Smt. Sumathi Shedti Vs Smt. Vinutha

SMT. SUMATHI SHEDTI AGED ABOUT 73 YEARS W/O SRI. SHANKARA SHETTY D/O LATE SRI. JAGANNATHA HEGDE R/O BELANJE HONDADE MANE BELANJE VILLAGE KARKALA TALUK UDUPI DISTRICT-574104.

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…APPELLANT

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(BY SRI. MOHAN S., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. VINUTHA AGED ABOUT 35 YEARS D/O LATE SUDHAKAR HEGDE,

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SMT. SHANTHA S. HEGDE AGED ABOUT 72 YEARS

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W/O LATE SRI. SUDHAKAR HEGDE

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SRI. SANDEEP HEGDE AGED ABOUT 43 YEARS S/O LATE SRI. SUDHAKAR HEGDE

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SRI. SWAROOP HEGDE AGED ABOUT 41 YEARS S/O LATE SRI. SUDHAKAR HEGDE

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HC-KAR

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SMT. MAMATHA AGED ABOUT 45 YEARS W/O SRI. DEVIPRASAD D/O LATE SRI. SUDHAKAR HEGDE

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SMT. SAVITHA AGED ABOUT 37 YEARS D/O LATE SRI. SUDHAKAR HEGDE

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SMT. NEETHA AGED ABOUT 33 YEARS D/O LATE SRI. SUDHAKAR HEGDE

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SMT. KEERTHI AGED ABOUT 27 YEARS D/O LATE SRI. SUDHAKAR HEGDE

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ALL ARE

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R/AT BANTAKALA SUBHAS NAGAR MOODIGERE TALUK, CHIKMAGALORE DISTRICT-574105.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC,

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AGAINST THE JUDGMENT AND DECREE DATED 21.06.2024 PASSED IN R.A.NO.32/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.09.2017 PASSED IN O.S.NO.150/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KARKALA.

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

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HC-KAR

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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 counsel for the appellant. This second appeal is filed against the concurrent finding of the Trial Court and also the Appellate Court.

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The factual matrix of case of plaintiff before the

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Trial Court while seeking the relief of equal share in respect of the suit schedule properties. It is contended that ‘A’ schedule properties were absolutely belongs to the husband of defendant No.1, father of the plaintiff and defendant Nos.2 to 7 i.e., Sudhakar Hegde and the same was allotted to him as per the registered partition deed dated 31.07.1990, the said Sudhakar Hegde was in exclusive possession and enjoyment of the said property till his death. He died intestate three years back leaving behind the plaintiff and defendant Nos.1 to 7 only as his legal heirs and hence entitled for 1/8^th share in the ‘A’ schedule properties. It is contended that the defendant

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No.8 who is the sister of deceased Sudhakar Hegde having no right, title or possession over the suit schedule property has been acting detrimental to the interest of the plaintiff and rest of the defendants and she has concocted some documents in collusion with rest of the defendants to knock of the suit properties exclusively for herself and to affect the right of the plaintiff adversely. She has got mutated suit schedule properties in her name on the strength of illegal and concocted documents and also threatened the plaintiff that she is having already the documents. Immediately, after the service of notice, defendant Nos.1 to 8 appeared through their counsel. Defendant No.8 has filed specific written statement contending that first Item of the written statement schedule properties devolves upon her as per the partition deed dated 31.07.1990, the second Item of the said properties as per the Rectification Deed dated 01.10.1992 and the third Item of the said property as per the registered Will dated 01.10.1992 registered at the office of

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HC-KAR

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Brahmavara and the same is executed by Sudhakar Hegde.

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It is contended that originally the above said properties were held and possessed by her father Jagannatha Hegde and having leasehold right. He died prior to the advent of Karnataka Land Reforms Act, 1974 and her mother Muthakka Shedthi submitted declaration before the Land Tribunal in Form No.7 and after the enquiry, the Tribunal granted occupancy right on behalf of all the legal heirs of Jagannatha Hegde vide order dated 01.08.1977 and the said order has become final and Form No.10 was also issued by the Tahasildar. Thus, the said Muthakka Shedthi, her children and her grandchildren (children of deceased daughter Bhavani Shedthi) entered into a registered partition deed dated 31.07.1990, whereunder by mistake the land comprised in Sy.No.6/6A portion, Nanja, measuring 1.31 acres was mentioned instead of 3.31 acres under ‘B’ schedule. In fact this 8^th defendant has been in actual, lawful possession and

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enjoyment of 3.31 acres in Sy.No.6/6A. The said Sudhakar Hegde executed deed of rectification and demanded Rs.1,00,000/- from the defendant No.8 and he along with defendant No.8 and others entered into a Rectification Deed dated 01.10.1992 which is valid and binding. The legal heirs of Sudhakar Hegde i.e., plaintiff and defendant Nos.1 to 7 are estopped from questioning the Rectification Deed that too after lapse of 19 years. The suit is filed without seeking the relief of cancellation of Rectification Deed and the same is not maintainable and the same is barred by limitation.

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It is also contended that Will was executed and the same was came into force. The entries are made based on the partition deed in respect of second item of the said properties mutated in her name on the basis of Rectification Deed and third item of written statement schedule properties mutated based on the Will. The defendant No.8 has also effected vast and valuable improvements in the written statement schedule property.

