Karnataka High Court
Fakkirayya S/O Siddayya Puranikmath vs Rudrayya S/O Shivanandayya ... on 17 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2025:KHC-D:8852
RSA No. 5949 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.5949 OF 2012 (PAR)
BETWEEN:
FAKKIRAYYA S/O. SIDDAYYA PURANIKMATH,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O: HALLADAKERI, LAXMESHWAR,
TQ: SHIRAHATTI, DIST: GADAG - 582 101.
...APPELLANT
(BY SMT. PALLAVI S. PACHHAPURE, ADVOCATE)
AND:
1. RUDRAYYA S/O. SHIVANANDAYYA PURANIKMATH,
AGE: 39 YEARS, OCC: RETIRED,
R/O: PUTGAON BADANI,
TQ: SHIRAHATTI, DIST: GADAG.
2. SHIDDALINGAYYA
S/O. SHAMBULINGAYYA PURANIKMATH,
Digitally signed by
AGE: 31 YEARS, OCC: COOLIE,
SAROJA
HANGARAKI
R/O: HIREKOPPA, DIST: GADAG - 582 101.
Location: High
Court of Karnataka,
Dharwad Bench,
Dharwad
3. SMT. SHAMBHAKKA
W/O. JAYADEVAYYA MANIHALLIMATH,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: MASANAGI, TQ: BYADGI,
DIST: HAVERI - 581 104.
4. SHADAKSHARAYYA
S/O. MAHANTAYYA SOPPINMATH,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: SIDDALINGA NAGAR, GADAG - 582 101.
5. VIJAYAKUMAR
S/O. SHADAKSHARAYYA SOPPINMATH,
AGE: 28 YEARS, OCC: NIL,
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NC: 2025:KHC-D:8852
RSA No. 5949 of 2012
HC-KAR
R/O: GADAG, DIST: GADAG - 582 101.
6. VIJAYALAXMI
D/O. SHADAKSHARAYYA SOPPINMATH,
AGE: 24 YEARS, OCC: NIL,
R/O: GADAG, DIST: GADAG - 582 101.
7. SMT. KANCHANAMALA
W/O. PARASHIVAMURTHY HIREMATH,
AGE: 23 YEARS, OCC: HOUSEHOLD WORK,
R/O: JADE, DIST: SHIMOGA - 573 101.
...RESPONDENTS
(BY SRI. C.S.SHETTAR, ADVOCATE FOR
SRI. G.K.HIREGOUDAR, ADVOCATE FOR R1;
SRI. SANGRAM S. KULKARNI, ADVOCATE FOR
SRI. V.P.KULKARNI, ADVOCATE FOR R2 & R3;
R4 TO R7 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
OF THE LOWER APPELLATE COURT, DATED 08.08.2012 PASSED BY
THE COURT OF FAST TRACK, AT GADAG IN R.A.NO.48/2009
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE
(SR.DN) LAXMESHWAR, DATED 28.07.2009 IN O.S.NO.150/2004
AND HEREBY CONFIRM THE JUDGMENT AND DECREE OF THE TRIAL
COURT AND DECREE THE SUIT OF THE PLAINTIFF, IN THE INTEREST
OF JUSTICE AND EQUITY AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:8852
RSA No. 5949 of 2012
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. This appeal is by the plaintiff being aggrieved by the judgment and decree dated 08.08.2012 passed in RA No.48/2009 on the file of Fast Track Court at Gadag (for short, 'First Appellate Court'), by which the First Appellate Court while allowing the said appeal filed by the defendant No.1 set aside the judgment and decree dated 28.07.2009 passed in OS No.150/2004 on the file of Additional Civil Judge (Sr.Dn.), Laxmeshwar (for short, 'Trial Court'), and consequently, dismissed the suit.
2. The subject matter of the suit are the following five items of properties:
(C) ¸ÀgÀPÁj zÀ¥ÀÛj£À°èAiÀÄ £ÉÆÃAzÀÄUÀ¼À £ÀA§gÀUÀ¼ÀÄ:
C.£ÀA UÁæªÀÄ j.¸À.£ÀA ¥ÀA.£ÀA. ªÁqÀð PÉëÃvÀæ DPÁgÀ ±ÀgÁ £ÀA.
