IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA R.S.A. NO.152/2013 (PAR) BETWEEN:
1. SRI. CHANNAKESHAVA SHETTY, S/O. BELURAIAH, AGED ABOUT 58 YEARS.
2. SRI. KRISHNAPPA SETTY, S/O. BELURAIAH, AGED ABOUT 53 YEARS, 3. SRI. MUKUNDA, S/O. BELURAIAH, AGED ABOUT 48 YEARS ALL ARE R/O. T.B. CROSS, MAYASANDRA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT - 572 120.
(APPELLANT NOS.2 AND 3 DELETED VIDE COURT ORDER DATED 01.07.2017) . . APPELLANTS (BY SRI. M. RAMAMOHAN, ADV.) AND:
1. SMT. VENKATAMMA W/O. LATE SHIVANNA @ SHIVASETTY, SINCE DIED BY LRS.
1(A) SMT. MANJULA, W/O. LATE ANANTHARAMA, AGED ABOUT 40 YEARS, R/AT HULIYAR, HASSAN DISTRICT.
2. SRI. JAYANNA, S/O. LATE SHIVANNA @ SHIVASETTY, AGED ABOUT 33 YEARS, 3. SRI. SURESH, S/O. LATE SHIVANNA @ SHIVASETTY, AGED ABOUT 31 YEARS, 4. SRI. PANDURANGA, S/O. LATE SHIVANNA @ SHIVASETTY, AGED ABOUT 30 YEARS, SRI. RAMACHANDRAIAH, S/O. BELURAIAH SINCE DEAD BY LR’S 5. SMT. SUJATHA, W/O. LATE RAMACHANDRAIAH, AGED ABOUT 35 YEARS, 6. SMT. RADHIKA, D/O. LATE RAMACHANDRAIAH, AGED ABOUT 16 YEARS, 7. NANDINI, D/O. LATE RAMACHANDRAIAH, AGED ABOUT 12 YEARS, 8. TEJUKUMAR, S/O. LATE RAMACHANDRAIAH, AGED ABOUT 10 YEARS, (RESPONDENT NOS.6 TO 8 ARE MINORS HENCE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. SUJATHA- RESPONDENT NO.5) ALL ARE RESIDING AT T.B. CROSS, MAYASANDRA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT - 572 120.
. . . RESPONDENTS (BY SRI. A.V. GANGADHARAPPA, ADV. FOR RESPONDENT NOS.2 TO 4, SRI. C. SATHYAVEL, ADV. FOR RESPONDENT NOS.5 TO 8, SRI. MANJUNATH M. HEGDE, ADV. FOR RESPONDENT NO.5) THIS REGULAR SECOND APPEAL IS FILED U/S 100 R/W. ORDER 42 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.09.2012 PASSED IN R.A. NO.77/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACT COURT, TIPTUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD. 25.06.2009 PASSED IN O.S. NO.71/2006 ON THE FILE OF CIVIL JUDGE (SR. DN.) AND JMFC, TURUVEKERE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is defendant’s regular second appeal challenging the concurrent judgments and decrees of the courts below whereby the trial court has decreed the suit brought by the plaintiffs for partition and separate possession of their share in the suit schedule properties and it was confirmed by the First Appellate Court.
2. I have heard Sri. M. Ramamohan, learned counsel appearing for the appellant on IAs as well as on main appeal and Sri. A.V. Gangadharappa, learned counsel for the contesting respondent Nos.1A and 2 to 4. Perused the judgments and decree of the Courts below.
3. Respondent Nos.1 to 4 (Plaintiff Nos.1 to 4) filed a suit in O.S. No.62/3003 against the appellants and others before the Civil Judge (Senior Division), Tiptur for the relief of partition and separate possession of their shares in the suit schedule properties. After establishment of Civil Judge (Senior Division) at Turuvekere, the said suit came to be transferred and re- numbered as O.S. No.71/2006 on the file of Civil Judge (Senior Division) and JMFC, Turuvekere.
4. It is the case of the plaintiffs that one Chennappa Shetty was a propositus of their family. He had three sons by names Beluraiah, Shivanna alias Shiva Shetty and Chennigaraya Shetty. The Third son Chennigaraya Shetty had gone out of their family long back. The first son Sri. Beluraiah and the second son Shivanna alias Shiva Shetty have got effected partition long back. Accordingly, all the documents of the properties have entered in their names respectively. The plaintiffs are the legal heirs of the second son Sri. Shivanna alias Shiva Shetty and the defendants are the sons of first son Sri. Beluraiah. Originally, suit schedule properties belonged to one Huchamma alias Boramma. She brought both Beluraiah and Shivanna alias Shiva Shetty to her house for looking after her properties and herself. Even the marriage of the said persons were also performed by her. That all the developments of the properties of Huchamma (Boramma) were looked after by them only. Katha was in the name of Huchamma (Boramma) alone. It is the further case of the plaintiffs that both Sri. Beluraiah and Sri. Shivanna alias Shiva Shetty were agreed that the properties of Huchamma (Boramma) must be divided equally between them. The said Huchamma (Boramma) had executed an agreement confirming the said facts by stating that both the brothers shall enjoy the properties equally. After the demise of Sri. Shivanna alias Shiva Shetty, the 1st plaintiff was looking after the properties of Huchamma (Boramma). However, there is confrontation between plaintiffs and that of the family members of Sri. Beluraiah. It is also the case of the plaintiffs that Sri. Beluraiah taking advantage of his influence and that of poverty of the plaintiffs, got the khata of the properties mutated in the names of the defendants and it came to the knowledge of the plaintiffs recently when they made attempts to claim their legitimate share which was refused by Sri. Beluraiah by stating that the properties have already allotted amongst the sons of Sri. Beluraiah. Hence, the plaintiffs have filed the suit for partition and separate possession of their shares in the suit schedule properties.
5. The 1st defendant filed his written statement and other defendants have adopted the same. The defendants in the written statements have denied all the plaint averments inter-alia contended that the suit schedule properties originally belonged to Huchamma (Boramma). She was the absolute owner of the suit schedule properties. She is none other than the younger sister of the mother of Defendant Nos.1 to 4. She had executed a registered Will in respect of both suit schedule properties in favour of Sri. Chennappa Shetty on 08.09.1971. Subsequently, she died and after her death, the 1st defendant became the absolute owner in possession of the suit schedule properties. Therefore, the plaintiffs are not entitled to any share in the suit schedule properties. It is further contended that the khata and Pahani of the suit schedule properties changed in his name and hence plaintiff filed an Appeal in R.A. No.45/1997-98 and it was dismissed. It clearly shows that the 1st defendant being the absolute owner of the schedule properties by virtue of the registered Will dated 08.09.1971. With these defendants prayed for dismissal of the suit.
6. The Trial court based on the rival pleadings of the parties, has framed the following issues for its consideration ;
“(1) Whether the plaintiffs prove that they have got half share in the suit schedule properties?
(2) Whether the defendants prove that Smt.Huchamma @ Boramma had executed a registered will dated 08.09.1971 bequeathing suit schedule properties in favour of defendant no.1?
(3) Whether the valuation is proper and the court fee paid is sufficient?
(4) Whether the plaintiffs are entitled for relief?
(5) What order or decree?
7. Plaintiffs in order to prove their case have examined 4th plaintiff as PW-1 and three more witnesses as PW-2, 3 and 4 respectively and have produced 67 documents which were marked at Ex.P1 to Ex.P-67. On behalf of the defendants, the 1st defendant was examined as DW-1 and a witness was examined as DW-2 and the documents produced by them were marked at Ex. D-1 to D-37.
8. The trial court after hearing the learned counsel appearing for the parties and after perusing the oral and documentary evidence on record, decreed the suit as under ;
“Suit of the plaintiffs is partly decreed with cost.
It is ordered and decreed that the plaintiffs are entitled for partition and separate possession of their half share in the suit properties by metes and bounds.”
9. The 1st defendant aggrieved by the said judgment and decree of the trial court, challenged the same by preferring a regular appeal in R.A. No.77/2009 before the First Appellate Court. Defendant Nos.2 to 4 in the suit were made as respondent Nos.5, 6 and 7 in the appeal. The first appellate court has also dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Challenging these concurrent judgment and decree of the courts below, defendants 1, 2 and 4 in the suit have preferred this second appeal.
10. Sri. M. Rammohan, learned counsel submits that the defendant No.3 died in the year 2005 and as such the judgment and decree passed by the trial court on 25.06.2009 decreeing the suit of the plaintiffs for partition and separate possession of the suit properties against him is not sustainable and therefore the suit is liable to be dismissed.
11. Learned counsel submits that admittedly, the suit properties originally belonged to Huchamma (Boramma) and she having absolute right over the suit schedule property bequeathed the same in favour of the 1st defendant through a registered Will dated 08.09.1971. As the original Will was lost, the 1st defendant summoned the certified copy of the said Will from the office of the Sub-Registrar and got it marked as Ex.D-35 and established the due execution of the Will. The courts below without considering the same, have committed an error in disbelieving the Will and decreeing the suit of the plaintiffs for partition and separate possession of their share in the suit properties.
12. Learned counsel submits, in this appeal, the appellant (1st defendant) has produced a certified copy of a sale deed under which Huchamma (Boramma) had purchased the suit schedule property and certified copy of the Will marked as Ex.D-35. He further submits that the appellant for want of proper opportunity could not examine the attesters of the Will and therefore he submits matter may be remanded to the trial court so as to enable the appellant to prove the sale deed of Huchamma (Boramma) and execution of the Will.
13. Learned counsel submits that the plaintiffs managed to have the mutation and the revenue records of the schedule properties changed into their names without notice to the defendants. The defendants coming to know the same, challenged the change of mutation by preferring an Appeal before the Assistant Commissioner and the Assistant Commissioner dismissed the appeal holding that there is already suit pending, thereby he submits that the courts below have committed an error in relying upon the revenue records and order passed by the Assistant Commissioner and decreeing the suit of the plaintiffs.
14. Learned counsel submits that there are substantial questions of law arise for consideration in this appeal and therefore, the appeal may be admitted for considering the said substantial questions of law.
15. Per contra, Sri.A.V.Gangadharappa, learned counsel appearing for Respondents No.1(a) and 2 to 4 submits that this second appeal is preferred against the concurrent findings and judgments of the Court below, as such, there are no substantial question of law arises for consideration. He further submits that the defendants, particularly, the first defendant who sets up Will stated to have been executed by Smt.Huchamma bequeathing the suit property in his favour did not produce the original Will and even though certified copy of the Will was obtained from the office of the Sub- Registrar, which was not proved as required under the provisions of the Indian Succession Act and as per the provisions of the Indian Evidence Act. He submits the first defendant who claims exclusive title to the suit property based on the Will failed to examine the attestors and scribe to the Will. Therefore, the Courts below considering these aspects were justified in holding that the Will is not proved and established as contemplated under law. He submits that there are no irregularities or infirmities in the judgments of the Courts below, which warrant interference of this Court and hence, he prays for dismissal of the appeal.
16. It is not in dispute that Smt.Arasamma and Smt.Huchamma @ Boramma were sisters. Smt.Arasamma married Channappasetty. They had three sons. (i) Beluraiah (defendant No.5) (ii) Shivanna @ Shivasetty, (first plaintiff’s husband) and (iii) Channigarayasetty. Third son - Channigarayasetty had gone out of the family long back. The suit properties admittedly belonged to Smt.Huchamma @ Boramma.
17. The case of the plaintiffs is Huchamma died intestate leaving behind defendants No.1, 2, 3 and 4 (Channakeshavasetty, Krishnappa Setty, Ramachndraiah and Mukunda), sons of Beluraiah – 5th defendant and Shivanna @ Shivasetty, husband of plaintiff No.1 – Venkatamma succeeded to her properties equally. It is the further case of the plaintiffs that the first defendant did not agree to divide the suit properties between him and the plaintiffs and therefore, the plaintiffs were forced to institute the suit for partition and separate possession of their half share in the suit properties.
18. The claim of the plaintiffs was contested by the defendants on the ground that Smt.Huchamma during her lifetime bequeathed the suit properties in favour of the first defendant viz., Shivana @ Shivasetty through a registered Will dated 08.09.1971, Ex.D35.
19. As there is no dispute between the parties that the suit properties originally belonged to Smt.Huchamma the only point that arises for consideration before the Trial Court is whether Smt.Huchamma during her lifetime bequeathed the suit properties in favour of the first defendant through the Will, Ex.D35 as contended by the defendants or there was no any such Will executed by her and therefore the properties are liable to be divided equally between the plaintiffs and defendants as contended by the plaintiffs. It is settled principle of law that a person who sets up a Will or claims right to a property based on a Will has to prove the due execution of the Will by producing the said Will and examining at least one of the attestors to the said Will as contemplated under the provisions of the Indian Succession Act and as per the provisions of the Indian Evidence Act. It is not in dispute that the first defendant has not produced the original Will before the Trial Court. Though the certified copy of the Will was summoned from the office of the Sub-Registrar at the instance of first defendant, the due execution of the Will is not proved by examining at least one of the attestors of the Will nor the scribe, of the Will nor any officers from the office of the Sub-Registrar was examined. Infact, it is the contention of the learned counsel for the plaintiffs that marking of certified copy of the Will as Ex.D35 in the absence of defendants laying proper foundation for adducing secondary was itself an error committed by the trial Court. Be that as it may, the facts remains that the first defendant who claims title to the property based on a Will stated to have been executed by Smt.Huchamma in his favour, firstly did not produce the original Will; secondly, did not examine one of the attestors to the Will. A submission was made by the learned counsel for the appellant that one of the attestors to the Will is alive. If that is so nothing prevented the first defendant to examine the said witness to prove the due execution of the Will. On the other hand, Channakeshwava Setty who is the beneficiary under the alleged Will was examined as DW-1 has admitted in his cross-examination that he had taken active role in the execution and registration of the Will. The Trial Court, considering the above material aspect of the matter was justified in holding that the Will is surrounded by suspicious circumstances and its due execution and registration are not proved. As already stated, when Will is not proved and established, the only course left open is to decree the suit for partition and separate possession holding both Beluraiah the 5th defendant in the suit and the wife and children of Shivanna @ Shivasetty who are the plaintiffs are entitled for equal share in the suit properties. Accordingly the Trial Court has rightly decreed the suit.
20. Appellant has filed an application, I.A.No.1 of 2017 under Order 41 Rule 27 r/w Section 151 of the Code of Civil Procedure seeking to produce certified copy of the registered Sale Deed by way of additional evidence through which Smt.Huchamma purchased the suit property. The ownership of Smt.Huchamma was never under dispute. It is nobody’s case that the suit property did not belong to Smt.Huchamma. If that is the case, no purpose would be served in permitting the appellants to produce certified copy of the Sale Deed, through which Smt.Huchamma purchased the suit property. Hence, there is no merit in the application and it is liable to be rejected.
21. Though defendants No.2, 3 and 4 have adopted the Written Statement filed by the first defendant, did not chose to challenge the judgment and decree passed by the Trial Court. Infact, they were made as respondents in the Regular appeal preferred by the first defendant. Even in this second appeal, defendants No.2, 3, and 4 who were initially arrayed as appellants but later, they were transposed as respondents in the above appeal. The fact remains that it was only the first defendant who has been contesting the suit of the plaintiffs filed for the relief of partition and separate possession, on the basis of a Will. The First Appellate Court on re-appreciation of entire oral and documentary evidence on record dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. I have carefully gone through the judgments of the Courts below and do not find any irregularities or infirmities in the said judgments warranting interference. Apparent from that absolutely there is no substantial question of law which arises for consideration.
Hence, the following order:
Both the application I.A.No.1/2017 filed under order 47 Rule 27 read with 151 of CPC as well as the appeal are dismissed as devoid of merit.
No order as to costs.
SD/- JUDGE snc/dh