Karnataka High Court
Mallamma W/O Neelkanthrao vs Rajshekhar S/O Late Neelkanthrao on 15 September, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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RSA No. 7213 of 2012
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO.7213 OF 2012 (DEC)
BETWEEN:
MALLAMMA
W/O NEELKANTHRAO
SINCE DECEASED BY LRS
1. BASSAMMA
W/O GUNDAPPA,
AGE: 65 YEARS,
OCC: HOMEMAKER AND AGRI.,
R/O: MANHALLI,
TQ: AND DIST: BIDAR - 585 403.
2. CHANDRAMMA
W/O BASAVARAJ UDAMNALLI,
Digitally signed AGE: 61 YEARS,
by RENUKA OCC: HOMEMAKER AND AGRI.,
Location: HIGH R/O: AIYONALLI,
COURT OF
KARNATAKA TQ: AND DIST: KALABURAGI - 585 307.
...APPELLANTS
(BY SRI. RESU MAHENDER REDDY, SENIOR COUNSEL APPEAR
FOR SRI. R. J. BHUSARE, ADVOCATE)
AND:
1. RAJSHEKHAR
S/O LATE NEELKANTHRAO,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: VILLAGE HOKRANA (B),
TQ. AND DIST: BIDAR - 585 403.
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2. MAHADEVI
D/O LATE NEELKANTHRAO,
W/O: ANNARAO RAMPURE,
AGE: 70 YEARS,
OCC: HOMEMAKER,
R/O: DONGARGAON,
TQ. AND DIST: KALABURAGI - 585 313.
3. VIMALAVATHI
D/O LATE NEELKANTHRAO,
W/O PRABHUSHETTY ACHI,
AGE : 68 YEARS,
OCC: HOMEMAKER,
R/O: REKULAGI,
TQ: AND DIST: BIDAR - 585 227.
4. NIRMALA
D/O NEELKANTHRAO,
W/O SHIVASHARANAPPA CHONDE,
AGE: 65 YEARS,
OCC: HOMEMAKER,
R/O: NOUBAD,
TQ: AND DIST: BIDAR - 585 402.
...RESPONDENTS
(BY SRI K.M.GHATE, ADVOCATE FOR RESPONDENTS;
V/O DATED 15.10.2024, APPELLANTS NO.2 AND 3 ARE
TREATED AS LR'S OF DECEASED APPELLANT NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING A)
TO CALL FOR THE RECORDS IN R.A.NO.143/2004 ON THE FILE
OF THE FAST TRACK-II COURT AT BIDAR AND O.S.NO.52/1995
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR. DN.) BIDAR,
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FOR EXAMINING THE SAME, B) SET ASIDE THE JUDGMENT
AND DECREE DATED 21.03.2012 PASSED IN R.A.NO.143/2004
BY THE FAST TRACK - II COURT, AT BIDAR AND CONFIRM THE
JUDGMENT AND DECREE DATED 30.06.2004 PASSED IN
O.S.NO.52/1995 BY THE PRINCIPAL CIVIL JUDGE (SR. DN.)
BIDAR, BY ALLOWING THE ABOVE APPEAL AND ETC., C)
CONSEQUENTLY, DISMISS THE SUIT OF THE
PLAINTIFFS/RESPNDENTS, D) IN ALTERNATE THE MATTER MAY
KINDLY BE REMANDED TO THE COURT BELOW BACK FOR
FRESH DISPOSAL FOR HEARING ON MATERIAL ISSUES AS PER
PLEADINGS OF THE PARTIES BY GIVING SUFFICIENT
OPPORTUNITIES ON BOTH PARTIES TO LEAD ORAL AND
DOCUMENTARY EVIDENCE IF ANY, IN ACCORDANCE WITH LAW
AND E) GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT
DEEMS FIT TO GRANT TO THE APPELLANTS/DEFENDANTS IN
THE CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS
OF THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR SECOND APPEAL, COMING ON FOR
DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS
DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by defendants No.1 to 3 praying to set-aside the judgment and decree dated 21.03.2012 passed in R.A.No.143/2004 by the Fast Track Court - II, Bidar confirming the judgment and decree dated 30.06.2004 passed in O.S.No.52/1995 by the Prl. Civil Judge (Sr. Dn), Bidar.
02. The appellants No.1 to 3 were defendants No.1 to 3 and respondents No.1 to 4 were plaintiffs No.1 to 4 in O.S.No.52/1995.
