Junjanna vs Kariyanna on 29 September, 2010

Karnataka High Court
Junjanna vs Kariyanna on 29 September, 2010
Author: Jawad Rahim
 .. "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'

16
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*

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