IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL NO. 261 OF 2012 C/W REGULAR FIRST APPEAL NO.482 OF 2010 In RFA No.261/2012 Between:
Smt.Savithramma, Aged about 50 years, W/o Sri.Chikkegowda, Residing at No.1640/308, 19th Main, 18th Cross, Muneshwara Block, Bengaluru – 560026.
…Appellant (By Sri.K.S.Uday, Advocate for Sri.D.Boregowda, Advocate) And:
1. Smt.E.Shanthamma, W/o Sri.Late Eraiah, Aged about 40 years, R/at No.3960, Municipal Quarters, Subhashnagar, Nelamangala – 560072.
Bengaluru Rural District.
2. Smt.Leelavathi, Aged about 41 years, W/o Sri.M.Lokesh, R/at No.1640, 19th Main, 19th Cross, Muneshwara Block, BSK 3rd Stage, Bengaluru.
3. Smt.Bhadramma, W/o Hutchegowda, Aged about 53 years, R/at Naragalu Village, Basaralu Hobli, Mandya District – 570004.
4. Smt.M.Parvathamma, W/o Chennegowda, Aged about 47 years, R/at No.1640, 19th Cross, 19th Main, Muneshwara Block, BSK 3rd Stage, Bengaluru – 560026.
5. Smt.E.Saraswathamma, W/o Sri.Rangaswamy, Aged about 45 years, R/at No.Maramma Temple Street, Avalahalli, Mysore Road, Bengaluru – 560026.
6. Smt.Mangalagowri, W/o Sri.Narasimhamurthy, Aged about 43 years, R/at No.475, Krishnanagar, Behind Fire Station, Kyatsandara, Tumkur.
…Respondents (By Sri.A.Madhusudhana Rao, Advocate for R1, R3 to R6 R2 – served unrepresented v/o dated 12.11.2013, R7 and R8 are deleted) This Regular First Appeal is filed under Section 96 read with Order XLI, Rule-1 of CPC., against the Judgment and decree dated 13.11.2009 passed in O.S.No.2310/1998 on the file of the XXXVIII Addl. City Civil Judge, Bengaluru, partly decreeing the suit for partition and separate possession.
In RFA No.482/2010 Between:
Smt.Leelavathi, W/o L.M.Lokesh, Aged about 40 years, R/at No.1640, 19th Cross, 19th Main, Muneshwara Block, BSK IIIrd Stage, Bengaluru.
…Appellant (By Smt.Leelavathi, advocate – absent) And:
1. Smt.E.Shanthamma, W/o Sri.Late Eraiah, Aged about 39 years, R/at No.3960,Municipal Quarters, Subhashnagar,Nelamangala Bengaluru Rural District - 560072.
2. Smt.Bhadramma, W/o Hutchegouda, Aged about 52 years, R/o Naragalu Village, Basaralu Hobli, Mandya District – 570004.
3. Smt.E.savithramma, W/o Chikkegouda, Aged about 50 years, R/o near Ashwath Katte, Avalahalli, Bengaluru – 560026.
4. Smt.M.Parwathamma, W/o Chennagouda, Aged about 46 years, No.1640, 19th Cross, 19th Main, Muneshwara Block, BSK IIIrd Stage, Bengaluru – 560026.
5. Smt.E.Sarswathamma, W/o Rangaswamy, Aged about 44 years, R/o Maramma Temple Street, Avalahalli, Mysore Road, Bengaluru – 560026.
6. Smt.Mangalagowri, W/o S.R.Narasimhamurthy, Aged about 42 years, No.475, Krishnanagar, Behind fire station, Kyatsandra, Tumkur – 560026.
7. Smt.Parwathamma, W/o Gangadaraiah, Age: Major, No.1640, 19th Cross, 19th Main, Muneshwara Block, BSK IIIrd Stage, Bengaluru – 560026.
8. Smt.H.G.Chandrakala, W/o Puttaswamy, Age:Major, No.1640, 19th Cross, 19th Main, Muneshwara Block, BSK IIIrd Stage, Bengaluru – 560026.
…Respondents This Regular First Appeal is filed under Section 96 read with Order XLI of CPC., against the Judgment and decree dated 13.11.2009 passed in O.S.No.2310/1998 on the file of the XXXVIII Addl. City Civil Judge, Bengaluru, partly decreeing the suit for partition and separate possession.
These Regular First Appeals are coming on for Admission, this day, the Court delivered the following:
COMMON JUDGMENT Heard the appellant’s counsel and the respondents’ counsel at the time of admission on these two appeals.
2. The respondent No.1 in this appeal instituted a suit for partition in respect of eight items of the property described in plaint schedule property. The relationship between the parties is as such that plaintiff is the daughter of defendant No.1 and defendant Nos.2 to 7 are her sisters. All the plaint schedule properties belong to joint family. Her father died intestate. She claims 1/8th share in the plaint schedule property. Defendant No.1 died during the pendency of the suit. Defendant Nos.2, 8 and 9 filed separate written statement and defendant No.4 filed a memo adopting the same written statement. Defendant Nos.3, 5 and 7 did not file written statement. Defendant No.2 denies the right of plaintiff to claim partition and contends that their mother Smt.Thimmamma i.e., the defendant No.1 was working as maid servant and from her own income, she purchased item No.1 of the plaint schedule property on 18.01.1975. It was a open site and thereafter, she constructed a house in one portion of item No.1 of plaint schedule property. Defendant No.2 contends that since item No.1 was the self acquisition of defendant No.1, she on 30.12.1991, executed a will in her favour bequeathing southern portion of item No.1 of the plaint schedule property and therefore, after the death of the defendant No.1, she became the absolute owner of the property bequeathed to her. She also contends that about ten years back defendant No.1 sold the North- Eastern portion of the item No.1 of the plaint schedule property i.e., to an extent of 27 feet on North-South and 15 feet on East-West in favour of one Smt.Parvathamma i.e., defendant No.8 and therefore, she contends that plaintiff was not entitled to claim share in item No.1 of the plaint schedule property. Defendant No. 9 also contends that item No.1 of the plaint schedule property was self acquisition of first defendant and that a portion of item No.1 was sold to defendant No.8. She pleaded further that defendant No.8 thereafter sold the property that she had purchased in her (defendant No.9) favour. Her another specific contention is that they perfected their title over northern portion of the item No.1 of the plaint schedule property by adverse possession.
3. The trial Court framed 5 issues and 7 additional issues. The plaintiff examined herself as PW- 1 and got marked 20 documents as per Exs.P1 to P20. Thereafter the defendants examined 3 witnesses as DW.1 to DW.3 and produced 35 documents.
4. The trial Court, after appreciating the evidence, came to the conclusion to partly decree the suit and held that plaintiff was entitled to 1/7th share in all the plaint schedule property except the northern portion of item No.1 of the plaint schedule property to the extent of 15ft X 30ft which was sold to defendant No.8. Aggrieved by this judgment, defendant No.4 has preferred this appeal.
5. I have heard the arguments of the appellants’ counsel and the respondents’ counsel.
6. The learned counsel for the appellant submits that the appellant is a legatee under the Will executed by defendant No.1. The trial Court has not appreciated the evidence properly. It has erred in allotting share to the plaintiff in respect of the property which has been bequeathed to the appellant by her mother i.e., the defendant No.1. He also submits that the appellant has filed an application under Order LXI Rule 27 of CPC for production of Will dated 14.07.1997. The will was not produced in the trial Court. This is a very vital document which needs to be taken on record as it substantiates the contention of the appellant that her mother bequeathed the property to her on 14.07.1997.
7. The respondents’ counsel submits that defendant Nos.2 and 4 only pleaded about the Will dated 30.12.1991 said to have been executed by defendant No.1. Nothing has been pleaded about the Will dated 14.07.1997 in favour of the appellant. These defendants who have specifically pleaded about the will have not proved it by examining one of the attestors to the will. The trial Court has clearly made an observation that the will is not proved. The trial Court is justified in granting share in item No.1 of the plaint schedule property except the portion already sold to defendant No.8.
8. I have perused the impugned judgment. It is to be stated that the application filed by the appellant under Order LXI Rule 27 of CPC does not deserve consideration because the plaintiff themselves produced certified copy of the will dated 14.07.1997 which came to be marked as Ex.P11. Even the will that has been produced along with the application is not the original, it is the Xerox copy attested by a Notary. No purpose will be served if will is allowed. Hence, the said application is dismissed.
9. Though the appellants’ counsel very much contends that the will is executed in appellants’ favour by defendant No.1, there are two wills which are marked as Ex.P10 and Ex.P11. Ex.P10 is a will dated 30.12.1991 and Ex.P11 is a will dated 14.07.1997. The trial Court has clearly observed that neither of these two will has been proved. Mere production of will is not enough. The propounder of the will must prove its execution by examining at least one of the attestors. When the appellant did not find it necessary to examine, obviously it has to be held that will does not get established. With regard to another will dated 14.07.1997 it is to be observed that nothing is pleaded about it in the written statement filed by the appellant and defendant No.2. Therefore, no importance can be given to the second will. When the will does not get established, the plaintiff will get a share in item No.1 of the property excluding the portion already sold to defendant No.8. I do not find that the reasons given by the trial Court are erroneous. There are no merits in this appeal.
Hence, these two appeals are dismissed.
Sd/- JUDGE NS