03. The case of the plaintiffs as averred in the plaint is that plaintiff No.1 is the son and other plaintiffs are the daughters born to late - Sri. Neelkanthrao through his legally wedded wife namely Smt. Neelamma wife of Neelkanthrao now deceased. The father of the plaintiffs namely Neelhanthrao and plaintiff No.1 were joint owners -5- NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR in possession of the ancestral lands Sy.No.51 measuring 21 acres 01 gunta now entered in the ROR as Sy.No.51/A measuring 10 acres 28 guntas R.A. of Rs.11.75 paise and Sy.No.51/2AA measuring 10 acres 28 guntas R.A. of Rs.11.74 paise and Sy.No.89 entirely measuring 28 acres 01 gunta now entered in the ROR as Sy.No.89/A measuring 14 acres 01 gunta of R.A. Rs.35-4 paise and Sy.No.89/AA measuring 14 acres R.A. of Rs.35-46 paise and a residential house bearing Panchayat No.111 and cattle shed bearing Panchayat No.22, all situated at village Hokrana Tq: and Dist: Bidar.
a) Plaintiff No.1 along with his father were jointly cultivating the said suit lands as coparceners and the plaintiffs father - Neelkanthrao in the capacity of Manager and Karta of Hindu Joint family consisting of himself, his wife - Smt. Neelamma and plaintiff No.1 a coparcener, managed the family affairs till his life time. Plaintiffs Nos.2 to 4 after their marriages residing along with their respective husbands.-6-
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b) The father of plaintiff No.1 namely Neelkanthrao expired on 01.06.1991 after a long sickness. After his death the entire suit properties are inherited and succeeded by the plaintiffs as joint owners and joint possessors, as the plaintiffs' mother - Smt. Neelamma had already expired.
c) During the life time of the father, in order to see that the above said suit lands should not exceeds the ceiling limits prescribed under the Land Reforms Act, has got entered the suit lands Sy.No.51/2-AA measuring 10 acres 28 guntas and Sy.No.99/AA measuring 14 acres in the name of plaintiff No.1 and the remaining suit lands have been detained by him in his name without effecting any partition of the joint family properties. Even if, the entries were made in the name of plaintiff No.1, but plaintiff No.1 and his father both have jointly cultivated all the suit lands detailed above in the capacity of joint owners and joint possessors and no partition by metes and bounds has taken place.
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d) After death of the father, the plaintiffs have succeeded to the suit properties in the capacity of joint owners and plaintiff No.1 being the only male member in the family is cultivating the suit lands in the capacity of a Karta and Manager.
e) In fact, the defendants have got no right or interest and they are not concerned either with the family or the properties of the plaintiffs, but defendant No.1 is malafidely claiming herself to the second wife of late - Neelkanthrao and she also claims that defendant Nos.2 and 3 are her daughters born through late - Neelkanthrao. But in fact, defendant No.1 is neither the second wife nor defendant Nos.2 and 3 are born through Neelkanthrao. The said Neelkanthrao cannot take the second wife and marry with defendant No.1 during the year 1962 during the life time of his legally wedded wife - Smt. Neelamma who has expired during the year 1988. As such, the defendants have got no right in the suit properties. -8-
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f) After the death of plaintiff's father, defendant No.1 approached the village accountant for sanction of mutation of land Sy.No.51/2A and Sy.No.89/A which were nominally standing in the name of late - Neelkanthrao on the bogus grounds that late - Neelkanthrao had bequeathed the said lands Sy.No.51/2A and Sy.No.89/A along with half of the suit house, in her favour under a registered Will deed vide document No.2/91-92 dated 19.04.1991. In fact, late - Neelkanthrao has neither bequeathed the above said properties nor he was entitled to execute any Will deed in favour of defendant No.1 nor she gets any right or interest to the said suit properties. In fact, the said Neelkanthrao was suffering from T.B. and other diseases like paralysis etc., and he was bedridden for a period of more than two years prior to his death. For his treatment, he was also admitted in the Civil Hospital, Bidar and he was unable to walk, talk and listen also, due to the above said diseases. So, the so called Will deed has been forged and created by defendant No.1 in order to deprive the plaintiffs of their legal rights and interest in the properties left by the deceased.
