.. "AND
1
IN THE HIGH COURT 0!' KARNATAKA AT BANGALORE
DATED THIS THE 29"' DAY OF SEPTEMBER, 2010
BEFORE
THE I-|ON'BLE MRJUSTICE JAWAD
R. .A. No. 1207 2009
BETWEEN:
1. JUNJANNA
AGED ABOUT 59 YEARS. _
S/O PJUNJANNA ' '-
2. SR1 RANGANAHALLI HA!\E_UM»AN'7EHAPPA«_Vv_
S/O P.JUN3ANNA"~~._ A '§ " "
AGED ABOUT 55 YEARS. ;
R/O GOMARANAHALLI, A
HOSUR POST, A
SIRA TA.~LUK_ .'*
3. NARASIMHANNA "
S/O 'DR,J'uNJANN.DAT'
, AGED 'ABOUT S3-YEARS
1 TO 3 ALLAREAT
R-ESIDENT OFKRANGANAHALL1
HOSORTKPOST)
TG_Ow'DA6E»RE HOBLI
SIRE"-TALUK TUMKUR DIST
PETITIONERS
A '(By SR1 G S BALAGANGADHAR, ADv.,)
KARIYANNA
AGED ABOUT 66 YEARS
[Q
2
5/0 SIRADA BHUTHANNA
SANNA BHUTHANNA
AGED ABOUT 48 YEARS
S/O SIRADA BHUTHANNA
R/O KRANGANAHALLI
HOSUR (RDST)
GOWDAGERE HOBLI
SIRA TALUK
TUMKUR DIST.
SMT. PUTTAMMA
AGED ABOUT 69 YEARS
w/0 LATE KARIYANNAJ
SR1 RAMESH S
AGED ABOUT 21 ,Y.EARS,-~~-- _ 'A _
S/O LATE KARIYANEIA A A A
SRISIDDAIAH
AGED ABO:UT_15;YEARS _
MINOR §2EF'P;ESEi':§TEl_D""BY_'CQURT----GUARDIAN
SR1 RAR1SANATH.A'R9_A K A
Av.DvocATE;"-SI'RA'"=._ ' A
3 TO '5% R/O, K;KTPA._LYAv~"
HULIKUNTE HOBL1.
,S1_RA T'A.;,u~:<,v'-Tu'M KUR DIST
S»--MT."T'RAJAMM'A' A
AGED .ABOUT 25 YEARS
wf/-0 'RANGANATHA
D/o.iLAT:E KARIYAN NA
AGEULAEBOURT 25 YEARS
"R"/QEHONNENAHALLI
GQWDAGERE HOBLI
' SIRA TALUK, TUMKUR DIST
EAKUMARA
AGED ABOUT 36 YEARS
S/O LATE RAMANNA
3
AGED ABOURT 36,R/O K.K.PALYA
HULIKUNTE HOBLI
SIRA TALUK
TUMKUR DIST
SIRA TALUK, TUMKUR DIST
3. SMT. PARVATHAMMA
AGED ABOUT 43 YEARS
w/O JAGADEESHA AGED ABOUR
43 YEARS R/O KRANGANAHALLI
HOSUR (POST)
GOWDAGERE HOBLI I
SIRA TALUK V
TUMKUR DIST
.. RES.P.G=ND'ENTS"
(By SRI L DAYANANDA, ADv_., FOR C/RI'& 2):
RSA FILED U/S~..,_ 100" 'Or "GPO AGAINST THE
JUDGEMENT & DECREE.7DATEE§_:1O8§O6;'2QO9 PASSED IN
R.A.NO.77/2006 ON THE-1FILE"OF _T_HE;.cI~,_rIL JUDGE, (SR.
DN.), SIRA, D.ISMISSINvGjjTH-EVAPPEALAVAND CONFIRMING
THE J:tJDGEM4'§.NTvEND-.:D'E'§P.EE DATED: 30.11.2006 PASSED
IN OS'--.NO.158/"2001~.Qi¥i__ THE FILE OF THE ADDL. CIVIL
3UDGE,'{VJ_F'(._DNt.) a<..'3MPr:_,('(SIRA.
