Karnataka High Court
Kenchappa S/O Mallappa Chougala vs Mallayya S/O Sadashivayya Hiremath on 31 July, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:9473
RSA No. 5344 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 5344 OF 2011 (DEC/INJ)
BETWEEN:
KENCHAPPA,
S/O. MALLAPPA CHOUGALA
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. MASARGUPPI, TQ: HUKKERI,
BELGAUM.
...APPELLANT
(BY SRI. SHIVARAJ S.BALLOLI AND SRI. RAMESH I.ZIRALI,
ADVOCATES)
AND:
1. MALLAYYA,
S/O. SADASHIVAYYA HIREMATH
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. MASARGUPPI, TQ: HUKKERI,
DIST: BELGAUM.
VINAYAKA B V 2. KEMPANNA,
HIGH COURT S/O. HONNAPPA CHOUGALA
OF
KARNATAKA AGE: 54 YEARS, OCC: AGRICULTURE,
DHARWAD
BENCH R/O. MELMATTI, TQ: GOKAK,
2025.08.07 BELGAUM.
10:51:04 +0530
...RESPONDENTS
(BY SMT. SUNANDA P.PATIL, ADVOCATE FOR R1)
(NOTICE TO R2 IS SERVED)
THIS RSA IS FILED UNDER SECTION 100 CPC AGAINST THE
JUDGEMENT AND DECREE DATED 19.01.2011 PASSED IN
R.A.NO.63/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUKKERI CONFIRMING THE JUDGMENT AND DECREE DATED
19.09.2009 PASSED IN O.S.NO.456/1997 ON THE FILE OF THE CIVIL
JUDGE (JR.DN.) SANKESHWAR ALLOWING THE TOP NOTED APPEAL
TO MEET THE ENDS OF JUSTICE AND EQUITY.
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NC: 2025:KHC-D:9473
RSA No. 5344 of 2011
HC-KAR
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This second appeal by the unsuccessful plaintiff in O.S. No.456/1997 before the Court of Civil Judge (Jr.Dn.), Sankeshwar (for short, 'the Trial Court') and who was also the appellant in R.A. No.63/2009 before the Court of Senior Civil Judge, Hukkeri (for short, 'the First Appellate Court'), is directed against the impugned judgment and decree dated 19.09.2009 passed by the Trial Court which partly decreed the suit filed by the appellant/plaintiff and which was confirmed by judgment dated 19.01.2011 passed by the first Appellate Court in R.A. No.63/2009.
2. For the purpose of convenience, the parties are referred to by their respective ranks before the Trial Court.
3. Heard the learned counsel for the appellant, the learned counsel for respondent No.1 and perused the material on record.
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4. A perusal of the material on record will indicate that one Kenchappa was the original propositus who had four sons viz., Honnappa, Basappa, Mallappa and Kadappa. Defendant No.2-Kempanna is the son of Honnappa, while the plaintiff is the son of Mallappa. It is alleged that the remaining two sons of Kenchappa are Basappa and Kadappa died issueless. According to the plaintiff, apart from the fact that he would be entitled succeed to the share of his father-Mallappa, 1/3rd share of Kadappa would also stand bequeathed in favour of Kenchappa, the plaintiff herein, vide unregistered 'Will' dated 06.05.1988. It was, therefore, contended by the appellant/plaintiff that he was entitled to 2/3rd share in the suit schedule property and remaining 1/3rd share would belong to defendant No.2- Kempanna. It was therefore, contended that though respondent No.2/defendant No.2 Kempanna did not have absolute right, title or interest or possession over the suit schedule properties, he executed a registered sale deed dated 15.11.1995 to the extent of his half share in the suit schedule properties in favour of defendant No.1-purchaser who is, undisputedly, not a family member. Under these circumstances, the plaintiff filed the instant suit for a declaration that the sale deed dated -4- NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR 15.11.1995 executed by defendant No.2 in favour of defendant No.1 was not binding upon him and for permanent injunction and other reliefs.
5. The respondents/defendants filed the written statement inter alia admitting relationship between the appellant/plaintiff and respondent NO.2/defendants No.2 as well as their respective parents and their brothers. However, the respondents/defendants disputed the execution, attestation, legality, validity, genuineness, authenticity etc. of the alleged will dated 06.05.1988 said to have been executed by Kadappa in favour of the appellant/plaintiff. It was therefore, contended that while it was true that the plaintiff and defendant were entitled to half share in the suit schedule properties, since the aforesaid Kadappa had died intestate and had not executed the alleged will as alleged by the plaintiff, the sale deed by defendant No.2 in favour of defendant No.1 to the extent of 50% (1/2 share) of half share in the suit schedule properties was perfectly legal and valid and consequently, sought for dismissal of the suit.
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6. On behalf of the appellant/plaintiff he examined himself as P.W.1 and the attesting witnesses to the 'Will' as P.W.2 and P.W.3 and documentary evidence at Exs.P.1 to P.17 were marked on behalf.
7. Defendant No.1 examined himself as D.W.1 and two witnesses as D.W.2 and D.W.3, and documentary evidence at Exs.D.1 to D.18 were marked on his behalf.
8. After hearing the parties, the trial court came to the conclusion that the appellant/plaintiff had not proved the alleged will dated 06.05.1988 said to have been executed by Kadappa in his favour and consequently, proceeded to declare that the plaintiff was entitled to only half share in the suit schedule property and consequently, decreed the suit to the said extent by holding as under:
"Before deciding other issues the issue No. 4 is important issue in this case and rest of the issues are defend on the issues No. 4. Hence, I have taken up for discussion for this issue first.
5. As per the case of plaintiff one Kenchappa Chougal is the propositor of the family of the plaintiff and defendant No. 2. Said Kenchappa had 4 sons by name -6- NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
1. Honnappa, 2. Basappa, 3. Mallappa and 4. Kadappa. Said Kenchappa had two wives by name Balavva and Basavva. The wives of the Kenchappa expired long back and Kenchappa also died long back. During life time of Kenchappa he was cultivating the suit lands bearing No. 43/15 measuring 1 Acre 27 guntas, 43/3 measuring 0.05 guntas and 43/7 measuring 0 acre 18 guntas situated at Masaraguppy vilalge. It is also contended that the said Kenchappa was cultivating above suit lands along with his 4 sons jointly. Said Kenchappa died on 14.10.1959 in jointness. After the death of said Kenchappa his 4 sons jointly cultivating the suit property and they were the joint owners and in joint possession of the suit properties. Accordingly their names jointly are appearing in the revenue records. The father defendant No. 2 Honappa died on 25.2.1981 in jointness and after his death his wife Basavva died. Another son Balappa died in the year 1998 without having issues like wise the father plaintiff Mallappa died on 6.3.1982 in jointness and Kadappa died issue less in the year 1989. Thereafter the plaintiff and defendant No. 2 jointly cultivating the suit property till today there is not partition is effect in the suit properties. It further pleaded that the father of the defendant No. 2 Honnappa has 1/3 share and after death of his father said 1/3 share devolved upon the defendant No. 2 as legal heir. Likewise plaintiff also has 1/3 share of the suit property. And Kadappa also had 1/3 share in suit property.-7-
NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
6. It is further stated that as Kadappa had special love and affection towards plaintiff, bequeathed his 1/3 share in favour of plaintiff by executing a 'WILL' on 6.5.1988. It also contended that said Kadappa had executed 'Will' voluntary and at the time of the WILL he sound state of mind. On the basis of said WILL the plaintiff became the owner to the extent of 2/3 share and defendant is the owner to the extent of 1/3 share. This being the fact defendant to colluded with defendant No. 1 in order to cause loss to the plaintiff and in order dupe the share of the plaintiff without having any right executed the sale deed in favour of defendant No. 2 on 15.11.1995 showing the defendant No. has ½ share in entire suit land and executed the sale deed to the extend of the ½ share in the suit property. It is also submitted that the sale deed executed behind the back and without knowledge of plaintiff so the said sale deed is not binding upon the plaintiff. As properties still joint the defendant is not possession of the land and plaintiff has got preferential right to purchase the same. The plaintiff is ready to purchase the 1/3 share of the defendant No. 2. It is also stated that defendant No. 2 is permanently residing at Male Matti village Tq: Gokak. The defendant No. 1 on the basis illegal sale deed caused interference in the suit lands on 25.3.1996. So he filed the suit claiming that to issue Permanent Injunction against the defendant No. 1 not cause to illegal interference and to declare that sale deed executed by the defendant No. 2 in favour defendant No. 1 is not binding upon the 1/6 share of the plaintiff.-8-
NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
7. The defendant No. 2 filed written statement and defendant No. 1 also filed the written statement the written statement filed both the defendants are one and same. The defendants No. 2 in para 8 of his written statement taken contention that the father of the plaintiff Mallappa and father of the defendant No. 2 Honnappa had ¼ share each in the suit lands. Whereas Basappa and Kadappa sons of Kenchappa had ¼ share each in the suit lands both of them died intestate. Therefore the plaintiff and defendant No. 2 had ½ share each in the suit lands. The defendant also taken contention in para No. 12 of written statement that the defendant No. 1 is in actual possession use and enjoyment of 12 share towards eastern side in the suit lands. The defendant No. 1 effected the improvement over the suit lands to the extent of ½ share hence the value of the suit property is increase.