1 ¥ÀÄlUÁAªÀ§rß 193 - - 10J-19UÀÄA 7 8 2 ¸ÀzÀgÀ - 34 1 30-50 100-00 ±ÉÃwÌ ¨sÀÆ«Ä 3 ¸ÀzÀgÀ - 365 4 0-02 15-00 ªÀiÁ¼ÀV ªÀĤªÀ »vÀÛ® -4- NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR 4 ¸ÀzÀgÀ - 367 4 0-02 15-00 RįÁè eÁUɪÀ ZÀ¥ÀgÀ 5 ºÀgÀzÀUÀnÖ 16-1 - - 16-38 8-64 ±ÉÃwÌ ¨sÀÆ«Ä (§) ªÉÄð£À D¹ÛUÀ¼À ZÀPÀ̧A¢UÀ¼ÀÄ »ÃVªÉ C.£ÀA ¥ÀƪÀð ¥À²ÑªÀÄ GvÀÛgÀ zÀQët
1. j«d£À ¸À. £ÀA.19 EzÀÄzÀÝjAzÀ ZÀPÀ̧A¢ §A¢¯Áè UÀÄgÀÄw¸À®Ä zÁR¯É EzÉ
2. ²æà ºÀ£ÀªÀÄ¥Àà d°èUÉÃj PÀgÀPÀ£ÀªÀgÀ EªÀgÀ ¸ÀA¢ ¸ÀgÀPÁj gÀ¸ÉÛ ªÀĤ
3. ²æà ªÀÄ°ÃPÀ¸Á§ ªÉÆâ£À¸Á§ §rUÉÃgÀ ºÉÆ® ¸ÀgÀPÁj gÀ¸ÉÛ ¦ÃgÀeÁgÉ EªÀgÀ ªÀĤ eÁ®qÀV EªÀgÀ eÁUÁ
4. ªÀÄzÁgÀ¸Á§ eÁ®qÀV ªÀÄ°ÃPÀ¸Á§ §rUÉÃgÀ ºÉÆ® ¸ÀgÀPÁj gÀ¸ÉÛ EªÀgÀ ªÀĤ ¦AeÁgÀ
5. j«d£À ¸À. £ÀA.16/1 EzÀÄzÀÝjAzÀ ZÀPÀ̧A¢ §A¢¯Áè UÀÄgÀÄw¸À®Ä zÁR¯É EzÉ
3. The above suit in OS No.150/2004 is filed by the plaintiff - Fakirayya Siddayya Puranikmath for partition and separate possession of the suit properties, contending inter-alia that:
a) One Channaveerayya was the propositus who passed away leaving behind three sons namely Channaya, Siddayya and Gurupadayya. After his demise, Channayya the eldest son became the kartha of the joint family till his demise on 07.12.1988. Second son namely Siddayya, who -5- NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR is the father of plaintiff and grandfather of defendant Nos.1 to 3 passed away on 29.12.1979. Third son Gurupadayya, pre-deceased his father. Wife of Channayya pre-deceased him, as such, Channayya did not have any natural heirs. Siddayya the second son of Channaveerayya, had four sons namely
1)Channaveerayya, 2)Shivanandayya, 3)Fakirayya and
4)Shambulingayya. Fakirayya is the plaintiff in the suit.
Channaveerayya S/o. Siddayya passed away leaving behind his wife Shambakka who is defendant No.3. Shivanandayya passed away leaving behind his only son Rudrayya the defendant No.1. Shambulingayya, the fourth son of Siddayya passed away leaving behind his only son Siddalingayya who is defendant No.2.
b) That suit properties are the joint family properties and there has been no partition till the date of filing of the suit. That the plaintiff had learnt about defendant No.1 availing the loan by mortgaging one of the item of suit land situated in Haradagatti in the year 1996-97, which was confirmed to him on 17.06.2001 and upon being -6- NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR questioned, defendant No.1 declared that Channayya had executed a Will dated 09.12.1985 bequeathing the suit properties in his favour thereby he became the absolute owner in possession of the suit properties.
