Allowed

Shri.M.B.Swamy v. Smt.Rangamma

Karnataka HC3 Sept 2024RSA/652/2014

Case brief

AI extract

What is this about?

This regular second appeal challenges the lower courts' decreeing a plaintiff's title via a will executed by the vendor. The High Court held that the will was invalid due to unremoved suspicious circumstances and because the testator no longer owned the property when the will was executed, affecting the validity of the subsequent sale in favor of the defendant.

What did the court decide?

Impugned judgments and decrees set aside; plaintiff's suit dismissed.

Shri.M.B.Swamy Vs Smt.Rangamma — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:35741 RSA No. 652 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 652 OF 2014

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(DEC/INJ)

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BETWEEN:

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SHRI.M.B.SWAMY S/O SHRI BASAVAIAH AGED ABOUT 59 YEARS R/O JAMMANAHALLY VILLAGE BELAGODU HOBLI SAKALESHPUR TALUK HASSAN DISTRICT-573214

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…APPELLANT

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(BY SRI. H R MANJUNATHA, ADVOCATE)

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AND:

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SMT.RANGAMMA W/O LATE ANNEGOWDA AGED ABOUT 50 YEARS R/O JAMMANAHALLY VILLAGE BELAGODU HOBLI SAKALESHPUR TALUK HASSAN DISTRICT-573214

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…RESPONDENT

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(BY SRI. SACHIN V. R. & AJITH KALYAN, ADVOCATES)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 28.3.2014 PASSED IN R.A.NO.54/2012 ON THE FILE OF THE ADDL. DISTRICT JUDGE AT HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE

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JUDGEMENT AND DECREE DTD 3.4.2012 PASSED IN O.S.NO.39/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SAKALESHPUR.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellants challenging the judgment and decree dated 28.03.2014, passed in R.A.No.54/2012 by the learned Additional District Judge, Hassan and the judgment and decree dated 03.04.2012, passed in O.S.No.39/2007 by the learned Senior Civil Judge & JMFC, Sakaleshpur.

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For convenience, parties are referred to as

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per their ranking before the trial Court. The appellant is the defendant, and the respondent is the plaintiff.

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The brief facts leading rise to the filing of this appeal are as follows:

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Plaintiff filed a suit for declaration declaring that

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the registered sale deed dated 20.11.1998, as null and void and not binding on the plaintiff and restrain the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and also sought for a declaration that the plaintiff is the absolute owner and in possession of the suit schedule property. It is the case of the plaintiff that, the plaintiff is the absolute owner in possession of the suit schedule property and she is cultivating the said land. It is contended that the plaintiff has acquired the suit schedule property by virtue of registered Will executed by one Rangegowda, i.e., the father-in-law of the plaintiff. It is contended that said Rangegowda acquired the said land under the 'darkasth' in the year 1963 and became the absolute owner of the property and after his death, the plaintiff has succeeded to the property by virtue of

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the registered Will dated 16.12.1998, and the remaining major children of said Rangegowda have

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not disputed the said registered Will. It is contended that the defendant is residing at the said address and there is no any kind of relationship with the plaintiff or plaintiff's father-in-law. It is contended that the defendant has got created a registered sale deed in favour of the defendant by playing fraud and having intention to cheat the plaintiff's share and right. It is contended that Rangegowda never executed the registered sale deed in favour of the defendant nor received any consideration amount as alleged in the registered sale deed. It is contended that the defendant has submitted an application to the Tahsildar to change the revenue entries in his name. Rangegowda filed his objection to the said application. It is contended that Rangegowda filed an appeal against the order passed by the Tahsildar and

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the Assistant Commissioner directed the plaintiff to approach the Civil Court. The defendant aggrieved by

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the order passed by the Assistant Commissioner, preferred a Revision before the Deputy Commissioner. The plaintiff filed a writ petition in W.P.No.42606/2002 before the High Court. On the basis of the order passed by the Deputy Commissioner, the defendant is trying to interfere with the suit schedule property. Hence, cause of action arose for the plaintiff to file the suit for declaration and permanent injunction.