8. The plaintiff has stated that the said Kadappa during his lifetime has executed the WILL in his favour on 6.5.1988. The WILL is marked as Ex. P. 4 in this case. This WILL is not the registered document it was written on plain paper, In order to prove the WILL the plaintiff himself examined as PW 1. In order to ascertain how this WILL is came in to possession of the plaintiff it is necessary to bring some admissions made by the PW 1 in his evidence. The evidence of the PW 1 is recorded on 13.8.2004 and also on 7.3.2008. Earlier when the plaintiff filed the suit the defendants remained exparte so the suit was decreed. Thereafter the defendants filed -9- NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR the first appeal before the Civil Judge (Sr.Dn.) Hukkeri and matter is remanded back to this court. Thereafter my predecessors have framed issues and the suit of the plaintiff was decreed. Thereafter again the defendants filed way. the appeal bearing R.A. No. 75/05 and against the case is remanded back to this court holding that certain issues are not framed so again matter was remanded back to this court to frame some additional issues and as such issues are framed. Thereafter against the PW 1 examined on 7.3.2008 and he give evidence on additional issues. First it is necessary to look in to evidence dated 13.8.2004. As per the plaintiff said WILL was written by one Sattar Beg Inamdar and 3 witnesses signed on the said WILL by name Shankar Siddaling Punjari 2. Dastigi Meerasab Terani and Bhimappa Nijappa Chougale out of which scribe of the document by name Sattar Beg and one witness Shankar Siddappa Pujare are no more. He also deposed that the Kadappa has bequeathed 1/3 share in the suit lands in favour of him. He also deposed the said WILL is written in the house of Kadappa and at that time above witness were present and as per the instruction of Kadappa Sattar Beg Inamdar had written the WILL and witnesses signed on the said WILL.. The plaintiff in his examination-in-chief on page No. 4 para No. 6 last 2 lines his stated that "¸ÀzÀj ªÀÄÈvÀÛ ¥ÀvÀæªÀ£ÀÄß £À£Àß PÀPÀÌ £À£Àß ºÉ¸Àj£À°è ªÀiÁrlÖ «µÀAiÀĪÀ£ÀÄß DvÀ£ÀÄ ¸ÁAiÀÄĪÀ ¥ÀǪÀðzÀ°è MAzÀÄ wAUÀ¼À ªÀÄÄAZÉ £À£ÀUÉ ºÉýzÀÝ£ÀÄ. The date of death of Kadappa is 6.4.1989 as per the above evidence the plaintiff came to know about the making of WILL in his favour before one month of the
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR death of Kadappa means that the plaintiff came to know the about the WILL on 6.3.1989 and WILL allege to executed on 6.5.1988. In the cross-examination of PW 1 dated 8.2.2005 on page 10 last 8 lines he deposed that ¤±Á£É ¦ 4 £ÀÄß ªÀĸÀgÀUÀĦà UÁæªÀÄzÀ°è §gÉ¢gÀÄvÁÛgÉ ¤±Á£É ¦ 4 £ÀÄß £Á£ÀÄ ºÁdgÀ EzÀÝ ¸ÀAzÀ§ðzÀ°è §gÉ¢gÀÄvÁÛgÉ. If this admission taken into consideration the plaintiff came to know about the execution of the WILL on 6.5.1988 itself. Whereas in his examination-in-chief he stated that he came to know about the WILL one month before death of said Kadappa. If the evidence of plaintiff is believed he came to know about the WILL on 6.5.1988 then why he deposed in examination-in-chief that he came to about the said on 6.3.1989. Again in his cross-examination on page No. 11 first line he deposed ¤±Á£É ¦ 4£ÀÄß ©½ ºÁ¼ÉAiÀÄ ªÉÄÃ¯É §gÉAiÀįÁVzÉ ªÉÄÃ¯É ºÉýzÀ ªÀÄÆgÀÄ d£À ªÀåQÛUÀ¼ÀÄ PÁqÀ¥Àà CªÀgÀ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ¨Á JAzÀÄ ºÉýzÀ ªÉÄÃgÉUÉ £Á£ÀÄPÀgÉzÄÀ PÉÆAqÀÄ §A¢gÀÄvÉÛãÉ. PÁqÀ¥Áà CªÀgÀÄ NzÀ®Ä §gÉAiÀÄ®Ä PÀ¯ÉwÛzÀÝgÀÄ ¤±Á¤¦ 4£ÀÄß PÁqÀ¥Àà CªÀgÀÄ ¸ÀéAvÀ §gÀªÀtÂUɬÄAzÀ §gÉAiÀÄ®Ä CªÀjUÉ AiÀiÁªÀÅzÉà vÉÆAzÀgÉ EgÀ°®è ªÀÄzÁåºÀß 2-3 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ªÉÄÃ¯É ºÉýzÀ ªÀåQÛUÀ¼À£ÀÄß PÁqÀ¥Àà CªÀgÀÄ ºÉýzÀAvÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÉÛãÉ. Means that since beginning of execution of WILL he was present till completion of WILL.
9. PW 1 further in his cross-examination on page No. 11 last 9 lines he deposed that ªÀÄÈvÀå ¥ÀvÀæªÀ£ÀÄß §gÉzÀ £ÀAvÀgÀ £À£Àß PÉÊAiÀÄ°è PÉÆnÖgÀÄvÁÛgÉ. This admission clearly goes to show that after the execution of the alleged WILL is with him till filing of the suit. Then why the plaintiff has deposed that
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR he came to know about the WILL prior to one-month of death of said Kadappa.