;' 'This Cofninvg on for admission this day, the Court
deiiizeried the f0§'iow.i.ng:
QQDQMENT
TVne.V--"ej'j_é;5DeEiant has questioned the judgment in
R.Ak.7..7:/C}6.V4'dated 8.6.2009 on the fiie of Civil Judge
it AA(Sir".~Div"n.), Sira, confirming the judgment and decree in
""Q.'SI158/01 on the me of Additionai cm: Judge, (}r.Divn.),
4
Sira, decreeing the suit as prayed for and ordering division
of properties which were subject matter of the suit and
granting 1/6"' share out of 1/3"' in the suit schedule
properties to the respondents.
2. The appeal is posted for admission aft_e’i=..:notiic.e’tothgy’
respondents.
3. Before adverting to the contentious issues ‘i”ais:.eee
the learned counsel for the app:e’ilant aVgalin’st’-ithleiimpugned’
judgments, a referenceto co’nte>kt-u;a|_’fa.cts reveals as under:
a)i~-‘i4.a:ri~van;ria–.al’o’ng_V’vi’it’h..th’ree others filed a suit in
0.S.1§~8/01 »i.d4ecla’i’ati’on that they are entitled to
1/6″‘ shareiin. of the schedule property which,
ac_r;c-.:rd:in’g V’ to.’ “th.em_,_» had devolved according to Hindu
‘ Wtagksvh a ra’ «.law._ of succession.
H = to the genealogy, tracing succession right
from’.o.ne'”xKenchappa, they averred that he married
Junjamrna through whom he had 3 daughters–Marakka,
“ifielnchamma and Puttamma. Appellants are children of
S
Kenchamma, while respondents 1 and 2 are sons of
Marai<i<a; respondents 4 to 8 are children of Putta.rhrnia_V_who
pre–deceased. The properties described
were acquired by Kenchappa who died
death, the properties devolved, ''
daughters. Since the properties
claim was denied by the re'sp;on_dents'.- ._l?;e':ferri,ng to the
factum of possession Aasjoint andw-q_ua'ritifying their share of
1/6"' out of 1/ 3,79, they..so'ughtV..parti'tion'.:51_=
c) ApVp.ella:{nts hwerein_’VJwe.re.Vthe”‘c’ontesting defendants
who dveniedug’the’:’j3§:iaintifr’s.l’célaimwori the plea that Junjamma
had property in question by
testamentarby». d’is_posi”tio:ri i.e. by way of a will dated
by “v–irtu___e.«of which the entire property devolved
‘ or”. terms of the said will, soon after her death,
they rebstjmeid possession and got entries in the revenue
recor,d’s.,’rn1″Jtated and updated their right in respect of the
2 Aischeduflle properties. Since then, they are in physical
“possession and enjoyment of the properties exercising all
6
rights of ownership to the exclusion of other members of
the family, i.e. descendants of Marakka and Puttanjrna;._V_
d) Respondents 4 to 8 representing
Puttamma denied execution of the will,so=éj5§5′”‘~p|aiVnti,ffs;,’\’~-_V
In the suit, therefore, reievant issues-A-w,ere’eifrari*ied”h:a._set{on
the relevant propositions in -the ple_adings.’V:of.,:the
Since the will was propoundedhy the appieiilants, the onus
naturally was Cast on 3;» ” ‘ .
e) Plaintiffs. tciii V’ their ciaim tendered
evidence ‘ PW2–Marudappa while
the ci:Vefen’dAan’ts aii four witnesses apart from
examining’ _DV¢1«%3id’nj:_arh:n1a. They placed reliance on
revjemle recorcisv-“Ext;-D3? and Patta Book-Ex.D-4, besides
. reiiance ounmthe wili dated 16.8.1974 (Ex.D1) and
‘partition deed (Ex.D2).
E)’ learned trial judge considering the testimony of
Kariyarna (PW1) and Marudappa (PW2) in the fight of
to P13. and also evidence on behalf of the
= …defendants, held evidence tendered by the plaintiffs
aw
7
outweighed the defence and decreed the suit granting the
reiief sought for, against which appeliants preferred
R.A.77/06 reiterating the same piea which found’4.no.,:’fayour
with the iearned appeiiate judge. The appeai wash
by the impugned order.
4. On the same grounds VurgeciK_E_3ef,ore th’e.’,.c’ourts
this second appeai is fi|ed,’*v..c,’;.b5ut learned-…c_”ouVn-sei”‘for the
appeiiants suppiemen”ted more iega-i ‘propositions
with reference to Sectionsuccession Act,
Section 63 of –:1;h_e Iriidian_:jSucce’ssiVofhfnct and doctrine of
‘ouster’i”co\re:sfedé°’-:i’y’– Section ‘.t’1G’of the Limitation Act. Aii
theseV”contentior’u~s”‘ihav.e”rece_ived my serious consideration.
5, 3 “Though several grounds are urged, it boils down to
the Foi”i’owiVing._ aspects oniy:
a case of this nature there is no dispute
the original propositus was Kenchappa who
died intestate, ieaving behind his survivors viz., his
wife and 3 daughters–Marai<i<a, Kenchamma and
Puttamma, was Junjamma, his wife, competent to
dispose of the properties by testamentary
8
disposition in view of the bar envisaged under
Section 30 of the Hindu Succession Act?
2) Even if we were to hold that Jun}amma’s legitimate
share in the property could have been dis’po’sed of
by testamentary disposition, is the wil.i..’execijted. in
the manner prescribed under iaw?
3) Have the appellants est’abiis..h,ed tihualti’.thV¢yT.~ha’veSi’
perfected title on the do;c*trir’ieo”f ‘ou_ster:’?,’ ”
6. The first contention hoid’ utgrerdifiongi, The
admitted facts manifersting from’theV”pleadi’ng5..ofythe parties
reveal, Kenchappa, the” intestate without
disposing ‘properties. “avrii,iv”§manner. Therefore, the
properties ‘hadfifj~b:ecoV_me'”‘ divisible equally among four
persons,V”».yiz._.VSilulrijamlrna, Marakka, Kenchamma and
In”‘su_c.h.ia situation, execution of the will dated
‘ .:it3–.8A. Junjamma was certainly without titie and had
‘ino”ieffect.V~’OjnV.’ithe right, title and interest of other co–sharers.
Junjamrnaé could have disposed of by testamentary
2 xpdlispyosiltion oniy 1/4″‘ share she had succeeded from her
Adihusband, but for that also the wili had to be proved as
‘required under Section 63 of the Indian Succession Act.
9
7. When confronted with the provision of Section 30 of
the Hindu Succession Act, learned counsel for the ,ap.p’el.lVants
would contend that though under that prov_isi’o’ri§.,’a.’._:wicI:o’irii
could not have disposed of properties formingfjthe-l.,estAate”of>4°~.._V
the original propositus as she had a,cqufiire–d .’o_ni’y ‘one__ sha.i’e ‘
along with other heirs, the.»sa.i_d rest.r_ic’tion wast remojj./ed as.
the will executed by her is avvhdvllbylfiohseht of other
heirs of the original pro”p–o_silfVus,-_’.Awords,whe submits
that though the decevased daughters, two
of them, fanid had consented to
and have attested the
will Elle-“~:’..wouidwcontend that Marakka and
Puttammaé’ to the will, they could not have
retracted the.iVrV’cons.entwand thus, the bequeath is a valid
,peiqije’ath.?’ Rgegardlilnég the necessity to examine the attestors
theeiruillvl iVt’o.,prove that the will was genuine, he submits
that the two attestors namely, Marakka and
,,Putanmia, Marakka was not alive and hence, she could not
ll =._°be examined. PW1 denied being a consenting witness and
V. ._..therefore, she was not examined, noticing adverse animus.
1.2
9. In the instant case, none of the attestors to the will
have been examined. One is said to be dead and the other,
according to the appellants, was won over by the plaintiffs.
But that is no excuse. The provision of Section”-63(c)
referred to above compels examination of ,.~e.n’e..’_of’.;~ ythe
attestors. Since one of the attestors is adrni’tted!?y”~alive,litif
was incumbent to have surnrnoned her’for’«_exam’:iiiat,iVon’hand
nonwsummoning merely on the plea-that she ,wLoul’d”noi: ‘h~av’e,
tendered favourable evidenclegist no e’x~c_u’seV.-3 ‘Even if we
accept such contention,.,_su,,fim_or:ing,’llof. the attestor was a
must. Only on her exat_nl’inVat’ioVnf’if.–‘s.he-l.jwe_ire to turn hostile
or if she_h.ad’l’l’showed’«a:d~v.erse_’ animus, she could have been
cross~e’$ca_rraiinedasis p’e~r:t’ni’ssible in law. That was the right
c:ou,_rs’e,_forxthe_”a’ppel|ants to follow which they have not
lglpolne.E””.l:’fl”hierefore,the proof that is required to be laid to
viiill–:”is totally lacking in this case, particularly
because’ plaintiffs are none else than the legal heirs of
.P,u_ttar’n-nwa, so called alleged attestor to the will.
V’;10. Besides, the successors of Puttarnrna have denied that
their mother was the attestor, that part of the evidence is
14
adversely to the interest of other co–sharers by ouster has
to be examined under the provision of Section 110f:of, the
Limitation Act. Section 110 prescribes a period~—o,f~’:t__w’elve,
years. To sustain such plea, it was inc.ii.nfii3-.ent.l,”~o’n tire
appellants to have established that they’we«re’1i’n’
uninterrupted exclusive Possession ein_d’etrime»n;.t.’,tVo the right,
of other co~sharers/claimants’ other co-V
sharers/claimants whic_h’,~t..in case.elncludesyeethe plaintiffs,
had i<nowledge_of it. 'AiI,_2V'.._'.*,~/ears has to be
reckoned of the adversary. In
the instant' "had put forward their
defenée 'ou'stgW§V;'nd;th'erefo're',vthey had to establish the
date onwhich knowledge of the plaintiffs that
they"vhaveéebeeno"ousted. by the appellants. There is no
.r,rijaterE1~§i proof in regard. However, it is seen that in the
a long period of time after the death of the
ori«ginai 'o.w3nAer, the appellants got revenue records mutated.
..The..'p-laintiffs, i.e. heirs of Puttamma questioned the
9' 'l.,_''mutation entries in the year 1999 and thereafter filed the
-Fisuit in the year 2001. Therefore, the respondents
6921/
15
(plaintiffs) had enforced their right to seek partition to get
their legitimate share within 12 years from the date of
knowledge, Le. 1999. Hence, the doctrine of
not apply to non~suit the plaintiffs in_.t_he’i.r.
partition.
13. Last but not the least,_Tthe coriter:ti_oi¥..::’that»…plaintiffsV:*
are not entitled to 1/69′.share..hasv.toxbe as there
is no dispute with reg’ard..toygenetiwcv’relationship between
the parties andthe fa’ct’:.t:hatV’~theylfalrel’-llttie only surviving
heirs of the Consequently,
by operation7..p:f_:_th’e_» Act to which the
partiesgare were divisible into four
shares nameivy,V’3sinj.amnn’a and her three daughters. Since
is n”ot…_a_l_i\-ie, her share is divisible among the 3
‘ :”S_ince they are also not alive, plaintiffs and
l’re’sponde7nts’i1’wouid be entitled to a share out of 1/3″‘ branch
they. represent. The trial court has examined this issue and
iyglranted to the plaintiffs 1/6*” out of 1/3″ which was the
Vfishare of their mother~Marakl<a. Such finding is fully
rm'
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strongiy supported by not oniy evidence, but aiso by the
position of iaw, and caiis for no interference.
14. In the result, I do not find any groundfio
appeal itseif. Accordingiy, it is rejected,’
vgh*