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Defendant filed a written statement contending that Rangegowda executed the registered sale deed on 20.11.1998, and based on the registered sale deed, the name of the defendant is entered in the revenue records. It is contended that as on the date

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of execution of the alleged Will in favour of the plaintiff, Rangegowda was not the absolute owner of

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the suit schedule property and the plaintiff has not acquired any right, title or interest over the suit schedule property under the registered Will. The defendant has denied the execution of registered Will in favour of the plaintiff bequeathing the suit schedule property. Hence, the suit filed by the plaintiff is not maintainable. On these grounds, sought for dismissal of the suit.

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The Trial Court, based on the above-

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mentioned pleadings, framed the following issues and additional issues:

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(1) Whether plaintiff proves her title for suit property by virtue of Will dated 16.12.1998 executed by her father-in-law?

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(2) Whether plaintiff is entitled for permanent injunction as claimed?

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(3) Whether plaintiff is entitled for declaration?

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(4) Whether defendant proves his title by virtue of sale deed dated 20.11.98 executed by father-in-law of plaintiff?

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(5) To what relief parties are entitled to?

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(6) What order or decree?

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Additional Issues

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(1) Whether the plaintiff proves that the defendant has practiced fraud in order to get the sale in his favour in respect of suit property and it is void and not binding on her?

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To prove the plaintiff's case, the plaintiff

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examined herself as PW-1 examined two witnesses as PW-2 & PW-3, and marked 11 documents as Exs.P1 to

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P11. In rebuttal, defendant examined himself as DW-

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1 and examined 7 witnesses as DW-2 to DW-8 and got

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marked 37 documents as Exs.D1 to D37. The trial

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Court, after recording the evidence, on hearing both sides and on assessment of the oral and documentary evidence of the parties, answered issues Nos.1 to 3 and additional issues No.1 in the affirmative, issues

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No.4 in negative and issues No.5 as per the final order. Consequently, decreed the suit of the plaintiff

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with cost. It is further declared that the plaintiff is the absolute owner and possessor of the suit schedule

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property and further declared that the sale deed dated 20.11.1998 was declared as void and not binding on

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the plaintiff and by way of decree for permanent injunction restraining the defendant from interfering with peaceful possession and enjoyment of the plaintiff over the suit property.

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The defendant, aggrieved by the judgment

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and decree passed in O.S.No.39/2007, preferred an appeal in R.A.No.54/2012 on the file of Additional District Judge Hassan. The First Appellate Court, on hearing the parties, has framed the following points for consideration:

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(1) Whether the trial Court is justified in decreeing the suit of the plaintiff?

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(2) Whether the interference of this Court is necessary?

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(3) What order?

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The First Appellate Court, after hearing the learned counsel for the parties and on re-assessing

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the oral and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative, and point No.3 as per the final order. Consequently, the appeal was dismissed vide judgment dated 28.03.2014 filed by the defendant, confirming the judgment and decree passed by the trial Court in O.S.No.39/2007. The defendant, aggrieved by the judgments and decrees passed by the courts below, has filed this regular second appeal.

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Heard learned counsel for the defendant and counsel for the plaintiff.

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Learned counsel for the defendant submits

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that initially, the suit land was owned and possessed by Rangegowda, who executed the registered sale deed in November 1998 and submits that as on the

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date of execution of the alleged registered Will dated 16.12.1998, Rangegowda was not the absolute owner

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of the suit schedule property, as he has already sold the said property in favour of the defendant. He submits that the defendant became the absolute owner by the registered sale deed, and he submits that the trial Court, without considering the registered sale deed executed by Rangegowda, has passed the impugned judgment. He submits that Rangegowda, during his lifetime, did not challenge the registered sale deed executed in favour of the defendant. The plaintiff has no right to challenge the registered sale deed after the demise of Rangegowda. He also submits that the plaintiff has failed to prove the execution of the registered Will. The Will is surrounded by suspicious circumstances wherein PWs.2 and 3 have deposed that the plaintiff has taken a prominent role at the time of execution of Ex.P1. Further, the

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plaintiff has not explained why Rangegowda has bequeathed the suit schedule property in favour of the plaintiff, excluding other legal representatives. He also submits that the defendant examined the brother