c) That the said Channaya had never executed any Will in favour of defendant No.1, as he was aged 88 years at the time of his death while defendant No.1 was just 12 years of age. The Will is created by defendant No.1 with an intention to grab the suit properties. That the revenue authorities in collusion with defendant No.1 have mutated the name of defendant No.1 even during the lifetime of Channayya vide ME Nos.2542 and 2708, which is illegal and not binding on the plaintiff. Plaintiff has challenged the said mutation entry before the Assistant Commissioner, Gadag and also preferred an appeal before the Deputy Commissioner, who has directed the parties to approach the Civil Court. As such, the suit for partition and separate possession.
4. Defendant Nos.1 to 3 appeared through their counsel. However, defendant No.3 filed written statement -7- NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR admitting the plaint averments and sought allotment of her 1/4th share in the suit properties.
5. Defendant No.1 filed written statement denying some of the averments and allegations made in the plaint, as false. However, admitted the relationship between the parties. It is admitted that, upon the demise of Channaveerayya the propositus, his eldest son Channayya continued to as the manager of the joint family till his demise. The deceased Channayya and his brothers Gurupadayya and Siddayya had entered into a partition of their ancestral properties on 20.06.1948. As such, there were no ancestral joint family properties available on and after 1948. The said Channayya passed away on 07.12.1988 in the house of defendant No.1, who was looking after him till his demise. It is further contended that late Channayya on 09.12.1985 had executed a Will in his favour bequeathing the suit properties while he was in sound state of mind. As such, upon his demise he became absolute owner of the said properties. Neither the plaintiff nor defendant Nos.2 and 3 are having any share, right, -8- NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR title and interest in the suit properties. Land in RS No.193 was a tenanted land granted exclusively in favour of Channayya by the Land Tribunal. The said land is not the joint family property. The suit properties are the self acquired properties of Channayya and he had got independent right over the suit properties. That the plaintiff and defendant Nos.2 and 3 were aware of execution of Will by Channayya in favour of defendant No.1. Yet they did not file the suit within the time prescribed, hence, the suit is barred by limitation. Hence, sought for dismissal of the suit.
6. The Trial Court framed the following issues:
1. Whether plaintiff prove that suit schedule properties are joint family properties and deceased Channaveerayya Puranikmath alone as no exclusive right over the suit properties?
2. Whether plaintiff prove that, will executed by deceased Channaveerayya Puranikmath in favour of Defendant No.1 is created?
3. Whether plaintiff proves that, Mutation No.2708 and 1232 are illegal and said mutation entries are without any basis?-9-
NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR
4. Whether Defendants proves that, deceased Channayya and his brothers Gurupadayya Siddayya partitioned their ancestral properties on 20.06.1948?
3. Whether suit is barred by limitation?
4. Whether plaintiff is entitle share as prayed for along with other prayer?(Cancellation of Mutation and will)
5. What Order or Decree?
7. Son of the plaintiff by name Veerabhadrayya was examined as PW1 and two more witnesses have been examined as PW2 and PW3 and exhibited 21 documents as Ex.P1 to P21. Defendant No.1 examined himself as DW1 and also examined two more witnesses as DW2 and DW3 and exhibited 23 documents as Ex.D1 to D23.
8. On appreciation of evidence, the Trial Court answered issue Nos.1, 2, 3 and 6 in the affirmative, issue Nos.4 and 5 in the negative, and consequently, decreed the suit holding the plaintiff being entitled for 1/4th share in the suit schedule properties. Aggrieved by which, defendant No.1 preferred regular appeal in RA
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR No.48/2009, in which the First Appellate Court framed the following points for its consideration:
1. Whether the defendant No.1 proves that, suit properties are not the joint family properties of plaintiff and defendants No.1 to 3?
2. Whether the defendant No.1 proves that, the deceased Channayya Channaveerayya Puranikamath has, during his life time, executed a registered will deed on dated 09.12.1985 in favour of defendant No.1 bequeathing suit properties?