10. Again the PW 1 evidence recorded on 23.1.2009 and in the cross-examination made by learned advocate for defendant No.1 on page No.7 para No.5 line 6 he deposed that PÁqÀ¥Áà EvÀ£ÀÄ ¸ÁAiÀÄĪÀ ªÀÄÆgÀÄ wAUÀ¼À ªÉÆzÀ®Ä £À£ÀUÉ ªÀÄÈvÀå ¥ÀvÀæªÀ£ÀÄß ¤£Àß ºÉ¸Àj£À°è ªÀiÁr EnÖgÀÄvÉÛÃ£É CAvÀ ºÉýgÀÄvÁÛ£É. £ÀAvÀgÀ DvÀ£ÀÄ ºÉýzÀ MAzÀÄ ªÁgÀzÀ £ÀAvÀgÀ £Á£ÀÄ ¸ÀzÀj ªÀÄÈvÀå ¥ÀvÀæªÀ£ÀÄß ªÀÄ£ÉAiÀÄ°è ºÀÄqÀÄPÁr £ÉÆÃrgÀÄvÉÛãÉ. ¸ÀzÀj ªÀÄÈvÀå ¥ÀvÀæ £À£ÀUÉ ªÀÄ£ÉAiÀÄ°è ¹QÌgÀÄvÀÛzÉ. £Á£ÀÄ CzÀ£ÀÄß N¢ £ÉÆÃrgÀÄvÉÛãÉ. The above admission is entirely contrary to the evidence given on 13.8.2004. Because as per his evidence he was present at the time of execution of WILL dated 6.5.1988 and after the execution of WILL deceased Aadappa has handed over the WILL to him. The evidence of the PW 1 that said Kadappa stated 3 months before his death that he had made the WILL in his favou cannot believable one.
11. Meeresab The plaintiff in order to prove the said WILL he led the evidence of attesting witness by name Dastagir Meerasab Terani as PW 2. The PW 2 in his examination-in-chief he has deposed about the family of the plaintiff and defendant. In his evidence only it is necessary to look into the what are the circumstance were prevailing at the time of execution of the WILL. In his evidence he deposed that after the death of Mallappa his son Kenchappa plaintiff looking after the Kadappa in his old age and both residing same house and the said Kadappa has got special love and affection
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR towards the plaintiff. The said Kadappa in order to bequeath his 1/3 share to the plaintiff so he has executed the WILL. in favour of present plaintiff. He further deposed that at the time of execution of the WILL. the Kadappa was in sound state of mind and he voluntarily executed the WILL and said WILL was written by one Sattar Beg Inmadar and at that time he one Shankar Pujeri and Bhimappa Chougala were present. After writing of the WILL the contents were read over and explain to the deceased Kadappa and he signed on the WILL. Thereafter they have signed on the said WILL.
12. The PW 2 has given his evidence on 11.3.2005. In his examination-in-chief he deposed that before 5 to 6 years back the said Sattar Beg who is the scribe of the document died. Means that in the year 2000 said scribe was died. The plaintiff filed this suit in the year 1996 and said suit came to decreed on 8.6.2000 at that time the plaintiff has not examined the scribe of the document. This witness has put his thumb impresion. In the cross-examination of PW 2 dated 15.3.2005 on page No. 8 para No. 3 he deposed that the Ex. P. 4 was written in the house of Kadappa and it was written by the Kadappa himself and one boy came to his house to call him to the house of Kadappa but he did not know name of said boy. But as per the evidence of the plaintiff in his evidence he deposed that he went to the house this witness to call him on the instruction of said Kadappa. But this witness deposed that the plaintiff had
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR not come to his house to call him. In same para he deposed that when he reached house of the deceased Kadappa already one Hussan Beg Inamadar, Sattar Beg Inamdar, Shankar Siddaling Pujari and Bhima Ningappa Chougala were present. And he also admitted that at the time of writing of the WILL the plaintiff was not present. Whereas the plaintiff in his evidence deposed that from writing of the WILL till completion of the WILL he was present. So the evidence of this witness against the evidence of plaintiff. If the plaintiff at all present why this witness deposed the the plaintiff was not present at the time of execution of WILL. Again in his cross-examination on page No. 9 third line deposed that ¸ÀzÀj ªÀÄÈvÀå¥ÀvÀæPÉÌ £Á£ÀÄ £À£Àß ºÉ§âlÖ£ÀÄß ºÁQgÀÄvÉÛÃ£É £À£Àß ºÉ§ânÖ£À ¸À»AiÀÄ£ÀÄß PÀj ¥Áår¤AzÀ ªÀiÁr¹PÉÆArgÀÄvÁÛgÉ. PÁqÀ¥Àà CªÀgÀÄ PÀj ±Á» EgÀĪÀ ¥É¤ß¤AzÀ ¸À» ªÀiÁrgÀÄvÁÛgÉ ©ÃªÀÄ¥Àà ZËUÀ¯Á CªÀgÀÄ ¸ÀºÀ ¸À»AiÀÄ£ÀÄß PÀ¥ÀÄà EAQ£À ¥À¤ß¤AzÀ ªÀiÁrgÀÄvÁÛgÉ. ªÀÄÈvÀå ¥ÀvÀæªÀ£ÀÄß ¤Ã° EAQ£À ¥É¤ß¤AzÀ §gÉAiÀįÁVzÉ. I have perused the Ex.P.4. In Ex. P 4 the Kadappa has singed in blue ink and Bhiappa Chougala also signed in ink but thumb impression of this witness is in black ink. So, the evidence of this wine 1009 clearly goes to show that no WILL was executed as per the say of the plaintiff. There is another circumstances which clearly goes to show that no WILL was executed because this witness in his cross-examination on page No. 9, 11th line he deposed that ªÀÄÈvÀå ¥ÀvÀæ §gÉzÀ £ÀAvÀgÀ PÁqÀ¥Àà CªÀgÀÄ vÀªÀÄä PÀqÉUÉ ElÄÖPÉÆArgÀÄvÁÛgÉ. ¸ÀzÀj «µÀAiÀÄzÀ §UÉÎ £Á£ÀÄ ªÁ¢UÉ w½¹gÀĪÀÅ¢®è. DzÀgÉ CªÀjUÉ «µÀAiÀÄ UÉÆvÁÛV ¸ÀĪÀiÁgÀÄ 10 ªÀµÀðUÀ¼ÁVgÀÄvÀÛzÉ. So this evidence clearly shows that at the time of execution of WILL the plaintiff was not present and has not stated the execution of the
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR WILL to the plaintiff. But the plaintiff has deposed he was present at the time of execution of the WILL and said Kadappa handed over the WILL to him.
