2014 Supreme(Kar) 1087

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
C.R. Kumaraswamy, J.
K.L. Shivananja Murthy - Appellant
Vs.
K.R. Rajamma and Ors. - Respondents
Regular First Appeal No. 533 of 2010
Decided On : 19-12-2014

Headnote:

In a partition suit, the court held that the Will executed by the deceased was not genuine and did not bind the plaintiffs. The court also held that the defendant had not perfected his title to the suit properties by adverse possession. The court further held that a daughter born before 1976 is entitled to a share in the property as the Hindu Succession Act, 1956 came into force on 17-6-1956.

Fact of the Case:

The plaintiffs and the defendants are the children of Sri K. Lingappa and Smt. Lakshmamma. Sri K. Lingappa died intestate in the year 1974. His wife Smt. Lakshmamma died intestate in the year 1979. The plaintiffs and the defendants succeeded to the schedule properties having undivided right, interest and joint possession in the schedule properties. For the sake of convenience and better management, the revenue records were changed in the name of Sri K. Lingappa. That apart, as suggested by K. Lingappa, the plaintiffs and defendant 1 have executed a General Power of Attorney in respect of their undivided right in the schedule properties in favour of Sri K. Lingappa, for management of the schedule properties. The plaintiffs and defendant 1 executed the said power of attorney to the extent of managing the properties with a bona fide belief and reposing confidence in K. Lingappa. On the basis of the said power of attorney, K. Lingappa has acquired the properties and was managing the properties. During the lifetime of K. Lingappa, the relationship of the plaintiffs and the defendants with him was cordial and K. Lingappa was looking after all his children with utmost love and affection. After his retirement, Sri K. Lingappa settled in his village. He was living with the third defendant and his family. The first defendant all along was residing at Bangalore with his family. The second defendant is residing in Germany. The daughters of Lingappa are residing in their respective husband's places. Though K. Lingappa started to live in his village, he used to come to Bangalore for managing the properties. Out of the schedule properties, there are tenants in various portions of item 1 situated at Bangalore. Sri K. Lingappa used to distribute the income out of the schedule properties among the children i.e., the plaintiffs, defendant 1 and legal heirs of predeceased daughter Smt. Nagarathnamma.

Finding of the Court:

The court found that the Will executed by the deceased was not genuine and did not bind the plaintiffs. The court also found that the defendant had not perfected his title to the suit properties by adverse possession. The court further held that a daughter born before 1976 is entitled to a share in the property as the Hindu Succession Act, 1956 came into force on 17-6-1956.

Issues: 1. Whether the plaintiffs prove that the suit schedule properties were acquired by late Lingappa out of his own earnings? 2. Whether late Lingappa had absolute right to execute Will dated 26-3-1977 bequeathing all the schedule properties in favour of first defendant? 3. Whether plaintiffs prove that the Will executed by late Lingappa are all void and not binding upon them? 4. Whether plaintiffs are entitled for 1/9th share each in the suit schedule property? 5. What decree or order?

Ratio Decidendi: The court held that the Will executed by the deceased was not genuine and did not bind the plaintiffs because: (i) There were suspicious circumstances surrounding the execution of the Will, such as the fact that the deceased was not in a sound state of mind at the time of execution and that the Will was executed in the presence of only one attesting witness. (ii) The defendant had not discharged the burden of proving that the Will was genuine. The court also held that the defendant had not perfected his title to the suit properties by adverse possession because: (i) He had not been in exclusive possession of the properties for the statutory period of 12 years. (ii) He had not ousted the plaintiffs from the properties. The court further held that a daughter born before 1976 is entitled to a share in the property as the Hindu Succession Act, 1956 came into force on 17-6-1956.

Final Decision: The court dismissed the appeal and upheld the judgment and decree of the Trial Court.