVOCATE)
AND:
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.10.2019 PASSED IN RA.NO.21/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PAVAGADA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned counsel appearing for the appellants.
later his wife separated from the joint family by relinquishing her share by virtue of the deed dated 20.11.1982. The first wife-Marakka also died within a couple of years ago before filing the suit. Hence, the plaintiffs are the only heirs to inherit the properties of the Eranna. It is further submits that the said Eranna had executed a Will dated 26.03.1985 in favour of his first wife-Marakka and plaintiff No.2 bequeathing the suit schedule properties. Thereafter, the defendant has somehow managed to create a concocted Will dated 08.02.1989 in which, the suit schedule properties are bequeathed in his favour by the Eranna. It is further contended that the said Eranna had no right over the properties to execute any sort of Will since the said properties were purely coparcenary properties. But the defendant taking undue advantage of the Will, is denying the plaintiffs’ title over the suit schedule properties and interfering with the possession of the plaintiffs. Hence, the plaintiffs have filed the suit.
appeared before the Court and filed his written statement contending that he is the fostered son of the said Eranna and the Will dated 08.02.1989 is the last Will of Eranna and according to the said Will, he is the absolute owner of the suit schedule properties. The defendant further contends that the substantial issue raised in this case was already decided in O.S.No.57/1994 and hence, the suit is barred by limitation and hence, the plaintiffs have not entitled for any share.
as negative in coming to the conclusion that the plaintiffs have not proved that Pujar Eranna has no right to execute the Will dated 26.03.1985 and they are the absolute owners in possession of the suit schedule properties and they are entitled for the relief as sought and Issue No.3, additional Issue Nos.1 and 2 as affirmative in coming to the conclusion that the defendant proves that Pujar Eranna has executed a registered Will dated 08.02.1989 in favour of the defendant and the suit is hit by the principles of res-judicata and suit is bad for non-joinder of necessary parties and dismissed the suit of the plaintiffs.
the Trial Court, an appeal was preferred by the plaintiffs before the First Appellate Court. The First Appellate Court considering the grounds urged in the appeal memo, formulated the Points and on re-appreciation of both oral and documentary evidence placed on record answered the Points as negative in coming to the conclusion that the plaintiffs have not establish the fact that plaintiff No.1 has
right of maintenance over the suit schedule properties and hence, the judgment of the Trial Court does not requires any interference and dismissed the appeal. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.
illegal. The counsel would vehemently contend that both the Courts have failed to appreciate the fact that appellant No.2 was aged about 7 years as on the date of execution of alleged Will and she is entitled for her share in the joint property as a coparcener and her right was not recognized in the Will nor her permission was obtained to execute the said Will and as such Ex.D1 will not confer any right on the beneficiary. Hence, this Court has to frame the substantial questions of law invoking Section 100 of CPC and to admit the appeal.
as per the Will dated 26.03.1985 and remaining property was bequeathed in favour of the defendant by executing a Will in the year 1989. The First Appellate Court also in detail discussed the grounds urged in the appeal. Having taken note of the fact, the First Appellate Court in paragraph 16 held that out of said properties, three items given to the first wife-Marakka, item Nos.4 and 5 were given to Lakshmamma who is the daughter through his second wife-Nagamma, this document is also a registered document, the intention of the Eranna can be gathered that he was having an intention to dispose of his property under the Will to his first wife and the daughter of his second wife. The First Appellate Court also discussed in detail with regard to the right of appellant No.1 who is the second wife and comes to the conclusion that she has no right of alienation of the property bequeathed to their daughter Mahalakshmi i.e., appellant No.2. In paragraph 26, the First Appellate Court in detail discussed with regard to the right of plaintiff No.1 to maintain the suit schedule property. The First Appellate Court held that
admittedly, during the lifetime of Pujar Eranna, she has not claimed any right of maintenance against him. Admittedly, not only the defendant but also plaintiff No.2 is the beneficiary under Ex.D1, apart from the properties mentioned in Ex.D1, three acres of land was taken by Nagarathnamma. If the Pujar Eranna was having any interest to give maintenance to plaintiff No.1, he could have mentioned the same in Ex.D1. Even he has not given any right to plaintiff No.1 to deal with the property of plaintiff No.2. Therefore, the question of claiming the right of maintenance by plaintiff No.1 does not arise and dismissed the appeal of the plaintiffs.
the said Eranna in favour of the defendant in the year 1989. It is also taken note of the fact that after bequeathing the property in favour of first wife as well as plaintiff No.2 in the year 1985, the property was bequeathed in favour of the defendant in the year 1989 and the same has been proved by examining the witnesses that is registered Will dated 08.02.1989. When such being the case, the contention of the appellants’ counsel that he was not having any absolute right to bequeath the property, cannot be accepted. The First Appellate Court taken note with regard to the subsequent amendment of the year 2005 and comes to the conclusion that property was disposed in the year 1985 and 1989 itself i.e., prior to the amendment of the year 2005. The First Appellate Court had given detailed reason in paragraphs 24 to 27 for dismissal of the appeal. Having taken note of the reasoning given by both the Courts, I do not find any error committed by both the Courts in dismissing the suit. Hence, there are no grounds to frame
NC: 2024:KHC:21837 RSA No. 628 of 2020
substantial questions of law invoking Section 100 of CPC
and to admit the appeal.
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/JUDGE
SN
2 issues framed by the court
Whether substantial questions of law exist under Section 100 of the CPC to admit the second appeal regarding the validity of the testator's right to execute conflicting Wills.
Whether the lower courts erred in dismissing the suit and appeal holding that the testator had the right to bequeath the partitioned property to the defendant in the 1989 Will.
Smt. Nagamma W/O Eranna
Kum. Mahadevi
Smt. Jayamma W/O Late H M Bommalingappa
Sri Balachandra
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
