Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 742 (KAR)

S. PADMAVATHAMMA v. S. R. SRINIVASA

2003-09-02

body2003
( 1 ) THIS appeal is filed against the judgment and decree passed in R. A. 21/2000 on the file of Civil Judge (sr. Divn.), Mysore, arising out of the judgment and decree passed in O. S. 1434/90 which was originally numbered as O. S. 195/86. ( 2 ) THE appellants are the L. Rs of the 1st defendant. Respondents 1 to 5 filed the suit for declaration of title to the suit property and possession from the 1st defendant. The plaintiffs contend that Smt. Puttathayamma is the propositus. Her son, Subbarao pre-deceased her without any issues. After the demiseof Puttathayamma, her three daughters, Smt. Lalithamma; Smt. Kamalamma and Smt. Indiramma were entitled to succession in equal share of 1/3rd each. Smt. Kamalamma dies issueless. The plaintiffs contend that Indiramma also died issueless. Therefore, the plaintiffs who are the children of Lalithamma claim that their mother would be entitled to succeed to the estate of Indiramma and inturn after the demise of their mother, are entitled to the estate. Defendant 2 and 3 were tenants in the premises under the 1st defendant. The 1st defendant disputes title of the plaintiffs and contends that Puttathayamma executed a will in favour of Indiramma and that the heirs of the husband are entitled to succeed to the estate and not the plaintiffs. Hence, pray for dismissal of the suit. ( 3 ) THE trial court upholds the contention of the 1st defendant that Puttathayamma executed a will in favour of Indiramma and also finds that the plaintiffs are not entitled to succeed to the estate of Indiramma, in view of the provisions contained in Sec. 15 of the Hindu Succession Act (in short, referred to as The Act.) Thus, rejects the claim of the plaintiffs. The first appellate court finds that the will set up by the 1st defendant executed by Puttathayamma in favour of Indiramma under Ex. D7 is shrouded with suspicious circumstances and that the 1st defendant as the propounder, has not explained convincingly the suspicious circumstances to establish genuineness and validity of the will. Thus, holds that the plaintiffs have proved their title to the suit property as the natural successors to the estate and set aside the judgment and decree of the trial court, and allowed the appeal and the suit. Being aggrieved, the L. Rs. of the 1st defendant have preferred this appeal. Thus, holds that the plaintiffs have proved their title to the suit property as the natural successors to the estate and set aside the judgment and decree of the trial court, and allowed the appeal and the suit. Being aggrieved, the L. Rs. of the 1st defendant have preferred this appeal. ( 4 ) AT the stage of admission, L. C. Rs. have been secured at the request of the learned counsel for the parties, and the case is taken up for final disposal on merits. ( 5 ) THE following substantial questions of law arise for consideration: (1) Whether the finding of the first appellate court in holding that the will executed by Puttathayamma in favour of Indiramma is not proved, as it is vitiated by suspicious circumstances, is perverse and contrary to law? (2) Whether the plaintiffs would be entitled to succeed to the estate under Sec. 15 of the Act?5. The contesting 1st defendant does not set up any rival claim of title, but only disputes the title of the plaintiffs and their right to seek possession. According to the 1st defendant, Ex. D7 is the registered will executed by Puttathayamma in favour of her daughter, Indiramma. As argued by Shri. T. N. Raghupathy, learned counsel for the respondents-appellants, I find that Pw-1st plaintiff has unequivocally admitted in his evidence, about issuance of legal notice prior to the filing of the suit and allegations are made therein about execution of the will by Puttathayamma in favour of Indiramma and also admits that she was married to one Chalapati Rao who pre-deceased her and through his first wife, had four children. Ex. D36 is the certificated copy of the plaint in O. S. 233/98 filed by the plaintiffs herein. In the said suit, there is categorical averment to the effect that Puttathayamma, during her lifetime, had executed the will, bequeathing her immovable properties in favour of Indiramma. When execution of the will has become an admitted fact by the plaintiff, formal proof of execution by examining the attestors would not be necessary in law. Therefore, I am unable to agree with Sri Kashinath, learned counsel for the respondents that the will is not proved. Further, the finding of the appellate court that the will is shrouded with suspicious circumstances is based on unwarranted surmises and contrary to the admissions of the plaintiff. Accordingly, point no. Therefore, I am unable to agree with Sri Kashinath, learned counsel for the respondents that the will is not proved. Further, the