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g) During the pendency of the mutation proceedings before the Naad Tahsildar Mahballi, defendant No.1 has clearly admitted that she is the second wife of late - Neelkanthrao and that the said lands are being cultivated and managed by plaintiff No.1 alone, but in spite of that, the Naad Tahsildar while rejecting the objection to the petitions filed by plaintiff No.1 has sanctioned the mutation in the name of defendant No.1 on 13.02.1992. Aggrieved with that plaintiff No.1 filed an appeal before the Asst. Commissioner, Bidar, which is also dismissed in File No.REV/APPL/CR-5/92-93 dated 10.02.1995.
h) After death of the father, the plaintiffs alone are entitled to inherit and succeed to the properties left by their deceased father and the defendants have no concern at all with the same and so the plaintiffs may be declared to be the joint owners and joint possessors of lands Sy.No.51/2A, 51/2AA, Sy.No.89/A and 89/AA and also to the suit house.
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i) In case, the suit for declaration of joint ownership of the plaintiffs with regard to the suit lands and the suit house cannot be decreed for any reason, then the plaintiffs alternatively claim the partition and separate possession of their legal share in the suit lands and the suit house as per the provisions of the Hindu Law and the plaintiffs may be allotted their 5/6th share in the suit properties by way of partition.
j) The suit is alternatively for partition and separate possession of the suit properties, the plaintiffs asked the defendants to admit the joint ownership and joint possession of the plaintiffs over the suit properties.
04. The defendants have filed the written statement denying the case of the plaintiffs and contended that paras Nos.1 to 4 of the plaint are not correct. It is true that plaintiff No.1 is the son and plaintiffs Nos.2 to 4 are the daughters born to late - Neelkanthrao through his wife - Smt. Neelamma. The allegations of the plaintiffs that the father of the plaintiffs, Neelkanthrao and plaintiff No.1
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR were the joint owners and possessors of the suit lands and the suit houses and were cultivating jointly as coparceners and the father of the plaintiffs namely Neelkanthrao in the capacity of the Manager and Karta of the Hindu Joint family consisting of himself, his wife - Smt. Neelamma and plaintiff No.1 as coparceners managed family affairs till his life time, are all wrong and false facts in view of the facts noted in further paras of this written statement. It is true that the father of the plaintiffs expired on 01.06.1991, but is wrong to say that he died after a long sickness. It is also wrong to say that after his demise, the entire suit properties are inherited and succeeded by the plaintiffs as joint owners and joint possessors.
a) That paras Nos.5 to 7 of the plaint, are absolutely wrong and false, hence, denied. The allegations of the plaintiffs that during the lifetime of their father, he in order to see that the above said suit lands, should not exceed the ceiling limits prescribed under the Land Reforms Act has not entered the suit lands Sy.No.51/2/AA measuring
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR 10 acres 28 guntas and 89/AA measuring 14 acres in the name of plaintiff No.1 and remaining suit lands have been detained by him in his name without effecting any partition of the joint family properties are all wrong and false facts. Further allegations of the plaintiffs that even if the entries were made in the name of plaintiff No.1, but plaintiff.1 and his father both have jointly cultivated all the suit lands in the capacity of the joint owners and joint possessors and no partition by metes and bounds had taken place are all wrong and false facts. It is also wrong to say that after the death of the father, the plaintiffs have succeeded to the suit property in the capacity of joint owners and plaintiff No.1 being the only male member in the family is cultivating the suit lands in the capacity of a Karta and Manager. The further allegations of the plaintiffs that the defendants have got no right or interest and they are not concerned either with the family or the properties of the plaintiffs and defendant No.1 is malafidely claiming herself to be the second wife of late Neelkanthrao and defendants Nos.2 and 3 are born to her through
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR Neelkanthrao are all wrong and false. It is also wrong to say that the marriage of defendant No.1 with late - Neelkanthrao took place in the year 1962. In fact, Neelkanthrao married with defendant No.1 in the year 1953 itself as per the custom prevailing in their community.
