Karnataka High Court
Gururaj S/O Gadigeppa Koujageri vs Mallikarjun Gururaj Koujageri on 28 April, 2026
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NC: 2026:KHC-D:6337
WP No. 101706 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 28TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.101706 OF 2024 (GM-CPC)
BETWEEN:
GURURAJ S/O. GADIGEPPA KOUJAGERI,
SINCE DECEASED BY HIS LR'S
LEGATEE UNDER WILL
BASAVANNEVVA D/O. GURAPPA YALBURGI,
AGE. 49 YEARS, OCC. SERVICE IN SDM,
R/O. 2ND CROSS, HOSUR, HUBBALLI,
TQ. HUBBALLI, DIST. DHARWAD-580001.
...PETITIONER
(BY SRI. VINAY S.KOUJALAGI, ADVOCATE)
AND:
1. MALLIKARJUN GURURAJ KOUJAGERI,
AGE. 64 YEARS, OCC. BUSINESS,
R/O. HOURS, HUBBALLI, TQ. HUBBALLI,
DIST. DHAWAD-580001.
Digitally signed
2. SURESH GURURAJ KOUJAGERI,
by AGE. 62 YEARS, OCC. SELF EMPLOYED,
MOHANKUMAR R/O. HOSUR, HUBBALLI, TQ. HUBBALLI,
B SHELAR
DIST. DHARWAD-580001.
Location: HIGH
COURT OF
KARNATAKA 3. SMT. SUDHA W/O. SHIVAPRASAD KOUJAGERI,
AGE. 65 YEARS, OCC. HOUSEHOLD WORK,
R/O. NO.10, K.G. ROAD, EXTENSION,
II CROSS, BANGALORE-560001.
...RESPONDENTS
(BY SRI. A.R. KALYANSHETTY, ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION AND QUASH THE ORDER DATED 4/1/2024 PASSED BY THE
II ADDL. SENIOR CIVIL JUDGE AND JMFC HUBBALLI ON I.A.NO.10 IN
F.D.P NO.44/2007 PRODUCED AT ANNEXURE-G, IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,.
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NC: 2026:KHC-D:6337
WP No. 101706 of 2024
HC-KAR
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. The petitioner, aggrieved by the order on I.A. No.10 dated 04.01.2024 passed in F.D.P. No.44 of 2007 on the file of the learned II Additional Senior Civil Judge and JMFC, Hubballi, filed this petition.
2. Brief facts, leading rise to filing of this writ petition are as follows:
3. Respondent Nos.1 and 2 filed a suit for partition and separate possession in O.S. No.3 of 2001 on the file of the learned II Additional Civil Judge (Sr. Dn.), Hubballi. The said suit was decreed with compensatory costs of ₹3,000/-, and it was declared that respondent Nos.1 and 2 are entitled to 2/3rd share in the suit properties, with liberty to seek division of their share by metes and bounds through appointment of a Court Commissioner.
4. The deceased petitioners herein, being aggrieved by the judgment and preliminary decree passed in O.S.No.3 of 2001, preferred an appeal before this Court in RFA No.1867 of 2007. This Court, vide judgment dated 17.12.2020, allowed the -3- NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR appeal and modified the judgment and decree of the trial Court, holding that respondent Nos.1 and 2 and the deceased petitioner are each entitled to 1/4th share in the suit schedule property.
5. It is also recorded that during the pendency of the appeal, the deceased petitioner died, and an application was filed to bring on record the legal representatives of the deceased appellant/petitioner based on the Will alleged to have been executed by the deceased. The said application was allowed, permitting the applicant to come on record as the proposed legal representative, subject to the condition that the Will has to be proved, and subject to all other rights, liabilities, and contentions of the respondents.
6. The genuineness of the Will was required to be proved before the FDP Court in F.D.P. No.44 of 2007 pending on the file of the learned II Additional Senior Civil Judge, Hubballi. During the pendency of the proceedings, the petitioner filed I.A. No.10.
7. The FDP Court conducted an enquiry on I.A. No.10, wherein the petitioner was examined as PW-1. The proposed legal representative of the deceased petitioner was also examined as PW-1 and another witness was examined as PW-2. -4-
NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR
8. The respondents did not lead any rebuttal evidence. The FDP Court, after recording the evidence, framed the following points for consideration:
(i) Whether proposed defendant No.2(a) proves that, the deceased Gururaj Gadigeppa Koujalagi executed a will in favour of her?
(ii) Whether proposed defendant No.2(a) entitled for the relief as prayed in the application?
9. The FDP Court, after re-appreciating the oral and documentary evidence, rejected I.A.No.10 vide order dated 04.01.2024. Being aggrieved by the said order, the petitioner has filed this writ petition.
10. Heard the arguments of the learned counsel for the petitioner, and the alleged legal heirs of the deceased petitioner, and respondent.
