Smt G S Shanthamma Vs G P Narasimhareddy

SMT. G.S. SHANTHAMMA, W/O G.S. NARASIMHAREDDY, AGED ABOUT 61 YEARS, RESIDING AT T. GOLLAHALLI VILLAGE, CHILAKALANERPU HOBLI, CHINTAMANI TALUK, CHIKKABALLAPURA DISTRICT-563125.

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…APPELLANT

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(BY SRI. CHOWDAREDDY T.M., ADVOCATE)

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AND:

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G.P. NARASIMHAREDDY, Digitally signed S/O G.B. PAPIREDDY, by DEVIKA M AGED ABOUT 65 YEARS, Location: HIGH R/AT T. GOLLAPALLI VILLAGE, COURT OF KARNATAKA CHILAKALANERPU HOBLI, CHINTAMANI TALUK, CHIKKABALLAPURA DISTRICT-563125.

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SMT. G.P. VENKATARAVANAMMA, W/O Y. RAMAPPA, D/O G.B. PAPIREDDY, AGED ABOUT 67 YEARS, R/AT SALAMAKALAHALLI VILLAGE, CHILAKALANERPU HOBLI, CHINTAMANI TALUK, CHICKBALLAPURA DISTRICT-563125.

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HC-KAR

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SMT. G.P.SUJATHA, W/O G.M. YARAPPAREDDY, D/O G.B. PAPIREDDY, AGED ABOUT 57 YEARS, R/AT GANDLACHINTA VILLAGE, SIDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT-563159.

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SMT. G.P. RENUKA, W/O BYRAREDDY, D/O G.B. PAPIREDDY, AGED ABOUT 53 YEARS, MARAMMA TEMPLE MAIN ROAD, 12^TH CROSS, VIRUPAKSHAPURA, NEAR KODIGEHALLI, BENGALURU-560097.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.06.2024 PASSED IN R.A.NO.55/2021 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, SITTING AT CHINTAMANI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.04.2021 PASSED IN O.S.NO.41/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHINTHAMANI.

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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.

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This second appeal is filed against the concurrent finding.

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The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition and separate possession, it is contended that the plaintiff is the foster daughter of Sri Yerravenkatappa and Smt. Chowdamma. The schedule properties were the joint family properties of Yerravenkatappa and G.B. Papireddy and in view of she is a foster daughter, a Will is executed in her favour and she is entitled for 50% of share in all the suit schedule properties, including 1/3^rd share in 21 properties mentioned in the Will, which is registered on 10.12.1981, in her favour.

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The defendants appeared and filed the written statement denying that she is the foster daughter of Sri Yerravenkatappa and Smt. Chowdamma. It is contended that the Will is created for the purpose of knocking off the property. It is also contended that the plaintiff is totally stranger to the family. She has no right to seek for partition and at no point of time she has sought for any partition and also she has not acquired any right over the suit schedule properties. The pleading itself establishes that she being not in the joint possession and enjoyment of the suit schedule properties and the plaintiff has wrongly incorporated the self-acquired

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properties of G.B.Papireddy by making a false claim in respect of the same and hence prayed the Court to dismiss the suit.

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The Trial Court considering the pleadings of the parties, framed the issues and additional issues and allowed the parties to lead evidence. The GPA holder of the plaintiff examined himself as P.W.1 and got marked the documents at Exs.P.1 to 104 and also examined four witnesses as P.W.2 to P.W.5. The defendant No.1 examined himself as D.W.1 and got marked the documents at Exs.D.1 to 31 and also examined four witnesses as D.W.2 to D.W.5. The Trial Court answered issue Nos.1 to 3 in the negative, additional issue Nos.1 and 2 in the affirmative and additional issue No.3 in the negative and comes to the conclusion that the suit itself is not maintainable without seeking the relief of declaration as contended by the defendants at paragraph No.12(a) of the written statement and also the suit is barred by limitation and the plaintiff is not entitled to share in the properties including 1/3^rd share in 21 properties mentioned in the Will. The Trial Court having considered both oral and documentary evidence placed on record, particularly the Will, comes to the conclusion that admittedly Smt.Chowdamma has got no children and as the

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suit properties originally belongs to her husband, the said properties after her death should go to the family members of her husband. Hence, Ex.P.104 is of no use to the case of the plaintiff. The Trial Court also taken note of the admission on the part of P.W.1, which is extracted in paragraph Nos.43, 44, 45, 47 and particularly in paragraph No.48, P.W.1 admits that copy of the Will is handed over to her by Chowdamma and hence comes to the conclusion that the very execution of the Will is doubtful.

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The Trial Court has also taken note of the evidence

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of P.W.2 and his evidence goes against the very case of the plaintiff in order to come to a conclusion that the document of Will is not a genuine document. P.W.2 admitted that original copy of the Will was in possession of the plaintiff and Chowdamma was admitted in the hospital about two days prior to her death. The said admission of P.W.2 is sufficient to hold that Will is a got up document. The Trial Court also taken note of that P.W.2 categorically admitted in the cross-examination that one Papireddy was looking after Chowdamma and Papireddy is none other than the brother of her husband and comes to the conclusion that the plaintiff was not a foster

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daughter of Chowdamma and she was not looking after Chowdamma. The Trial Court also taken note of the evidence of P.W.3 and P.W.4, who supported the case of the plaintiff. P.W.3 in his cross-examination admitted that about 4-5 days prior to the death of Chowdamma, she was not feeling well and the Will came into existence only about 20 days prior to her death. The Trial Court taken note that it is the very specific case of the defendants that the plaintiff is a stranger and she is not in joint possession of the suit schedule properties and all the properties are not the joint family properties and some of the properties are self-acquired properties of the father of defendant No.1. The Trial Court considering both oral and documentary evidence available on record, comes to the conclusion that the plaintiff failed to prove that she is the foster daughter of Sri Yerravenkatappa and Smt. Chowdamma and there was a Will in her favour and Will is shrouded with suspicious circumstances and hence dismissed the suit.

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Being aggrieved by the said order, an appeal is filed before the First Appellate Court and the First Appellate Court having re-assessed both oral and documentary evidence available on record and keeping in view the grounds urged in

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the appeal memo, formulated the points whether the Trial Court committed an error in appreciating both oral and documentary evidence and whether it requires any interference of the Court. The First Appellate Court considering both oral and documentary evidence placed on record, comes to the conclusion that the dismissal of the suit by the Trial Court is sustainable and it is the specific defence of the defendants that the plaintiff was not the foster daughter of Sri Yerravenkatappa and Smt. Chowdamma. Further, the plaint is silent with regard to the fact pertaining to the religious ceremony while taking the plaintiff as foster daughter. For non-pleading of religious ceremony, exact date, time, presence of witnesses, it cannot be believed that the plaintiff is the foster daughter of Sri Yerravenkatappa and Smt. Chowdamma. The First Appellate Court also taken note of the age of the plaintiff as per SPA is mentioned as 48 years in the year 2009, but in the cause title, her age is mentioned as 41 years in the year 2007. In this regard, the Trial Court has taken note about the malafide intention in mentioning the same.

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The First Appellate Court also taken note of the Will,

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which is marked as Ex.P.2 and there is no explanation with

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regard to difference in items mentioned in the plaint schedule and schedule of the Will. According to the defendants, out of 21 properties, item Nos.1, 14 and 21 do not belong to the joint family and item No.1 and 14 are not part of the plaint schedule properties. Item No.21 of the Will is the Streedhana property of defendant No.2, which belongs to the father. The First Appellate Court also taken note of the circumstances under which the document came into existence and as on the date of the alleged Will, the age of Chowdamma was 80 years and the plaintiff herself produced the medical certificate, which is marked as Ex.D.16 in O.S.No.78/2000. The First Appellate Court also taken note of that the Will has not seen the light of the day since 26 years. As such, the said Will should be considered as a concocted and forged document. Though the Will was executed long back, the same was not relied upon at any point of time. The First Appellate Court even taken note of the admission on the part of P.W.1 that Chowdamma was hospitalized for two days before her death and also taken note of the evidence of P.W.2, P.W.3 and P.W.4 and the same will not come to the aid of the plaintiff. Having re-assessed the material available on record, comes to the conclusion that the

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plaintiff failed to prove her case and confirmed the judgment of the Trial Court.

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

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The learned counsel for the appellant would vehemently contend that the Will is registered, which is marked as Ex.P.2. On the face of the evidence of P.W.1 to P.W.5, it is very clear that the Will was executed and the same is proved and both the Courts comes to an erroneous conclusion that the Will is surrounded with suspicious circumstances and hence this Court has to frame the substantial question of law.

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Having heard the learned counsel for the appellant and also on perusal of the material available on record, there is no dispute with regard to the fact that one propositus is Tokala Papireddy and he was having three sons Bayanna, Yerravenkatappa and another son Ramanna died issueless and the property devolves upon two sons of Thokala Papireddy. But the very case of the plaintiff is that Yerravenkatappa was not having any issues and hence the plaintiff was taken as a foster daughter by Sri Yerravenkatappa and Smt. Chowdamma and

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his wife Chowdamma executed the Will. Having taken note of oral and documentary evidence, particularly the evidence of P.W.2, whose evidence goes against the plaintiff, P.W.2 says that the plaintiff was not taking care of the health of Chowdamma and the same was taken care by Papireddy. Apart from that, Chowdamma was aged about 80 years and she was not having good health and she was also admitted in the hospital two days prior to her death. The First Appellate Court taken note of other suspicious circumstances and comes to the conclusion that the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 not inspires the confidence of the Court with regard to the very execution of the Will and also taken note of the fact that according to the plaintiff, the Will came into existence in the year 1981 itself, but the same has not seen the light of the day since 26 years. The very Will was not genuine and if she is really a foster daughter of Chowdamma, then as soon as Chowdamma died, the plaintiff would have made her effort to mutate her name to the schedule properties based on the said Will and the same is not done and the same was taken note of by the Trial Court and the First Appellate Court. When the very Will, which was propounded by the plaintiff is surrounded with

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suspicious circumstances, the Trial Court comes to the conclusion that to prove that she is a foster daughter and also that there was a Will and the same is valid, nothing is placed on record to substantiate the same. Both the Courts taken note of the material on record and comes to the conclusion that the propounded Will was not proved. When such being the case, the question of admitting the appeal and framing any substantial question of law does not arise and hence I do not find any ground to admit the appeal and any frame substantial question of law invoking Section 100 of CPC.

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