Karnataka High Court
Sri.Chandrashekhar vs Smt.Gangavva on 25 September, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100024 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100024 OF 2017 (DEC/INJ)
BETWEEN:
1. SRI.CHANDRASHEKHAR,
S/O GURUSIDDAPPA
SULLAD,
AGE: 69 YEARS,
OCC: AGRICULTURE,
R/O: BINDARAGI ONI,
GANESH PETH,
HUBBALLI - 580 020.
2. SRI.MANOHAR
S/O GURUSIDDAPPA
SULLAD,
AGE: 66 YEARS,
OCC: AGRICULTURE,
MALLIKARJUN
RUDRAYYA
R/O: BINDARAGI ONI,
KALMATH
Digitally signed by
GANESH PETH,
HUBBALLI - 580 020.
MALLIKARJUN RUDRAYYA
KALMATH
Location: HIGH COURT OF
KARNATAKA DHARWAD BENCH
Date: 2025.10.08 14:45:35
+0530
3. SMT. SHOBHA
W/O LATE PRAKASH
SULLAD, AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BINDARAGI ONI,
GANESH PETH,
HUBBALLI - 580 020.
4. SMT. NIRMALA
W/O HUCHANAGOUDA
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RFA No. 100024 of 2017
HC-KAR
PATIL, AGE: 38 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BINDARAGI ONI,
GANESH PETH,
HUBBALLI - 580 020.
5. PAVAN S/O LATE
PRAKASH SULLAD,
AGE: 31 YEARS,
OCC: STUDENT,
R/O: BINDARAGI ONI,
GANESH PETH,
HUBBALLI - 580 020.
6. SRI.NIJALINGAPPA
S/O GURUSIDDAPPA
SULLAD, AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O: GANESH PETH,
HUBBALLI - 580 020.
7. SRI.SHANMUKHAPPA
S/O GURUSIDDAPPA
SULLAD, AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O: BANDARGI ONI,
GANESH PETH,
HUBBALLI - 580 020.
...APPELLANTS
(BY. SRI. AMRUTH JOIS, ADVOCATE)
AND:
1 . SMT. GANGAVVA
W/O FAKKIRAPPA ANGADI,
AGE: 61 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YELLAPUR ONI,
HUBBALLI - 580 020.
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RFA No. 100024 of 2017
HC-KAR
2 . SMT. RUDRAVVA
W/O. YELLAPPA NOOLVI,
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O: K.K. NAGAR, BIDNAL,
HUBBALLI - 580 020.
3 . GURUSIDDAPPA
S/O FAKKIRAPPA ANGADI,
AGE: 41 YEARS,
OCC: AGRICULTURE,
R/O: YELLAPURI ONI,
HUBBALLI - 580 020.
4 . SMT. NEELAMMA
W/O BASAVARAJ POLICEGOUDAR,
AGE: 38 YEARS,
OCC: HOUSEHOLD WORK,
R/O: INGALAHALLI,
TQ: HUBBALLI - 580 020.
5 . IRANNA
S/O FAKKIRAPPA ANGADI,
AGE: 31 YAERS,
OCC: AGRICULTURE,
R/O: YELLAPUR ONI,
HUBBALLI- 580 020.
6 . SRI.ALTAFNAWAZ
S/O MOHAMMADSAB KITTUR,
AGE: 60 YEARS,
OCC: BUSINESS,
R/O: BAGAR PETH,
HUBBALLI- 580 020.
7 . SMT. BIBIJAN
W/O MOHAMMADALI MULGUND,
AGE: 66 YEARS,
OCC: HOUSEHOLD WORK,
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RFA No. 100024 of 2017
HC-KAR
R/O: GOUSIYA TOWN NAGAR,
HUBBALLI.
8 . SMT. SAIFUNNISA
W/O MOHAMMADSAB HOSAMANI,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOUSIYA NAGAR,
HUBBALLI.
9 . SRI. IMAMHUSSAIN
S/O MOHAMMADALI MULGUND,
AGE: 44 YEARS,
OCC: PRIVATE SERVICE,
R/O: GOUSIYA NAGAR,
HUBBALLI.
10 . SMT. ZARINABEGUM
W/O KHADARASAB DAMBAL,
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOUSIYA NAGAR,
HUBBALLI.
11 . SMT. SHAKEELABANU
W/O SHABBIRAHMED NAYAK,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOUSIYA NAGAR,
HUBBALLI.
12 . AMAREENABANU
D/O ALTAFNAWAZ KITTUR,
AGE: 26 YEARS,
OCC: STUDENT,
R/O: BAGARPETH,
OLD-HUBBALLI, HUBBALLI.
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RFA No. 100024 of 2017
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13 . KUMARI BIBI RUKAYA
D/O ALTAFNAWAZ KITTUR,
AGE: 31 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BAGARPETH,
OLD-HUBBALLI, HUBBALLI.
14 . SMT. SAIRABANU KOM
ALTAFNAWAZ KITTUR,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BAGARPETH,
OLD-HUBBALLI, HUBBALLI.
15 . KUMARI SHILPA
D/O LATE PRAKASH SULLAD,
AGE: 32 YEARS,
OCC: STUDENT,
R/O: BINDARAGI ONI,
GANESH PETH,
HUBBALLI-580020.
..RESPONDENTS
(BY SRI. RAJESH MAHALE, SENIOR COUNSEL ADVOCATE FOR
SRI. JALGAR ISMAIL DADASAHEB, ADVOCATE FOR R6
AND R12 TO R14;
NOTICE TO R15 IS DISPENSED WITH;
NOTICE TO R7 TO R11 IS HELD SUFFICIENT;
NOTICE TO R1 TO R5 IS SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.07.2016 PASSED IN
O.S.NO.64/2011 ON THE FILE OF THE II-ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALI, DISMISSING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
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THIS APPEAL IS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
This appeal is filed by the plaintiffs challenging the judgment and decree dated 20.07.2016 passed by the II Additional Senior Civil Judge, Hubballi1, in O.S.No.64/2011, thereby, the suit filed by the plaintiffs for the declaration and permanent injunction is dismissed.
2. Rank of the parties is referred to as per their rankings before the trial court.
PLAINT:
3. The plaintiffs have filed the suit for the following reliefs:
(a) To declare that the plaintiffs are absolute owners of the suit property.1
hereinafter referred to as 'the Trial Court' for short -7- NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR
(b) The Will dated 25.06.1984 stated to have been executed by Yellappa S/o. Fakkirappa Angadi in favour of defendant No.1 is illegal, unauthorized and not binding on the plaintiffs and to declare the subsequent revenue entries by virtue of the Will are illegal.
(c) For permanent injunction against the defendants.
4. It is the case of the plaintiffs that, the father of plaintiffs was the original owner of suit land and one Yellappa Fakkirappa Angadi was tenant of suit land, but he has surrendered his tenancy rights in favour of father of the plaintiffs namely, Gurusiddappa Sullad in the year 1958. After surrendering the suit land, said Gurusiddappa Sullad was in possession and cultivating the suit land. Thereafter, the said Gurusiddappa Sullad had applied for the conversion of agricultural land into non-agricultural and the Deputy Commissioner, Dharwad, granted an order of conversion on 30.01.1961. Thereafter, the suit land has become non agricultural land.