6. Whether interference of this court is necessary?
7. What order?
9. On re-appreciation of the evidence, the First Appellate Court allowed the appeal, set aside the judgment and decree passed by the Trial Court. Hence the present appeal by the plaintiff.
10. This Court vide order dated 24.08.2015 admitted the appeal for consideration of the following substantial questions of law:
1. Whether the lower Appellate Court is justified in believing the 'Will' deed - Ex.D-23, reversed the judgment and decree of the Trail Court in view of the provisions of Section 68 of the Indian Evidence Act, 1872?
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR
2. Whether the lower Appellate Court is justified in holding that there was a prior partition in the joint family of the plaintiff and defendants pursuant to Ex.D-1 and Ex.P-23?
3. Whether the lower Appellate Court is justified in reversing the judgment and decree of the Trial Court holding that the occupancy rights in respect of R.S.No.193 was granted exclusively in favour of deceased Channayya, as a manager of the joint family?
4. Whether the lower Appellate Court is justified in reversing the judgment and decree of the Trial Court in the facts and circumstances of the present case?"
11. Smt. Pallavi S. Pachhapure, learned counsel appearing for the appellant/plaintiff extensively taking this Court through the pleadings, oral and documentary evidence produced by the parties, submitted that; (a) the suit properties are the joint family properties of Channaveerayya the original propositus. That even according to the admission made by the defendants in paragraph No.2 of the written statement, upon the demise of the original propositus his first son Channayya became kartha and managed the properties till his demise. That item No.1 of the suit schedule properties namely land
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR bearing RS No.193 measuring 10 acres 19 guntas is a tenanted land which was granted in favour of Channayya, the eldest son of original propositus in terms of Form No.10 dated 28.06.1980. Since, the said land was granted in the name of Channayya being the kartha and eldest member of the family, the grant shall enure to the benefit of the joint family. That though other items of the suit schedule properties were purchased in the name of said Channayya, the same were purchased for and on behalf of the joint family as even according to the defendant there was no partition.
(b) That the Trial Court on appreciation of the evidence and the witnesses examined in support of the Will by the defendant had come to the conclusion that the said Will was surrounded by suspicion, which have been narrated by the Trial Court. The First Appellate Court without adverting to these aspects of the matter ought not to have reversed the finding and conclusion arrived at by the Trial Court. That even according to DW2, who is one of the attesting witness examined by the defendant No.1,
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR there is inconsistency with regard to testator affixing his signature onto the Will. That apart, father of defendant No.1 Shivanandayya had accompanied Channayya at the time of execution of the said Will, which indicates the Will was created at the instance of the father of the defendant No.1.
(c) Adverting to the plea of prior partition raised by defendant having taken place on 20.09.1948 as per Ex.D1, she submits that the said partition was in respect of certain land in Sy.No.68, which was measuring 10 acres 16 guntas and not with respect to the suit schedule properties. Adverting to the documents at Exs.D8, D11, D12, D13 and D18 relied upon by the defendants to evidence the partition, she submits that those documents do not in any way indicate the partition of the suit schedule properties. She refers to the document at Ex.D4, produced by the defendants to contend that the stand taken by the defendants is inconsistent, while on the one hand, they claim that the partition having taken place in the year 1948, while on the other hand Ex.D4 indicate the
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR partition having taken place in the 1972. In any event, the said documents do not complement each other, but they contradict the plea of prior partition.
(d) That the said documents are not registered and there have been no revenue entries pursuant to the said documents. As such, the said documents cannot be relied upon to accept the contention of prior partition. She also insists that the name of defendant No.1 was inserted in the revenue records, even during the lifetime of deceased Channayya, as evidenced at Ex.P5, which is one of the circumstances giving rise to the question regarding genuineness and authenticity of the Will, which has to be read in favour of the plaintiff. Hence, she submits that the substantial questions of law be answered in favour of the appellant.