13. Now the question remains whether signature of the Kadapa appearing WILL is of him or not. The learned Advocate for defendant it is not signature deceased Kadappa. After the case is remanded back from the 1st Appelate Court defendant has produced the two documents which are marked as Ex. D 16 and 17. As per the case of the defendant the deceased Kadappa during his life time he was the member of Kochari Co. Op Society and he use to attend the society meetings and in society meetings he signed in the register as PÁqÀ¥Áà PÉAZÀ¥Áà ZËUÀ¯Á whereas on the WILL he has signed as PÁqÀ¥Áà PÉAZÀ¥Áà ZÀªÀUÀ¯Á. To prove the signature of the defendant has called the DW 2 by name Chandrashekar Kadappa Huddar who is the secretary of said Bank. In his evidence he deposed that the Society started in the year 1970 and the Society is to kupt the meeting register which are marked as Ex. D 16. He also deposed that deceased Kadappa was the member of the Society (Now it is Bank). And he signed in register and the signature of the Kadappa marked as Ex. D 16 A to D and in another register Ex. D 17 and signature of the Kadappa marked Ex. D 17 A. These signature are marked subject objection by the learned Advocate for plaintiff. The DW 2 in his cross-examination he admitted that since 1992 his working as Secretary in Society. In his cross-examination he also admitted that in Ex. D 16
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR and D 17 the then Secretary not signed on the said register and there is no seal of the society. He also admitted that there is no document to show that the said Kadappa was the member of the Society. So, the Ex. D 16 and 17 is not helpful to the case of the defendant pcause the said registers not content the seal of the Society not signed by the Secretary On the other hand the plaintiff has also not filed any other document to show that the signate appearing on the WILL is belongs to deceased Kadappa. In such circumstances the evidence of plaintiff and PW 2 is on record to come to conclusion that whether of deceased Kadappa has signed document or not. I have already discuss that there is a variation between the evidence of PW 1 and PW 2 about the presence of plaintiff i.e., PW 1 at the time of making of WILL. If at all the PW 1 was present why the PW 2 deposed that he was not at all present. So, there are suspicious circumstances about the execution of the WILL. Another important circumstance is that the WILL was executed as per plaintiff in the year 1988. Inspite of that he has not filed any application before the revere authorities to enter his name in the property extract. The PW I in his evidence he admitted that he has not filed any application till today. The plaintiff filed the suit in the year 199% and be kept quite more than 8 years and not filed any application before revenue authorities. The plaintiff has not given any proper explanation why he kept quite more than 8 years. In such circumstances the defendant No. 2 has no knowledge about the said WILL. If the plaintiff filed
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR the application and defendant No. 2 has not objected for the same then the things may be different.
14 The learned Advocate for plaintiff submitted that at the time of execution of the WILL the deceased Kadappa was sound state of mind and it is come on record in the evidence of the parties that the said Kadappa was reside alongwith plaintiff in under one roof. So the plaintiff has look after the deceased Kadappa so with love and affection he executed the WILL in favour of plaintiff. On the other hand the defendant No. 2 deposed that he had taken care of deceased Kadappa. He also deposed that 4 to 5 times in a week he came from Melamatti village to Masaraguppi village. After perusing the evidence of the both the parties one thing is clear that there is no enmity between the deceased Kadappa and defendant No. 2. There is cordial relationship between deceased Kadappa and plaintiff and defendant No. 2. In the evidence it is also clear that the deceased Kadappa was residing with the plaintiff in the same house at Masaraguppi yilla also clear that the defendant No. 2 residing at Melamatti village which is suited at the distance of 30 Kms from the Masaraguppi village. Even though the deceased Kadappa ivas residing with the plaintiff he does not mean that he has got special love affection, in favour of the plaintiff. After the perusing the recitals it reveals that in all the suit properties the deceased Kadappa had 1/3 share, and plaintiff has 1/3 share and father of the defendant
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR No. 2 has also 1/3 share as father of defendant No. 2 residing of Molematti village the suit properties were cultivating by deceased Kadappa and also present plaintiff and they have cultivating jointly. As the present plaintiff was look after him so he has bequeathed of his 1/3 share in favour of plaintiff. It is also contended that there is VPC No. 299 and in that house he bequeathed share in favour of present plaintiff. In the cross- examination PW1 recorded on 23.1.2009 on page No. 7- last 5 lines he deposed that ¸ÀzÀj ªÀÄÈvÀå¥ÀvÀæªÀÅ £À£ÀUÉ ªÀÄ£ÉAiÀÄ°è ¹QÌgÀÄvÀÛzÉ £Á£ÀÄ CzÀ£ÀÄß N¢ £ÉÆÃrgÀÄvÉÛãÉ. £À£Àß PÁPÁ PÁqÀ¥Àà£ÀÄ vÀ£Àß ªÀÄÈvÀå ¥ÀvÀæzÀ°è ªÀÄ£É £ÀA.299 gÀ°è 1:3 CAvÀ »¸Éì PÉÆnÖgÀÄvÁÛ£É. ªÀÄvÉÛ ¸ÁQë ºÉüÀĪÀÅzÉäAzÀgÉ ¸ÀzÀj «µÀAiÀÄzÀ §UÉÎ ªÀÄÈvÀå ¥ÀvÀæzÀ°è §gÉ¢gÀĪÀÅ¢®è CAvÀ ºÉüÀÄvÁÛ£É. So his evidence against the contents of Ex. P. 4.
of will Moreover I have already discussed suspicious circumstances about the execution of the WILL. So, the plaintiff has failed to prove that the deceased Kadappa has executed the WILL in his favour. The learned Advocate for plaintiff has relied upon the ruling reported in Karnataka Law Journal 1999 (1) page No. 462 (Padamavati V/s Ramakrishna shetty and others) In this ruling it is held that registration of the WILL. does not dispense with. The onus of proof is lying on propounder of WILL who has to prove that WILL was signed by the Testator, that the Testator at relevant time was in sound and disposing state of mind, that he understood nature and effect of disposition he was making and that he or his own free WILL signed WILL. His further obligation is to explain and clear suspicious circumstances, if any surrounding execution of the
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR WILL. But in the present case the plaintiff has not clearly explained suspicious circumstances. The learned Advocate for plaintiff also relied upon the ruling reported in ILR 2004 Karnataka 440 Supreme Court (Ramabai Padmakar Patil (dead) through LRs and others V/s Rukminibai Vishnu Vekhande and others) in this ruling it is held that mere facts that the Testator was very old, was hard of hearing and was unable to walk could not through any doubt on genuineness of the WILL. In the present case even though it is taken into consideration that deceased Kadappa was sound disposing state of mind but it is the duty of plaintiff to c the suspicious circumstances which I have already discuss in my foregoing discussion plaintiff has not clearly explain suspicious circumstances so the above ruling is applicable to present facts of the case. On the other hand the learned Advocate defendant relied upon the ruling reported in 1999 (4) Civil Law Jo mal page No. 120 Karnataka High Court (Narayananna V/s Mavamma). As per this ruling the propounder the WILL having taken active role in preparation of the WILL. So the will cannot h accepted. In the present case also as per the evidence of plaintiff, he called the witnesses his house and at the time of making WILL he was present. So the plaintiff has taken activ role in preparation of the said WILL. So the facts of the ruling is applicable to the preвещ facts of the case. Another important fact in this case is that as per the contention of the plaintiff one Sattar Bedg Inamadar has written the WILL. The said scribe of the documentho more and his children's are
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR alive. Than it is duty of the plaintiff to call one of son of the scribe to show that the signature appearing on the WILL is of scribe. But it is also not done so. The learned Advocate for defendant also relied upon the ruling reported in AIR 1990 Supreme Court 396 (Kalyansingh Vis Smt. Chhoti and others) wherein it is held that failure of the plaintiff to remove the suspicious circumstances by placing satisfactory material on record WILL could be said to be genuine. So perusing all this evidence the plaintiff fails to prove that the deceased Kadappa has executed the WILL in his favour. Hence I have answer the Issue No. 4 in the Negative.
15. ISSUE No. 1 The plaintiff has taken contention that the defendant No. 2 has go 1/3 share in the suit property and he has got 2/3 share in the suit property. After perusing the pleading father of the defendant No. 2 Honnappa, Basappa, Mallappa and Kadappa had ¼ share in the entire suit properties, Basappa died issueless and he died in the year 1982. After his death the father of the defendant No. 2 and present plaintiff and Kadappa had 1/3 share cach. After the death of the Kadappa the present defendant No. 2 and plaintiff had share in the suit properties. As per the pleading of the plaintiff till the death of the Kadappa. Kadappa, defendant No. 2 and himself jointly cultivating the suit land. And no partition was taken place in between the plaintiff and defendant No. 2 He further pleaded that after execution of the WILL. he cultivating the suit land to the extent of 2/3 share and defendant No. 2
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR cultivating the suit land to the extend of 1/3 share. As the plaintiff failed to prove the WILL so it is cannot be stated that the plaintiff has cultivating 23 share of the suit properties. Hence plaintiff failed to prove that he is in possession of to the extent of 2/3 share. Hence I have answer the point No. 1 in the Negative.