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of the plaintiff as DWs.2 to 4, who have deposed against the plaintiff and denied that Rangegowda had executed the registered Will in favour of the plaintiff and denied the signature of Rangegowda on Ex.P1. He also submits that the trial Court has failed to establish the well-established principles of law that in the suit for declaration of title, the plaintiff has to prove the case independently and cannot depend on the weakness of the defendant. He submits that both the Courts below have relied on the weakness of the defendant and decreed the suit. Hence, he submits that the plaintiff has failed to remove the suspicious circumstances surrounding the Will. Therefore, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that Rangegowda originally owned the suit schedule property. He endowed the suit schedule property in favour of the plaintiff under the registered Will dated 16.12.1998. By the registered Will, the plaintiff became the absolute owner of the suit schedule property. Further, to prove the execution of the Will by Rangegowda in favour of the plaintiff, the plaintiff examined two witnesses, PWs.2 and 3, who are the attestors to Ex.P1. The Courts below, considering the evidence of PWs.2 and 3, have rightly passed the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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This court admitted the appeal on

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11.04.2019 to consider the following substantial question of law :

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"Whether trial Court was right in upholding contentions on a Will said to have been executed by one Rangegowda, father-in-law of the plaintiff in the light of sale deed dated 20.11.98. Whether the Will dated 16.12.98 has any legal efficacy in the light of sale deed dated 20.11.98?"

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Substantial question of law : The

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plaintiff in order to substantiate her case examined herself as PW.1 and she has deposed that initially, Rangegowda executed the registered sale deed dated 16.12.1998 bequeathing the suit schedule property in

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her favour and on the basis of the registered Will, she became the absolute owner of the suit schedule property. She has further deposed that the defendant created the registered sale deed by playing fraud on Rangegowda. The defendant had not paid the consideration amount mentioned in the registered sale

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deed. Rangegowda never delivered the possession of the suit schedule property in favour of the defendant,

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and it does not bare the signature or thumb impression of Rangegowda.

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During the cross-examination, it was

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suggested to PW.1 that Rangegowda executed the registered sale deed in favour of the defendant. As of the date of execution of the alleged registered Will, Rangegowda did not have any right, title or interest to execute the registered Will, and the plaintiff has not acquired any title by Ex.P1, i.e., registered Will. The said suggestion was denied by PW.1, and further, the plaintiff also examined the attesting witness to Ex.P1, who deposed that Rangegowda executed the registered Will bequeathing the suit schedule property in favour of the plaintiff on 16.12.1998 and Rangegowda died. After the death of Rangegowda, the plaintiff became the absolute owner of the suit

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schedule property by Ex.P1. In the course of crossexamination, both PWs.2 and 3 have admitted that the plaintiff, i.e., the propounder of the Will, had taken a prominent role at the time of execution of the registered Will, and it was suggested to PWs.2 and 3 that Rangegowda had sold the suit schedule property in favour of defendant under the registered sale deed. The plaintiff has not made any attempt to mark the signature of PWs.2 and 3 in Ex.P1.

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In rebuttal, the defendant examined himself as DW.1, and he has deposed that Rangegowda was the owner and in possession of the suit schedule property. During his lifetime, he had executed a registered sale deed dated 20.11.1998 in favour of the defendant and delivered the possession of the suit schedule property. To establish that Rangegowda executed the registered sale deed in favour of the defendant, produced the original sale deed marked as

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Ex.D1, and further, after purchasing the suit schedule property, the defendant applied to the revenue authorities to transfer the revenue records in the defendant's name. Though Rangegowda objected to transfer the revenue records in the defendant's name as per Ex.D23 and on the strength of the registered sale deed Ex.D1, the order was passed to mutate the defendant's name in the revenue records. The mutation register extract is marked as Ex.D2. Ex.D3 is the ledger extract, Ex.D4 is the revenue sketch, Ex.D5 is the agricultural certificate, Ex.D6 is the Boundary description certificate, Ex.D7 is No due certificate(Tax), Ex.D8 is the patta book, Exs.D9 to 14 are the RTC extracts, Ex.D15 is the mutation copy. Exs.D16 and 17 are the RTC extracts, Exs.D18 and 19 are R.R Form 5 and 6, Exs.D20 and 21 are Election Voter list, Ex.D22 is the application submitted by the defendant, Ex.D23 is the written argument, Ex.D24 is

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the encumbrance certificate, Ex.D25 is the report of the revenue officer submitted to the Tahsildar, Exs.D26 and 27 are two RTC extracts, Ex.D28 is the list of Agriculturist of Hosagadde village lands, Ex.D29 is the crop certificate issued by V.A.Jammanahalli circle, Ex.D30 is the Boundary description of Sy.No.82 issued by V.A.Jammanahalli, Exs.D31 to 35 are RTC extracts, Ex.D36 is record of rights and Ex.D37 is index of lands.