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5. Further submitted that Yellappa Fakkirappa Angadi after surrendering the said land has filed an application in Form No.7 under the provisions of Karnataka Land Reforms Act, 1961 (for short 'the Act, 1961'), for claiming occupancy rights of the suit land. It is the case of plaintiffs that said Yellappa Fakkirappa Angadi was not in physical possession of the suit property as on the date of said application and had no right in any manner. Further it is submitted that said late Yellappa Fakkirappa Angadi deposed before the Land Tribunal that he is not in possession and he is not cultivating since 1987 and the same has become barren land (pada land).
6. It is submitted that defendant No.1 has no right and interest over the property, but he is falsely claiming to be the legatee/fosterling of Yellappa Fakkirappa Angadi.
7. When this being the fact, said Yellappa Fakkirappa Angadi had submitted an application in Form -9- NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR No.7 before the Land Tribunal claiming occupancy rights and Land Tribunal has rejected his claim on merits. Thereafter the said Yellappa Fakkirappa Angadi had preferred W.P.No.30264/1984 and the same came to be dismissed. Thereafter, he preferred an appeal in W.A.No.1482/1984 before this Court and the said writ appeal came to be allowed and the matter was remanded to the Land Tribunal for fresh consideration. Thereafter, the Land Tribunal has re-heard the matter and allowed the application filed by the Yellappa Fakkirappa Angadi and granted occupancy rights to him. Being aggrieved by the said order, the plaintiffs have preferred W.P.No.20478/1993 and during the pendency of writ petition the said Yellappa Fakkirappa Angadi died leaving behind him no legal heirs, but this defendant No.1 has started to claim rights over the suit land and filed the said writ petition before this Court in W.P.No.42836/1995 claiming to be the legal heir of said Yellappa Fakkirappa Angadi. The said writ petition came to be allowed. The defendant No.1 is claiming rights over the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR suit property on the strength of the Will stated to have been executed by Yellappa Fakkirappa Angadi and applied for mutation of his name in the revenue records and the same was allowed by the Tahsildar inspite of opposition made by the plaintiffs. Thereafter, upon the appeal the Assistant Commissioner has remanded the matter for fresh consideration and the said order of Assistant Commissioner was challenged by the defendant No.1 in W.P.No.42836/1995.
8. Further submitted that the writ petition filed by the plaintiffs in W.P.No.20478/1993 and writ petition filed by the defendant No.1 in W.P.No.42836/1995 were clubbed and taken up together by this Court and W.P.No.42836/1995 filed by the defendant No.1 was allowed and W.P.No.20478/1993 filed by the plaintiffs was dismissed. Being aggrieved by this common order, the plaintiffs have preferred W.A.No.3571/2005 and the same came to be dismissed on merits on 24.05.2010.
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9. Further, it is pleaded that Yellappa Fakkirappa Angadi was not in possession of the suit land since 1958 and the suit land is converted for non agricultural purposes. Hence, Yellappa Fakkirappa Angadi was not tenant of the suit land and defendant No.1 is not concerned to the Yellappa Fakkirappa Angadi and the suit land. Defendant No.1 belongs to Hindu Olekar caste and Yellappa Fakkirappa Angadi belongs to Hindu Lingayat caste. Therefore, there is no kinship or blood relation between defendant No.1 and late Yellappa Fakkirappa Angadi. Hence, there is no question of execution of alleged Will by the late Yellappa Fakkirappa Angadi in favour of defendant No.1.
10. Further pleaded in the plaint that the signature found on the alleged Will is not of Yellappa Fakkirappa Angadi and the Will is forged, fabricated and falsely created and the said Will dated 25.06.1984 is outcome of fraud with an intention to knock off the suit land. Yellappa Fakkirappa Angadi was living alone and died unmarried. The said
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Yellappa Fakkirappa Angadi has not brought up defendant No.1 or any other person during his life time and he has not stated that defendant No.1 is his legatee or fosterling etc. The relatives of the said Yellappa Fakkirappa Angadi have also not recognized defendant No.1 as relative or legatee or fosterling of Yellappa Fakkirappa Angadi. Even none of the documents reveal that defendant No.1 is the legatee or legal heir or fosterling of the said Yellappa Fakkirappa Angadi; therefore, the alleged Will dated 25.06.1984 is illegal, unlawful, forged, fabricated and concocted document.
11. Further pleaded that as per the provisions of the Act, 1961, tenancy land could not be alienated or transferred by way of Will or otherwise other than to kinship or blood relations. Defendant No.1 is not blood relative or kinship to the deceased Yellappa Fakkirappa Angadi. Therefore, the late Yellappa Fakkirappa Angadi had absolutely no right or authority to execute the alleged Will
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR in favour of defendant No.1 in respect to the alleged occupancy rights of the suit property. The said Will is created only with a mala fide intention to deprive the legitimate right, title and interest of plaintiffs over the suit land. The plaintiffs are absolute persons to challenge the said Will and therefore, they have the authority to challenged it. Hence, the suit is not barred.
12. It is further pleaded that on the basis of the said alleged Will, defendant No.1 has got entered his name in record of rights of the suit property by following the observations made in W.P.No.20478/1993 and W.P.No.42836/1993 and in W.A.No.3571/2005, defendant No.1 has sold the suit property in favour of defendant Nos.3 to 7. The said sale is in violation of the provisions of the Act, 1961, and allied rules and the said sale is illegal, unauthorized, null and void and is not at all binding on the plaintiff. The plaintiffs have seriously questioned the legality, validity and factum of the authority of the said Will
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR in the writ petition and in the writ appeal. However, the Division Bench of this Court in W.A.No.3571/2005 made an observation that the alleged Will executed by Yellappa Fakkirappa Angadi in favour of defendant No.1 is not seriously questioned or challenged by the plaintiffs; therefore, the plaintiffs have constrained to file the suit and challenge the legality and validity of the Will.
13. It is further pleaded that defendant No.1 filed suit in O.S.No.103/2009 before the Court of I Additional Civil Judge (Senior Division), Hubballi for declaration etc., in which the present plaintiff got impleaded in the suit by filing an impleading application. But the said application was rejected on 31.08.2010. Thereafter, defendant No.1 got the said suit compromised and got dismissed the suit as not pressed.
14. The plaintiffs have stated that the cause of action arose to file the suit i.e., on 24.05.2010. When the Division Bench of this Court had observed in W.A.No.3571/2005 that
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR the alleged Will is not seriously challenged and it also arose on 31.08.2010, when the impleading application of plaintiffs in O.S.No.103/2009 came to be rejected and the said suit in O.S.No.103/2009 was intentionally managed to get dismissed on 31.08.2010.
WRITTEN STATEMENT:
15. The defendants have appeared through their Advocates and filed their respective written statements.
16. Defendant No.1 has filed written statement denying all the facts pleaded in the plaint except the legal battle of grant of occupancy rights up to this Court in the writ appeal.