finding of the appellate court that the will is shrouded with suspicious circumstances is based on unwarranted surmises and contrary to the admissions of the plaintiff. Accordingly, point no. (1) is answered in the affirmative. ( 6 ) THE counsel places reliance on the Division Bench ruling of Andhra Pradesh High Court in Bobballapati Kameswararao and Another. V. Kavuri Vasudevarao (AIR 1972 Andhra Pradesh 189) to impress the point that under Sec. 15 (2) of the Act, only properties inherited by way of intestate succession would pass on to heirs of the parents, if the property is acquired from the parents side. So also, property acquired by intestate succession from the husband shall devolve upon the heirs of the husband and not on the heirs of the parents. But any property acquired other than by was of intestate succession, i. e. either by gift or by bequest under a will, that property becomes the self-acquired property. So Sec. 15 (2) of the Act would not apply and the property shall devolve upon the heirs of the husband as contemplated under Sec. 15 (1) (b ). In para 12 of the judgment, the following observations are made: the term inherented employed in sub-sec. (2) is not defined in the Act. A reading of Sec. 14 (1) of the Act would indicate that the words device meaning bequest under the will and inheritance are distinct expressions and therefore, must convey two separate meanings. The term inheritance therefore would have to be given an meaning which would not include device or a bequest under the will. The term inheritance therefore acquires a restricted meaning and not a wide one though in other Acts or Constitution, the word inheritance may have been given a broader meaning. It accords well with the principles enunciated above that as sub-sec. (2) is an exception to sub-sec. (2) it must be taken to have limited the generality of sub-sec. (1) and consequently the word inheritance will have to be given a narrow meaning, because it is in accord with the legislative intent. It accords well with the principles enunciated above that as sub-sec. (2) is an exception to sub-sec. (2) it must be taken to have limited the generality of sub-sec. (1) and consequently the word inheritance will have to be given a narrow meaning, because it is in accord with the legislative intent. If that term is given the widest possible meaning so as to include within it a will, gift or any transfer inter vivos as is urged by the learned advocate for the appellant, then sub-sec, (2) ceases to serve as an exception to sub-sec. (1) and would be so general as to make sub-sec. (1) ineffective and it would almost destroy it to that extent. It would mean that property acquired by a female from her mother, father husband or father-in-law by whatever means would devolve after the death of the females interest lying issueless in all cases under Sec. 15 (2) Only, Sub-Sec. (1) being applicable to other kinds of acquisition by the female from other persons than the one mentioned in sub-sec. (2 ). Thus there would be two distinct provisions for devolution of property according to the source from which the property is acquired by the female. And in such a case, the transfer in whatever form may have been made by the persons mentioned in sub-sec. (2) in favour of the female, would be meaningless and ineffective. Sub-sec. (2) then would be enlarged in its scope and would function as an independent provision and not strictly as an exception to sub-sec. (1 ). I am in full agreement with the views of the Andhra Pradesh High Court that the word inherited employed in SE. c 15 (2) does not include in its fold acquisition of right by other modes and devices like inter-vivos transfer of right or by will. The provisions of Sec. 15 (2) will apply only when the property is acquired by a female by way of intestate succession, otherwise, the property will devolve as directed under sub- Sec. (1 ). May be, the children of deceased husband of Indiramma being step sond, are not entitled to succession under sub-sec. (1) (a), but however as heirs of the husband, under sub-sec. (1) (b) of Sec. 15, they will be entitled to succeed to the estate. In that view of the matter, the claim of title of property by the plaintiffs is untenable. (1) (a), but however as heirs of the husband, under sub-sec. (1) (b) of Sec. 15, they will be entitled to succeed to the estate. In that view of the matter, the claim of title of property by the plaintiffs is untenable. ( 7 ) PW1 has categorically admitted that the children of the 1st wife of the husband of I are alive and they would be entitled to succeed to the estate and not the plaintiffs. Therefore, the plaintiffs are not entitled to seek the relief of title by succession. Accordingly, the 2nd point is answered in the negative. In that view, the judgment and decree of the trial court is confirmed. Accordingly, the appeal is allowed. --- *** --- .