H. N. Chandrashekar vs. H. N. Gururajanna

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7454 OF 2023

H.N. CHANDRASHEKAR & ANR. APPELLANT(S)

VERSUS

H.N. GURURAJANNA & ORS. RESPONDENT(S)

O R D E R

1. This appeal is directed against the judgment and decree dated 08.03.2019 passed by the High Court of Karnataka at Bengaluru, in R.S.A.No.2891/2006 whereunder the Regular Appeal against the judgment and decree viz., in R.A.No.5/2000 was partly allowed. Earlier, the judgment and decree in OS No. 221/1985 was partly reversed by the First Appellate Court..

2. As per the impugned judgment, the High Court held that the Defendant no. 1, Balenanjundappa, bequeathed item no. 12 of the schedule of properties, in favour of his grandson, who was defendant no. 9, as per Ext.D-23 Will.

3. In short, the judgment and decree passed by the Trial Court in O.S.No.221/1985 as well as the first appellate Court in R.A.No. 05/2000 was modified in terms of the aforesaid finding, in respect of Item no.12 of the schedule of properties and it was declared that the said Item no.12 of the scheduled property was the self-acquired property of defendant no. 1 and it was bequeathed by defendant no. 1 in favour of Digitally signed by VARSHA MENDIRATTA Date: 2024.03.21 10:26:10 IST Reason: Signature Not Verified

defendant no. 9.

4. Heard learned counsel for the appellants and the learned counsel appearing for the respondent nos. 2 and 9.

5. Learned counsel appearing for the appellants would fairly submit that the scope of this appeal is actually confined only to the finding with respect to Item no. 12 of the schedule of properties.

6. We are of the considered view that though the question of bequeathal of item no. 12 of the Schedule of properties under the Will (Ext.D-23) in favour of defendant no 9 was to be considered based on the pleadings and the materials on record, it was not considered appropriately by the Trial Court as also by the Appellate Court.

7. At the same time, the said question was considered in detail by the High Court. We do not think that the challenge against Ext.D-23 Will by the appellants herein deserves consideration for the simple reason that the admitted position is that the attesting witness who was examined to prove the Will, in terms of Section 63 of the Succession Act and Section 68 of the Indian Evidence Act, was never cross-examined by the appellants. In short, it can only be said that in terms of the provisions of Section 63 of the Succession Act,1925 and Section 68 of the Evidence Act, 1872, Ext.D-23 Will was proved and none of the parties could establish that it is shrouded with suspicious circumstances, prima facie, and therefore, it can only be taken that its validity was not disputed.

8. In the said circumstances, the appellants cannot raise any challenge against the Will in this proceeding. The upshot of the discussion is that the finding of the High Court in the Second Appeal with respect of the validity of the Will which was never challenged in accordance with law. Therefore, the appellants are not entitled to challenge the judgment and decree passed by the High Court, on the aforesaid grounds, before this Court, for the first time.

9. Resultantly, this Appeal is dismissed.

10. Pending application(s), if any, shall stand disposed of.

.......................J. [C.T.RAVIKUMAR ]

.......................J. [ RAJESH BINDAL ]

New Delhi; MARCH 13, 2024. ITEM NO.102 COURT NO.13 SECTION IV-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 7454/2023

H.N. CHANDRASHEKAR & ANR. APPELLANT(S)

VERSUS

H.N. GURURAJANNA & ORS. RESPONDENT(S)

([ RETAIN IN THE LIST ] IA No. 38526/2021 - EXEMPTION FROM FILING O.T.)

Date : 13-03-2024 These matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE C.T. RAVIKUMAR HON'BLE MR. JUSTICE RAJESH BINDAL

For Appellant(s) Mr. Shailesh Madiyal, Sr. Adv. Mr. Mahesh Thakur, AOR Mr. Vaibhav Sabaharwal, Adv. Mrs. Vipasha Singh, Adv. Ms. Mythili Srinivasamurthy, Adv. Ms. Anusha R, Adv. Mr. Shivamm Sharrma, Adv. Mrs. Geetanjali Bedi, Adv.

For Respondent(s) Mr. E. C. Vidya Sagar, AOR Mr. P.n. Misra, Sr. Adv. Mr. Hemant Kumar Sagar, Adv. Mr. Subhashchandra Sagar, Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeal is dismissed in terms of the signed order.

Pending application(s), if any, shall stand disposed of.

(VARSHA MENDIRATTA) (MATHEW ABRAHAM) COURT MASTER (SH) COURT MASTER (NSH) (Signed order is placed on the file)