17. It is pleaded that there is no cause of action for filing the suit, as the suit in O.S.No.60/2007 on the file of Principle Senior Civil Judge instituted by the son of plaintiff No.1 was partly decreed on 09.11.2010, wherein the suit property herein and the plaintiffs failed to challenge the said
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR decree, who were defendants in that suit. Further, the plaintiffs have filed application I.A.No.V for impleadment in O.S.No103/2009 and the said application was rejected and ultimately the suit was ended in compromise; therefore, the claim of plaintiffs that the cause of action arose on 24.05.2010 is false. When the Division Bench of this Court observed in W.A.No.3571/2005 that the Will is not seriously challenged, is mere surmise. After the death of Yellappa Fakkirappa Angadi, defendant No.1 was brought on record as heir of deceased Yellappa Fakkirappa Angadi before this Court. Therefore, the relief as regards Will is totally time barred.
18. Defendant No.1 denied the fact that Yellappa Fakkirappa Angadi surrendered the suit land and that Gurusiddappa Sullad was in actual possession and cultivation of the land. The alleged order of conversion of suit land into non agricultural land is totally false and no such any order was passed. Further pleaded that Yellappa
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Fakkirappa Angadi, being a tenant has filed an application for grant of occupancy rights, but it was rejected. After the rejection, he filed W.P.No.30264/1981. On dismissal thereof, writ appeal in W.A.No.1482/1984 was filed and the said writ appeal was allowed and the matter reminded back to the Tribunal. Therefore, the tenancy rights were granted in favour of Yellappa Fakkirappa Angadi as pleaded in paragraph No.7 of the plaint.
19. During pendency of the writ proceedings, defendant no.1 was brought on record as legal hairs of diseased Yellappa Fakkirappa Angadi. If the plaintiffs aggrieved, they ought to have challenged the said Will including the fact of bringing this defendant as legal hairs of deceased then and there itself, but not done. Therefore, the claim of the plaintiffs is not maintainable.
20. Defendant no.1 had admitted the facts pleaded in paragraph No.8 in the plaint; that, the matter pertaining to grant of occupancy rights in favour of Yellappa Fakkirappa
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Angadi is admitted. It is the assertion of this defendant that Yellappa Fakkirappa Angadi had executed the registered Will and the plaintiffs have no locus standi to question the same, as they are not related to the deceased Yellappa Fakkirappa Angadi.
21. It is further pleaded that the plaintiffs are disputing the signature of the diseased Yellappa Fakkirappa Angadi on the registered Will of the year 1984 for the first time, which has come into effect and acted upon immediately after the death of Yellappa Fakkirapa Angadi when the matter was pending before this court in the above said writ proceedings. Therefore, the suit filed by the plaintiffs is barred by limitation and also the plaintiffs do not have locus standi to challenge the Will. Defendant No.1 has not sold the suit property to defendant Nos.3 to 7, but it is defendant No.2 as Power of Attorney holder of defendant No.1, who has sold and these transactions were questioned in O.S.No.103/2009, which ultimately ended in compromise.
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Therefore, in terms of orders of Land Tribunal, the occupancy rights were confirmed on the deceased Yellappa Fakkirappa Angadi and defendant No.1, being the legal heir of him succeeded to the same by virtue of Will. Therefore, defendant No.1 has became rightful owner of the suit land. Thus, prays to dismiss the suit.
22. Defendant No.2 has adopted the written statement filed by defendant No.1. Defendant No.9 has filed his separate written statement contending that the suit of the plaintiffs is false and is not maintainable. It is the pleading of defendant No.9 that she is the owner and in possession and enjoyment of her respective portion of the suit property purchased under the registered sale deed under the compromise decree entered into by and between defendant Nos.1 and 2 and others in the competent Court of law. Also, stated that the suit is hit by the principle of Order II Rule 2 of CPC and also on principle of res-judicata. Further, it is stated that the original defendant No.1 filed his
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR written statement and the contents thereof have been admitted and adopted by defendant No.2, who is none other than the father of defendant Nos.8 and 9 and husband of defendant No.10. Therefore, adopted the written statement filed by defendant No.1. Defendant No.10 has adopted the written statement filed by defendant No.9. ISSUES:
23. Based on the pleadings, the Trial Court has framed the following issues:
(1) Whether the plaintiffs prove their title over the suit property?
(2) Whether they further prove that WILL dt.25-
6-1984 said to have been executed by Yallappa Angadi in favour of defendant No.1 is out come of fraud and the same is not binding on them as contended in para-11 to 13 of their plaint?
(3) Whether they further prove that they are in possession and enjoyment of the suit property as on the date of filing of the suit?
(4) Whether the defendant No.1 proves that the relief as regards WILL is totally barred by time?
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR (5) Whether the plaintiffs are entitled for the relief claimed in the suit?
(6) What order or decree?
24. In order to prove the case, plaintiff No.1 is examined as PW-1 and got marked documentary evidence as Exs.P-1 to Ex.P-4. On behalf of the defendants, defendant No.1 is examined as DW-1, defendant No.2 is examined as DW-2, one attesting witness of the Will is examined as DW-3 and Sub Registrar is examined as DW-4 and got marked documentary evidence as Exs.D-1 to Ex.D-24.
REASONINGS OF THE TRIAL COURT:
25. The Trial Court has dismissed the suit by giving finding that the plaintiffs have failed to prove the title over the suit property. Also gave a finding that the Will executed by Yellappa Fakkirappa Angadi in favour of defendant No.1 dated 25.06.1984 is not outcome of fraud and the plaintiffs are not in possession over the suit property. The Trial
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Court assigned the reason that the plaintiffs failed to prove the fact that Yellappa Fakkirappa Angadi has surrendered the tenancy to their father Gurusiddappa Sullad.
26. Further assigned reasons that though the plaintiffs have contended that in the year 1961, the suit land was converted for non agricultural purpose, but due to non-fulfilling the conditions in the said conversion order, the suit land remains to be agricultural land and it is observed by the Division Bench of this Court in W.A.No.3571/2005. The Division Bench of this Court in the said W.A.No.3571/2005 has formulated a specific point regarding whether the suit land was ceased to be agricultural land by virtue of the order of conversion and therefore, an application in Form No.7 was not maintainable. It is held in the said writ appeal that due to non-fulfilling the conditions in the said conversion order, the suit land remained to be an agricultural land and therefore, an application in Form No.7 filed is maintainable. Thus, it is
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR held that grant of occupancy rights in favour of Yellappa Fakkirappa Angadi is confirmed up to the legal proceedings before this Court in W.P.No.20478/1993 and W.P.No.42836/1995, which is confirmed in W.A.No.3571/2005. This order passed by the Division Bench of this Court in writ appeal is confirmed before the Hon'ble Supreme Court in SLP No.14784-14785/2013; therefore, the Trial Court assigned the reason that the grant of occupancy rights in favour of Yellappa Fakkirappa Angadi is confirmed.
