Sri a S Ramamurthy Vs Smt Prabhavathi — Succession and Inheritance | Karnataka HC (2025)

Sri a S Ramamurthy Vs Smt Prabhavathi — Succession and Inheritance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the courts below erred in granting the relief of partition in the absence of material evidence that the suit schedule properties are the joint family properties of the plaintiff and the defendants. +2 more

Court's answer

D.W.1's clear and unequivocal admission that all the children of Smt.Venkatalakshmamma have equal share over the property dislodges the appellant's contention that the plaintiff failed to prove the ancestral/joint family character of the suit schedule properties.

Ratio / Principle

There is no ground to admit the second appeal or frame any substantial question of law: there is a clear admission with regard to the share of the plaintiff, and the Will propounded by the defendants is not proved.

Key takeaways

The Will was not proved: the evidence of the attesting witnesses D.W.2 and D.W.3 is contradictory and not credible, and is not in consonance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act.ratio¶55

Detailed headnote1 paragraphs

Partition - Second appeal under S.100 CPC against concurrent findings - Dismissed at admission stage. The Trial Court (O.S.No.104/2013, Senior Civil Judge and JMFC, Malur) decreed partition granting the plaintiff a 1/4th share, holding the suit schedule properties to be joint family properties and rejecting the Will dated 22.06.2000 (Ex.D.23); the First Appellate Court (R.A.No.75/2021, Principal District and Sessions Judge, Kolar) confirmed. Upholding the concurrent findings, the High Court (H.P. Sandesh, J.) held that D.W.1's clear, unequivocal admission that all the children of Smt.Venkatalakshmamma have equal share over the property dislodged the contention that the plaintiff had not proved the ancestral character of the properties, and that the Will was not proved since the attesting witnesses D.W.2 and D.W.3 gave mutually contradictory evidence not in consonance with S.63 of the Indian Succession Act and S.68 of the Evidence Act; hence no substantial question of law arose and the second appeal was dismissed.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18^TH DAY OF JULY, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO.1500 OF 2022 (PAR)

BETWEEN:

SRI. A.S.RAMAMURTHY, S/O LATE SHANKARAPPA AND LATE VENKATAKAKSHMAMMA, AGED ABOUT 56 YEARS, RESIDENT OF ABBENAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK - 563 130.

…APPELLANT

(BY SRI. RAMAKRISHNA HEGDE, ADVOCATE)

AND:

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

SMT. PRABHAVATHI, D/O LATE SHANKARAPPA, AGED ABOUT 68 YEARS,

R/O THIMMANAYAKANAHALLI VILLAGE, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT-163 130.

SMT. VIJAYALAKSHMI, D/O LATE SHANKARAPPA, AGED ABOUT 63 YEARS, R/O. NO.2636, 7^TH CROSS, ‘C’ MAIN, VIVEKANANDANAGAR, BANGARAPET TOWN, KOLAR DISTRICT-563 114.

SRI. A.S.VENKATESH, S/O LATE SHANKARAPPA AND LATE VENKATALAKSHMAMMA,

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AGED ABOUT 54 YEARS, RESIDENT OF ABBENAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK-563 130.

…RESPONDENTS

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.04.2022 PASSED IN R.A.NO.75/2021 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.10.2021 PASSED IN O.S.NO.104/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR.

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

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellant.

This appeal is filed against the concurrent finding. The case of the plaintiff before the Trial Court while seeking the relief of partition and separation possession of 1/4^th share is that the suit schedule properties are the ancestral and joint family properties and the plaintiff is entitled for 1/4^th share in the suit schedule property by metes and bounds. The defendants appeared and filed the written statement contending that the suit is barred by limitation and also contended that the suit is bad for non-joinder of necessary

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parties. The suit item Nos.1 to 3 properties are the selfacquired properties of Smt.Venkatalakshmamma and also contended that defendant Nos.2 and 3 by virtue of Will dated 22.06.2000 executed by their mother, they became absolute owners of the suit item Nos.1 to 4 properties and hence the plaintiff is not entitled for any relief.

The Trial Court also re-casted the issue whether

the defendants prove that schedule item Nos.1 to 5 properties are the self-acquired properties of Smt.Venkatalakshmamma? The Trial Court having considered both oral and documentary evidence available on record, answered issue No.1 in the affirmative in coming to the conclusion that the properties are joint family properties. In view of re-casting of issue i.e., issue No.4, considered the evidence available on record, particularly when the defendants have relied upon the Will and also the contention that the properties are self-acquired properties of their mother. The Trial Court having considered the admission on the part of D.W.1, who categorically admits that all the children of Smt.Venkatalakshmamma are having equal share over the property, discussed the same in paragraph No.17. With regard to the very execution of the

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Will by Smt.Venkatalakshmamma, though examined two witnesses as D.W.2 and D.W.3, their evidence was not suffice to come to the conclusion that Smt.Venkatalakshmamma had executed the Will. D.W.2 categorically admits that deed writer Narayanappa has expired and further states for getting drafted the Will, Smt. Vijayalakshmi, aged about 70 years, the testator alone had come and no other persons had accompanied her to the Sub-Registrar office and that he does not know the contents of the Will. The Trial Court also taken note of discrepancy in mentioning the deed writer licence number and the same is discussed in paragraph No.35 taking into note of the deed writer of Ex.D.23 Will and also Ex.D.9 sale deed is one and the same. Apart from that, D.W.3 evidence was also taken note of. D.W.3 claims that at the time of drafting the Will, he himself, Narayanappa and Smt.Venkatalakshmamma were present. The evidence of D.W.3 is contrary to the evidence of D.W.2. Hence, the Trial Court not accepted the Will and granted the relief of partition granting 1/4^th share in favour of the plaintiff.

Being aggrieved by the said judgment and decree

of the Trial Court, an appeal is filed in R.A.No.75/2021. The

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Appellate Court having re-assessed the material available on record as well as the reasoning given by the Trial Court and also the grounds urged in the appeal, formulated the point whether defendant Nos.2 and 3 prove that their mother/testator Smt.Venkatalakshmamma being absolute owner of the suit schedule item Nos.1 to 4 properties executed the Will on 22.06.2000 when she was in sound disposing state of mind? The Appellate Court on reappreciation of the material available on record, comes to the conclusion that the same has not been proved. The evidence of D.W.2 and D.W.3 not inspires the confidence of the Court. D.W.3 has testified that Smt.Venkatalakshmamma executed

Will on 22.06.2000 and he was called by her to the Taluk Office, Malur and Will has been prepared as per her instruction and he has signed the Will as witness. This evidence of D.W.3 does not establish the above manner of requirement of attestation as required under Section 63(c) of Indian Succession Act. Besides D.W.2 has testified in the above line of D.W.3. He has also not whispered his attestation to the Will as required under the above law. The Trial Court rightly appreciated that D.W.2, who is the attesting witness, in his cross-examination had stated that

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one Vijayalakshmi was present and he signed on the request of Vijayalakshmi to the said Will and none present except Vijayalakshmi at the time of execution of the Will and all these discussion was made in paragraph No.13 and comes to the conclusion that the evidence of D.W.2 is not credible to believe that Smt.Venkatalakshmamma executed Ex.D.23 and so also the evidence of D.W.3 is contrary to the evidence of D.W.2 and hence not accepted the very contention of the appellant and concurred with the judgment of the Trial Court.

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

The main contention of the learned counsel for the appellant before this Court is that both the Courts have committed an error in granting the relief of partition without proving and in the absence of the material evidence that the suit schedule properties are the joint family properties of the plaintiff and the defendants. The learned counsel contend that both the Courts are not justified in not accepting the Will and even though D.W.2 and D.W.3, attesting witnesses are examined before the Trial Court to prove the Will and Will also

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proved, but even inspite of proving of the Will also, not accepted the Will and committed an error.

Having heard the learned counsel for the appellant

and also on perusal of the reasons assigned by the Trial Court, it is not in dispute that the plaintiff has claimed 1/4^th share in the suit schedule properties. The very contention of the learned counsel for the appellant is that the plaintiff has not proved that the properties are the ancestral properties. But, the very admission on the part of D.W.1 is clear, unequivocal admission that all the children of Smt.Venkatalakshmamma are having equal share over the property. When such admission is given, the very contention of the learned counsel for the appellant that the Trial Court committed an error cannot be accepted. With regard to the very claim made by the appellant that there was a Will, the same was also not proved. Both the Courts have taken note of that the evidence of D.W.2 and D.W.3 are contradictory to each other. D.W.2 claims that he was alone at the time of affixing the signature on the Will and D.W.3 evidence is contrary to the evidence of D.W.2 and D.W.2 says that he only accompanied the testatrix to the Sub-Registrar Office

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and also he does not know the contents of the Will. All these factors were taken note of by the Trial Court as well as the Appellate Court while assessing the material available on record regarding Will. Hence, I do not find any ground to admit the appeal and frame any substantial question of law as contended by the learned counsel for the appellant, since there is a clear admission with regard to the share of the plaintiff and though the Will is propounded by the defendants, the same is also not proved. The evidence of D.W.2 and D.W.3, who are the attesting witnesses, is not credible and the same is not in consonance with Section 63 of the Indian Succession Act and Section 68 of Evidence Act. Hence, no ground to admit the appeal and frame any substantial question of law.

In view of the discussions made above, I pass the

following:

ORDER

The second appeal is dismissed.

Sd/- (H.P.SANDESH) JUDGE

MD List No.: 1 Sl No.: 53