12. Learned counsel Shri Sangram S.Kulkarni appearing through video conferencing for respondent Nos.2 and 3, who are defendant Nos.2 and 3, drawing attention of this Court to a document at Ex.P22, which is a letter purported to have been written by the deceased
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR Channayya on 16.01.1986 addressed to one Shankaragowda (who is examined as PW2), referring to the contents of said document, learned counsel vehemently submits that deceased Channayya at an undisputed point in time sought the intervention of PW2 - Shankaragowda, who was then a Member of Legislative Assembly, complaining him about father of defendant No.1 obtaining signatures on the blank sheets and expressing his desire that upon his demise, his properties to be divided / partitioned equally amongst the children of his brother Siddayya and assigning such responsibility to said Shankaragowda (PW2). Thus relying upon the said document, he submits that Ex.D23, purported Will relied upon by defendant No.1 has to be discarded inasmuch as the last and the final desire of Channayya was to distribute the properties equally amongst the children of his brother Siddayya and not exclusively to be given to defendant No.1. Hence, he submits, the theory of Chanayya executing the Will does not stand and the same requires to be rejected. That the trial Court taking into consideration
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR of all these aspect of the matter had rightly decreed the suit granting 1/4th share each to the parties, which ought not to have been interfered or reversed by the First Appellate Court. Hence he supports the case of the appellant.
13. Per contra, Shri C.S. Shettar, learned counsel appearing for defendant No.1, equally taking this Court extensively through the records, submitted that: (a) the plaintiff has neither pleaded nor proved the existence of any joint family properties standing in the name of Channaveerayya. That there cannot be a presumption of a joint family holding joint family properties, the party asserting so has to prove it by leading cogent evidence, which, he submits, lacking in the instant case.
(b) Reading through the document at Ex.D1, he submits that the only property that was available as in the year 1948 was the land in Sy.No.68, which was distributed equally amongst the heirs of Channaveerayya, namely his wife Basavva and his three sons Channayya, Siddayya and Gurupadayya. Referring to Exs.D7 and D8, learned counsel
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR submits that the said documents, being the revenue records, indicate that the parties after having entered into a partition on 20.06.1948 as per Ex.D1 had acted upon same, by exercising their right of ownership. In that they had alienated their respective shares in the properties allotted, in the partition by executing the deeds of sale. He submits that Gurupadayya, the third son of Channaveerayya had sold his part of the property in favour of one Ismail, from whom Channayya had purchased the share of Gurupadayya.
(c) That the house property which had been allotted to the share of Basavva, the wife of the original propositus was again subjected to further partition as per Ex.D4, in terms of which, the said house was further divided amongst the three sons of Channaveerayya.
(d) The said Channayya had purchased item No.5 property bearing R.S. No.16 from one Siddaveerayya on 27.03.1957, in terms of Ex.D17. That he purchased item No.2 property in terms of deed of Sale on 02.05.1960 as
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR per Ex.D16, and item Nos.3 and 4 properties purchased on 16.04.1962 as per Ex.D15.
(e) That the land in Sy. No.193 measuring 10 acres 19 guntas had been granted in the name of Channayya on 28.06.1980 as per Ex.D3. The demand notice in this regard had been raised by the concerned authorities on 30.04.1978 as per Ex.D6. Referring to these documents, learned counsel submits that the suit schedule properties were the self-acquired and absolute properties of Channayya, he having exclusive right to deal with the way he desired and in furtherance to the said exercise, he had executed the Will dated 09.12.1985.
(f) Referring to the deposition of PW3 as well as DW2, who are attesting witnesses to the said Will, he submits that the requirement of proof of Will as contemplated under Section 68 of the Evidence Act has been complied with. As such, the trial Court could not have disbelieved the proof of Will. He submits that the First Appellate Court having taken into consideration the factual and legal aspects of the matter has come to just
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR conclusion of holding that the suit properties to be the absolute properties of deceased Channayya and he having absolute right to execute the Will bequeathing the properties in favour of the defendant No.1, and no error of any nature can be found with the same.
(g) He relies upon the judgment of the Apex Court in the case of SMT. INDU BALA BOSE AND OTHERS Vs. MANINDRA CHANDRA BOSE AND ANOTHER1, in support of his submission that suspicion circumstance alone cannot be a ground to discredit the authenticity of the Will. He further relies upon the judgment of the Coordinate Bench of this Court in the case of S. JAGADEESH Vs. DR. S. KUMARASWAMY SINCE DEAD BY L.Rs. S.K. LINGARAJU AND OTHERS2 to submit that a proof of revocation of Will, will also have to be on the similar lines as that of requirement of proof of Will and that reliance placed on by the learned counsel for the appellant and defendant Nos.2 and 3 on to the letter at Ex.P22 is of no avail.