b) That para No.8 and repeated para No.8 and para No.9 of the plaint are all wrong and false and hence, denied. It is true that defendant No.1 on the basis of the registered Will deed bearing document No.2/91-92 dated 19.04.1991, approached the village accountant for sanction of mutation of the lands as mentioned therein, but the dishonest plaintiff No.1 filed objections for the said mutation, but the Naad Tahsildar, Manhalli dismissed his petition. Aggrieved by that order, plaintiff No.1 has filed an appeal before the Asst. Commissioner, Bidar and the said appeal is also dismissed on 10.02.1995. Accordingly, name of defendant No.1 is entered in the ROR as the exclusive owner and possessor and all the defendants are
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR enjoying the said properties as mentioned in the Will need jointly. The plaintiffs have no right or concern with ownership and possession of the lands and the houses shown in the Will deed. The allegations of the plaintiffs that late - Neelkanthrao has neither bequeathed the suit property, he was entitled to execute any Will Deed in favour of the defendants nor they get any right and interest in the suit properties are all wrong and false facts. The further allegations of the plaintiffs that the said Neelkanthrao was suffering from T.B. and other diseases like paralysis etc. and he was bedridden for a period of more than two years prior to his death and for his treatment, he was admitted in Civil Hospital, Bidar as he was unable to walk, talk and listen due to the above said diseases and so the so called will deed has been forged and created by defendant No.1 in order to deprive the plaintiffs of their equal rights and interest in the properties left by the deceased are all wrong and false facts. It is true that defendant No.1 is the second wife of late
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR Neelkanthrao and their marriage being performed in the year 1953 as per the custom prevailing in their community. But, it is wrong to say that defendant No.1 admitted before the Naad Tahsildar, to the effect that the plaintiffs are cultivating and managing the suit properties after the demise of late Neelkanthrao. It is true that the Naad Tahsildar, sanctioned the mutation in the name of defendant No.1 on 13.02.1992 and aggrieved with that mutation, plaintiff No.1 filed appeal before the Asst. Commissioner, Bidar which is also dismissed on 10.02.1995, after due enquiry and after hearing both the parties. The allegations of the plaintiffs that after the demise of their father, the plaintiffs alone are entitled to inherit and succeed to the properties left by their deceased father and the defendants have no concern at all and so the plaintiffs are to be declared as the joint owners and joint possessors of the suit lands and the suit house are all wrong and false facts in view of the facts noted in further paras of this written statement.
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c) That para Nos.10 to 12 of the plaint are not correct. The allegations of the plaintiffs that if by any reason the suit for declaration for joint ownership of the plaintiffs with regard to the suit lands and the suit house cannot be decreed for any reasons, than the plaintiffs claim alternatively the partition and separate possession of their legal shares in the suit lands and the suit house as per Hindu Law for allotment of 5/6th share in the suit property be way of partition are absolutely wrong and false. The further allegations of the plaintiffs that the suit is alternatively for partition and separate possession of the suit properties and they asked the defendants to admit the joint ownership and joint possession of the plaintiffs over the suit properties which have been denied by them on 24.02.1995 which is shown as the date of cause of action are all wrong and false facts. The plaintiffs have got no cause of action to file this suit. The date of denial and the date of cause of action shown by the plaintiffs are fictitious.
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d) That plaintiff No.1 and deceased - Neelkanthrao were the members of the divided family and partition had taken place in between them by metes and bounds and accordingly, entries were changed in the revenue records. As such, the plaintiff's allegation that the said entries are made to save the suit lands from ceiling under the Land Reforms Act, becomes absolutely wrong and false.
e) That the deceased - Neelkanthrao, due to the services rendered by the defendants and being fully satisfied with them has bequeathed the lands and the house shown therein exclusively owned and possessed by him, he being the divided member, rightly and legally in favour of the defendants by executing a duly registered Will deed bearing Document No.2/91-92 dated 19.04.1991, with his own free will and consent with sound mind and good senses and without any duress or coercion from any sides and after understanding the contents in full read-over and explained to him in Kannada Languages best known to him, he signed the Will in presence of the
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR attesting witnesses thereto. After the demise of Neelkanthrao, the defendants alone inherited and succeeded to all the properties left by the deceased - Neelkanthrao based upon the Will deed which has been acted upon. The mutations have rightly been sanctioned and the entries in the revenue records are made in the name of defendant No.1 as the exclusive owner and possessor thereof and all the said properties are in the joint enjoyment of the defendants. The plaintiffs have got no right or concern whatsoever with the said properties.
f) The suit of the plaintiffs in the present form is not legally tenable. The suit of the plaintiffs is not within time in terms of the reliefs claimed.
05. On the basis of the above pleadings, the Trial Court has framed the following issues:-
I.Whether plaintiffs prove that they are joint owners in possession of suit properties?
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR II.Whether plaintiffs further prove that will Deed dated 19-04-1991 is null and void, ineffective against their rights and interest? III.Whether plaintiffs alternatively prove that the suit properties are joint family properties liable for partition and they are entitled for 5/6th share and separate possession by effecting partition by metes and bounds?
IV.Whether defendants prove the previous partition in the family properties between the plaintiffs and deceased Neelkanthrao as alleged in para-8 of the written statement?
V.whether plaintiffs are entitled for the relief of injunction sought for ?
VI.What order or decree?
06. The plaintiffs examined PW.1 to 4 and got marked Ex.P.1 to 16. The defendants examined DW.1 to 4 and got marked Ex.D.1 to Ex.D.3.