27. Further assigned reasons that defendant No.1 has proved execution of the Will by Yellappa Fakkirappa Angadi by examining DW-4, who is the Sub Registrar. Therefore, upon considering the evidence on record and the evidence of DW-3 and DW-4, as the Will is registered one, it is held that the execution of the Will is proved. Further, assigned reason that the suit filed by the plaintiffs challenging the Will is barred by limitation and the Trial
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Court observed that the plaintiffs came to know regarding the Will executed by Yellappa Fakkirappa Angadi in favour of defendant No.1 and he had possession by certified copy of the Will after expiry of Yellappa Fakkirappa Angadi after 5-6 months after the death of Yellappa Fakkirappa Angadi. The Will is dated 25.06.1984 and Yellappa Fakkirappa Angadi died in the year 1989; in the year 1989 itself, the plaintiffs came to know about the execution of Will, but the suit is filed in the year 2011. Therefore, the challenge to the Will is barred by limitation. Hence, on all these reasons above discussed in summary, the Trial Court dismissed the suit.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANTS/PLAINTIFFS:
28. Being aggrieved by the judgment and decree passed by the Trial Court dismissing the suit, the plaintiffs have preferred the appeal by raising various grounds and the learned counsel for the appellants/plaintiffs in consonance with the grounds raised in the appeal
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR memorandum has argued that though Yellappa Fakkirappa Angadi was tenant under the plaintiffs' father namely Gurusiddappa Sullad, the tenancy was surrendered in the year 1958 itself, and therefore, Yellappa Fakkirappa Angadi was not a tenant.
29. Further, submitted that the suit land was converted into non agricultural purpose under Section 95 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the KLR Act, 1964') and the suit land is non agricultural land. Thus, an application in Form No.7 filed by Yellappa Fakkirappa Angadi is not maintainable. Further argued that Yellappa Fakkirappa Angadi had not executed any Will dated 25.06.1984 and it is created one by playing fraud by defendant No.1 just to knock off the suit land. Further submitted that once occupancy rights are granted as per the provisions of the Karnataka Land Reforms Act, the order cannot be willed away and such execution of Will is null and void.
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30. During course of the arguments, learned counsel for the appellants/plaintiffs have filed an application under Order XLI Rule 27 of CPC for production of additional documentary evidence, which is copy of conversion order and submitted that this application filed for additional evidence be allowed and considered the case that the suit land is no more an agricultural land and it is non agricultural land; therefore, the grant of occupancy rights by the Land Tribunal is basically null and void.
31. Further submitted that defendant No.1 is not related in any way to the deceased Yellappa Fakkirappa Angadi much less as a son or fosterling. Defendant No.1 is stranger to the Yellappa Fakkirappa Angadi and therefore, there could be no chance of execution of Will in favour of defendant No.1; therefore, the Will is out of practice of fraud. Hence, submitted that to declare the Will executed is null and void. Further submitted that the suit challenging the Will is within the period of limitation and there are
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR various suspicious circumstances surrounding the Will, which are not considered by the Trial Court. Further submitted the original of the Will is not produced by defendant No.1, but produced certified copy of the Will; therefore, by virtue of certified copy of the Will, the execution of Will cannot be proved.
32. Further, submitted that Yellappa Fakkirappa Angadi had no alienable right to the suit land and when the occupancy rights have been granted in his favour by the Land Tribunal on 05.06.1987 and an application in Form No- 10 was issued on 19.06.1987. Therefore, there is no question of execution of Will by Yellappa Fakkirappa Angadi in favour of defendant No.1. Hence, the execution of the Will is without authority, right and title.
33. Further submitted that defendant No.1 has set up the Will and the same is disputed. It is an obligation on the part of defendant No.1, who is required to prove the execution of the Will. Defendant No.1 though has filed suit
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR in O.S.No.103/2009 for declaration of his right without impleading the plaintiffs as parties in the said suit and when the plaintiffs/appellants (proposed defendants) had made application for impleading them as parties in the said suit, which was wrongly rejected. Thereafter, defendant No.1 had deliberately entered into compromise and got disposed of, which amounts to fraud committed by defendant No.1 on the plaintiffs, but this fact is not taken note by the Trial Court resulting in the passing of an erroneous dismissal of the suit. Hence, on all these grounds challenged the judgment and decree passed by the Trial Court. SUBMISSIONS OF LEARNED COUNSEL FOR THE RESPONDENTS/DEFENDANTS:
34. On the other hand, Sri. Rajesh Mahale, learned Senior Counsel appearing for the respondents/defendants submitted that Yellappa Fakkirappa Angadi was the tenant of the land and Gurusiddappa Sullad was the owner of the suit land. There is no evidence by the plaintiffs that
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Yellappa Fakkirappa Angadi has surrendered the tenancy to Gurusiddappa Sullad; therefore, Yellappa Fakkirappa Angadi continued in possession and cultivating the land till the appointed day i.e., as on 01.03.1974, when the amendment to the Karnataka Land Reforms Act, 1961, came into effect. Accordingly, the said Yellappa Fakkirappa Angadi has filed an application in Form-7. Initially, an application filed in Form No.7 was rejected, but subsequent to filing of writ petition and writ appeal as in detail narrated by the plaintiffs, ultimately, occupancy rights were conferred on Yellappa Fakkirappa Angadi. Thus, Yellappa Fakkirappa Angadi had become the owner of the suit land. Since Yellappa Fakkirappa Angadi had no issues and he was taken care of by defendant No.1, therefore, with love and affection towards defendant No.1, Yellappa Fakkirappa Angadi had executed Will on 25.06.1984. The original Will is produced in O.S.No.175/2012. It is submitted that the plaintiffs do not have locus standi to challenge the Will and also challenging the Will as in the prayer made in the suit is
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR barred by limitation. Yellappa Fakkirappa Angadi died in the year 1989, and within six months from the date of death of Yellappa Fakkirappa Angadi, plaintiff No.1 was having possession of copy of the Will and therefore, the plaintiffs knew the execution of the Will in the year 1989, but the suit is filed in the year 2011. Therefore, the suit is barred by limitation.
35. DW-3 has supported the case of defendants proving execution of the Will and this execution of the Will is further corroborated by evidence of DW-4-Sub Registrar. Therefore, execution of the Will is validly proved; thus, defendant No.1 became the owner of the suit property. As on 01.03.1974, the land that was under tenancy vested with the State Government and thus Gurusiddappa Sullad was no more the owner of the suit property as on that date; Yellappa Fakkirappa Angadi was the tenant and the grant of occupancy rights in favour of Yellappa Fakkirappa Angadi is
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR confirmed in the writ appeal by this Court and ultimately this is affirmed by the Hon'ble Apex Court.
36. Further submitted that as per the provisions of under Section 63 of the Indian Succession Act, 1925 (for short 'the Act, 1925') and under Section 68 of the Indian Evidence Act, 1872 (for short 'the Act, 1872') defendant No.1 has validly proved execution of Will; therefore, submitted that the Trial Court has correctly given findings on all these facts and rightly held that the suit is dismissed. Accordingly, the judgment and decree passed by the Trail Court is justified.
