Karnataka High Court
B. N. Chakrasali vs Mahabaleshwarappa S/O Veerappa Kanavi on 16 April, 2026
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NC: 2026:KHC-D:5620
RSA No. 5650 of 2010
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 16TH DAY OF APRIL 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 5650 OF 2010 (-)
BETWEEN:
SRI. B.N. CHAKRASALI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O. HIREKERUR, DISTRICT: HAVERI-581111.
...APPELLANT
(BY SRI. H.M. DHARIGOND, ADVOCATE)
AND:
1. SRI. MAHABALESHWARAPPA
S/O. VEERAPPA KANAVI,
SINCE DECEASED BY HIS LR'S.
1(A) SRI. YUVARAJ
S/O. MAHABALESWARAPPA KANAVI,
BHARATHI
HM AGE: 50 YEARS, OCC: SERVICE,
R/O. SHRI GANESH CO-OPERATIVE HOUSING
Digitally signed by
SOCIETY,
BHARATHI H M
Location: HIGH RH NO.72, FLOT NO.23, G-BLOCK,
COURT OF
KARNATAKA,
DHARWAD MIDC SHAHUNAGAR PUNE MAHARASTRA-411019.
BENCH
1(B) SRI. SURESH
S/O. MAHABALESWARAPPA KANAVI,
AGE: 48 YEARS, OCC: SERVICE,
R/O. PLOT NO.5, RS NO.16/1,
OPPOSITE SUNFLOWER BUILDING,
NAVELKAR ESTATE NEAR BANGUINESHWAR TEMPLE,
NORTH GAO-403402.
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NC: 2026:KHC-D:5620
RSA No. 5650 of 2010
HC-KAR
1(C) SRI. SHANKAR
S/O. MAHABALESWARAPPA KANAVI,
AGE: 46 YEARS, OCC: SERVICE,
R/O. SHRI GANESH CO-OPERATIVE HOUSING
SOCIETY,
RH NO.72, FLOT NO.23, G-BLOCK,
MIDC SHAHUNAGAR PUNE MAHARASTRA-411019.
1(D) SRI. SHAMBULING
S/O. MAHABALESWARAPPA KANAVI,
AGE: 45 YEARS, OCC: SERVICE,
R/O. SHRI SIDDESWAR NILAYA,
2ND CROSS, ASWININAGAR,
HAVERI-581112.
2. SRI. SHIVANANDAPPA
S/O. VEERAPPA KANAVI ,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. HIREKERUR, DISTRICT: HAVERI-581111.
...RESPONDENTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE FOR R1(A) TO R1(D);
NOTICE TO R2 IS SERVED)
THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 11-06-2010 IN
R.A.NO.91/2006 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN)
AND IT COURT, HIREKERUR CONFIRMING THE JUDGMENT AND
THE DECREE DATED 14-09-2006 PASSED IN O.S.NO.165/1998
ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC,
HIREKERUR AND ETC.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
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NC: 2026:KHC-D:5620
RSA No. 5650 of 2010
HC-KAR
ORAL JUDGMENT
Appellant/defendant No. 2 has filed this appeal under Section 100 of Code of Civil Procedure, 1908 praying for setting aside judgment and decree dated 11.06.2010 passed in R.A.No.91/2006 on the file of Principal Senior Civil Judge and Itinerate Court, Hirekerur (for short, 'First Appellate Court') confirming the judgment and decree dated 14.09.2006 passed in O.S.No.165/1998 on the file of Civil Judge and JMFC, Hirekerur (for short, 'Trial Court') and to dismiss the suit of plaintiff.
2. The parties would be referred with their ranks as they were before Trial Court for the sake of convenience and clarity.
3. Plaintiff-Mahabaleshwarappa has filed the suit in O.S.No.165/1998 praying for the relief of partition and his separate possession in suit schedule property bearing VPC No.237-A situated at Vaddar Oni within the jurisdiction of -4- NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR Hirekerur Village Gramathana; for court costs and for such other reliefs.