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07. The Trial Court after hearing and appreciating the evidence on record has answered issue Nos.1 to 3 and 5 in the negative and issue No.4 in the affirmative and dismissed the suit of the plaintiffs.
08. Aggrieved by the same, the plaintiffs have filed appeal in R.A.No.143/2004 on the file of Fast Track Court
- II, Bidar. The First Appellate Court after hearing the arguments on both sides has formulated the following points for consideration:-
I.Whether the impugned judgment and decree passed by the lower Court in O.S.No.52/1995 dated 30.06.2004 is perverse, capricious, erroneous and against the law and merits of the case and further interference of this Court is needed.?
II.What order.?
09. The appellate Court has answered point No.1 in the affirmative and set-aside the judgment and decree passed by the Trial Court and decreed the suit partly
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR holding that the plaintiffs are entitled to 1/5th share each in the suit properties and 1/30th share of their father's share 1/5th, in the suit properties. Challenging the judgment and decree of the First Appellate Court the defendants have filed the present appeal.
10. The appeal came to be admitted to consider the following substantial question of law:-
"Whether the First Appellate Court is legally correct in granting 1/5th share to each of the plaintiffs when there are seven legal representatives of the deceased - Neelkanthrao.?"
11. Heard the learned Senior Counsel for the appellants and the learned counsel for the respondents.
12. Learned Senior Counsel for the appellants would contend that the Will - Ex.D.2 dated 19.04.1991 is a registered Will and it is executed by Neelkanthrao in favour of defendants No.1 to 3 bequeathing his properties
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR in favour of defendants No.1 to 3. The said Neelkanthrao died on 01.06.1991. Defendants No.1 to 3 filed an application for mutating their names in the revenue records on the basis of said Will and for the said application, plaintiff No.1 has filed objections on 31.01.1991. The copy of the said objections is at Ex.P.6. In the said objections, plaintiff No.1 has denied the Will stating that it is a bogus and created one. The Naad Tahasildar by his order dated 13.02.1992 has allowed application. The plaintiffs have filed an appeal before the Assistant Commissioner and the same came to be dismissed on 10.02.1995. He submits that the plaintiffs came to know regarding the said Will and their objections (Ex.P.6) dated 31.01.1991 contains averments that Will is created and it is not genuine. Therefore, the cause of action to file the suit seeking declaration that Will is null and void arose on 31.01.1991 and the suit filed on 06.04.1995 is beyond period of limitation, since Article 52 of the Limitation Act, provides the limitation of 03 years
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR for seeking declaration from the date of right to sue first accrues. He contended that the defendants have taken the said defence of the limitation in the written statement. He prays for formulating the additional substantial question of law on the point of limitation.
13. He further contends that there was a partition in between Neelkanthrao and his son - Rajshekhar (plaintiff No.1) in the year 1978 and ½ share has been given in land properties to plaintiff No.1 - Rajshekhar and ½ share has been retained by Neelkanthrao. Therefore, the said properties retained by him are his absolute properties and he has right to bequeath his properties in favour of defendants No.1 to 3. He further submits that there are mutation entries with respect to the said division of properties in between Neelkanthrao and his son - Rajshekhar and the said mutation entries have sought to be produced under I.A.No.2/2012 filed under Order 41 Rule 27 of CPC, along with copy of the mutation register, records of rights of Sy.Nos.51/2A, 51/2AA, 89/A and 89/AA are sought to be produced.
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14. The said documents would indicate the fact of division of the properties among Neelkanthrao and his son Rajshekhar - plaintiff No.1. Therefore, the said document is required for deciding the lis between the parties.
15. He further contends that PW.3 who is one of the attesting witnesses to Will - Ex.D.2 has denied he attesting Will as per Section 71 of the Evidence Act, which provides that if the attesting witness denies the execution of the Will it is to be proved by other evidence. DW.3 is another attesting witness and evidence will establish the execution of the Will by Neelkanthrao in favour of defendants No.1 to 3. He submits that the plea of ceiling of land holding for division of the properties in between the said Neelkhanth Rao and his son Rajshekhar (plaintiff No.1) in the year 1978 is a name sake defence since there was no ceiling of land holdings, if the holding of a person is less than 53 acres of land.
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16. He placing reliance on the judgment of the Hon'ble Supreme Court in the case of Metpalli Lasum Bai (since dead) and others vs. Metapalli Muthaih (D) by Lrs, reported in 2025 SCC OnLine SC 1488 has contended that the Will is registered, a presumption about genuineness has to be drawn and it is for other party to disprove it. With these, he prayed to allow the appeal and restore the judgment and decree passed by the Trial Court.
