MOHAN M.SHANTANAGOUDAR,J. - (1.) The instant appeals arise out of the common final judgment and order dated 01.10.2012 passed by the High Court of Karnataka at Bangalore in R.F.A. No. 1888/2011 and R.F.A. No. 1889/2011. Vide the impugned judgment, the High Court partly allowed R.F.A. No. 1888/2011 by affirming the relief granted by the Trial Court that Respondent No. 1 herein is not bound by the sale deed executed by his mother in favour of the Appellants herein. Further, the High Court dismissed R.F.A. No. 1889/2011 vide the impugned judgment.
(2.) The factual background to these appeals is as follows: 2.1 The suit property was the selfacquired property of one M. Srinivasa Murthy (hereinafter 'testator') who had purchased it from the Bangalore Development Authority in 1974. He had a daughter namely M.S. Bhavani (Appellant No. 1 herein) and a son namely M.S. Raghu Nandan (Respondent No. 1 herein). Appellant No. 1 initially got married in 1983 and a son named Sameera was born to her. However, her marriage ended in a divorce and she then married one Suresh Babu (Appellant No. 2 herein) in 1994. At such time, her son was about 10 years old. 2.2 In 2002, M. Srinivasa Murthy died, leaving behind his last Will dated 07.06.1995, written in his own handwriting (holograph) and registered before the SubRegistrar, Rajajinagar, Bangalore. Under this Will, he had bequeathed the suit property in favour of his wife, Nirmala Murthy (Respondent No. 2 herein). 2.3 In exercise of the rights vested in her by the Will dated 07.06.1995, Respondent No. 2 Nirmala Murthy executed a sale deed on 25.02.2004 in favour of the Appellants herein (her daughter and soninlaw) for the sale of the suit property for a consideration of Rs. 16,42,000/ (hereinafter 'the sale deed'). It has been stated that such amount was paid in cash by the Appellants at the time of the execution of the sale deed. 2.4 Respondent No. 1 herein filed O.S. No. 6341/2006 against his mother Nirmala Murthy (Respondent No. 2), and his sister and brotherinlaw (the Appellants herein), seeking a declaration inter alia that his mother and sister were not entitled to execute any sale deed in favour of his brotherinlaw, as he had a share in the suit property and the Will dated 07.06.1995 only gave his mother, Nirmala Murthy, a life interest in respect of such property. 2.5 Later, O.S. No. 1845/2008 came to be filed by the Appellants against Nirmala Murthy seeking her ejectment from the suit property on the ground that she was a mere licensee, who had only been permitted to stay in the property after the sale in 2004, as the Appellants were residing in Australia. It was stated that the Appellants did not wish to continue the said licence in her favour, as she had joined hands with Respondent No. 1 to file O.S. No. 6341/2006 against them. 2.6 Vide common judgment dated 09.09.2011, the III rd Additional City Civil Judge, Bangalore City partly decreed the suit for declaration, O.S. No. 6341/2006, noting that though the Will dated 07.06.1995 vested absolute rights with Nirmala Murthy in respect of the disposition of the suit property, the sale to the Appellants was vitiated by fraud inasmuch as Nirmala Murthy never intended to sell the property to the Appellants. It was further found that the Appellants had gotten the sale deed executed by misrepresentation by obtaining Nirmala Murthy's signatures on the pretext that they were required on her visa applications for travel to Australia. In light of this, it was held that the sale deed did not bind Respondent No. 1, being a fraudulent document against the intention of the testator. Based on such finding, ejectment suit O.S. No. 1845/2008 was also dismissed. 2.7 In the appeal before the High Court, vide the impugned judgment dated 01.10.2012, it was observed that the nature of the right vested with Nirmala Murthy under the Will dated 07.06.1995 was absolute and she had unfettered powers to sell the property, as long as her discretion was exercised voluntarily. However, the High Court also noted that in the event that a sale was made by Nirmala Murthy, both her children (Appellant No. 1 and Respondent No.1 herein) would be entitled to a share in the sale proceeds. As regards fraud or coercion in the execution of the sale deed, the High Court modified the findings of the Trial Court and observed that there was no material on record to show that Nirmala Murthy had been drugged or threatened at gunpoint so as to execute the sale deed in question. Notwithstanding this, the final relief granted by the Trial Court that Respondent No.1 was not bound by the sale deed, was confirmed on the basis that such sale deed was against the intention of the testator inasmuch as it should have been executed in a transparent manner, after obtaining the concurrence of Respondent No. 1. 2.8 It is against this common judgment that the Appellants have come in appeal before this Court. At this juncture, it may also be noted that Respondent No. 2 Nirmala Murthy passed away during the pendency of the proceedings before this Court.
(3.) Heard learned Counsel for the parties.;