16. ISSUE No. 2 & Addl. Issue No. 3: AS these two issues are inter-linked each other so I have taken up for discussion together.
17. The plaintiff has taken contention that the sale deed executed by the defendant No. 2 in favour of defendant No. 1 dated: 15.11. 1995 to the extent of share is not binding upon the plaintiff. As per the contention of the plaintiff he is in possession of 2/3 share and the defendant is in possession of 1/3 share in the suit properties. But on the other hand the defendant No. 2 has taken contention that there was partition was effected in the suit properties and he cultivating the Eastern portion of the above suit lands and Western portion cultivated by the plaintiff. After perusing the evidence of defendant No. 2 who is examined as DW 4 in this case failed to prove that there was a partition in the above properties. Means that the properties are still joint. Apart from this the defendant has produced the original sale deed which is marked as Ex. D 1. After perusing the sale deed it is no where it is mention that the defendant No. 2 cultivating Easter portion of the above land. Only it is mentioned that he has sold by share in the suit land. Until and unless in specifically
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR mentioned whether which portion was sold to the defendant No, I it cann stated that the defendant No. 1 is in possession of specific area. The defendant No. A is examined DW 1 and in his cross-examination dated:
24.6-2005 on page No. & last 9 he deposed that PÀæAiÀÄ¥ÀvÀæzÀ°è D¹ÛUÀ½UÉ ¸ÀA§A¢¹zÀAvÉ ZÀPÀ§A¢ £ÀªÀÄÆ¢¹®è CAzÀgÉ ¤d.
PÁUÀzÀ¥ÀvÀæUÀ¼À ªÀÄÄSÁAvÀgÀ JgÀqÀ£É ¥ÀæwªÁ¢ CªÀjUÉ ¸ÉÃjzÀ d«ÄãÀÄ EzÉ JAzÀÄ vÉÆÃj¸ÀĪÀ ¸À®ÄªÁV ¤¢ðµÀÖ UÀÄgÀÄvÀÄ ºÁQgÀĪÀÅ¢®è C£ÀÄߪÀÅzÀÄ ¤d. This admission goes to show that there partition in suit lands. When there is no partition in the suit land then it is cannot beliew that the defendant No. 1 is in particular possession of the suit properties. The learne Advocate for defendant argued that after the purchase of the land in the name of defendam No. 1 is appearing in the records of rights and he is in possession of share. But t the defendant failed to explain which portion they are in the possession of the su property. The sale deed itself goes to show that the defendant No. I purchased share the suit properties. The learned Advocate for plaintiff has relied upon the ruling reported in Mysore Law Journal 1974 (1) page No. 44 (Eraiah Vs Basappa @ Mallayya and others) and relied upon the ruling reported in AIR 1984 Supreme Court page 1802 (Smt. Kailash Pati Devi V/s Smt. Bhuvaneshwaridevi), also relied upon the ruling reported AIR 1991 M.P. page No. 15 (Smt. Lalita James and others Vs Ajithakumar and others), relied upor the ruling AIR, 1969 Madras page 416(Ganesh Babu MG and another V's K.S Radhakrishna), and also relied upon the ruling AIR 1975 Madras page No. 316 (Venkatamalla Vis Sinna
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR Venkatarama Chettiar). The Principles involved in the above ruling is that, the purchaser of a Coparceners undivided interest in joint family property is not entitled to possession of what he has purchse. His only right is to stre site for partition of property and ask for allotment to him of that which on partition might be found to fill to the share of the Coparcener whose share he had purchase. And also alienation by coparcener of undivided share, rights of alience and aliening from him, latter is entitle to claim partition and allotment of coparceners share to him. So in view of above ruling the defendant No. 1 has entitle to possession of the suit properties of his 1 share by filing suit for general partition. As such he is not in the possession of the suit property. On the other hand the leamed Advocate for defendant relied upon the ruling reported AIR 2003 Orissa page No. 136 (Mathuri Bewa Vis Smt. Prafulla Routray and others), wherein it is held that existence of joint family does not raise presumption that it owned properties jointly. The facts of the present case is not applicable to above hence the said ruling is nor applicable to present facts of the case. Apart from this I have relied upon the ruling reported in ILR 2004 Karnataka 2928 (U.G. Shimivas Rao Vis Vinaya Kumar and others) in this ruling its held that any alianation made by one co-sharer without the consent of other co- sherer is void in so far as the co-sharers who have not consented to the said allianation. But the said transcation cannot be said to be void as against the allenating co-sharer and it binds is undivided interest.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR Even as per Mull's Hindu Law the allenee of the specific property or of the undivided interest of co-parcener in such property has on a general partition and equatable right to have that property, or his alenor's share in that property, as case may be, assign to him it could be done in justice to other co-parceners. So in view of this ruling the sale deed executed by the defendant No. 2 in favour of defendant No. 1 is not binding to the share of plaintiff but it binds on defendant No. 2. So the defendant No. 1 entitle to file the suit for general partition to claim his share. The learned Advocate for defendant No. 1 has produce the mutation entry bearing No. 1551 dated: 8.8.1995 of Masaraguppi village pertaining to the suit lands which is marked as Ex.D18 where in it is contended that after the death of Basappa and Kadappa the plaintiff and defendant No. 2 are the only legal heirs to the suit properties and accordingly the name of the both the plaintiff and defendant entered and it is certified on 18.9.1995. On the other hand the leamed Advocate for plaintiff filed the Varadi on the basis of which the mutation entry No. 1551 came in to the picture and said Varadi marked as Ex. P. 16 and "U" For Notice marked as Ex. P. 17. Ex. P 16 clearly reveals that this is application filed by thee) defendant No. 2 and U Form Notice clearly reveals that the said notice not served on the plaintiff. So the M.E. No. 1551 is certified without knowledge of the plaintiff. So, the said M.E. is not helpful to the case of the defendant. So, the plaintiff proved that the said sale deed is not binding
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR upon his share. So, I have answer the issue No. 2 Partly Affirmative and Addl. Issue No. 3 in the Negative.
18. ISSUE No. 3: As I have already stated as the defendant No. 1 purchase the share in the suit properties when the properties are joint. So, the defendant No. I is not the possession of the suit properties. He only entitle to possession of the suit properties after filing the suit for general partition. So, the plaintiff proved that the defendant No. 1 who inspite of knowing the properties are joint he purchase the property so he caused interference in the suit properties. The learned Advocate for defendant deposed that the defendant No. 1 has not at all caused interference. The execution of the sale deed itself amount to the interference in the suit properties. So, the plaintiff prove the Issue No. 3 in the Affirmative.
19. ISSUE No. 5: The plaintiff filed the suit for Injunction and Declaration and he paid the proper Court Fee and I have answered the Issue No. 5 in the Affirmative.
20. Addl. Issue No. 1: The defendant 1 has taken contention that the mother of the plaintiff Dundavva is a necessary to party the suit hence the suit is not maintainable. This is the suit for injunction and Declaration so the said Dundavva is not necessary party to the suit. Hence I have answered the Addl. Issue No. 1 in the Negative.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
21. Addl. Issue No. 1 dtd. 19.2.08 : The defendant has taken contention that the description of the plaint schedule property is not correct. In this case the plaintiff has given the Survey umber also area of the suit properties and on the basis of Survey numbers the property easily identified. Apart from this the defendant also not seriously disputed about the description of the suit properties. Hence I have answered the Addi Issue No. 1 in the Negative.