11. Learned counsel for the petitioner submits that the suit schedule properties were owned and possessed by Smt.Susheela, who had acquired the same from her parents. During her lifetime, she executed a Will bequeathing the suit schedule property in favour of the petitioner, namely Gururaj. -5-
NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR After the demise of Smt. Susheela, Gururaj became the absolute owner of the suit schedule property by virtue of the said Will.
12. Subsequently, the respondent No.1 and 2 filed a suit for partition in O.S.No.3 of 2001, which came to be decreed. He submits that the petitioner, being aggrieved by the judgment and preliminary decree, preferred an appeal in RFA No.1867 of 2007. He further submits that the judgment and decree passed by the trial Court were modified, and it was held that the petitioner is entitled to 1/4th share in the suit schedule property. He further submits that Gururaj executed a Will bequeathing the suit schedule property in favour of Basavannevva, s/o Guruppa, Yelburgi. Based on the said Will, Basavannevva has become the absolute owner of the suit schedule property. He submits that, in order to prove the execution of the Will, the attesting witness was examined as PW-2.The trial Court has committed an error in not properly appreciating the evidence of PW-1 and PW-2 and the Will produced by the petitioner. Thus, the impugned order passed by the FDP Court is arbitrary and erroneous.
13. Per contra, learned counsel for respondent Nos.1 to 3 submits that the trial Court has recorded a finding that Susheela died intestate and that the property in question is her stridhana -6- NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR property. Upon her demise, her children inherited the property under Section 15 of the Hindu Succession Act.
14. He further submits that Gururaj had no right, title, interest, or share in the suit schedule properties. However, this Court has awarded 1/4th share in favour of Gururaj. He submits that the Will is surrounded by suspicious circumstances, including the disinheritance of a legal heir. To buttress his argument, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of Bharpur Singh and others vs. Shamsher Singh1. Hence, he submits that the alleged beneficiary was working in an SDM Hospital and he has created medical bills to establish that he was taking care of the deceased Gururaj. He further submits that though the respondents have not led any evidence, the burden lies on the propounder of the Will to establish its execution by the deceased Gururaj.
15. He submits that the petitioners have failed to prove the execution of the alleged Will executed by Gururaj bequeathing the suit schedule property, including his share therein. The FDP Court, having considered the entire material on 1 (2009) 3 SCC 687 -7- NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR record, was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ petition.
16. Perused the records, and considered the submissions of the learned counsel for the parties.
17. It is an undisputed fact that respondent Nos.1 and 2 filed a suit for partition and separate possession against the deceased Gururaj and another defendant in O.S.No.3/2001. The said suit came to be decreed vide judgment dated 30.05.2007.
18. The trial Court, while disposing of the said suit, has recorded its finding in paragraph No.15, which reads as follows:
"When Ex.D12 is not proved, it means that Susheela did not leave any will behind her and it also means that she died intestate. That being the case when admittedly the suit property is her self-acquired property being stridhan which came to her as a share in the family arrangement between herself and her son who went in adoption to her parents and this family arrangement dated 25.06.1991 is admitted by both the parties. The suit property will devolve upon her children and not her husband as a successor. In other words, the suit property devolves by operation of law of -8- NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR succession and not by law of survivorship. For a stridhan property, it is only her children who become the legal heirs and not her husband. Since the defendant No.1 is her husband and the plaintiffs and defendant No.2 are only her children, naturally as she died intestate, suit property devolve on the plaintiffs and defendant No.2. That being the case plaintiffs and defendant No.2 are entitled for 1/3rd share each in the suit property or the plaintiffs are entitled for 2/3rd share in the suit property together and they are entitled for partition and separate possession of this 2/3rd share."
19. Gururaj, being aggrieved by the judgment and preliminary decree passed in O.S.No.3 of 2001, preferred an appeal in RFA No.1867 of 2007 before this Court. The Co-ordinate Bench of this Court allowed the appeal and modified the judgment and decree passed by the trial Court, wherein this Court granted 1/4th share to Gururaj.
20. While granting 1/4th share to Gururaj, the Co-ordinate Bench has not assigned reasons as to how the deceased Gururaj is entitled to such share. If the property was acquired by Susheela and she died intestate, then under Section -9- NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR 15 of the Hindu Succession Act, only Class-I heirs would succeed to the property.
21. The properties will devolve upon Class-I legal heirs, i.e., firstly upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband and In the absence of sons and daughters, the property will devolve upon the heirs of the husband.
22. Admittedly, respondent Nos.1 to 3 are the children of Susheela. The petitioner is the nephew of the deceased Gururaj and is not a Class-I legal heir. Though this Court granted 1/4th share to the deceased Gururaj, the respondents have not challenged the judgment passed by this Court in RFA No.1867 of 2007.