4. Plaintiff has furnished the genealogical tree as follows:
«ÃgÀ¥Àà - PÀt« (¥ÉÆÃw)
- ªÀįÉèñÀªÀé (¥ÉÆÃw)
--------------------------------------- ªÀĺÀ§¼ÉñÀégÀ¥Àà (ªÁ¢) ²ªÁ£ÀAzÀ¥Àà (1£Éà ¥ÀæwªÁ¢)
5. One Veerappa Kanavi, the original propositus has a wife called Malleshawwa, who has two sons i.e. plaintiff and defendant No.1-Shivanandappa. Another son of Veerappa by name Chandrasekhar was partitioned from the family of plaintiff long back. It is the contention of plaintiff that suit schedule property came to plaintiff and defendant No.1 through their father. Their father has filed O.S.No.57/1970 against his wife and two sons i.e. present plaintiff and defendant No.1 for partition and separate possession and it was decreed. Plaintiff was entitled for 1/4th share in suit schedule property as per the judgment -5- NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR and decree of O.S.No.57/1970. After death of parents of plaintiff and defendant No.1, their half share i.e., the share of father and mother is to be equally divided between plaintiff and defendant No.1 and thus both of them are entitled for half share. In the meanwhile, after death of their parents, defendant No.1 has filed O.S.No.109/1990 praying for partition and separate possession. Said suit was ended in compromise and accordingly both are enjoying their respective shares. However, no decision is given in respect of present suit schedule property in the said suit. Thus, both plaintiff and defendant No.1 are having common and joint interest in the suit schedule property. Accordingly, during 1985 name of plaintiff and defendant No.1 were jointly entered in mutation register. But without giving notice to plaintiff, name of plaintiff was deleted as per order dated 17.07.1997 by Panchayath Authorities. Presently, plaintiff learnt that defendant No.1 has sold entire suit schedule property to defendant No.2 and it is illegal and to be set aside and does not bind the share of plaintiff. Earlier -6- NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR plaintiff has given notice to defendant No.2 through his advocate that he has got right over suit schedule property. Even then defendant No.2 has obtained sale deed from defendant No.1 and thus it is illegal. Hence, the suit for appropriate reliefs.
6. After service of notice, defendant No.2 filed his written statement, wherein he denied the plaint averments in toto. Defendant No.2 further contended that originally suit schedule property belonged to one Veerappa Kanavi and in that property defendant No.2 is running Cinema Theatre as tenant. In the year 1983, defendant No.1 has got mutated the entire property into his name and offered to sell this property to defendant No.2. Accordingly, defendant No.2 has purchased the entire property for a sum of ₹8,000/- under registered sale deed dated 05.05.1988 from defendant No.1 and this sale transaction has taken place in presence of the plaintiff and defendant No.1. Plaintiff is fully aware about this transaction. Even though plaintiff is fully aware about the transaction since from -7- NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR beginning, only to make unlawful gain, he has filed present suit which is not maintainable in law. Hence, prayed for dismissal of suit with costs.
7. From the above facts, the Trial Court has framed the following issues:
"1) whether the plaintiff proves that, he is having half share in the suit property by virtue of the decree passed in O.S.0.57/1970?
2) whether plaintiff further proves that, inspite of the compromise decree passed in O.S. No.109/1990, the earlier rights accrue after passing the decree in O.S. No.57/70 have still continued ?
3) Whether plaintiff proves that, suit schedule property is in joint possession of himself and defendant No.1 and right to the half share in the suit property remain intact, despite passing resolution by Gram Panchayat and subsequently sale by defendant No.1 in favour of defendant No.2 do not bind on the half share of the plaintiff in the suit property ?
4) Whether defendant No.2 proves that suit filed by the plaintiff is barred by limitation ?
5) What order or decree?"
8. After recording evidence of both sides, the Trial Court has decreed the suit with costs and declared that plaintiff is having ½ share in suit schedule property, -8- NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR defendants No.1 and 2 are having ½ share and directed to draw preliminary decree.