1(1982) 1 SCC 20 2 ILR 2008 KAR 87
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR
(h) Relying upon the judgment of the Apex Court in MARABASAPPA (DEAD) BY L.Rs. AND OTHERS Vs. NINGAPPA (DEAD) BY L.Rs. AND OTHERS3 he submitted that there cannot be a presumption of existence of joint family properties in the absence of evidence in that regard.
(i) As regards the contention raised by the appellant pertaining to entry of name of defendant No.1 in the revenue records even during the lifetime of Channayya, learned counsel points out to the document at Ex.P5 and submits that such entry was in the column provided for other rights (Miscellaneous Rights) and the same cannot be taken as an exception to as any right created by a Will would come into force only upon the demise of the testator. Thus, he submits that no substantial question of law would arise for consideration and the judgment and decree passed by the First Appellate Court warrants no interference.
3 (2011) 9 SCC 451
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR
14. Heard perused the records.
15. Perusal of the plaint averments would indicate that the family of the plaintiff and the defendants has been purportedly living as a joint family even prior to the year 1908. However, even while giving the details of the properties at paragraph No.2 of the plaint, there is no whisper in the entire plaint as to how these properties became / treated as the joint family properties. Though it is settled proposition of law that the grant of agricultural land made in favour of one member of the joint family enures to the benefit of the other members, the person asserting so is required to plead and prove the existence of joint family properties. Needless to state, a presumption of existence of a joint family cannot be extended to the existence of joint family properties without there being any cogent and acceptable material evidence brought on record (Marabasappa supra). It is in the aforesaid legal and factual background of the matter, the present lis needs to be addressed.
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR
16. Admittedly, item No.1 of the suit schedule property, namely the land in Sy.No.193 measuring 10 acres 19 guntas has been granted in the name of Channayya in terms of the grant order culminating in issuance of Form No.10 on 28.06.1980 as per Ex.D.3.
17. Item No.5 of the suit schedule property, according to the document furnished by the defendants, has been purchased by Channayya on 27.03.1957 as per Ex.D17. That is the only agricultural land, which was in possession and ownership of Channayya prior to grant of Item No.1 of the suit schedule property.
18. As regards, the grant of Item No.1 of the suit schedule property except the averments in the plaint, no documents of any nature whatsoever is brought on record to indicate the said land was either in possession or cultivation of the original propositus Channaveerayya. Admittedly, the said Channaveerayya passed away prior to 1946, though a specific date is not mentioned. There is not even a suggestion that the said land was being cultivated
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR by Channayya, his eldest son, far and on behalf of the joint family.
19. The defendants in response to the claim of the plaintiff have setup a plea of prior partition having taken place on 20.06.1948 as per Ex.D1. Though, the plaintiff has not whispered anything about the existence of property in Sy.No.68 in the plaint, has however not denied, the said property being in possession of the family members and the same having been dealt with by the members by alienating same to the third parties. There is not even a suggestion put forth by the plaintiff to the defendants' witnesses that the property in Sy.No.68 never belonged to the family of the plaintiff and the defendants. On the contrary, justification is sought to be made with regard to the circumstance under which the said land in Sy.No.68 was alienated to different persons.
20. Necessary at this juncture to note that in terms of three different deeds of sale all dated 07.08.1959 as per Ex.D.11, D.12 and D.13, Channayya, original plaintiff Siddayya and Smt.Basavva the wife of propositus had
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR conveyed portions of land in RS No.68/1, 68/2, 68/3 and 68/4 respectively in favour of one Basavanagouda S/o Havaldargouda Patil. This indicating the fact of parties exercising their ownership in respect of the shares that were allotted to them in the partition dated 20.06.1948 as per Ex.D.1. Channayya had in turn repurchased portion of RS No.68/3 from one Ismailsab Laxemshwar on 30.08.1952 as per Ex.D.18. These transactions have been reflected in the revenue records as per Ex.D.7 and D.8.