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In the course of cross-examination, it was suggested to DW.1 that Rangegowda never executed Ex.D1 and it does not bear his signature on Ex.D1 and never received the consideration amount as mentioned in Ex.D1 and suggested that Rangegowda during his life time executed the registered Will as per Ex.P1 and after the death of Rangegowda, the plaintiff became the absolute owner of the suit schedule property by virtue of Ex.P1 and plaintiff is in

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possession of the suit schedule property. The said suggestion was denied by DW.1, and DW.1 examined

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the brother of the plaintiff, i.e., DWs.2 to 4, who have deposed that Rangegowda sold the suit land in favour of the defendant under Ex.D1 and also denied the execution of Ex.P1 endowing the suit schedule property in favour of the plaintiff. DWs.5 to 8 were examined to establish the possession of the defendant over the suit schedule property. The plaintiff has not explained why DWs.2 to 4 have deposed against the plaintiff. Further, the defendant has produced the registered sale deed marked as Ex.D1. Rangegowda filed objections before the revenue authorities, but Rangegowda, during his life, has not challenged the registered sale deed executed in favour of defendant No.1.

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Though the plaintiff claims to be the owner

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by a registered Will, the plaintiff has examined

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attestors as PWs.2 and 3, but PWs.2 and 3 have not identified their signatures on Ex.P1, and further, the plaintiff has not removed the suspicious circumstances surrounded in the execution of Will. PWs.2 and 3 have admitted in the course of cross-examination, i.e., the plaintiff propounder has taken a prominent part in the execution of the Will, and further, the plaintiff has not explained why Rangegowda has executed the Will excluding DWs.2 to 4, who are the sons of Rangegowda.

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Further, the plaintiff has failed to remove the suspicious circumstances. The Hon'ble Apex Court in the case of Bharpur Singh and others Vs. Shamsher Singh reported in AIR 2009 SC 1766,

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held in para No.17, which reads as under:

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"17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:

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i. xxx ii. xxx

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iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

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iv. xxx

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v. The propounder takes a prominent part in the execution of the Will.

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The Courts below, without considering

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the said aspect, have held that the plaintiff has proved the execution of the Will as per Ex.P1. The courts below have committed an error in passing the impugned judgments. On the perusal of the impugned judgments, the trial Court decreed the suit based on the weakness of the defendant's case. The trial Court has failed to consider well-established principles of law that the plaintiff in a suit for declaration of title and possession, succeed only by

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making out his title and enjoyment to the possession and not only on the alleged weakness in title or possession of the defendant. The said view is supported by the judgment of the Hon'ble Apex Court in the case of T.K.Mohammed Abubucker (D) through Lrs. Vs. P.S.M.Ahamed Abdul Khader and others reported in 2009 SC 2966 . The Courts below, without taking into consideration that as of the date of the registered Will dated 16.12.1998, Rangegowda was not the absolute owner of the suit schedule property, as he had alienated the suit property in favour of the defendant. The plaintiff, by virtue of registered Will Ex.P1, has not acquired any title over the suit schedule property and failed to prove the execution of Will, which is surrounded by suspicious circumstances in the execution of the Will. Thus, the impugned judgments and decrees passed by the Courts below are arbitrary and erroneous, and

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they are liable to be set aside. In view of the above discussion, I answer the substantial questions of law

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in the negative.

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Accordingly, I proceed to pass the

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following:

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Order

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The appeal is allowed.

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The impugned judgments and decrees passed by the Courts below are set aside. Consequently, the plaintiff's suit is dismissed.

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No order as to the costs.

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SD/(ASHOK S. KINAGI) JUDGE

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RD, SKS

Shri.M.B.Swamy v. Smt.Rangamma

Case brief

What is this about?

What did the court decide?

Shri.M.B.Swamy v. Smt.Rangamma

Case brief

What is this about?

What did the court decide?

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