Harini @ Harinakshi Vs P. M. Shivappa

HARINI @ HARINAKSHI, D/O MURTHY, AGED ABOUT 40 YEARS, R/O MEGALA PILLENAHALLI VILLAGE, PILLENAHALLI POST, SAKHARAYA PATTANA HOBLI, KADUR TALUK -577 140, CHIKKAMAGALURU DISTRICT.

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…APPELLANT

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(BY SRI. D.C.JAGADEESH, ADVOCATE)

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AND:

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Digitally signed 1. P.M. SHIVAPPA, by DEVIKA M S/O LATE MALLEDEVEERAPPA, Location: HIGH AGED ABOUT 55 YEARS, COURT OF KARNATAKA R/O MEGALA PILLENAHALLI VILLAGE, PILLENAHALLI POST, SAKHARAYA PATTANA HOBLI, KADUR TALUK-577 140, CHIKKAMAGALURU DISTRICT.

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…RESPONDENT

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(BY SRI. R.C.NAGARAJA, ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 01.06.2020 PASSED IN R.A.NO.64/2015 ON THE FILE OF SENIOR CIVIL JUDGE, KADUR, DISMISSING THE APPEAL AND CONFIRMED THE JUDGEMENT AND DECREE DATED 18.09.2015 PASSED IN

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HC-KAR

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O.S.NO.292/2010 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KADUR.

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned

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counsel for the appellant and the learned counsel for the respondent.

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The factual matrix of the case of the plaintiff is that the plaintiff filed a suit before the Trial Court seeking the relief of declaration to declare himself as the absolute owner and in possession over the suit schedule property and also to declare that the Will is not binding on him and for consequential relief of permanent injunction. It is contended that, in the partition the suit schedule property was allotted to the share of the plaintiff. The defendant contended that the suit schedule property was left to the life maintenance of the parents of the plaintiff. It is alleged by the plaintiff that the defendant and her brother instigated Channamma and created the Will dated 16.04.2007. It is the contention of the plaintiff that Channamma had no right to execute the Will in

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HC-KAR

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respect of the suit schedule property and hence sought for the relief. The Trial Court allowed the parties to lead evidence and considering the document of Ex.P.10 and also considering that in terms of the partition, the property was given to Channamma for her maintenance, held that the property shall revert back to the plaintiff. The Trial Court also taken note of the Will relied upon by the defendant and in this regard, the Trial Court discussed the same in paragraph Nos.19, 20, 21, 22 and discussed that D.W.1 categorically admitted that on the date of the very execution of the Will, the same was shown to her. Apart from that, taken note of the general power of attorney, which was drafted by D.W.2 himself and he categorically stated that in the GPA, the reason is stated that Channamma was not able to hear and see and the same is admitted by D.W.2. The Trial Court also taken note of the evidence of D.W.3 and comes to the conclusion that the Will is surrounded with suspicious circumstances and granted the relief as sought in the plaint that the plaintiff has proved the case that the property in terms of the document shall revert back to him and only the maintenance right was given to the said Channamma. The Trial Court considering the document of Ex.P.10 as well as Ex.P.9 comes to such a conclusion.

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HC-KAR

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Being aggrieved by the said judgment and decree,

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an appeal is filed before the Appellate Court. The Appellate Court having considered the grounds urged in the appeal memo and also hearing both the sides, formulated the point whether the impugned judgment and decree of the Trial Court is against law, facts and probabilities of the case? The Appellate Court having re-assessed the material available on record, taken note of the pleadings of the parties and also the evidence led by both of them. The Appellate Court also taken note of particularly the document of Ex.P.10 and the same is not disputed and also made it clear that if the respondent fails to look after his mother, the property should go to the respondent's mother and it is the case of the respondent that after the death of his mother, he became the owner of the suit schedule property. This fact is admitted by the respondent during the course of cross-examination. The Appellate Court also taken note of the Trial Court in its judgment has also considered that after the death of the mother of the respondent, the suit schedule property should go to the respondent by virtue of the partition. The Appellate Court also taken note of the Will, which the defendant/appellant claims and also re-assessed the material

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HC-KAR

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available on record and particularly in paragraph No.16 considered the evidence of D.W.1, D.W.2 and D.W.3, wherein D.W.2 categorically admitted that while preparing the GPA in respect of suit in O.S.No.82/2003, specific averment is made that Channamma was not having proper hearing and her eye sight is also not good and she was suffering from impairment and also loss of eyesight. The same was also considered by the Appellate Court while considering the genuineness of the Will is concerned and re-assessed the evidence and confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent judgment, this present second appeal is filed before this Court.

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The learned counsel for the appellant in the second appeal would vehemently contend that both the Courts have committed an error in granting the relief, as sought. The learned counsel would contend that the Trial Court has committed an error in holding that the registered Will dated 16.04.2007 is surrounded with suspicious circumstances and the same is erroneous and the finding is perverse and hence this Court has to frame the substantive question of law.

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HC-KAR

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Per contra, the learned counsel for the respondent

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would contend that the Trial Court as well as the Appellate Court considered the material available on record and detail discussion was made, particularly when the defendant claims the Will and given the reasoning that the Will is surrounded with suspicious circumstances and well reasons are assigned by both the Courts and this Court cannot find fault with appreciating the material on record.

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Having heard the learned counsel for the appellant and the learned counsel for the respondent, it is not in dispute that there was a partition between the family members and in terms of Ex.P.10, the very property was allotted in favour of the plaintiff and maintenance right was given in favour of Channamma. It is also the case of the plaintiff that the said Channamma was not having any absolute right to convey any document in favour of the defendant, who claims the same and both the Courts have taken note of that the Will came into existence in a suspicious circumstance. Considering the very evidence of D.W.1, D.W.2 and D.W.3, in detail discussion was made. The Trial Court in paragraph Nos.19 to 22 discussed regarding mental capability of Channamma and also

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HC-KAR

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that she was unable to hear and see and the same is admitted by D.W.2, who drafted the Will as well as the GPA. The Trial Court considered the document of Ex.P.9 Will dated 16.04.2007, though allegedly executed by Channamma and she was not having capacity to see the document as well as she was suffering from hearing problem and the same has been discussed by both the Courts. Both the Trial Court as well as the First Appellate Court taken note of both oral and documentary evidence available on record. The Appellate Court also in detail discussed the material available on record in paragraph No.16 with regard to the capacity of the testatrix of the document and hence, I do not find any ground to admit the appeal and frame substantive question of law. The very contention of the appellant that the findings of both the Courts suffer from legality and the same is perverse, cannot be accepted and definite finding is given by both the Trial Court as well as the Appellate Court that the Will is surrounded with suspicious circumstances and also Channamma was not having any absolute right to convey the property under the Will, as contended by the appellant.

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