21. In terms of Ex.D.1 a house property was allotted to the share of Basavva which was further subjected to partition as per Ex.D.4 in terms of which the said house property has been divided amongst the three sons of Channaveerayya. There has been no contra evidence produced by the plaintiffs to disprove these factual aspects of the matter evidenced by the documents referred to above.
22. There cannot be any dispute regarding recoginizition of oral family partitions/arrangements under law between the members of the joint family. Provided
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR such oral partitions/agreements must be evidenced by some public records regarding the same having been acted upon. The Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma reported in AIR 2020 SC 3717, even while dealing with the requirement of a registered deed and a court partition, as contemplated under the amended provisions of Section 6. Para No.137 of the said judgment reads as under:
"137.5. ............. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea or partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
1. Similarly, this Court in the case of Rathnamma supra, at para No.11 dealing with the question of proof of oral partition has held as under:
"11. It is by now well settled that it is open to the members of the co-parcenery to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether the co- owners in exclusive possession of different portions of joint family property held the same in the partition or under an agreement as to the possession, depend upon the intention of the parties which has to be
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR gathered from the facts and circumstances of each case. Where direct evidence of intention is available, there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting, the fact that the members have been living separately and enjoying the properties, separately may be taken into consideration in arriving at the conclusions but that is not conclusive. A provisional arrangement which for some reason continued for a long time without objections doesn't take away its provisional character and make it permanent. There must be some other evidence indicating that the parties have not been living separately under a permanent arrangement or partition. It is also by now well settled that to prove the factum of partition between the brothers, the entries in the record of rights maintained in the official course of business is a relevant piece of evidence. It is not necessary that the partition should be affected by registered partition deed. It could be even oral also."
23. Thus, the aforesaid documents supported by the revenue records indeed support the case of the defendants of there being an earlier partition on 20.06.1948 as per Ex.d.1 and same having been acted upon resulting in severance of joint family status between the plaintiff and the defendants.
24. Another aspect of the matter that the plaintiff has not disputed regarding the parties dealing with property in RS No.68 as contended by the defendants, however have denied any earlier partition. If that be so,
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR no explanation of whatsoever nature is provided as to why the plaintiff has not chosen to bring the said property in RS No.68 for partition in the said suit.
25. As already noted, in the light of there being no dispute by the plaintiff and the defendant Nos.2 and 3 with regard to partition of land in Sy.No.68 and they dealing individually, preponderance of probability has to be drawn in favour of defendant No.1 regarding partition having taken place on earlier occasion.
26. The house properties and Item No.5 of the suit property have been admittedly acquired in terms of the deeds of sale on and after 1957, as per Exs.D15, D16 and D17, in the name of Channayya. As already noted the plaintiff not having whispered anything about the existence of the joint family nucleus or the joint family properties generating the income sufficient enough to purchase the said property, it cannot be presumed on mere asking that the said property was the part of the joint family properties.
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27. Adverting to the contentions surrounding the Will dated 09.12.1985 as per Ex.D23, there is no dispute of the fact that the said Will has been registered and the defendants have examined DW2, who is one of the attesting witnesses. The said witness has withstood the test of cross-examination. Nothing has been elicited from the said witness to discredit his presence at the time of execution of the Will and at the time of testator affixing his signature thereon. It is interesting to note that PW3, who has been examined by the plaintiff, in his cross-examination has repeated in verbatim the evidence of DW2.
28. Section 68 of the Evidence Act, reads as under:
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
29. The evidence of DW2 and PW3 read in the light of the aforesaid provision of Section 68, leads to an irresistible conclusion that defendant No.1 has indeed discharged his statutory obligation of proving the Will in the manner known to law.
