Smt M Uma Vs Sri Ramalinga Reddy

SMT. M UMA D/O LATE MAREPPA @ MARIYAPPA AGED ABOUT 64 YEARS R/O DOOR NO 25/2/275 JALAMANAGALA ROAD MANJUNATHANAGAR RAMANAGARAM RAMANAGARAM DISTRICT – 562159

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…APPELLANT Digitally signed (BY SRI. SADASHIVAIAH K G, ADVOCATE) by DEVIKA M Location: HIGH AND: COURT OF KARNATAKA SRI RAMALINGA REDDY S/O HONNAPPA, AGED ABOUT 62 YEARS R/O KHAJI SONNENAHALLI KANNAMANGALA POST BIDARAHALLI HOBLI BENGALURU EAST TALUK – 560067

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…RESPONDENT

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(BY SRI. MULLUR SHANTA BALAPPA, ADVOCATE)

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NC: 2025:KHC:44397 RSA No. 485 of 2023

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HC-KAR

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.11.2022 PASSED IN R.A.NO.54/2015 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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 second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court.

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This matter is listed for admission. Heard the

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learned counsel appearing for the respective parties.

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The factual matrix of case of the plaintiff before

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the Trial Court is that she is the owner in possession of the suit schedule property and further case of the plaintiff is that she is the daughter of Mareppa through Mariyamma.

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HC-KAR

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It is the case of the plaintiff that the Will dated 31.01.1998 executed in favour of the defendant- Ramalinga Reddy is null and void. The defendant appeared and filed the written statement contending that Mareppa executed a Will and bequethed the property in favour of his second wife and daughters Suma and Sudha. The defendant also took the contention that suit is filed belatedly and the same is barred by limitation. Hence, the plaintiff is not entitled for the relief of declaration and injunction. The defendant also took the defence that there is no cause of action to file the suit, thus, the suit is not maintainable. In view of the pleadings of the defendant, Additional Issue No.3 was framed that whether late Mariyamma bequeathed the suit schedule properties in favour of Suma and Sudha under the Will dated 01.06.1992.

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Having considered the pleadings of the plaintiff and defendant, the Trial Court allowed the parties to lead their evidence. The plaintiff in order to prove her case, examined herself as PW1 and also examined two more

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NC: 2025:KHC:44397 RSA No. 485 of 2023

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HC-KAR

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witnesses as PW2 and PW3 and got marked the documents at Ex.P1 to P127. On the other hand, defendant examined himself as DW1 and also examined three witnesses as DW2 to DW4 and got marked the documents at Ex.D1 to D53. The Trial Court having considered both oral and documentary evidence placed on record answered Issue Nos.1 to 3 as negative in coming to the conclusion that the plaintiff is not the owner in possession of the schedule property and she is not the daughter of Mareppa through Mariyamma and the plaintiff fails to prove that the Will dated 31.01.1998 executed in favour of the defendant is null and void and answered Issue Nos.4 and 5 as affirmative in coming to the conclusion that the defendant proves that late Mareppa executed a Will and bequeathed the property and the suit of the plaintiff is barred by limitation and hence, the plaintiff is not entitled for any relief as sought in the plaint. The Trial Court also answered Additional Issue No.3 as affirmative in coming to the conclusion that the defendant

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NC: 2025:KHC:44397 RSA No. 485 of 2023

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proves that late Mariyamma bequeathed the properties in favour of Suma and Sudha under Will dated 01.06.1992 and dismissed the suit of the plaintiff.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the plaintiff in

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R.A.No.54/2015. The First Appellate Court having considered the grounds which have been urged in the first appeal, formulated the Points that whether the plaintiff proves that she is the daughter of Mareppa born through his second wife Mariyamma and whether the Trial Court is justified in dismissing the suit of the plaintiff and whether it requires interference of this Court. The First Appellate Court on appreciation of both oral and documentary evidence placed on record, answered Point No.1 as negative in coming to the conclusion that the plaintiff fails to prove that she is the daughter of Mareppa born through his second wife Mariyamma and answered Point No.2 as affirmative holding that the Trial Court rightly dismissed the suit of the plaintiff and consequently confirmed the