22. Addl Issue No. 2 The plaintiff has given the Genealogy of the his family members. Which is also admitted by the defendant. Hence, The Genealogy furnished by the plaintiff is correct. Hence I have answered the Issue No. 2 in the Affirmative.
23. Addl. Issue No. 4: The defendant has taken contention that the suit is barred by limitation. In this case the defendant No. 2 executed the sale deed in favour of defendant. No. 1 on 15.11. 1995 and the suit is filed on 28.3.1996 which is within the limitation. Hence I have answered the Addl. Issue No. 4 in the Negative.
24. Addl. Issue No. 5: Looking to the facts and circumstance of facts of the case the detendani No. 1 and 2 is not entitled for compensatory cost as prayed for. Hence I have answered the Addl. Issue No. 5 in the Negative.
25. ISSUE No. 6: The plaintiff prayed for to issue Injunction against the defendant No.1 not to cause
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR illegal interference into the his 2/3 share in the suit property. As the plaintiff failed to prove the WILL so he is only in the possession of the ½ share and defendant No. 2 as got ½ share. The defendant No. 1 aware of the fact that the properties are still joint he has purchase ½ share in the suit properties. The defendant No. 1 is only entitle for his separate possession for filing the suit for general partition. So, the plaintiff has entitled for the relief in part. Hence I have answer the Issue No. 6 Partly Affirmative.
26. ISSUE No. 7 : In view of above said discussion I have proceed to pass the 26. following order.
ORDER The suit of the plaintiffs is hereby partly decreed declaring the plaintiff is in possession of ½ share in the suit properties.
The defendant No. 1 is here by restrain not to cause illegal interference in to the suit properties till he obtain his ½ share in the suit properties by filing the suit for general partition.
The suit against defendant No. 2 is dismissed.
No order as to cost Draw decree accordingly."
9. A perusal of the aforesaid judgment and decree passed by the Trial Court will indicate that while dealing with
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR issue no.4 regarding proof of will, the Trial Court answered the said issue in the negative by holding that the plaintiff had not proved the legality and the validity of the will and consequently was entitled to only half share in the suit schedule property and not to 2/3rd share as claimed by him.
10. Aggrieved by the judgment and decree passed by the Trial Court, the appellant/plaintiff preferred R.A. No.66/2009 before the first Appellate Court. The said appeal was clubbed with one more appeal in R.A. No.65/2009 filed by defendant No.1/respondent No.1 who was aggrieved by the decree for permanent injunction passed against him. By the impugned judgment and decree, the first appellate Court dismissed both the appeals by answering all the questions formulated by it against the appellant as well as defendant No.1 as hereunder:
"24. The counsel for appellant in R.A.No.63/2009 has vehemently submitted that it is not in dispute that property is ancestral property. Two of the brothers Kadappa and Basappa died and there was no partition between the brothers. Kadappa was residing with the Mallappa at Masaraguppi village and he was looked- after by him. Therefore, a will is executed by Kadappa. The alleged sale deed dated 15/11/1995 to the extent
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR of half share is hallow document. The defendants have admitted the joint cultivation and they have not pleaded about the severance and partition in the suit property. Because, it is a joint family property, the plaintiff was having preferential right to purchase the property. Even, though Ex.P.4 will is un-registered one but the contents for praise and correct one. For two times the suit came to be decreed and it is for the third time the suit was partly decreed. The appellants have produced cogent evidence in respect of intention of the testator. As scribe is dead, Hence, one of the witness is examined to prove the will, because the property is easily, identifiable nothing is mentioned about the description of the suit property. Defendants have led the evidence without any pleading, which is not acceptable one. Because, pleadings will be considered at higher footing.
25. When the Dundavva residing with the plaintiff it is not necessary to make her a party to the suit as any head of the family can file the suit. Because, the plaintiff is not a party to the sale deed Ex. D. 1, it is not necessary for him to seek for cancellation of the sale deed. So the finding given by the trial court on additional issue No.1 to 4 is proper, Regarding the issue No.4 the trial court has come to the conclusion that, because the beneficiary was present at the time of writing the will/is will it is suspicious one. But it noticed that P.W.1 has not taken active participation while writing the will. Even during the evidence of
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR D.W.1 has admitted that he has not made any enquiry prior to purchase of the property. Hence, he is not a bonafide purchaser. Even the D.W.2 has not pleaded about partition, but in the evidence he has stated about partition, there is division the between parties would have given the boundaries of respective share and they would have given Vardi. Regarding the partition and even no wardi is given after the death of Kadappa, this itself makes clear that they had the knowledge of will, as on the date of writing the will Kadappa was in sound state of mind. Even D.W.3 has taken about the possession of the property by respective parties. So the trial court would have been answered the issue No.1 in the affirmative and regarding interference, it is admitted that purchaser is stranger. The obstruction need not be physical obstruction mere entry in the records also is an interference, hence to that effect the order of the trial court is legal one. During the support of his argument he has also relied upon number of decision on different issues.
26. Further relied KLJ 1974 (1) page 44. Eriah Appellant V/s Basappa @ Mallaliah & Others Respondents. Where is held that:-
Two stranger purchasers who purchase from two different co-parceners of a joint family their undivided interests in the family separately, cannot claim to be in joint possession of the erstwhile joint family properties, because there is no community of interest or agreement for joint possession. They have to divide the properties by agreement or suit for partition. Until that is done, neither of them can claim to have a right to joint possession with the other and cannot claim mesne profits.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
27. Further relied AIR 1984 SC 1802. Smt Kailash Pati Devi, Appellant V/s Smt Bhubneshwari Devi and Others, Respondents. Wherein it is held that:-
Hindu Law- Joint family property- Partition-Purchaser of joint family property from a member of family may have right to file general suit for partition against all members and that may indeed be the proper remedy to effectuate his purchase- However property purchased being the only joint family property available for being partitioned and there being therefore no equities to be adjusted, question as to remedy of purchaser was of academic importance only.
28. Further relied AIR 1991 Madhya Pradesh 15, Smt Lalita James and Others, Appellants V/s Ajit Kumar and Others, Respondents. Wherein it is held that:-
B. Transfer of Property Act (1882), S.44- Suit for separate possession of undivided property- Maintainability-A purchaser from co-owner of a portion of undivided property- Not entitled to possession of any particular part of joint property His right, if any, would be to joint ownership or co- ownership and not to exclusive ownership of any particular part of joint property- Purchaser-Transferee only entitled to enforce a partition of joint estate and nothing more.
29. Further relied AIR 1975 Madras 316 Venkatammal, Appellant V/s Sinna Venkatarama Chettiar and others, Respondents. Wherein it is held that:-
A. Hindu Law- Joint family- Alienation- Alienation by coparcener of undivided share- Rights of alienee and alienee from him- later is entitled to claim partition and allotment of coparcener's share to him.
30. Further relied ILR 1998 ΚAR 2127 Vadde Sanna Hulugappa & Ors. V/s Vadde Sanna Julugappa & Ors.
Wherein it is held that:-
HINDU LAW- PARTITION- Courts dismissed the suit for partition only on the ground that plaintiffs had not prayed
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR for concellation of Sale Deeds executed by the 1st Defendant in favour of the fourth defendant. In second Appeal High Court held that it was not necessary to seek concellation of Sale Deeds or seek setting aside alienations as the plaintiffs were not parties to any of the alienations and as such they are not binding on them.