POINTS FOR CONSIDERATION:
37. Upon hearing the arguments by the learned counsel appearing for both parties, perusing the averments made in the plaint, written statement and considering the evidence on record, both oral and documentary, the following points would arise for my consideration:
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR i. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that the suit property is not an agricultural land;
thus, application in Form-7 filed by Yellappa Fakkirappa Angadi was not maintainable?
ii. Whether, under the facts and circumstances involved in the case, defendant No.1 proves that Yellappa Fakkirappa Angadi has executed the Will dated 25.06.1984; thus bequeathed the suit property in favour of him? iii. Whether, under the facts and circumstances involved in the case, the defendants prove that the prayer (a) made in the plaint is barred by limitation?
iv. Whether, under the facts and circumstances involved in the case, the plaintiffs make out sufficient reasons for allowing the application filed for production of additional documentary evidence by invoking Order XLI Rule 27 of CPC?
v. Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the Trial Court requires interference by this Court?
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR All the points are interlinked each other; therefore, they are taken up together for common consideration in order to avoid repetition of facts and law.
REASONINGS OF THIS COURT:
38. Upon considering the entire case on record as discussed above, it is an admitted fact that Gurusiddappa Sullad, who is the father of plaintiff Nos.1 to 3, was owner of the suit property and Yellappa Fakkirappa Angadi was a tenant over the suit property. This fact is not disputed, but it is the case of plaintiffs that Yellappa Fakkirappa Angadi had surrendered tenancy to the said Gurusiddappa Sullad. However, the plaintiffs have not produced any evidence to show that Yellappa Fakkirappa Angadi had surrendered his tenancy to Gurusiddappa Sullad. Though there is pleading in this regard in the plaint of the plaintiffs, there is no evidence to prove this fact; therefore, it is proved that the tenancy of Yellappa Fakkirappa Angadi was continued.
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR
39. The plaintiffs have taken the contention that suit property was no more an agricultural land as the plaintiffs' father, namely Gurusiddappa Sullad had got the suit property from agricultural land into nonagricultural land as per the order of the Deputy Commissioner, Dharwad, dated 30.01.1961 and produced additional evidence by invoking Order XLI Rule 27 of CPC and produced certified copy of conversion order dated 30.01.1961; therefore, by this evidence sought to be produced in the appeal it is contended that the suit property is no more agricultural land but it is non agricultural land. But this order of conversion was not at all produced in the suit.
40. Some of the admitted facts need to be discussed at this stage, as the plaintiffs themselves have admitted in the plaint at paragraph No.7 and it is admitted by the defendants also. Yellappa Fakkirappa Angadi has filed an application in Form-7 before the Land Tribunal, Hubballi, for claiming occupancy rights over the suit property. Initially,
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR the Land Tribunal had rejected the application in Form-7. Thereafter, Yellappa Fakkirappa Angadi had preferred writ petition before this Court in W.P.No.30264/1984 and it was dismissed. Thereafter, Yellappa Fakkirappa Angadi has preferred writ appeal before the Division Bench of this Court in W.A.No.1482/1984 and the said writ appeal came to be allowed and remanded the matter to the Land Tribunal for fresh consideration. Thereafter, the Land Tribunal has re-heard the matter and allowed the application filed by the Yellappa Fakkirappa Angadi and granted occupancy rights in favour of him. Then the plaintiffs have preferred writ petition No.20478/1993 before this Court. During pendency of the writ proceedings, Yellappa Fakkirappa Angadi died issueless; thereafter, defendant No.1 had filed an application for impleading himself as the legal representative of deceased Yellappa Fakkirappa Angadi and the said application was allowed and defendant No.1 had contested the said writ petition.
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR
41. Based on the Will, the Tahasildar, Hubballi, has mutated the name of defendant No.1 in the revenue records pertaining to the suit property. Being aggrieved by the said order, the plaintiffs have filed an appeal before the Assistant Commissioner and the said appeal was allowed and remanded the matter to the Tahasildar.
42. Being aggrieved by the said order, defendant No.1 preferred writ petition in W.P.No.42836/1995 before this Court. This Court has clubbed both W.P.No.20478/1993 (filed by the plaintiffs challenging the grant of occupancy rights) and writ petition in W.P.No.42836//1995 (filed by defendant No.1 challenging the order passed by the Assistant Commissioner) and this Court passed common judgment dismissing the writ petition in W.P.No.20478/1993 filed by the plaintiffs and allowed the writ petition in W.P.No.42836/1995 filed by the defendant No.1.
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR
43. Being aggrieved by the said common judgment, the plaintiffs have preferred writ appeal before the Division Bench of this Court in W.A.No.3571/2005 and the same came to be dismissed on 24.05.2010 and the same is marked as Ex.D-6 and Ex.D-20. Against the order passed in the writ appeal, the plaintiffs preferred Special Leave Petition before the Hon'ble Supreme Court in SLP No.14784- 14785/2013 and the same was dismissed by confirming the order passed by Division Bench of this Court and a copy of the order passed in SLP No.14784-14785/2013 is produced as Ex.D-19.
44. It is worth to consider here the observations made by the Division Bench of this Court in writ appeal in W.A.No.3571/2005, which is marked as Exs.D-6 and D-20. The Division Bench of this Court in writ appeal had specifically formulated a point for consideration that "whether the schedule land ceased to be an agricultural land by virtue of the order of conversion
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR and therefore form No.7 was not maintainable?". This Court in writ proceedings, by referring clause (iv) in the said conversion order noted that the condition enumerated in the said conversion order were not complied with; therefore, as per non compliance with the conditions in the conversion order, the order of conversion automatically lapsed and was deemed to be withdrawn. Hence, the suit land continued to be an agricultural land.
45. It is observed by the Division Bench of this Court in writ appeal that the provisions of the Act, 1961, are attracted and as admittedly prior to 1961, Yellappa Fakkirappa Angadi was a tenant of land in question and thus application in Form No.7 is maintainable.
46. Learned counsel for the appellants/plaintiffs has filed an application under Order XLI Rule 27 of CPC by producing certified copy of the conversion order dated 30.01.1961 and there is a condition at clause (iv) of the conversion order, which reads as follows:
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR "The construction of the building should commence within six months and complete within three years from the date of order failing which the non alienation permission will automatically lapse and be deemed to be withdrawn"
47. Therefore, in the said writ appeal in W.A.No.3571/2005, the Division Bench of this Court observed that since the plaintiffs' father has failed to comply the said condition, the conversion order is lapsed automatically and was deemed to be withdrawn; thus, the net result is that if there is no conversion order, the land is continued to be an agricultural land and the provisions of the Act, 1961, are applicable. Hence, it is held that the application in Form No.7 is maintainable.
48. The plaintiffs have failed to prove that the suit property is non agricultural land; therefore, when this Court held that an application in Form No.7 is maintainable thus, it is held that the grant of occupancy rights in favour of Yellappa Fakkirappa Angadi is correct. Accordingly, the writ petition filed by the plaintiffs is dismissed; therefore, the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR grant of occupancy rights in favour of Yellappa Fakkirappa Angadi is confirmed up to the legal battle before the Hon'ble Supreme Court as above discussed. Accordingly, the application filed for production of additional documentary evidence is considered and by this documentary evidence, the plaintiffs failed to prove that the suit property is non agricultural land. Therefore, there is no further consideration and remanding the matter to the Trial Court, as this aspect has already attained finality in the writ appeal as above stated.
