Karnataka High Court
Smt Koppaka Kamalamma vs Smt Alapati Shamalamma on 19 February, 2026
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RSA NO.504 OF 2007
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 19TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO.504 OF 2007 (PAR)
BETWEEN
1. SMT. KOPPAKA KAMALAMMA
W/O. HANUMANTHA RAO,
(THE APPEAL HAS ABATED AS AGAINST
APPELLANT NO.1 VIDE ORDER
DATED 29.03.2022)
2. KANIMILLI BRAMHARJUNA RAO,
S/O. ANANDA RAO,
AGED ABOUT 34 YEARS,
R/O. TONDIHAL CAMP,
GANGAVATHI TALUK.
3. KANIMILLI VENKATESHWARA RAO,
S/O. ANANDA RAO,
AGED ABOUT 30 YEARS,
R/O. TONDIHAL CAMP,
GANGAVATHI TALUK.
...APPELLANTS
(BY SRI. K. RAGHAVENDRA RAO &
SMT. V. VIDYA, ADVOCATE)
AND
1. SMT. ALAPATI SHAMALAMMA,
SINCE DEAD BY HER LRS
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RSA NO.504 OF 2007
1A. A SATYANARAYANA,
S/O. BASAVA KOTAIAH,
AGED ABOUT 75 YEARS
1B. BUDDHA BHAGAVAN,
S/O. SATYANARAYANA,
AGED ABOUT 51 YEARS,
1C. NANDA KUMARA,
S./O. SATYANARAYANA,
AGED ABOUT 45 YEARS,
RESPONDENT NO.1(A) TO 1(C)
ARE RESIDING AT JAYANAGAR,
GANGAVATHI TOWN,
KOPPAL TALUK.
2. SMT. G. SUSHEELAMMA,
SINCE DEAD BY HER LEGAL
REPRESENTATIVES
2A. GOGINENI NAGAIAH,
S/O. LATE SRIKOTTAIAH,
AGED ABOUT 68 YEARS,
R/AT ASHRAMA ROAD,
GODAVALLI VILLAGE,
CHERUKUPALLI MANDALAM,
BAPATLA, GUNTUR DISTRICT,
ANDHRA PRADESH-522 101.
2B. MUSUNURI SWARNAKUMARI,
D/O. LATE SRIKOTTAIAH,
AGED ABOUT 70 YEARS,
R/AT NO.407,
VIVEKANANDA TOWERS,
OPP. TO KANAKA DURGA TEMPLE,
HYDERABAD, TELANGANA-500084.
2C. SMT. UMADEVI,
D/O. LATE SRIKOTTAISH,
AGED ABOUT 66 YEARS,
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RSA NO.504 OF 2007
R/AT NO.504,
VIVEKANANDA TOWERS,
OPP. TO KANAKA DURGA TEMPLE,
HYDERABAD, TELANGANA-500 084.
2D. SMT. DEVABHAKTINI ANURADHA.
D/O. LATE SRIKOTTAIAH,
AGED ABOUT 64 YEARS,
R/AT NO.1104-D APARNA CYBERLIFE,
NEAR CITIZEN HOSPITAL,
NALLA GONDLA POST,
HYDERABAD, TELENGANA.
...RESPONDENTS
(BY SRI. S.G. AKKI, ADVOCATE FOR R1(A-C);
R2-ABATED; SRI. A.B. PATIL, ADVOCATE FOR R2(B &D);
R2(A) & R2(C) ARE HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVL PROCEDURE PRAYING TO SET ASIDE
THE JUDGEMENT AND DECREE PASSED BY THE LEARNED CIVIL
JUDGE (SR. DVN.) AT GANGAVATHI IN R.A.NO.37/2006 DATED
25.11.2006 AND ALSO THE JUDGMENT AND DECREE PASSED BY
THE LEARNED ADDITIONAL CIVIL JUDGE ((JR. DN) GANGAVATHI
IN O.S.NO.24/2001 DATED 7.4.2006 AND ALLOW THIS REGULAR
SECOND APPEAL WITH COSTS AND GRANT SUCH OTHER
RELIEFS AS THIS HON'BLE COURT MAY DEEM FIT TO GRANT IN
THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.01.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
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RSA NO.504 OF 2007
CAV JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.) This is the second appeal filed under Section 100 OF Civil Procedure Code (in short CPC) by original defendant Nos.1 to 3 against plaintiff and defendant No.4 challenging the judgment and decree dated 25.11.2006 in Regular Appeal No.37/2006 on the file of Civil Judge (Sr.Dvn.) at Gangavathi (for short 'First Appellate Court') and Judgment and Decree dated 07.04.2006 in O.S. No.24/2001 on the file of Additional Civil Judge (Jr. Dvn.,) Gangavathi (for short 'trial Court').