The said decisions are in respect of joint possession of the property by the co-parceners.
31. Further relied KLJ 1999 (1) 462. Padmavati V/s Ramakrishna Shetty and Another. Wherein it is held that:-
A. INDIAN SUCCESSION ACT, 1925, Section 63- Evidence Act, 1872, Section 68- Unprivileged Will- naturе document required by to be attested by two or more witnesses- Such document requiring attestation can be used as evidence only when one of attesting witnesses at least has been examined Rule dispensing with examination of attesting witness in case of registered document, is not applicable to Will, though registered- Will is not required to be registered- There is no legal impediment to unregistered Will being accepted provided its execution is proved- Merely because Will is registered its genuineness cannot be presumed-Registration does not dispense with onus of proof lying on propounder who has to prove that Will was signed by Testator, that Testator at relevant time was in sound and disposing state of mind, that he understood nature and effect of disposition he was making and that he, of his own free will, signed Will- His further obligation is to explain and clear suspicious circumstances, if any, surrounding execution of will.
B. INDIAN SUCCESSION ACT, 1925, Section 63- Hindu Succession Act, 1956, Section 17-Will- Suspicious circumstances surrounding execution of Burden to explain is on him who relies upon Will Fact that will claimed to be last Will and testament of testatrix is unregistered and that it revokes previous Will which is registered document, is no reason to doubt its genuiness, when attesting witnesses have testified as to its execution-Propounder himself taking prominent part in execution of Will cannot be construed as suspicious circumstance, where Will confers no substantial benefit on him- Where testatrix having two daughters and one son had, by registered Will previously executed, wholly cut-off two of them by bequeathing entire property to one
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR daughter, her subsequent Will bequeathing her property to all, to be shared equally in accordance with Section 17 of Hindu Succession Act, is to be held genuine change of mind to do justice to all her children.
32. Further relied ILR 2004 KAR 440 SC. Remabai Padmakar Patil (dead) through LRs and Others. V/s Rukminibai Vishnu Vekhande and Others. Wherein it is held that:-
B. SUCCESSION ACT, 1925- SECTION 63- If one of the attesting witnesses is examined and no infirmity found in his testimony, non-examination of the person who had typed the Will or the advocate who was present at the time of preparation or registration of the Will, cannot be a ground to discard the Will- Evidence Act, 1872, Section 68 proviso.
These two are in respect of proof of will.
33. Further relied AIR 1987 SC 2179. Vinod Kumar Arora, Appellant V/s Smt Surjit Kaur, Respondent.
Wherein it is held that:-
B. Civil P.C (5 of 1908), 0.6, R.2- Variance between pleadings and proof- Effect.
The pleadings of the parties from the foundation of their case and it is not open to them to give up the case ser out in the pleadings and propound a new and different case.
Regarding the variation between pleading and proof.
34. Further relied 2009 KLJ (3) DB. Y.K Suresh Kumar V/s The Special Deputy Commissioner, Bangalore District, Bangalore and Others. Wherein it is held that:-
KARNATAKA LAND REVENUE ACT, 1964, Section 136- Dispute pertaining to mutation entry Deputy Commissioner reversed order of Assistant Commissioner holding that Revenue Court has no jurisdiction to enquire into and decide dispute regarding genuineness of will. Aggrieved by said order appellant writ petitioner challenged in writ petition- Single Judge dismissed writ petition- This This appellate
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR Court observed that Revenue Court has no jurisdiction to go into question of title in respect of an immovable property which exclusively vests in Civil Court- Appeal dismissed.
35. Further relied 2008 (3) KLJ 49. Smt Shivagangavva V/s The Deputy Commissioner, Dharwad District, Dharwad and Others. Wherein it is held that:-
KARNATAKA LAND REVENUE ACT, 1964, Sections 127, 128 and 129- Karnataka Land Revenue Rules, 1966, Rule 43- Indian Succession Act, 1925, Section 63-Mutation of name in record of rights- Party claiming acquisition of right in land on basis of registered Will, making application for Where genuiness of Will is disputed. Revenue Authorities have no jurisdiction to decide question to mutate entry- Party claiming under Will which deprives legal heirs of deceased of their right in land acquired by succession or inheritance, has to provide strict proof of due execution of Will, as required under Section 63 of the Indian Succession Act, and it is only Civil Court which can decide genuiness of Will- Where genuineness of Will is disputed, only course open to party claiming under such Will is to show better title in form of succession certificate issued by Competent Civil Court- Mutation entry effected in record of rights solely on basis of Will whose genuineness is disputed, is liable to be expunged and matter to be remitted back authority concerned to take appropriate decision in accordance with law.
In respect of revenue entries in the documents.
36. The counsel for appellant in R.A.0.65/2009 has submitted that suit is partly decreed and the appeal is preferred is only in respect of the injunction order passed evidence on record. against the appellant there is no Regarding the joint possession the trial court has answered obstruction there is issue No.3 wrongly interference by the appellant much is argued in respect of the will. But it is noticed that the appellant is the purchaser of the property and he is not the family member and therefore appellant cannot plead. Whether
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR the will was genuine one or not to regarding the alienation by co-parcener in respect of his un-divided share he has relied upon number of decision as follows.
37. Further relied AIR 1926 Bombay page 399. Bhau Larman Dhor Defendnt No.5-appellant V/s Budka Manku Dhor and others plaintiffs-respondents. Wherein it is held that:-
Hindu Law- Alienation by coparcener- Stranger purchaser if in possession may hold as tenant-in-common- Same principles apply to person successfully remaining in possession under adverse possession.
A Stranger-purchaser of the undivided share of a co parcener in a joint Hindu family, if in possession, need not be ejected in a suit for recovery of possession brought by an excluded coparcener, but can be declared to be entitled partition) as a tenant-in- common with to hold (pending a the other coparceners.
38. Further relied AIR 2003 Orissa page 135. Math- Bewa and Others Appellants V/s Smt Prafulla Routray and others, Respondents. Wherein it is held that:-
A. Hindu Law Joint family properties- Existence of joint family- Does not raise presumption that it owned properties jointly- Presumption of jointness in case of father and son might be stronger than that of other co-laterals.
6. At the out-set it has to be considered whether the plaintiff and defendants 3 to 5 constituted a joint family and they possessed all the properties including the suit land jointly. It is no longer res-integra that existence of a joint family does not raise a presumption that it owned properties jointly. The presumption of jointness in case of father and son might be stronger than that of other co-laterals. The appellate Court did not advert to the evidence place in the record.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
39. Further relied ILR 1974 page 60. Veerappa Veerabasappa Palled V/s Laxmavva. Wherein it is held that:-
The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
The suspicious circumstance may be as to the genuineness of the signature of the testator.
In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes pari in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
40. Further relied AIR 1990 SC 396. Kalyan Singh, Appellant V/s Smt Chhoti and others, Respondents. Wherein it is held that:-
B. Succession Act (1925), S.61- Will- Genuineness- suspicious Proof- Failure of plaintiff circumstance by placing satisfactory material on record-Will could b said to be not genuine.
41. Further relied AIR 1995 SC 1684. Rabindra Nath Mukherjee and Another, Appellant V/s Panchanan Banerjee (dead) LRs and others Respondents. Wherein it is held that:
B. Succession Act (39 of 1925), S.63- Will- Suspicious circumstances- Will was registered- Sub-registrar certifying that will had been read over to executor who, on doing so, admitted contents Fact that witnesses to document were interested, loses significance.