49. The next question canvassed on the Will is concerned; admittedly Yellappa Fakkirappa Angadi was not having any issues. Defendant No.1 is claiming to be fosterling of Yellappa Fakkirappa Angadi. According to Yellappa Fakkirappa Angadi executed registered Will in favour of defendant No.1. It is the contention of the plaintiffs that the Will is outcome of fraud played by defendant No.1; the plaintiffs have challenged the Will
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR dated 25.06.1984 as discussed above. Yellappa Fakkirappa Angadi died during pendency of the writ petition and defendant No.1 come on record in the writ petition as a legatee under the Will. After the death of Yellappa Fakkirappa Angadi, the name of defendant No.1 entered in the revenue records and that was challenged before the Assistant Commissioner and the Assistant Commissioner has set aside the order passed by the Tahasildar and remanded it for fresh consideration. This was challenged in the writ petition in W.P.No.42836/1995. Both writ petitions were clubbed and passed common order dismissing the writ petition filed by the plaintiffs and allowing writ petition filed by defendant No.1; therefore, the Division Bench of this Court in the said writ appeal considered the Will to the limited extent that defendant No.1 has right to claim his right on the basis of the Will as a legatee.
50. Whether, defendant No.1 in this case is entitled to claim under the Will dated 25.06.1984 and whether is it
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR hit by Section 21 of the Act, 1961, was considered by Division Bench of this Court in W.A.No.3571/2005 and observed in the said writ appeal that after the appointed date tenanted lands in the State of Karnataka were vested with the Government and the tenants who were in occupation of the said lands were given the right to make an application under Form No.7 under Section 47(A) of the Act, 1961, after civil proceedings in the writ petition and writ appeal. Ultimately, the Land Tribunal conferred the grant of occupancy rights, which is confirmed by the Hon'ble Supreme Court. Yellappa Fakkirappa Angadi died on 07.07.1989 and after his death this defendant No.1 (being respondent No.3(a) in W.A.No.3571/2005) as a foster son and legatee under the Will made an application to come on record and the said application, was allowed after contest.
51. The Division Bench of this Court in the writ appeal has discussed that bequest of defendant No.1 was considered for limited purpose to come on record as legal
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR representative by virtue of the Will as a legatee. At this stage, it is worth to consider the argument canvassed by the learned counsel for the appellants/plaintiffs that as per Section 21 of the Act, 1961, the land granted as per conferring occupancy rights could not be transferred under Section 21 of the Act, 1961. However, this Court in the writ appeal has given finding on this legal position that Section 21 of the Act, 1961, has to be read with Section 24 of the Act, 1961, to understand the full purpose of the provision. Section 24 of the Act, 1961, is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant under such tenancy it is held by the heirs of such tenant and on the same terms and conditions on which the tenant had held prior to his death. The legal heirs who can take the property are those referable to in Section 21 of the Act, 1961. If he was a member of the joint family, then the surviving members of the joint family and if he is not such a member of the joint family, his heirs would be entitled to partition. It is
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR observed in the writ appeal that a devise or a bequest under a Will cannot be stated to fall outside the scope of the deposition of rights under a Will, though it operates posthumously; it is nevertheless recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simplicitor will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise. Thus, it is ultimately held that the object and purpose of Section 21 of the Act, 1961, being to confine the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred. This is the finding in the above writ appeal.
52. It is held in the said writ appeal that distinguishing the judgment of the Hon'ble Supreme Court in the case of SANGAPPA KALYANAPPA BANGI (DEAD)
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR THROUGH LRS VS. LAND TRIBUNAL, JAMKHANDI AND OTHERS2 and held that in the present case, Yellappa Fakkirappa Angadi had executed a Will prior to the grant of occupancy rights and at that time, the application in Form No.7 was alive. During pendency of the writ petitions challenging the order, he died. In the present case, defendant No.1 being a legatee under the Will was not for claiming the grant of occupancy rights but claiming to be a legatee under the Will. The legatee under this Will is the foster son of the tenant of Yellappa Fakkirappa Angadi. Except defendant No.1, there were no other legal heirs. Therefore, when this being the fact, the application filed to come on record and also claiming rights under the Will do not come within the provisions of Section 21 of the Act, 1961. Therefore, the said aspect is considered.
53. It is observed in the said writ appeal that the plaintiffs have not raised any contention before the Land Tribunal that the suit land had become non agricultural land 2 1998 STPL (LE) 25374 SC
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR after conversion. Though for the plaintiffs, it is crucial point agitating that the suit property is non agricultural land and when he has taken plea in the plaint, the plaintiffs have not produced any evidence in this regard. The grant of occupancy rights in favour of Yellappa Fakkirappa Angadi was affirmed by this Court in writ appeal and by the Hon'ble Supreme Court. Therefore, defendant No.1 is claiming his right on the basis of the Will executed by Yellappa Fakkirappa Angadi.
54. Admittedly, the Will is registered one and certified copy of which is produced as Ex.D-21. It is incumbent upon the defendants to prove that the Will was validly executed and free from any suspicious circumstances. For establishing valid execution of Will, the defendants had to prove execution of Will as per Section 68 of the Act, 1872 and Section 63 of the Act, 1925. Mere production of certified copy is not the ground to reject the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Will. Ex.D-21 is the certified copy of the Will and the same is marked as secondary evidence.
55. It is not disputed that there were earlier legal proceedings in O.S.No.103/2009 filed by defendant No.1 seeking relief of declaration and injunction; defendant Nos.2 to 7 were defendants in the said suit and it ended in the compromise. The plaintiffs have filed an application in the said suit for impleading them as parties, but the said application came to be rejected. The suit in O.S.No.63/2007 is filed by the son of plaintiff No.1 for partition; though the suit is decreed, the prayer of the plaintiffs in respect of the suit property is rejected holding that the suit property belongs to defendant No.1. Therefore, the plaintiffs have not challenged the decree passed in the suit in O.S.No.63/2007. Hence, in earlier proceedings, the said original Will is produced and certified copy of the Will is produced in the suit. Therefore, the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR question is whether just because certified copy of the Will is produced that negates the execution of the Will.
56. Ex.D-21 is the secondary evidence. Here, the defendants are propounding the Will; therefore, it is burden on them to prove the execution of the Will. The Will can be proved through secondary evidence, but sufficient foundation has to be laid down for leading secondary evidence. In the present case, it is the case of the defendants that the original Will is produced in the earlier suit proceedings and this fact is not disputed by the plaintiffs; therefore, foundation has laid down for leading secondary evidence.