2. Parties would be referred with their ranks as they were before the trial Court for sake of convenience and clarity.
3. Plaintiff has filed the suit before trial Court for the relief of partition and separate possession of her share in suit schedule property bearing Survey No.62/A1/2 measuring 1 acre 20 guntas, situated at Thondihal Village, Gangavathi Taluk, Koppal District.
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RSA NO.504 OF 2007
4. The case of plaintiff before trial Court in a nutshell is that plaintiff and defendant No.1 are daughters of one Meka Jaganatham and they have an eldest daughter Smt.G.Sushilamma (later impleaded as defendant No.4), who was given in marriage long back and at that time, she has taken sufficient gold and cash from plaintiff and defendant No.1 in lieu of her share by relinquishing her share in suit schedule property. Hence, both plaintiff and defendant No.1 will have equal half share in the suit schedule property. However, after the death of their father, the defendant No.1 in collusion with revenue authorities got mutated one acre into her name and 20 guntas into the name of plaintiff. Hence, the suit for appropriate reliefs.
5. After filing the suit, defendant No.1 has sold suit schedule property measuring one acre to defendant Nos.2 and 3 and hence they are impleaded as parties to the suit contending that during pendency of the suit, the said sale deed came into existence and it does not bind the share of plaintiff. The defendant No.1 did so in collusion with -6- RSA NO.504 OF 2007 defendant Nos.2 and 3 illegally and without authority and thus, it is not binding on her share.
6. Afterwards, another sister of plaintiff and defendant No.1-Smt.Susheelamma is impleaded as defendant No.4. It is further pleaded in the plaint that suit schedule property is the self-acquired property of their father-Meka Jaganatham.
7. Defendant No.1 filed her written statement wherein she admitted the relationship between parties but denied all other averments made in the plaint. She contended that, the suit is bad for non-joinder of necessary parties. Defendant No.1 has taken contention that she is the absolute owner of entire suit schedule property and it is in her exclusive possession and enjoyment based on the registered Will deed executed by her father deceased-Meka Jaganatham. She further contended that value of suit schedule property for the purpose of Court fee and jurisdiction is not properly valued and not sufficient. She contended that it is plaintiff in collusion with revenue -7- RSA NO.504 OF 2007 officials got mutated 20 guntas into her name which is challenged by defendant No.1 before the revenue authorities i.e., before Assistant Commissioner, Koppal in Case No. REV/RRT/12/2000-01. But, it was closed as the present suit is pending before the Court. Only to harass defendant No.1, plaintiff has filed the present suit. There is no cause of action to file the suit. Hence, prayed for dismissal of suit with costs.
8. After impleading, defendant Nos.2 and 3, they have filed their written statement wherein they have taken contention that defendant No.1 has executed sale deed in their favour and it is not a nominal one but it is for valid consideration. They have purchased suit schedule property along with other properties from defendant No.1 and her family members. Thus, they are bonafide purchasers for value. Since, from the date of purchase they are in actual and physical possession of the said property. Plaintiff has not made any objection at the time of registration of the document, but subsequently with malafide intention only to -8- RSA NO.504 OF 2007 harass defendant Nos.2 and 3, has filed the present suit. They have taken contention that there is no cause of action to file the suit. The valuation of suit property for the purpose of payment of Court fee and jurisdiction is insufficient and improper. Hence, prayed for dismissal of suit with costs.
9. After impleading defendant Nos.2 and 3 and amending the plaint, defendant No.1 filed additional written statement, wherein defendant No.1 has taken specific contention that she has sold one acre of suit schedule property to defendant Nos.2 and 3 and she has the absolute right to convey it and hence defendant Nos.2 and 3 became absolute owners of the property. Said sale deed is legal, valid and in accordance with law. Hence, prayed for dismissal of suit with costs.
10. Defendant No.4 has not filed her written statement.
11. Based on above pleadings, the trial Court has framed the following issues and additional issues:- -9-
RSA NO.504 OF 2007 ::ISSUES::
1. Whether the Plaintiff is entitled to the partition and separate possession of half share in the suit schedule property?