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NC: 2025:KHC:44397 RSA No. 485 of 2023

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judgment and decree of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

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The learned counsel appearing for the appellant would vehemently contend that both the Courts have not justified in holding that appellant was not the legal heir of Mariyamma and Mariyamma family in the absence of documentary evidence and the burden lies on the defendant to prove Ex.D2 as contemplated under Section 101 of the Indian Evidence Act. The counsel would vehemently contend that whether the wife of the respondent, namely Suma had rights to bequeath the properties in respect of undivided estate on the strength of an unregistered Will and both the Courts have committed an error in coming to the conclusion that respondent's wife was right in executing the Will in favour of respondent in respect of the exclusive share allotted to her sister and her mother. Hence, this Court has to admit the appeal and frame the substantive questions of law.

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NC: 2025:KHC:44397 RSA No. 485 of 2023

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HC-KAR

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Per contra, the learned counsel appearing for

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the respondent would submit that there is no dispute that Mareppa had executed a Will on 09.05.1991 and subsequently died on 12.05.1991 and the Will executed by Mareppa in favour of the first wife; second wife as well as his two daughters Suma and Sudha is not in dispute. The counsel also would vehemently contend that in turn, the Mariyamma who is the second wife of Mareppa had executed a Will in favour of her two daughters viz., Suma and Sudha and Sudha also subsequently passed away and Suma also executed a Will in favour of her husband that is respondent on 31.01.1998. The counsel would submit that when the Will executed by Mareppa was not challenged, the question of filing a suit claiming that the plaintiff is the owner of the suit schedule property does not arise since the Will is in favour of the second wife and two daughters. Hence, the plaintiff has no locus to file any suit, thus, the very suit itself is not maintainable and hence, both Courts rightly dismissed the suit.

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HC-KAR

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Heard the learned counsel appearing for the

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respective parties and also perused of the material on record. The learned counsel for the appellant would vehemently contend that Mareppa was not having any exclusive right to execute the Will in favour of his first wife as well as the second wife and also Suma and Sudha. The said contention is taken for the first time before this Court. It is not in dispute that Mareppa had executed the Will long back i.e., in the year 1991 (09.05.1991) and the same is not questioned by the plaintiff before any Court of law. It is also important to note that when Will was executed by Mareppa in favour of his first and second wife, as well as Suma and Sudha, the same was not questioned and when the same has attained its finality, the question of plaintiff getting any right in respect of the said property does not arise.

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It is also important to note that the motherMariyamma, who is the second wife of Mareppa also executed the Will in favour of her two daughters viz.,

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Suma and Sudha in the year 1992. In order to prove the said factum of the very execution of Will also examined the witnesses and hence, there is a compliance of Section 63 as well as Section 68 of Indian Evidence Act and also the Indian Succession Act. When such being the case, the question of the plaintiff having any right does not arise. The Trial Court and also the First Appellate Court have taken note of the materials available on record and rightly came to the conclusion that Will which was executed by the mother-Mariyamma in favour of her two daughters was also proved. Apart from that first Will which was executed by the Mareppa was not in dispute. The respondent also got the Will through his wife Suma which was executed on 31.01.1998. When the plaintiff was not having any right over the property in view of not challenging the Will executed by Mareppa and even if relationship is proved and the same is not questioned, the question of filing a suit claiming that she is also a owner of the suit schedule property does not arise and the said fact

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also taken note of by both the Courts. Even the Trial Court also taken note of the admission on the part of PW1 and the same is extracted while passing the judgment in paragraph 9. Apart from that the First Appellate Court also while reassessing the material available on record in paragraph 41 comes to the conclusion that plaintiff has not disputed the due execution of Ex.D1-Will executed by Mareppa. The defendant by examining DW2 and DW3 has also proved due execution of Ex.D2 and D3. When compliance of Section 68 of Indian Evidence Act is made, the question of granting any share in favour of the appellant/plaintiff does not arise. Having considered both the factual aspects as well as question of law, both the Courts have come to the proper conclusion while dismissing the case of the plaintiff. Hence, I do not find any ground to admit the appeal and to frame the substantive questions of law and thus, it is not a case to invoke Section 100 of CPC.

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