57. The Hon'ble Supreme Court in the case of DHANPAT VS. SHIVRAM (DEAD) THROUGH LRS3 has discussed regarding under the facts that the Will produced was not original and it is certified copy and in this context, it is held as follows and it is worth to follow the principle of 3 2020 (16) SCC 209
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR law laid down and observations made at paragraph Nos.14 to 22, 23 and 25 which reads as under:
"14. In support of the findings recorded by the High Court, Mr Manoj Swarup, learned Senior Counsel for the respondent-plaintiff argued that in terms of Section 69 of the Succession Act, 1925, a will is required to be attested by two witnesses who have seen the testator and in which the testator and two of the attesting witnesses sign in presence of each other. It is argued that Maha Singh, DW 3 had not deposed that all three were present at the same time, therefore, the finding of the High Court has to be read in that context, when the will was found to be surrounded by suspicious circumstances as the second attesting witness was not examined. It is also argued that the original will has not been produced and no application for leading secondary evidence was filed. Therefore, the secondary evidence could not be led by the defendant to prove the execution of the will.
15. Section 65(c) of the Evidence Act, 1872 ("the Evidence Act") is applicable in the facts of the present case as the defendants asserted that the original will is lost. Section 65 reads as under:
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases--
(a)-(b) ***
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d)-(g) *** In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible."
16. The defendants produced a certified copy of the will obtained from the office of the Sub- Registrar. The defendants also produced the photocopy of the will scribed by DW 4 D.S. Panwar.
17. In a judgment reported as Ihtishan Ali v. Jamna Prasad, the appellants-plaintiffs filed a suit on the basis of a sale deed. During trial, the stand of the plaintiffs was that the original sale deed was lost but since it was registered, secondary evidence by way of a certified copy prepared by the office of the Registrar was produced. It was not disputed that the copy produced was not the correct copy of the registered document. The suit was dismissed for the reason that the plaintiffs have not succeeded in satisfactorily establishing the loss of the original sale deed. The Court held as under : (SCC OnLine PC) "It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor, or someone whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered."
18. In another judgment reported as Aher Rama Gova v. State of Gujarat, the secondary evidence of dying declaration recorded by a Magistrate was produced in evidence. This Court found that though the original dying declaration was not produced but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable whereas the Head Constable deposed that he had made a copy of the same and had given it back to the Magistrate. Therefore, the Court found that the original dying declaration was not available and the prosecution was entitled to give secondary evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original. Thus, the secondary evidence of dying declaration was admitted in evidence, though no application to lead secondary evidence was filed.
19. Even though, the aforesaid judgment is in respect of the loss of a sale deed, the said principle would be applicable in respect of a will as well, subject to the proof of the will in terms of Section 68 of the Evidence Act. In the present
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR case as well, the will was in possession of the beneficiary and was stated to be lost. The will is dated 30-4-1980 whereas the testator died on 15-1-1982. There is no cross-examination of any of the witnesses of the defendants in respect of loss of original will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the will though it was alleged to be the result of fraud and misrepresentation. The execution of the will was not disputed by the plaintiff but only proof of the will was the subject-matter in the suit. Therefore, once the evidence of the defendants is that the original will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence.
20. This Court in Bipin Shantilal Panchal v. State of Gujarat, deprecated the practice in respect of the admissibility of any material evidence, where the Court does not proceed further without passing order on such objection. It was held that all objections raised shall be decided by the Court at the final stage. The Court held as under : (SCC pp. 5-6, paras 14-15) "14. When so recast, the practice which can be a better substitute is this :
Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."
21. This Court in Z. Engineers Construction (P) Ltd. v. Bipin Bihari Behera, held that even in respect of deficiency of stamp duty in the State of Orissa where a question arose as to whether possession had been delivered in pursuance of a registered power of attorney, the same was a
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR question of fact which was required to be decided after the evidence was led.
22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.
23. Now, coming to the question as to whether the defendants have proved the due execution of the will, reference will be made to a judgment reported as H. Venkatachala Iyengar v. B.N. Thimmajamma. This Court while considering Section 63 of the Act and Section 68 of the Evidence Act laid down the test as to whether the testator signed the will and whether he understood the nature and effect of the dispositions in the will. The Court held as under: (AIR p. 451, para 18) "18. ... Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
25. In view of the aforesaid judgments, at least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator. In the present case, DW 3 Maha Singh deposed that Chandu Ram had executed his will in favour of his four grandsons and he and Azad Singh signed as witnesses. He deposed that the testator also signed it in Tehsil office. He and Azad Singh were also witnesses before the Sub-Registrar. In the cross- examination, he stated that he had come to Tehsil office in connection with other documents for registration. He deposed that Ext. D-4, the will, was typed in his presence. He denied the question that no will was executed in his presence. There was no cross-examination about his not being present before the Sub-Registrar. Once the will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It is a question of fact in each case as to whether the witness was present at the time of execution of the will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the will apart from the evidence of the scribe and the official from the Sub-Registrar's office."
58. Therefore, even if the certified copy of the Will is produced that could be considered but subject to proving of execution of the Will as per Section 68 of the Act, 1872, and Section 63 of the Act, 1925. In the present case, DW-3 is an attesting witness to the Will. This DW-3 being attesting witness has deposed that he knows Yellappa Fakkirappa Angadi and Fakkirappa Angadi. Yellappa Fakkirappa Angadi was residing in the house of defendant No.1 as a tenant and had fostered defendant No.1. He deposed that in the year 1984, the deceased Yellappa Fakkirappa Angadi has taken him along with one Ramanagouda Patil and Basayya Ingalahallimath to the office of the Sub Registrar, saying
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR that he was executing a Will and accordingly they went to the Sub Registrar office and prepared the Will and thereafter after reading it over to the witnesses, Yellappa Fakkirappa Angadi put signature and this DW-3 also put his signature along with other witnesses. Therefore, it is evidence in the examination-in-chief of DW-3 that he had witnessed the execution of Will by Yellappa Fakkirappa Angadi in the Sub Registrar office and the Will is registered one.
59. During the course of cross-examination, nothing is revealed that this DW-3 has not put signature as an attesting witness on the Will. Upon considering the exhaustive cross-examination of DW-3, nothing worth is elicited to say that execution of Will is by playing fraud. Therefore, this categorical evidence deposed by DW-3 that the said Yellappa Fakkirappa Angadi, defendant No.1 and DW-3 were known to each other as Yellappa Fakkirappa Angadi was residing in the house of defendant No.3 as a
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR tenant, execution of Will is proved. It is evidence of DW-3 that Yellappa Fakkirappa Angadi has taken DW-3 to the office of the Sub Registrar and prepared Will along with other witnesses and after reading over and coming to know that Yellappa Fakkirappa Angadi had executed the Will and the signatures were put as attesting witnesses. Therefore, from the evidence of DW-3, it is proved that Yellappa Fakkirappa Angadi had validly executed the Will.
60. Not only this, the proof of execution of Will is proved by the evidence of DW-4, who is Sub Registrar, Hubballi. During the evidence, as per the summons issued by the Court, he had taken the book of registration as per Ex.D-22 and upon perusing the said book of registration, he had deposed that there were signatures of Yellappa Fakkirappa Angadi and also a thumb impression of Yellappa Fakkirappa Angadi. During the course of cross- examination, nothing is revealed that the registration of deed of Will is created and forged. Whereas from the
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR evidence of DW-4, it is proved that Yellappa Fakkirappa Angadi had executed a Will in favour of defendant No.1. Thus, execution of Will is duly proved.