9. Aggrieved by the said judgment and decree, defendant No.2/appellant has filed first appeal before the First Appellate Court.
10. The First Appellate Court after hearing arguments of both sides has dismissed the appeal by confirming the judgment and decree passed in O.S.No.165/1998 and also dismissed I.A.Nos.2 and 3 filed on behalf of appellant and respondent No.1 under Order XLI Rule 27 of CPC that the documents annexed to I.A.Nos.1 and 2 are not required to decide the appeal.
11. Aggrieved by the said judgment and decree, defendant No.2/appellant has filed the present appeal.
12. At the time of admitting the appeal, the following substantial questions of law were framed as per order dated 25.10.2010:
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR "(i) When the Will dated 10-10-1973 is a registered document, it had the legal effect of presumption under Sec.80 of the Evidence Act and has the rebuttal effect.
Whether the first appellate court was right in rejecting the production of the additional document under Order 41 Rule 27 of CPC.
(ii) When the Will dated 10-10-1973 registered and the subsequent Will produced in first appellate Court by the respondent was an unregistered Will, whether the unregistered Will could have rebutted the effect of registered document and whether the first appellate court could have taken note of the same to reject the application of the appellant for production of additional document?"
13. While framing substantial questions of law, the date of Will was wrongly mentioned as 10.10.1973 instead of mentioning it as 04.10.1973.
14. Heard arguments of both sides.
15. Learned counsel for appellant, Sri H.M.Dharigond would submit that originally father-Veerappa has filed suit against his two sons and wife in O.S.No.57/1970 praying for partition and separation possession in respect of 5 schedule properties. His sons are Mahabaleshwarappa, Shivanandappa and his wife is Malleshawwa. Said suit was decreed granting 1/4th share each to plaintiff and defendant
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR Nos.1 to 3 in respect of suit schedule properties. Later F.D.P. petition is also filed. After death of father and mother, both Mahabaleshwarappa and Shivanandappa were enjoying the properties jointly. It is the contention of defendants that during 1973, Veerappa has executed registered Will in respect of all the five properties in favour of his son-Shivanandappa. Subsequently, father died in the year 1985. Defendant No.2 was none other than tenant of present suit schedule property bearing V.P.C.No.237/A. It was a vacant open space and he was running Cinema Theatre in it by paying ground rent to Veerappa. After death of Veerappa, defendant No.2 has purchased this property from Shivanandappa (defendant No.1) under registered sale deed dated 05.05.1988.
16. During 1990, Shivanandappa has filed O.S.No.109/1990 against Mahabaleshwarappa in respect of all five suit schedule property, praying for declaration and permanent injunction based on this alleged will of 04.10.1973. Said suit was compromised between both
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR brothers in respect of other four suit schedule properties and no whisper in respect of present property. Present defendant No.2 is not party in that suit. Even though, it was purchased by present defendant No.2, prior to filing of said suit, there is no whisper about said sale deed in that suit.
17. During 1998, this Mahabaleshwarappa has filed the suit before trial court against defendant No.1- Shivanandappa and defendant No.2-Chakrasali for the relief of partition and separate possession. Said suit was decreed. Against which, R.A.No.91/2006 is filed by present appellant; in that appeal, present appellant has produced certified copy of registered Will dated 04.10.1973 along with an application. Likewise, this Mahabaleshwarappa also filed application along with some documents one amongst them is unregistered Will of 11.02.1982 alleged to be executed by father bequeathing all his properties in favour of Mahabaleshwarappa. Without considering those documents, without recording evidence to know the genuineness of those Wills, the First Appellate Court has dismissed the
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR appeal with costs by confirming the judgment and decree passed by the trial court. There is collusion in between brothers. Said rejection of applications is not proper.
18. Learned counsel for appellant would further submit that the First Appellate Court was not justified in dismissing the application of the appellant under Order XLVII Rule 27 of CPC and has not given any finding on the registered Will dated 04.11.1973 executed by father of defendant No.1 in favour of defendant No.1 and also not given any finding on the alleged Will dated 11.02.1982 alleged to be executed by the father in favour of plaintiff. Hence, prayed for allowing the appeal.