30. As regard the suspicious circumstances, insisted by the learned counsel for the appellant, namely father of defendant No.1 accompanying the testator, insertion of the name of the defendant in the revenue records, the testator affixing signature only at one place of the document is concerned, mere accompanying the testator for execution of the Will cannot be considered as a suspicious circumstances unless it is pleaded, brought on record and proved that the said person had induced / instructed / actively participated in drafting of the Will. The evidence of DW2 and PW3 is categorical, in that both the witnesses have deposed that the instructions for drafting
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR of the Will was given by Channayya and the draft was prepared, which was checked by Channayya. Thereafter, the final draft was prepared. Both the witnesses have unshakably deposed to this extent, ruling out any possibility of role of the father of defendant No.1 in preparing the said draft. Therefore, the said suspicious circumstances are to be ignored.
31. As regards the testator affixing his signature only one page of the Will is concerned, it is needless to state that there is no format required for preparation/drafting of a Will. All that is required is affixing of signature of the testator and execution of the same to be proved in the manner provided under Section 68 or Section 69 of the Evidence Act, under the circumstances provided there under, which is not the case at hand.
32. Insertion of the name of defendant No.1 in the revenue records even during the lifetime of the testator hardly of any significance inasmuch as the Will would come into existence only after the demise of the testator.
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33. It is necessary to note that Shri Sangram S.Kulkarni, learned counsel appearing for respondent Nos.2 and 3 pointed out to the letter at Ex.P22 to submit that the last desire of the deceased Channayya was to see that his properties were equally distributed amongst the children of his brother. Though the plaintiff has never whispered about the existence of said document in the pleading and the same sought to be produced while examining PW2 who himself had not pleaded anything about the said document in his evidence, reliance placed on by the plaintiff and the defendant Nos.2 and 3 would indicate that the suit properties were indeed the absolute properties of Channayya. If the plaintiff and defendant Nos.2 and 3 are relying upon the said document, they cannot shy away from the contents of the said document, which categorically indicate that Channayya purportedly intended to distribute his properties amongst children of his brother, Channaveerayya. Thus, the aforesaid pleading, evidence and the documents would clearly indicate that the suit schedule properties were not the
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR joint family properties, but the absolute self-acquired properties of deceased Channayya.
34. Further, it is also pertinent to note that the aforesaid purported letter at Ex.P22 is dated 26.01.1986. It is not clear how the plaintiff learnt about the existence of the said document, inasmuch as there is no reference with regard to the same in the plaint. Even the PW2 who is supposed to be the addressee of the said letter, who has been examined, has not whispered in his examination-in- chief about the said letter. As rightly pointed out by learned counsel for defendant No.1, the said document has been marked after partly cross-examining the said witness.
35. Be that as it is. Even if the said document has to be taken into consideration, as a document revoking the earlier Will, the same runs contrary to the settled principles of law and the provisions of Section 70 of the Indian Succession Act and the law enunciated by the Coordinate Bench of this Court in the case of S. JAGADEESH VS. DR. S. KUMARASWAMY SINCE DEAD
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NC: 2025:KHC-D:8852 RSA No. 5949 of 2012 HC-KAR BY LR.S S.K. LINGARAJU AND OTHERS (supra), in terms of which, revocation of the Will should also be duly signed by the testator with an intention to cancel the Will shall be duly attested by two or more witnesses requiring proof as equal to that of the proof of Will. That not having been done, the said document cannot be relied upon by defendant Nos.2 and 3 to contend that the Will had been revoked. Another aspect of the matter to be seen is that if the plaintiff and defendant Nos.2 and 3 had relied upon Ex.P22, conversely the same suggest and indicate their admission regarding execution of the Will.
36. For the aforesaid reasons and analysis, the substantial questions of law raised above are answered accordingly. In that, no error or illegality can be found with the First Appellate Court reversing the judgment and decree passed by the trial Court by holding that there was prior partition and that Channayya had indeed executed a Will at Ex.P23 and that the land in Sy.No.193 was granted exclusively in the name of Channayya.
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37. The appeal is dismissed. The judgment and decree dated 08.08.2012 passed in R.A. No.48/2009 by the First Appellate Court is confirmed.
Sd/-
(M.G.S. KAMAL) JUDGE SMM-para 1 to 14 VNP-para 15 to till end CT-ASC List No.: 1 Sl No.: 1