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HC-KAR

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Defendant No.1 filed written statement and the same was adopted by defendant Nos.2 to 7 where alleged Rectification Deed as well as the Will are disputed.

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The Trial Court having considered the pleadings of the parties, framed the issues and particularly considered Issue No.4 with regard to whether defendant No.8 proved that she is the absolute owner of the suit schedule properties by virtue of the Will and Rectification Deed executed by late Sudhakar Hegde. The Trial Court considered Issue No.4 at the first instance. Having considered the evidence of D.W.3 and D.W.4 who are in support of the Will examined before the Trial Court and comes to the conclusion that when the Sudhakar Hegde executant of the Will having love and affection towards his wife and children, question of executing the Will Ex.D.4 in favour of 8^th defendant in respect of the suit property is doubtful and also the evidence of D.W.3 and D.W.4 doesn't inspire the confidence of the Court and on the very same day, Rectification Deed as well as the Will are

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executed on different Sub-Registrar office at Udupi and Brahmavar. There is no explanation in this regard and the same is discussed in paragraph No.19 and also considered the evidence of D.W.3 and D.W.4 in paragraph No.18 and answered the Issue No.4 as negative, the same is questioned before the Appellate court in R.A.No.32/2017.

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The Appellate Court considering the grounds urged in the appeal memo and also re-assessed both oral and documentary evidence available on record, framed the point for consideration, particularly point No.2 is concerned with regard to the Rectification Deed and the Will executed by Sudhakar Hegde in favour of defendant No.8 and the same is also answered as negative and did not accept the case of defendant No.8. In paragraph No.23 of the judgment, particularly in respect of the Will is concerned, taken note of evidence of D.W.3 and D.W.4. The witness D.W.3 is the sister’s son of defendant No.8 and another witness to Rectification Deed was husband of defendant No.8 who had expired during the said date of

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evidence and the D.W.3 identifies the signature of all the parties and deposes as required in compliance of Section 68 of the Indian Evidence Act. The D.W.3 says that his address was shown to the parties and there was no reason for him to withdraw his address, which clearly mean that his signature was taken at later stage.

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The Appellate Court also in detail discussed the evidence of D.W.4 and comes to the conclusion that attesting witness D.W.4 clearly says that he had not been to Sub-Registrar office. The evidence of D.W.4 with regard to the execution of the Will cannot be believed which creates some suspicion on the execution of the Will by Sudhakar Hedge. The Appellate Court also having re-assessed the material available on record, did not find any error on the part of the Trial Court and confirmed the order of the Trial Court.

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The counsel appearing for the appellant would

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vehemently contend that both the Courts have committed an error in holding that document Ex.D.6 is not proved as

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per the provisions of the Indian Evidence Act. The First Appellate Court also committed an error in confirming the judgment of the Trial Court and hence, it requires interference of this Court and this Court has to admit and framed substantive question of law.

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Having heard the learned counsel for the appellant and also on perusal of material available on record, it is not in dispute that the property to which the defendant claims belongs to the property of Sudhakar Hegde who is the husband of the plaintiff and father of defendant Nos.1 to 7. It is also not in dispute that 8^th defendant is the sister of the said Sudhakar Hegde. When the defendant pleads with regard to the execution of Rectification Deed as well as the Will, the same ought to have been supported by the credible evidence of witnesses. The Trial Court as well as the First Appellate Court meticulously considered the evidence available on record particularly evidence of D.W.3 and D.W.4 and their evidence does not inspire the confidence of the Court and

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the evidence is surrounded with suspicious circumstances and also D.W.2 has deposed that her sister's son Shekhar Shetty and her husband Shankara Shetty who are the attesting witnesses to the said Will have stayed with her upto 7.00 p.m., at Brahmavara on the day on which the document Ex.D.6 has been executed by said Sudhakar Hegde and also taken note of that if at all the said attesting witnesses stayed with her at Brahmavara upto 7.00 p.m on 01.10.1992, how it is possible to the witness Shekhar Shetty to present and put his signature on Ex.D.4 at the Sub-registrar office at Udupi and also comes to the conclusion that there is no explanation with regard to the timings is concerned. Hence, Trial Court did not accept the case of defendant No.8.

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It is not in dispute that both the documents of Rectification Deed and the Will came into existence on the very same day and earlier partition among the family members dated 31.07.1990 and Rectification Deed after long time of 2 years i.e., 01.10.1992 and what made to

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HC-KAR

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execute both the documents on the same day, nothing is explained. Both the Courts taken note of inconsistency particularly in the evidence of D.W.2, D.W.3 and D.W.4 who are the attesting witnesses and shrouded with suspicious circumstances. Hence, I do not find any ground to admit and frame substantive question of law and the final finding of the Trial Court and also the First Appellate Court is in consonance with the evidence available on record. Hence, no ground is made out to admit and frame substantial question of law.

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In view of the discussions made above, I pass the following:

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ORDER

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Second appeal is dismissed .

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Sd/(H.P.SANDESH) JUDGE

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RHS List No.: 1 Sl No.: 40

Smt. Sumathi Shedti v. Smt. Vinutha

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Smt. Sumathi Shedti v. Smt. Vinutha

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