17. Learned counsel for the respondents would contend that the defendants have not obtained probate with regard to Will - Ex.D.2. The medical records produced i.e., Ex.P.7 are the medical card of Neelkanthrao and discharge summary at Ex.P.8 issued by District Surgeon indicates that he was T.B. patient and he was admitted in the Hospital during August-1991. Therefore, he was not having sound status of mind to execute the Will and there is a evidence of PW.3 in support of the said aspect. He submits that at least 02 witnesses are required for validity of the Will. As PW.3 has denied the attesting Will, the Will
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR does not comply Section 63 (c) of the Indian Succession Act. On that point, he places reliance on the decision of the Hon'ble Supreme Court in the case of Dhani Ram (dead) through LRs and others vs. Shiv Singh, Manu/SC/1090/2023.
18. He submits that the mutation proceedings on the basis of Will are not maintainable as it is the domain of the Civil Court to decide the validity of the Will. On that point, he places reliance on the decision of the Madhya Pradesh High Court in the case of Geeta Paliwal w/o Late Shri Durgashankar and others vs Sitaram s/o Shri. Madhoprasad and others in W.P.No.2578/2022 decided on 15.08.2023.
19. He submits that the question of validity of WILL must be determined by the Civil Court and question of title has to be referred to the Civil Court and there is no period of limitation as prescribed. On that point, he relied upon the decision of the Madhya Pradesh High Court in the case of Ramgopal Kanhalyalal vs. Chetu Batte, reported in AIR 1976 MP 160.
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20. He submits that if both the Courts have concurrently held that the Will set-up by the plaintiffs is not a genuine document, then this Court cannot reassess the evidence relating to proof of Will by having recourse to Section 100 of CPC. On that point, he places reliance upon the decision of the Coordinate Bench of this Court in the case of Smt. Nagarathnamma and others vs. Sri. H. B. Rajashekharaiah and others in RSA.No.2182/2011 decided on 13.02.2023.
21. He further contended that if the relief sought is not adequate or proper, the Court has got power to mould under Order VII Rule 7 of CPC. On that point, he places reliance on the decision of the Coordinate Bench of this Court in the case Danamma Kom Yanka Chaluvadi and others vs. Lalita Kom Hanumantappa Chaluvadi and others, Manu/KA/0827/2023.
22. He further submits that defendants ought to have sought declarations based on the Will and they have not sought such a relief. The First Appellate Court has
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR rightly appreciating the evidence has decreed the suit of the plaintiffs. He further submits that in the second appeal an application under Order 41 Rule 27 of IPC seeking production of additional documents, cannot be entertained and moreso the documents produced along with application are obtained in the year 2012 and there is no case made out for not producing the said documents in the Trial Court. With these, he prayed to dismiss the appeal.
23. Having heard the learned counsels on both the parties, this Court perused the impugned judgments and Trial Court records.
24. Appellants No.1 to 3 were defendants and respondents No.1 to 4 were plaintiffs No.1 to 4 before the Trial Court.
25. Plaintiffs No.1 to 4 are son and three daughters of Neelkanthrao and his wife Smt. Neelamma. The said Smt. Neelamma died in the year 1988 and the said Neelkanthrao died on 01.06.1991. The said Neelkanthrao
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR had a second wife by name Smt. Mallamma and she is defendant No.1. Defendants No.2 and 3 are two daughters of Smt. Neelamma and Neelkanthrao. Even though the plaintiffs have earlier disputed the relationship of defendants No.1 to 3 with Neelkanthrao, the evidence produced by the parties established that the said Smt. Mallamma (defendant No.1) is a second wife and defendants No.2 and 3 are two daughters of the said Neelkanthrao through Smt. Mallamma (defendants No.1). It is also not in dispute that Neelkanthrao married to defendant No.1 - Smt. Mallamma during lifetime of his first wife Smt. Neelamma. The said Smt. Mallamma (defendant No.1) died during the pendency of this appeal and appellants No.2 and 3 who are two daughters are her legal heirs.