2. Whether the plaintiff proves that sale deed No.6084/2000-01 dt: 3/2/2001 is not binding upon her and same is liable to be set aside?
3. Whether the suit is properly valued and court fee paid is sufficient ?
4. What order?
ADDITIONAL ISSUES
1. Whether the plaintiff further proves that the defendant No.4 has already taken her share and relinquished her right ?
2. Whether the defendant No.4 proves that, the plaintiff and defendants have succeeded to the properties of their family jointly after the death of their father?
3. Whether the defendant No.4 proves that, she is also entitled to a share in the suit schedule property?
4. Whether the defendant No.1 proves that, she got absolute right, title and interest over the suit schedule property as per registered will dated: 20/2/1987?
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RSA NO.504 OF 2007
5. Whether the defendant No.2 & 3 proves that, they are the bonafide purchaser of the suit schedule property?
6. What order or decree?
12. On behalf of plaintiff, 3 witnesses were examined apart from marking Ex.P.1 to P.3 before the trial Court. On behalf of defendants, 9 witnesses were examined apart from marking 11 documents as Ex.D1 to D11 before the trial court. After recording evidence and hearing arguments, the learned trial judge held that plaintiff is entitled for 1/3rd share in suit schedule property by metes and bounds and held that sale deed dated 03.02.2001 is null and void and not binding on the share of plaintiff.
13. Aggrieved by said judgment and decree, the defendants No.1 to 3 have preferred first appeal i.e. R.A. No.37/2006 before Senior Civil Judge, Gangavathi. Said Regular Appeal was also dismissed by confirming the judgment and decree dated 07.04.2006 in O.S. No.24/2001.
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RSA NO.504 OF 2007
14. Aggrieved by dismissal of Regular Appeal and decreeing the original suit, the appellants i.e., defendant Nos.1 to 3 have preferred the present appeal.
15. During pendency of the present appeal, appellant No.1 i.e. defendant No.1 died and her LRs. were not brought on record. Hence, the appeal filed by her was abated.
16. Appellant Nos.2 and 3 are purchasers and they continue with the appeal.
17. Heard arguments of learned counsel for appellant Nos.2 and 3-Smt.V.Vidya and learned counsel for LRs. of respondent No.2 Sri A.B. Patil.
18. During pendency of this appeal respondent Nos.1 and 2 died and their LRs. were brought on record. Even after giving sufficient opportunities LRs. of respondent No.1 though appeared through their counsel have not submitted their arguments. Hence, their arguments taken as heard.
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RSA NO.504 OF 2007
19. Learned counsel for appellant Nos.2 and 3 Smt.V.Vidya would submit that father of plaintiff and defendant Nos.1 and 4-Sri Meka Jaganatham was the absolute owner of suit schedule property totally measuring 1 acre 20 guntas. On 20.02.1987, father of plaintiff and defendant Nos.1 and 4 has executed a Will and bequeathed suit schedule property in favour of defendant No.1 and he got it registered also. It is clearly recited in the said Will that all the daughters of deceased are residing with their respective family separately. It is the executant and his wife are becoming aged and only defendant No.1 was looking after their welfare. Hence, he has executed the Will bequeathing his property in favour of his wife-Smt.Meka Rajamma and after her death to first defendant. This Will is proved in accordance with law. However, the trial Court has not considered it properly and not appreciated the evidence properly. The trial Court and First Appellate Court have not justified in suspecting the genuineness of the Will, without there being any acceptable evidence on record to that effect. Even according to plaintiff, 20 guntas are already
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RSA NO.504 OF 2007 mutated into her name and she is owner of only 20 guntas and thus the one acre property purchased by appellant Nos.2 and 3 be allotted to the share of applicant Nos.1 so that the appellant Nos.2 and 3 being bonafide purchasers, their sale deed would become valid. Appellant Nos.2 and 3 have made enquiries about the registration of Will and standing of one acre in the name of appellant No.1 and purchased suit schedule property measuring only one acre and thus, they are bonafide purchasers for value. They have purchased not only this property but other family properties of defendant No.1 and her family members under the said sale deed. Thus, it shows that they are bonafide purchasers. Hence, prayed for allowing the appeal.
20. Learned counsel for respondent No.2-Smt.Shreya B. Patil would submit that defendant No.4 is having equal share along with plaintiff and defendant No.1. No relinquishment deed is produced to prove that she has relinquished her right in suit schedule property. Further, defendant No.1 has not established the Will in accordance
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RSA NO.504 OF 2007 with law. Hence, prayed for dismissal of appeal by confirming the judgment and decree passed in original suit as well as in first appeal.