23. It is the case of the petitioner that Gururaj executed a Will bequeathing the suit schedule property in favour of Basavennavva, contending that he executed a registered Will dated 13.11.2014. The petitioner has produced a copy of the registered Will marked as Annexure-D.
24. Though the petitioner and the alleged beneficiary were examined as PW-1 before the FDP Court and documents were marked i.e., Ex.P1 is the death certificate of Gururaj, Ex.P2
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NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR is the registered Will alleged to have been executed by Gururaj in favour of proposed respondent No.2, Ex.P3 are the medical records of Gururaj, Ex.P4 is a certified copy of FIR in Crime No.7 of 2019, which discloses that respondent No.2 herein lodged a complaint before Vidyagiri Police Station against the petitioner herein, Iravva @ Iramma and others. Ex.P5 is a certified copy of the complaint, and Ex.P6 is the Aadhar card of the petitioner.
25. The petitioner was subjected to cross-examination, wherein, during the course of cross-examination, it was elicited that in the year 2016, Gururaj was suffering from an ailment. To prove the execution of the Will in accordance with Section 63 of the Indian Succession Act, 1925, which reads as follows:
[
63. Execution of unprivileged Wills.--
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it
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NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
26. Further, it is settled that, the testator must also be of sound state of mind at the time of execution of the Will. Admittedly, in the instant case, the petitioner has not examined any doctor to establish the mental condition of Gururaj at the time of execution of the alleged Will. The petitioner has examined PW-2, who is said to be an attesting witness to Ex.P2. The petitioner has failed to prove that Gururaj was in a sound disposing state of mind as of the date of execution of the alleged Will.
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NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR
27. In the course of cross-examination of PW-1, it is elicited that PW-1 is a relative of the petitioner. It is also admitted that the deceased Gururaj was admitted to the hospital.
28. As on the date of execution of the alleged Will, Gururaj had no share in the suit schedule property in view of the judgment and decree passed by the trial Court in O.S. No.3 of 2001. Though, there is a recital in the Will that the petitioner was taking care of the deceased Gururaj, the petitioner, except producing medical receipts, has not produced any records to establish that the deceased Gururaj and Susheela were residing with him. The petitioner, being the nephew of the deceased Gururaj, does not fall within the purview of Class-I legal heirs of schedule-I of the Hindu Succession Act.
29. The petitioner, in cross-examination, has admitted that he would produce the medical records of both Susheela and Gururaj. However, he has produced medical bills of Gururaj, who was admitted in SDM Hospital, Dharwad from 20.09.2016 to 17.04.2018.
30. From the perusal of the medical records produced by the petitioner himself, it clearly discloses that Gururaj was not in
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NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR a sound state of mind and was suffering from ailments for more than four years prior to the action of alleged registered Will in favour of the petitioner. Further, the Will is surrounded by suspicious circumstances, such as disinheritance of natural legal heirs. The petitioner has not explained why the deceased Gururaj excluded his natural legal heirs. The petitioner has thus failed to prove the suspicious circumstances surrounding the alleged Will and to establish its due execution in accordance with law.
31. In view of the proposition laid down by the Hon'ble Apex Court in case of Bharpur Singh and others vs. Shamsher Singh (referred supra), wherein the Hon'ble Apex Court had the occasion to consider the effect of suspicious circumstances surrounding a will. The Hon'ble Apex Court in paragraph No.17 of the aforesaid judgment as follows:
17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant
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NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
32. The above mentioned scenario pertains to suspicious circumstances. Unless the petitioner removes the suspicious circumstances surrounding the will, it cannot be said that the Will has been proved.
33. Admittedly, the Will is surrounded by suspicious circumstances. Further, based on the alleged Will, the petitioner has not made any representation to the revenue authorities to have his name mutated. The petitioner has not acted upon the alleged Will. Thus, the FDP Court has rightly passed the impugned order Annexure-G.
34. Further, the Hon'ble Apex Court in the case of Leela and others vs. Muruganantham and others in Civil Appeal no.7578/2023 disposed of on 02.01.2025 reiterated that mere
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NC: 2026:KHC-D:6337 WP No. 101706 of 2024 HC-KAR registration of a will would not attach to it a stamp of validity and it must be proved in terms of legal mandates under provisions of Section 63 of Indian Succession Act and 68 of Indian Evidence Act.
35. Considering the mandate laid down by the Hon'ble Apex Court in case of Bharpur Singh and others vs. Shamsher Singh and Leela and others (referred supra), I do not find any error in the impugned order.
36. In view of the above discussion, I proceed to pass the following order:
ORDER The writ petition is dismissed.
In view of dismissal of the petition, pending applications, if any, does not survive for consideration and accordingly disposed of.
Sd/-
(ASHOK S. KINAGI) JUDGE RHR/-CT: UMD List No.: 1 Sl No.: 17