26. It was specific defence of the defendants that in the year 1978 there was a partition between the said Neelkanthrao and his son - Rajshekhar (plaintiff No.1) and in the said partition ½ share in the suit properties was
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR given to Rajshekhar (plaintiff No.1) and ½ share has been retained by the said Neelkanthrao. The said partition is disputed by the plaintiffs. The plaintiffs contended that there was ceiling limit of holding of the lands and in order to over-come the same, the properties were divided among Neelkanthrao and his son Rajshekhar. PW.1 has admitted in his cross-examination that his father informed him about mutation of his name in the revenue records in respect of the property, after mutation, his name in the said records has been entered during the year 1978-79 and his name was mutated in respect of the land bearing Sy.No.89/AA and Sy.No.51/2AA and his father's name was mutated in respect of land Sy.No.89/A and Sy.No.51/2A. He has also admitted that he has dug bore-well in middle of the properties. Ex.P.10 RTC of Sy.No.51/2AA measuring 10 acres 28 guntas was standing in the name of Rajshekhar (plaintiff No.1). Ex.P.11 RTC of Sy.No.89/AA measuring 14 acres is in the name of Rajshekhar (plaintiff No.1). The land bearing Sy.No.51/2A measuring 10 acres
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR 28 guntas is standing in the name of defendant No.1 (Smt. Mallamma) and RTC of the same at Ex.P.1 and so also land Sy.No.89/A measuring 14 acres 01 gunta which is at Ex.P.3 standing in the name of Smt. Mallamma. The name of Smt. Mallamma came to be mutated to the suit properties on the basis of Will - Ex.D.2, said to have been executed by Neelkanthrao in favour of defendants No.1 to
3. The entry of name of plaintiff No.1 in the record of rights pertaining to the property bearing Sy.No.51/2AA measuring 10 acres 28 guntas and Sy.No.89/AA measuring 14 acres in the name of plaintiff No.1. It indicates that there was a division in the properties in between plaintiff No.1 - Rajshekhar and his father Neelkanthrao. Prior to the entry of name of Smt. Mallamma relating to the suit properties, the name of Neelkhantrao was mutated. Except the oral say of plaintiff No.1 / PW.1 that in order to over-come ceiling of land holdings, the properties were divided, no other evidence has been placed on record. The said enforcement of ceiling
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR of land holdings has been ended in the year 1973-74 and it was not existing during the year 1978-79. The very fact that Neelkanthrao married to defendant No.1, during the life time of his first wife Smt. Neelamma. It appears that in order to over-come the disputes among the first wife and second wife and to keep the first wife and her children separately, the said division of the properties might have been taken place. The said suggestion put to PW.1 in his cross-examination has been denied by him. The Trial Court placing reliance on the decision of the Division Bench of this Court reported in AIR 1984 NOC 237 (KAR), has held that when a citizen with a view to gain some advantage effects a partition, leans in favour of his honesty of purpose and legal behaviors and presumes that the partition is real and valid. It could not assume that a Sham documents was brought about with a view to defect the provisions of law. The Trial Court further rightly held that conduct of PW.1 - Rajshekhar developing his portion of land only by digging a bore-well and irrigating ½ of the
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR suit property with the help of bore-well and raising the sugarcane goes to show that there was partition in the year 1978.
27. The First Appellate Court observing that no mutation has been produced to show that as per the partition in the year 1978 has disbelieved the same and held that there was no partition. In order to over-come the said observation of the First Appellate Court, the appellants have filed I.A.No.2/2012 under Order 41 Rule 27 of CPC seeking production of additional evidence by producing 05 documents. Among the five documents, one is certified copy of the mutation register of the Village Hokrana (B), which is in Hindi / Modi language with translation copy indicate that there was a mutation in the year 1978 regarding the partition in between Neelkanthrao and his son - Rasjshekhar.
28. Considering the said documents and other documents produced before the Trial Court, regarding mutation of the properties in the name of plaintiff No.1 -
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR Rajshekhar and issuing of separate RTC in respect of the property Sy.No.51/2AA measuring 10 acres 28 guntas and Sy.No.89/AA measuring 14 acres will establish that there was a partition in between Neelkanthrao and his son - Rajshekhar. As there are already documents on record regarding the mutation of the properties as per the division in the year 1978 in between Neelkanthrao and his son - Rajshekhar (plaintiffNo.1). The production of the additional evidence by way of documents produced under I.A.No.2/2012 filed under Order 41 Rule 27 of IPC, is not necessary.
29. Considering the above aspects, the Trial Court has rightly held that item Nos.1 and 2 of the suit properties i.e., Sy.No.51 and 89 have equally divided among Neelkanthrao and his son - Rajshekhar in the year 1978 and rightly held that issue No.4 has been proved by the defendants.
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR
30. The Trial Court placing on the evidence of DW.3 along with evidence of DW.1 held that Ex.D.2 - Will executed by Neelkanthrao in favour of defendants No.1 to 3 bequeathing his share of the properties is proved. The First Appellate Court placing reliance on the evidence of PW.3 and documents at Exs.P.7 and 8 medical records of Neelkanthrao has held that Ex.D.2 - Will has not been proved and the said Neelkanthrao was not in sound status of mind at the time of executing the Will. The said finding of the Trial Court and the First Appellate Court cannot be interfered with in this second appeal under Section 100 of CPC.
31. It is not in dispute that the suit properties are coparcenery properties of Neelkanthrao and joint family members of Neelkanthrao. In the case of Vineeta Sharma vs. Rakesh Sharma and others, reported in AIR 2020 SC 3717, the Hon'ble Supreme Court held that the daughter is also a coparcener and has equal share to that of a son in the coparcenery properties. They are also
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR entitled to the share in the coparcenery properties, if there was no partition among coparceners. In Para No.129 the Hon'ble Supreme Court observed thus:-
"129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the
daughter born earlier with effect from
9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR
32. The Hon'ble Supreme Court held that in view of the explanation to Section 6 (5) of Hindu Succession Act, 1956 it is held that where a plea of oral partition is supported by public documents and partition is final by evinced in the same manner, as if it had been effected by a decree of a Court, it may be accepted.
33. In the case on hand, the evidence establishes that there was a partition between Neelkanthrao and his son Rajshekhar (plaintiff No.1) in the year 1978 and it is evidenced by public document i.e., mutation and entry in the revenue records of the properties. In view of the said prior partition in between plaintiff No1 and Neelkhanthrao, plaintiffs No.2 to 4 who are daughters of Neelkanthrao and through his first wife Smt. Neelamma are not entitled to partition and share in the coparcenery properties. They are entitled to share in the properties of Neelkanthrao which were allotted to him in the partition taken place in the year 1978.
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR
34. In view of the said partition in the year 1978, the share allotted to Neelkanthrao became his separate properties. After his death, his children are entitled to share in them. Defendants No.2 and 3 are also children / daughters of Neelkanthrao through his second wife - Smt. Mallamma (defendant No.1), as properties were allotted to the share of Neelkanthrao, are his separate properties, being children of second wife (invalid marriage) they are also entitled to share in them along with plaintiffs No.1 to
4. Therefore, plaintiffs No.1 to 4 and defendants No.2 and 3 are entitled to share in the properties of Neelkanthrao. Defendant No.1 - Mallamma being a second wife married to Neelkanthrao during the life time of his first wife Smt. Neelamma, is not entitled to any share in the properties of Neelkanthrao. Therefore, plaintiffs No.1 to 4 and defendants No.2 and 3 are entitled to equal share in the properties of Neelkanthrao i.e., Sy.No.51/A measuring 10 acres 28 guntas and Sy.No.89/A measuring 14 acres 01 gunta. The house property bearing Panchayat No.111 and
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR cattle shed bearing Panchayat No.22 situated in Hokrana village of Bidar Taluka are joint family ancestral properties of Neelkanthrao. Therefore, plaintiffs No.1 to 4 being the son and three daughters are entitled to equal share in the said properties. Defendants No.2 and 3 being the children of invalid married are not entitled to share in the said house properties.
35. Learned counsel for the appellants much argued on the limitation for filing the suit. The suit is filed for partition and for declaration that Will executed by Neelkanthrao is null and void. The said Will is held to be not proved by the defendants. As the main relief of the plaintiffs is for partition of the suit properties, there is no any limitation for filing the suit for partition. Moreso, the suit for partition is filed after the death of Neelkanthrao.
36. Considering the above aspects, the substantial question of law answered accordingly. In the result, the following;
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR ORDER I. The appeal is allowed in part.
II. The judgment and decree passed by the First Appellate Court in R.A.No.143/2004 is modified as under:-
A. The suit in O.S.No.52/1995 is partly decreed. B. Plaintiffs No.1 to 4 and defendants No.2 and 3 are entitled for 1/6th share each in the property bearing Sy.No.51/A measuring 10 acres 28 guntas and Sy.No.89/A measuring 14 acres 01 gunta situated at Hokrana (B) village. C. Plaintiffs No.1 to 4 are entitled to 1/4th share each in the house property bearing Panchayat No.111 and Cattle Shed bearing Panchayat No.22 situated at Hokrana (B) village.
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NC: 2025:KHC-K:5422 RSA No. 7213 of 2012 HC-KAR D. The parties are entitled to partition and separate possession of their respective shares by metes and bounds.
Draw Preliminary Decree accordingly.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE KJJ List No.: 1 Sl No.: 24 Ct;Vk