21. Even after giving sufficient opportunities, learned counsel for LRs of respondent No.1 has not appeared and not submitted her arguments. Hence, it was taken as heard.
22. This Court while admitting the appeal has framed the substantial question of law as under:
"Whether the trial Court and First Appellate Court are justified in law about suspecting the genuineness of the Will without there being any acceptable evidence on record to that effect?"
23. Finding of this Court on the above point is in Affirmative for the following reasons:-
REASONS This is the second appeal and hence cursory glance of facts is only required. The detailed discussion on pleadings and evidence of both parties and its appreciation is not
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RSA NO.504 OF 2007 required in the second appeal. If any question of law is involved then only second appeal is maintainable in law.
24. In this case first appellant died. Her LRs. were not brought on record. Hence, case filed by the first appellant was already abated as per order dated 29.03.2022. However, appellant Nos.2 and 3 are purchasers from appellant No.1. Hence, they stepped into the shoes of appellant No.1. Hence, the appeal of other appellants (purchasers) will not abate.
25. The admitted facts are that plaintiff, defendant Nos.1 and 4 are daughters of Meka Jaganatham and Meka Rajamma. Said Meka Jaganatham died on 05.11.1987 and subsequently his wife Smt. Rajamma also died.
26. The original propositus i.e., father has purchased suit schedule property totally measuring 1.21 guntas under
a registered sale deed dated 03.07.1975 as per Ex.P.1. It is not in dispute that this is the self-acquired property of Meka Jaganatham.
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RSA NO.504 OF 2007
27. It is the contention of defendant No.1 that her father has executed registered Will dated 20.02.1987 and bequeathed the entire suit schedule property in her favour. In this regard, defendant No.1 has produced said registered Will as per Ex.D.1 and its translated copy, as Ex.D.1 is in Telugu language. Ex.D.4 is the death certificate of father- Meka Jaganatham that he died on 05.11.1987. Ex.D.5 is the death certificate of his wife Smt. Rajamma, who died on 10.06.1995.
28. In the written statement, defendant No.1 had not taken contention about presence of their brother. But only in the evidence she has taken contention that they are having a brother who died leaving behind his wife and a son and they are proper and necessary parties to the suit. Without any pleading, the said evidence cannot be considered.
29. According to the recitals of the Will, the executant was aged 84 years and suffering from paralysis attack at the time of execution of the Will. In that Will, he
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RSA NO.504 OF 2007 has detailed about his three daughters and a son. But, name of the son is not mentioned in this alleged Will. It is further recited in the Will that it is only defendant No.1 who is looking after him in the old age and hence, he has bequeathed his property to his wife and after her death to his daughter i.e. to defendant No.1.
30. In the Will itself, it is stated that Meka Jaganatham was suffering from paralytic attack.
31. It is the burden of beneficiary under the Will to prove its execution. In this regard, defendant No.1 has stated in her cross-examination specifically that she was present when Ex.D.1 was written. She has stated that Ganta Seetharamaiah and Shaik Mahaboor Suban were present as attesters and it was written by one scribe- Yogananda. Said scribe was not alive at the time of recording evidence and hence, his death certificate as per Ex.P.6 was produced.
32. In the further cross-examination, defendant No.1 has squarely deposed that her father was suffering from
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RSA NO.504 OF 2007 decease since 9 years before the death. She and her other sisters were enquiring about the welfare of their father and their father was having equal love and affection on all the daughters and there was no ill will against anyone. She has deposed that before his death, her father was suffering from Parshvavayu (paralysis) i.e., he was not having strength and energy on his hands and legs and his right side was not proper.
33. D.W.3 is one of the attester to the Will and he has stated in his affidavit evidence about the case of defendant No.1 that when Meka Jaganatham was in fit state of mind has executed the Will and put his signature to the Will in his presence. This witness does not know Kannada language. But, his evidence is prepared in Kannada language. His cross-examination reveals that at the time of alleged execution of the Will, Meka Jaganatham was aged about 90 - 95 years and was suffering from left side paralysis and was walking with Club. It was suggested to him that at the time of execution of said document, Meka
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RSA NO.504 OF 2007 Jaganatham could not understand the truth and falsity of facts and it was denied by this witness; but, he deposed voluntarily that the executant understood a little. According to him, executant was not in a position to walk properly. But, a day earlier to execution came to his house and told him and his wife that on the next day he is going to execute a Will and asked him to come. The distance between his village Guddapalli and Cherukupali where the executant was residing was 5 kms.
34. This evidence creates suspicion about execution of the Will by the executant because the beneficiary under Will was present at the time of execution. Further, the executant was very old aged about 90-95 years and was suffering from paralysis and his hands and legs were not having any strength and he did not understand the things properly as admitted by the attesting witnesses.
35. Will is to be established as per Section 68 of the Indian Evidence Act, 1872. It reads as follows:
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RSA NO.504 OF 2007 "68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
36. Sec.68 of the Indian Evidence Act, 1872 prescribes the mode of proof of execution of the Will. According to it, the Will has to be established and proved in accordance with law by examining at least one of the attesting witnesses to the Will.
37. Section 69 of the Indian Evidence Act, 1872 prescribes that when attesting witnesses cannot be found,
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RSA NO.504 OF 2007 then, it must be proved that the attestation of one attesting witness at least is in his handwriting and the signature of the person executing the document is in the handwriting of that person.
38. Thus, the Will is a compulsorily registerable document. Hence, examining at least one of the attesting witnesses to said document is very much required. In this regard the defendant No.1 examined D.W.3 who was one of the attesting witnesses to the Will and also examined the son of another attesting witness as D.W.4 because another attesting witness was no more. She has produced the death certificate of the scribe of the document. Thus, defendant No.1 tried to establish the Will in accordance with law.
39. Admittedly, the deceased was having three daughters i.e., plaintiff, defendant No.1 and defendant No.4. He was not having any ill will against his other two daughters. Hence, by excluding his two daughters when he executes the Will in favour of defendant No.1 alone then, defendant No.1 has to produce cogent evidence to show
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RSA NO.504 OF 2007 that why plaintiff and defendant No.4 were excluded at the time of giving entire property to her alone. It is to be noted here that the general rule is that legatee should not influence the executant to execute the Will. Hence, the presence of legatee at the time of execution of the Will creates a suspicion.
40. It is to be noted here that suit schedule property is measuring 1 acre 20 guntas land. According to recitals of the alleged Will, 1-acre was bequeathed. But, in the boundaries of the property bequeathed under the Will, there is no mention of retaining remaining 20 guntas in the suit schedule property.
41. Furthermore, as per the evidence of D.W.1, her father was affected with paralysis to his right hand and right leg; whereas, according to her attesting witness, left side of the father was not keeping well. Furthermore, defendant No.1 is not ready to speak that her father was suffering from paralysis. But, was only trying to say that he was suffering from Asthma. But, documents and evidence of
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RSA NO.504 OF 2007 D.W.3 speak otherwise. D.W.3 specifically deposed that father was not in a position to understand the things carefully and consciously at the time of alleged execution of the Will. These factors i.e., presence of defendant No.1- legatee at the time of execution of the Will, acute ill- health of father i.e., suffering from paralysis and not in a position to understand the things consciously; was sufficiently aged about 90-95 years at the time of execution of the alleged Will, excluding his other daughters from getting share in suit schedule property and not mentioning the correct extent and boundaries of the property creates suspicion about genuineness of the Will.
42. Considering the above aspects, rightly the trial Court and the First Appellate Court have dismissed the contention of defendant No.1 and accepted the contention of plaintiff and thereby decreed the suit. It requires no interference.
43. Plaintiff, defendant No.1 and defendant No.4 will get 1/3rd share each in suit schedule property by metes and
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RSA NO.504 OF 2007 bounds. However, already defendant No.1 sold suit schedule property in favour of defendant Nos.2 and 3 during pendency of the suit, defendant Nos.2 and 3 would stepped into the shoes of defendant No.1 and they would get share of defendant No.1 in a final decree proceedings. Hence, interference of this Court on the above said judgment and decree is not required.
44. Accordingly, the point under consideration is answered in Affirmative and I proceed to pass the following:-
ORDER Appeal filed under Section 100 CPC is dismissed by confirming the judgment and decree passed in R.A. No. No.37/2006 on the file of Civil Judge (Sr.Dvn.) at Gangavathi and Judgment and Decree dated 07.04.2006 in O.S. No.24/2001 on the file of Additional Civil Judge (Jr. Dvn.,) at Gangavathi.
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RSA NO.504 OF 2007 Send back TCRs to first appellate court and trial court with copy of this judgment.
Sd/-
(GEETHA K.B.) JUDGE HMB CT-MCK