61. Subsequently, defendant No.1 had sold the said property to defendant Nos.2 to 10; therefore, it is proved that Yellappa Fakkirappa Angadi had executed the Will in favour of defendant No.1 and defendant No.1 had become the owner of the property and therefore, defendant No.1 had sold the property in favour of defendant Nos.2 to 10.
62. Further considering the arguments of both the learned counsel appearing for the parties regarding whether the challenge of the Will is within the period of limitation or not. Admittedly, the Will was executed on 25.06.1984. Yellappa Fakkirappa Angadi died on 07.07.1989. It is the evidence of PW-1-plaintiff that in the year 1989, plaintiff No.1-PW-1 came to know about the execution of the Will by Yellappa Fakkirappa Angadi. Further, it is admission of plaintiff No.1-PW-1 that he was in possession of a copy of
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Will after six months from the date of death of Yellappa Fakkirappa Angadi. Further, PW-1-plaintiff No.1 admitted that defendant No.1 had got his name mutated in the revenue records on the basis of the Will in the year 1989. Also admitted that even after coming to having knowledge of such execution of the Will in the year 1989, the plaintiffs have not initiated any legal action; therefore, it is proved that the plaintiffs knew regarding execution of Will in the year 1989 itself, but have not taken any legal recourse to challenge the Will till the year 2011, when the instant suit in O.S.No.64/2011 is filed.
63. It is an explanation of the plaintiffs that the plaintiffs were in process of challenging the order of grant of occupancy rights in the writ petition and in the writ appeal and when the Division Bench of this Court in W.A.No.3571/2005 had observed that only for limited purpose, defendant No.1 is permitted to come on record as a legatee under the Will and after disposal of the said writ
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR appeal, the suit is filed. Therefore, contended the suit filed in the year 2011 is within the period of limitation. This contention does not found to be having merit. The limitation runs soon after the knowledge of such document is executed.
64. As per Article 58 of the schedule to the Limitation Act, the Will has to be challenged within a period of three years from the date the right to sue first accrued, i.e., from the date of knowledge of the plaintiffs for the first time. In the present case, as discussed above, the plaintiffs came to know that the deceased Yellappa Fakkirappa Angadi had executed a Will in favour of defendant No.1 after six months from the date of death of the deceased and was having possession of a copy of the Will. It is borne out from the evidence on record of PW-1; therefore, the plaintiffs ought to have challenged the Will within a period of three years from the date of knowledge of the plaintiffs for the first time. In the writ appeal, defendant No.1 came on record
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR for a limited purpose to prosecute the writ appeal as a legatee that does not constitute the date of knowledge of the plaintiffs for the first time.
65. In similar circumstances, the Hon'ble Supreme Court was pleased to lay down the principle of law in the case of NIKHILA DIVYANG MEHTA AND ANOTHER VS. HITESH P. SANGHVI AND OTHERS4, at paragraph Nos.8, 24 and 28, wherein it is observed as follows:
"8. The dispute per se in the suit is inter se the family members i.e., the son and daughters of the deceased Pramod Kesurdas Sanghavi in connection with his Will and Codicil and for the purposes of seeking the reliefs claimed in the plaint i.e., for declaration of the Will and the Codicil to be null and void, the plaintiff contended that the cause of action for such a suit arose first on 04.02.2014, secondly on 20.09.2014 and lastly on 21.10.2014.
24. There is no dispute to the fact that the limitation for filing of the suit falls under Article 58 of the Schedule to the Act wherein the limitation prescribed is three years. It may be pertinent to note that the limitation of three years is from the date when the cause of action first arose. So, according to the plaintiff's case, the cause of action first arose on 04.02.2014 and, 4 2025 SCC Onlie SC 779
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR therefore, the limitation would end on 04.02.2017. However, even if the limitation is calculated from the date of knowledge of the Will and/or the Codicil, it would run from the first week of November, 2014 and would end in the first week of November, 2017. The suit admittedly was instituted on 21.11.2017; much beyond the first week of November, 2017 and as such is apparently barred by limitation, for which neither any defence is required to be looked into nor any evidence in support is needed to be adduced.
28. The other contention that the plaintiff acquired knowledge of the Will and Codicil in the first week of November, 2014, but that was not a complete knowledge as probably he could read the same subsequently. In dealing with the submission, the appellate Court distinguished between "having knowledge"
and "full knowledge" to hold that the suit is not barred by limitation as the limitation would reckon from the date of full knowledge. It is a complete fallacy to make any distinction between "knowledge" and "full knowledge". First of all, the limitation has to run from the date when the cause of action first accrued and not any subsequent date for the cause of action. According to the plaintiff himself, the cause of action for the suit had arisen much earlier. Secondly, the plaintiff has not pleaded any date on which he acquired complete knowledge and that such argument is only an afterthought and appears to be a simple creation of the first appellate Court."
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR
66. In the present case, in the year 1989 itself, the plaintiffs knew that Yellappa Fakkirappa Angadi has executed the Will and moreover, the plaintiffs were having a copy of the Will. Thus, it is not only mere hearsay having come to know about the Will, but also that the plaintiffs having copy of Will at their hands soon after the death of Yellappa Fakkirappa Angadi, who died on 07.07.1989. In the year 1989 itself, the plaintiffs came to know about the Will, but they have not taken any legal action to challenge the Will since the year the suit is filed in the year 2011.
67. Also admitted that they have not initiated the legal proceedings of challenging the Will till the suit in O.S.No.64/2011 is filed. Therefore, the pleading that the cause of action arose to file suit in the year 2010 by virtue of order passed in writ appeal is not correct and is just making an attempt to overcome the period of limitation. As per Article 58 of the Limitation Act, Will has to be challenged within a period of limitation of three years.
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR Therefore, after lapse of 22 years, the Will is challenged in the suit. Hence, the relief claimed in the plaint as prayer
(b) is barred by limitation and consequently, the plaintiffs fail to prove that they are owners of the suit property and all the facts and evidence, both oral and documentary are correctly appreciated by the Trial Court. Hence, there is no illegality and perversity is found in the order passed by the Trial Court. Accordingly, I answer point Nos.(i) and (v) in the Negative, point Nos.(ii) and (iii) in the Affirmative and point No.(iv) that the additional documentary evidence produced by the learned counsel for the appellants/plaintiffs is considered. Hence, the judgment and decree passed by the Trial Court is confirmed. Therefore, the appeal is liable to be dismissed being devoid of merits.
68. In the result, I proceed to pass the following:
ORDER i. The appeal is dismissed.
ii. The judgment and decree dated 20.07.2016 passed in O.S.No.64/2011
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NC: 2025:KHC-D:13442 RFA No. 100024 of 2017 HC-KAR on the file of II Additional Senior Civil Judge, Hubballi, is hereby confirmed. iii. Draw decree accordingly.
iv. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA