Dismissed

P M Hemanth Kumar v. Smt Shantha Murthy

Karnataka HC2 Apr 2024RSA/66/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal against a first appellate court order decreeing partition of ancestral property. The court upheld the finding that purported wills relied upon by the appellant were not proved in accordance with law due to lack of production of originals and failure to identify documents or signatures.

What did the court decide?

Appeal dismissed; first appellate court judgment and decree affirming partition of suit schedule property to plaintiffs remains operative.

P M Hemanth Kumar Vs Smt Shantha Murthy — Partition | Karnataka HC (2024)

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 66 OF 2024 (PAR)

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BETWEEN:

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P M HEMANTH KUMAR

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S/O LATE S PARASHIVAMURTHY AGED ABOUT 61 YEARS R/AT KANASAWASI NEAR SHANI TEMPLE MADURE HOBLI DODDABALLAPURA TALUKU PIN CODE – 560 089

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PRESENTLY R/AT NO 158/163 SRINAGARA LAYOUT BASAVANAHALLI NELAMANGALA BENGALURU RURAL DISTRICT – 562 123

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…APPELLANT

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SMT SHANTHA MURTHY W/O LATE S PARASHIVAMURTHY AGED ABOUT 77 YEARS

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PREETHI W/O R V PATIL D/O LATE S PARASHIVAMURTHY AGED ABOUT 52 YEARS

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SHILPA

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D/O LATE S PRASHIVAMURTHY AGED ABOUT 50 YEARS

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ALL ARE R/AT “PADDU” NO.1037 3^RD CROSS, ANAND NAGAR

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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R.T. NAGAR POST

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BENGALURU – 560 032

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PREMAKUMARI W/O S M PRAMESHWARAIAH D/O LATE S PARASHIVAMURTHY AGED ABOUT 64 YEARS R/AT NO.67, 2^ND MAIN M L A LAYOUT R T NAGAR BENGALURU – 560 032

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SMT UMADEVI W/O HARAPRASAD D/O LATE S PARASHIVAMURTHY AGED ABOUT 58 YEARS R/AT BISLAHALLI NAGASANDRA POST KUDUR HOBLI MAGADI TALUK RAMANAGAR DISTRICT – 562 120

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SMT SAVITHA W/O SURESH ULLAGADDI D/O LATE S. PARASHIVAMURTHY AGED ABOUT 54 YEARS R/AT NO.14, 6^TH MAIN 9^TH CROSS, PILLAPPA BLOCK GANGA NAGAR BENGAURU - 50032

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…RESPONDENTS

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(BY SRI. RAGHAVENDRA V., ADVOCATE FOR C/R1)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.12.2023 PASSED IN R.A.NO.104/2023 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AT DODDABALLAPURA, BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED IN O.S.NO.223/2006 ON THE FILE OF SENIOR CIVIL JUDGE, DODDABALLAPURA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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JUDGMENT

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This appeal is by defendant No.1 aggrieved by the judgment and decree dated 06.12.2023 passed in RA.No.104/2013 on the file of IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru (FAC) by which the First Appellate Court while allowing the said appeal filed by the plaintiff set aside the judgment and decree passed in O.S.No.223/2006 on the file of the Senior Civil Judge at Doddaballapur, holding the plaintiff in the suit are jointly entitled for 3/7^th share in the suit schedule property and defendants are entitled for 1/7^th each.

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The suit in O.S.No.223/2006 was filed by the

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plaintiffs, who are the respondent Nos.1 to 3 herein seeking for relief of partition and separate possession of the suit schedule properties, which are :

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SCHEDULE

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Item No.1: All that piece and parcel of agricultural property bearing Sy. No.10, situated at Nagenahalli Village.

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4 - NC: 2024:KHC:13673 RSA No. 66 of 2024

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MadhureHobli. D.B.PurTq.. measuring to an extent of 30 guntas& bounded on

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East by : Gowramma's property West by: Inamthi Land North by: Inamthi Land South by: Basavaraju's property

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Item No.2 All that piece and parcel of agricultural property bearing Sy. No:11. situated at Nagenahalli Village, Madhurettobli, D.B.PuraTq. measuring to an extent of 05 guntas and bounded on

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East by Private property West by Private property North by Private property South by: Private property

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Item No.3: All that piece and parcel of agricultural property bearing Sy. No.16. situated at Nagenahalli Village. MadhureHobli. D.B.PuraTq. measuring to an extent of 38 guntas and bounded on

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East by: Private property West by: Private property North by: Private property South by: Private property

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Item No.4: All that piece and parcel of agricultural property bearing Sy. No.17, situated at Nagenahalli Village. MadhureHobli, D.B.PuraTq, measuring to an extent of 1 acre gunta and bounded on

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East by Private property Private property west by Private property North by South by Private property

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Item No.5: All that piece and parcel of agricultural property bearing Sy. No.21/1, situated at Nagenahalli Village. Madhure Hobli, D.B.PuraTq. measuring to an extent of 07guntas and bounded on

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5 - NC: 2024:KHC:13673 RSA No. 66 of 2024

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East by GanduThoper West by Basavaraju'sproperty North by ! Dhananjaya sproperty South by: Renukaiah'sproperty

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Item No.6: All that piece and parcel of agricultural property bearing Sy. No.21/2, situated at Nagenahalli Village. MadhureHobli, D.B.PuraTq, measuring to an 06guntas and bounded on extent of

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East by GanduThoper West by: Basavaraju's property North by: Dhananjaya's property South by: Renukaiah's property

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Item No.7 All that piece and parcel of agricultural property bearing Sy. No.21/6, situated at Nagenahalli Village, Madhure Hobli. D.B. PuraTq. measuring to an extent of 1 acre, Sguntas and bounded on

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East by Huchabasavaiah's property West by Basavaraju's property North by Dhananjaya's property South by Renukaiah's property

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Item No.8: All that piece and parcel of agricultural property bearing Sy. No.21/8, situated at Nagenahalli Village. MadhureHobli. D.B.PuraTq, measuring to an extent of 31 guntas and bounded on

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East by 2 Huchabasavaiah'sproperty West by Basavaraju's property North by: Dhananjaya's property South by: Renukaiah's property

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Item No.9: All that piece and parcel of agricultural property bearing Sy. No.21/9, situated at Nagenahalli Village. MadhureHobli. D.B.PuraTq. measuring to an extent of 29 guntas and bounded on

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East by Huchabasavaiah'sproperty West by Batavaraju's property

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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North by Dhananjaya's property south by Renukalah's property

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Item No.10 All that piece and parcel of agricultural property bearing Sy. No.21/12, situated at Nagenahalli Village. Madhure Hobli. D.B.PuraTq, measuring to an extent of 01 guntas and bounded on

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East by Giriyappa sproperty West by: Renukaiah'sproperty North by: Giriyappa's property South by: Veeranna's property

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Item No.11: All that piece and parcel of agricultural property bearing Sy. No.102, situated at Kanınamangala Village. Madhure Hobli, D.B.PuraTq, measuring to an extent of 1 acre 20guntas and bounded on

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East by Private property West by: Private property North by: Private property South by: Private property

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Item No. 12 All that piece and parcel of agriculte property bearing Sy. No.105/1, situated at Kannamangala Madhure Hobl., D.B.Puraq, measuring to an extent of 3l guntas and bounded on

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East by Private property West by Private property North by Private property South by: Private property

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Item No.13: All that piece and parcel of agricultural property bearing Sy. No.106/1, situated at Kannamangala Village, MadhureHobli, D.B. PuraTq. measuring to an extent of 18 guntas and bounded on

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East by: Private property West by: Private property North by: Private property South by: Private property

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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It is contended by the plaintiff that one Parashivamurthy, is the propositus of the joint family consisting of plaintiffs and defendants. The said Parashivamurthy had wives namely Smt. Vishalakshamma Smt. Shanthamurthy. Defendant No.1 – Hemantha Kumar, defendant No.2 – Prema Kumari, defendant No.3 – Umadevi and defendant No.4 – Savitha are born through his first wife Smt. Vishalakshamma. The said Smt. Vishalakshamma, passed away in the year 1972. Thereafter, Parashivamurthy got second marriage with plaintiff No.1 – Smt. Shanthamurthy. Plaintiff Nos.2 and 3 are the children born through his second wife Plaintiff No.1 - Smt. Shanthamurthy.

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The suit schedule property is a joint family property. Parashivamurthy passed away intestate on 25.10.2005 leaving behind him the plaintiffs and defendants as his legal heirs to succeed to his estate.

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The plaintiffs together are entitled for 2/7^th share

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in the suit schedule property, as such, they filed suit for partition.

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6 Defendant No.1 filed written statement denying

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the plaint averments. It is contended by defendant No.1 that the suit schedule property originally belonged to the grand father of defendant No.1 namely Shivarudraiah son of Nanjaiah, who acquired the same in terms of a registered Will deed dated 28.08.1970 executed by his mother-in-law – Honnamma. It is further contended that grandmother Smt. Muddiramma of plaintiff No.1 predeceased her husband Shivarudraiah. Shivarudraiah had executed the Will deed dated 31.10.1988 bequeathing all the suit schedule properties in favour of defendant No.1 and in favour of other children of his uncle Chandrashekharaiah. Thus, it is

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submitted that the properties are not available for the partition and the plaintiff are not entitled for partition.

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7. Defendant No.2 supported the case of the plaintiff

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and undertook to pay the Court fee when the shares were allotted.

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Based on the pleadings, the trial Court framed the following issues:

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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i. Whether the plaintiffs prove that suit schedule properties are joint family properties of the plaintiffs and defendants?

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ii. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties?

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iii. Whether the first defendant proves that he has performed the marriages of plaintiffs 2 and 3 and defendants 2 to 4 by spent huge money?

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iv. Whether plaintiffs are entitled for share in the suit schedule properties as prayed for?

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v. What order or decree?

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Additional Issues:

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i. Whether the defendants prove that first defendant grand father executed a registered Will on 31.10.1988 for all the suit schedule properties in favour of first defendant and also other properties to the children of his uncle Chandrashekaraiah?

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ii. Whether the first defendant proves that the properties obtained by the Will and all the suit schedule properties are self acquired properties?

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9. Plaintiff examined one witness and got marked

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documents Exs.P1 to P14, defendants examined two witnesses and got marked documents Exs.D1 to D16.

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On appreciation of evidence, the trial Court answered issue Nos.1 to 4 in the ‘Negative’ and additional

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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issue Nos.1 and 2 in the ‘Affirmative’ and consequently, dismissed the suit. Aggrieved by the same, plaintiff No.1 preferred RA.No.104/2013.

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Considering the grounds urged therein, the First

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Appellate Court framed the following points for

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consideration:

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i. Whether the plaintiffs prove that suit schedule properties are joint family properties of the plaintiffs and defendants.

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ii. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties?

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iii. Whether the first defendant proves that he has performed the marriage of plaintiff Nos.2 and 3 and defendants No.2 to 4 by spent huge money?

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iv. Whether the plaintiffs are entitled share in the suit schedule properties as prayed for?

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v. What order or decree?

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On re-appreciation of the material evidence, the First Appellate Court answered point Nos.1 to 3 in the

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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‘Affirmative’ and consequently decreed the suit as prayed for. Aggrieved by the same, defendant No.1 is before this Court.

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Learned counsel for the appellant reiterating the grounds urged in the appeal submitted that the First Appellate Court has failed to appreciate that under the Will dated 28.08.1970, Smt. Honnamma had bequeathed her properties in favour of her daughter Smt. Muddiramma and son-in-law – Shivarudraiah, who is the husband of Smt.Muddiramma, that Smt. Muddiramma, predeceased Smt. Honnamma, as such, the property, which was bequeathed in favour of Smt. Honnamma also devolved upon and vested with Shivarudraiah. It was further submitted that Shivarudriah being absolute owner of the property executed a Will dated 31.10.1988, further, bequeathing the same in favour of defendant No.1 and the children of his uncle namely Chandrashekariah. Thus, he submits that the First Appellate Court grossly erred in not appreciating this aspect of the matter, giving rest to substantial question of law.

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Per contra, learned counsel for respondent

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submits that though the defendant had set up two Wills, first dated 28.08.1970 purported to be executed by Smt. Honnamma and second one dated 31.10.1988 executed by Shivarudraiah. Neither originals of said Wills have been produced nor the proof of the said Wills have been produced. It is the further submission that when the defendant filed written statement in the first instance, there is no whisper about the execution of the Will dated 28.08.1970 by Smt. Honnamma. However, subsequent to amending the written statement, defendant No.1 propounded the theory of Smt. Honnamma executing the Will dated 28.08.1970. He further submits that no witnesses have been examined in support of the contention of the execution of the Will by Smt. Honnamma. Similarly, though one witness has been examined as DW1, who is stated to be the witness in respect of Will dated 31.10.1988, the said witness has not identified the Will. Thus, he submits that Wills have not been proved in

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the manner known to law. As such, the finding and conclusion by the trial Court was unjustified, which was

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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rightly reversed by the First Appellate Court according to the relief as sought for by the plaintiff. Hence, he submits that substantial question of law would arise for consideration.

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Heard. Perused the records.

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The relationship between the parties is not in

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dispute. The fact that the property belongs to Smt. Honnamma is also not in dispute. It is necessary to note that defendant No.1 set up the theory of Smt. Honnamma executing the Will dated 28.08.1970 bequeathing the suit properties in favour of her daughter Smt. Muddiramma and her husband Shivarudraiah. It is the case of defendant No.1 that Smt. Muddiramma predeceased Smt. Honnamma and that the bequeath that was made in favour of Smt. Muddiramma to Smt. Honnamma devolved upon Shivarudraiah, thereby he became the absolute owner of the properties. It is the further case of defendant No.1 that Shivarudraiah, being the owner of the property, on 31.10.1988 had executed the Will, further bequeathing the property in favour of defendant No.1 and in favour of children

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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of his brother. Necessary at this juncture to note the dates of death of Smt. Honnamma and Smt. Muddiramma. Smt.Muddiramma is stated to have passed away on 29.12.1992 and Smt. Honnamma is stated to have passed away on 17.06.1994. Though the date of death of Smt. Honnamma is denied, the fact remains Smt. Honnamma passed subsequent to death of her daughter Smt. Muddiramma. Interesting question that arises for consideration is: Whether in such circumstances, Shivarudraiah could have claimed to be the owner of the suit properties in terms of the Will executed by Smt. Honnamma and thereafter, could he have executed the Will dated 31.10.1988? In other words, during the lifetime of Smt. Honnamma as well as Smt. Muddiramma, could Shivarudraiah claim to be the owner of the property and executed the Will bequeathing the property in favour of defendant No.1? It is this aspect of the matter, the First Appellate Court has gone into the detail at paragraph Nos.57 to 66 of the judgment in detail. The First Appellate Court has found that assuming there was Will executed by Smt.

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Honnamma on 28.08.1970 and the same had not come into effect till her demise and as such Shivarudraiah could not have claimed to be the owner of the property, such that he was able to execute the Will dated 31.10.1988.

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That apart, the First Appellate Court has also found that no witness has been examined in respect of the Will dated 28.08.1970 and though DW2 has been examined in furtherance to claim of he being attesting witness to will dated 31.10.1988, admittedly he has neither identified the will not the signature of Shivarudraiah therein. Thus, from the records, it is clear, that there is no compliance of requirements of Section 63 (c) of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872. The claim made by defendant No.1 based on the Will has thus remained inconclusive and not proved in the manner known to law. As rightly taken note of by the First Appellate Court, the trial Court has missed out this factual and legal aspect of the matter while dismissing the suit.

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NC: 2024:KHC:13673 RSA No. 66 of 2024

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The First Appellate Court in the considered view

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of this Court has come to just and proper conclusion in declining to accept the case of the defendant based on the purported Wills dated 28.08.1970 and 31.10.1988. What therefore remains is only the normal course of inheritance or devolution of the property as the legal heir, which has been identified and granted by the First Appellate Court. No error or illegality can be found in the judgment and decree passed by the First Appellate Court. No substantial question of law now arise for consideration. The appeal is therefore dismissed .

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Sd/JUDGE

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List No.: 1 Sl No.: 27

P M Hemanth Kumar v. Smt Shantha Murthy

Case brief

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P M Hemanth Kumar v. Smt Shantha Murthy

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