19. Learned counsel, Sri N.P.Vivek Mehta for respondents No.1(A) to 1(D) would submit that defendant No.1, who being the brother of plaintiff has not filed written statement and defendant No.2 being the purchaser of the property from defendant No.1 cannot contend that defendant No.1 is the absolute owner of the property.
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR Further, he is precluded from taking contention that there was Will executed by the father in favour of defendant No.1, when defendant No.1, who is the alleged beneficiary under the Will, has not challenged the judgment and decree of the trial Court as well as the First Appellate Court.
20. There is no pleading about this alleged Will dated 10.10.1973, or the Will of 11.11.1982 by either of the parties. Without any pleadings, considering such Wills does not arise. Hence, the First Appellate Court has rightly rejected the claims of both the appellant as well as the respondent/plaintiff, and not allowed I.A. Nos. 2 and 3 filed under Order XLI Rule 27 CPC. Therefore, no interference is warranted.
21. After hearing arguments of both sides, verifying the appeal papers along with trial court records, finding of this court on the substantial questions of law is as follows for the following:
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR REASONS
22. On careful perusal of the contentions of both parties, verification of Trial Court records as well as First Appellate Court records, it is noted that both plaintiff and defendant No.2 have not taken any plea regarding the Will executed by father Veerappa either in favour of plaintiff or in favour of defendant No.1.
23. The admitted facts are that plaintiff and defendant No.1 are sons of one Veerappa Kanavi. Said Veerappa Kanavi has filed the suit in O.S.No.57/1970 for partition and separate possession in respect of five schedule properties including the present suit schedule property against his sons and his wife i.e. Mahabaleshwarappa, Shivanandappa and Malleshawwa. The said suit was decreed granting 1/4th share each to plaintiff and defendants No.1 to 3 in that suit in respect of all the suit schedule properties of that suit which includes present suit schedule property.
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR
24. This judgment and decree of O.S.No.57/1970 is admitted by both sides. Thus, defendant No.1 was entitled only 1/4th share in suit schedule property as per the said decree. Afterwards, present defendant No.1 has filed O.S.No.109/1990 against present plaintiff in respect of all five joint family properties including the present suit schedule property for the relief of declaration and permanent injunction based on the alleged Will dated 04.10.1973 and it was compromised between both brothers and it is held in that compromise decree that both plaintiff and defendant No.1 are entitled for half share each in 4 properties of joint family; there is no whisper about present suit schedule property in that compromise petition even though it was included in the suit schedule of said suit.
25. Learned counsel for appellant would vehemently submit that the compromise was not entered between parties in respect of present suit schedule property because this property was the exclusive property of the father of
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR plaintiff and defendant No.1, who purchased it under Ex.D.16-Sale Deed and it, was his self-acquired property.
26. This argument of learned counsel for appellant cannot be accepted for the simple reason that this suit schedule property is included in O.S.No.57/1970 filed by father for the relief of partition and thus, even if it was self- acquired property of the father, as it was blended with other joint family property; thus, this property lost its character of self-acquisition and became the joint-family property of plaintiff, defendant No.1 and their parents.
27. Even though under the alleged registered Will dated 04.10.1973, all the five properties were bequeathed in favour of defendant No.1, ignoring said Will, plaintiff and defendant No.1 have entered into compromise, which shows that the said Will was not acted upon.
28. Defendant No.2 cannot contend that said Will was acted upon only in respect of present suit schedule property because in the year 1987 itself, plaintiff has issued
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR notice to defendant No.2 that defendant No.2 has entered into an agreement of sale with defendant No.1 alone in respect of the present suit schedule property; but plaintiff is also having half share in suit schedule property. Even after issuance of said notice, defendant No.2 entered into sale transaction with defendant No.1 by giving reply that defendant No.1 alone is owner of the property.
29. Defendant No.2 is not family member of plaintiff and defendant No.1. He cannot take any stand which defendant No.1 has not taken. Admittedly, in the present suit defendant No.1 has not contested the suit and not filed his written statement.
30. Under these circumstances, definitely defendant No.2 cannot be called as bonafide purchaser of suit schedule property because defendant No.2 was fully aware that plaintiff is disputing the exclusive ownership of defendant No. 1. Hence, merely relying upon some revenue documents, defendant No.1 cannot purchase the suit
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR schedule property only from defendant No.1. Defendant No.2 even though stranger to the family of plaintiff and defendant No.1, admittedly he was in possession of suit schedule property as tenant since from the time of father of plaintiff and defendant No.1 and thus he is aware about the transactions that had taken place between plaintiff and defendant No.1.
31. When there is no specific pleading about the alleged Will dated 04.10.1973 either in the plaint or in the written statement, the party to the appeal cannot file an application to permit him to produce the alleged Will.
32. Defendant No.2 has produced Ex.D.15 before Trial Court and in Ex.D.15 there is reference about the alleged Will. Thus, he was fully aware about the alleged Will during trial itself. But he has not made any efforts to amend the written statement at that juncture itself and to make efforts to produce this Will. Thus, it is not a new document to be produced in the appeal.
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR
33. Learned counsel for appellant would further submit that even though the notices were exchanged between appellant/defendant No.2 and plaintiff in the year 1987, even after such exchange of notices, in the year 1990 excluding the present suit schedule property, the other four properties were compromised between brothers i.e. in between plaintiff and defendant No.1 and intentionally they have left the suit schedule property because they were aware about sale deed in favour of defendant No.2. 10 years afterwards, present suit for partition was filed.
34. Under Section 80 of the Indian Evidence Act, 1872, if any document is produced before any Court at the time of recording evidence, or any statement given by a witness in judicial proceedings, then, the Court shall presume that such document is genuine and such statement was duly taken.
35. In the instant case, the appellant contended that he has produced the registered Will dated 04.10.1973 along
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR with I.A.No.2 before First Appellate Court, but it was wrongly rejected by the First Appellate Court.
36. It is to be noted here that the presumption under Section 80 of the Indian Evidence Act, 1872, would arise only if any document is produced as evidence and taken by the Court or a judicial authority in judicial proceedings. In the instant case, the Will produced by the appellant is only a registered Will and it is not produced as evidence before any Court of law.
37. The testator to the Will can change his Will any number of times till last breath, and he can execute any number of Will and bequeath his property at his whims and fancies. Hence, merely because the first Will was registered and the second Will is unregistered, it cannot be said that the unregistered Will could not have rebut the effect of registered Will. However, there shall be presumption regarding registered documents under the Registration Act and that would be available to registered Will. Except that,
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR nothing more than can be attached to a registered will. Even though, plaintiff and defendant No.2 have produced unregistered Will and registered will along with two I.As., before First Appellate Court, as discussed earlier and as rightly observed by the First Appellate Court, there is no pleading about these Wills either in the plaint or in the written statement.
38. Any amount of evidence without pleading has no value in the eye of law. Under these circumstances, rightly the First Appellate Court has rejected both I.As. and has not taken documents produced along with those I.As., on record. Accordingly, both the substantial questions of law are answered in AFFIRMATIVE and this Court proceeds to pass the following:
ORDER The appeal filed under Section 100 of C.P.C. is dismissed by confirming the judgment and decree dated 11.06.2010 in R.A.No.91/2006 on the file of Principal Civil
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NC: 2026:KHC-D:5620 RSA No. 5650 of 2010 HC-KAR Judge (Sr.Dn.) and Itenerate Court, Hirekerur and the judgment and decree dated 14.09.2006 in O.S.No.165/1998 on the file of Civil Judge (Jr.Dn.) and J.M.F.C., Hirekerur.
Sd/-
(GEETHA K.B.) JUDGE SH: till para 32 SSP: 33 to end CT-MCK LIST NO.: 1 SL NO.: 31