C. Succession Act (39 of 1925), S.63- Will- Suspicious circumstances- Active part played by a close relation of one of the executors in- Execution of will- May raise suspicion in absence of other circumstances on record to show voluntary char-acter of document.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
42. Further relied ILR 2000 KAR 2681. Sunkamma V/s H. Ramayya Reddy and Others. Wherein it is held that:-
B. WILL BESIDES PROVING THE WILL THE PROPOUNDER HAS TO DISPEL THE SUSPICIOUS CIRCUMSTANCES SURROUNDING THE WILL- NOT MAKING ANY PROVISION FOR THE WIFE AND DAUGHTERS IS A SERIOUS SUSPICIOUS CIRCUMSTANCE.
43. Further relied AIR 1968 Bombay 112. Mohammed Yusuf and another, Petitioners V/s D and another, Respondents. Wherein it is held that:-
A. Evidence act (1872), Ss. 47,60,61 and 67- Proof of contents of document-Proof of contents of documents by proving signature- Whether permissible.
Even if the entire document is held formally proved of the document. The only person competent to give that does not amount to a proof of the truth of the contents evidence on the truthfulness of the contents of the document is the writer thereof. (In respect of will)
44. Further relied KLJ 1981 365. Janthakal RG. Vs Bharat Parikh Co & Anr. Wherein it is held that:-
An injunction to restrain the defendant from interfering with the possession of the plaintiff can be issued only on proof of actual interference or threat of interference and not in the absence of it.
45. In respect of injunction order against the appellant, hence he has submitted that the judgment of the trial court in respect of issue the injunction order against the appellant may kindly be set-asided by allowing the appeal.
POINT NO.1 & 2:-
46. In order to avoid repetition of facts, I have taken into consideration both points in R.A.No.63/2009 R.A.No.65/2009 for consideration at a time.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
47. Two points are involved in these two appeals, whether trial court erred in holding that will is not proved and whether injunction granted against the purchaser of the property is not proper. It is not in dispute that the suit property is the ancestral property of main propositus Kenchappa. It was inherited by the Basappa, Mallappa, Kadappa and Honnappa as per the say of P.W.1 there is no partition in their family. They are cultivating lands jointly and in respect of share of Kadappa they have set-up a will and thereby they have contended that they have become owners to 1/3rd share of property. Therefore, the sale deed in favour of purchaser to the extent of half of the property is illegal one, will is produced at Ex.P.4 and it is not a registered document. Even there is no law that will should be registered, but the will should be proved by giving the cogent evidence and also by removing all the suspicious circumstance. If we go through contents of this will it is mentioned that the testator is permanent resident of Maserguppi village. He is residing with son of his brother the Kenchappa and he is having 1/3rd share in the suit schedule property R.S.No.43/3, 43/7 and 43/15 of Masarguppi village. It is mentioned that since from beginning Kenchappa is looking after him and he is having confidence that he will look-after him in a proper manner in future also. Therefore, he is bequeathing his un-divided 1/3rd share, and half share in VPC No.299 and the alleged will is dated 19/6/1988 as per Ex.P.5 he died 6/4/1989, during the cross- examination it was admitted that Dundavva is still
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR alive. Admittedly she is not made as party to the suit, but however plaintiff is representing one branch, wherein Dundavva is also included. Hence, the suit will not suffers from non-joinder of necessary party Even it is a admitted that there is no partition in their family. But it is important to note that deceased Kadappa was not having any anemity or ill-will against his brothers and there was no quarrel also. Further, it is also mentioned that Ex. P.4 was by one Sattarabeg Hasanbeg Inamdar and at the time of writing the will Shankar Siddappa Pujari, Dastgirsab Inamdar, Bhimappa Ningappa Chougala were present. It is also stated that the witnesses were prayed by him as per the say of Kadappa. It is interesting to note that after writing the will it was given to him and it is also admitted that after the death of Kadappa he is not given any wardi to the concerned authorities for entering his name on the basis of the will. He has clearly stated that the total measurement of their land is 2 acre 10 guntas. He is cultivating his portion but denied that the remaining land is cultivated by defendant No. 1, even it is denied that defendant No.1 being a government servan has never obstructed and caused interference to their possession.
48. The witness to the will Dastagirsab has put his thumb impression to the will and his cross-examination discloses that rider of the document is no more and defendant No. 1 is cultivating his land and he is paying the tax to the government also. But it is interesting to
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR note that as per the say of witness the will was with Kadappa only and they had not informed this matter to the plaintiff also.
49. P.W.3 is also another independent witness, who is examined to show that Mallayya Sadashivayya Hiremath has not cultivated the suit property. But his cross-examination discloses that he is having some enimity with defendant. So the evidence of this witness is not trust warty worthy.
50. P.W.1 was once again recalled for cross- examination ofladditional issues wherein the witness is cross-examined about VPC No.299 and he has admitted that Honnappa, Basappa, Mallappa and Kadappa were having share in the said house. Kadappa was having 1/3rd share, regarding the style of signature and number of words in writing the surname, much is cross-examined. P.W.1 has once again stated that, prior to three months of death of Kadappa he told about the will and after his death after one week he Search the will in his house. So this evidence is contrary to earlier evidence.
51. To the contrary the defendant No.1 has denied the execution of the will in favour of plaintiff and he has stated about the sale deed in his favour. As per his evidence itself, there is no division in their family by metes and bounds and the property is jointly cultivated by them. It is also interesting to note that in the sale deed they have not mentioned the boundaries of the
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR respective shares purchased by him. Even though this witness has stated that there is partition in the family in the year 1975 there are no records to this effect. The attesting witness is examining the defendant No.1, as D.W.2 and D.W.3 in examined to prove the thumb impression of Kadappa in the register of the society. D. W.2 is also examined and his cross-examination discloses that his father was having 1/4th share in the property and they were residing at Melmatti village, tq:
Gokak. He has also stated that at VPC No.299 Kadappa and Kenchappa were residing and he was also visiting the said property. Even he has admitted that there was no partition in the schedule properties, defendants have also produced number of documents, such as tax paid receipts, order passed by Assistant Commissioner, Belgaum, Tahasildar, Hukkeri, RTC extracts, Mutation entries.
52. On going through the evidence of the witnesses we can see in consistency in their evidence regarding the writing of the will. It is important to note that in VPC No.299 also, deceased Kadappa was having 1/3rd share but in the will he has mentioned half share. So the half share is mentioned is not explained in a proper manner. Further, grossly, because plaintiff was residing with Kadappa we cannot say that Kadappa has executed will in his favour and as per the say of the plaintiff himself he called witnesses and because he was residing with Kadappa he might have insisted for writing the will also. Further, it is also important to
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR note that if at all will was genuine one then it would have been registered. Further after the death of Kadappa plaintiff would have been given wardi to the concerned authority for entering his name to the 1/3rd share of Kadappa, on the basis of the will, we do not find any such wardi given by the plaintiffs. The plaintiff has also not explained as to why he has not given any wardi basing on the will. So if we go through the finding given by the trial court on issue No.4 it has discussed all these points at length. Looking to the 7 suspicious circumstance it has held that the plaintiff has failed to prove execution of will in his favour and answered issue No.4 in the negative.
53. There is no dispute regarding the principles, which are laid down in the decision, relied upon by both the parties on the point of will. But when the genuine of the will is not proved, then the plaintiff is not entitled for relief claimed by him by virtue of the will.
54. There is no bar for any co-parcener of a undivided Joint Hindu Family to sell-away his undivided share in the NEPIPPerty. When plaintiff has failed to prove execution of the will then naturally in the absence of any wardi to that effect defendant No.2 has become the owner to half of the property. He has executed the sale deed to the extent of his half share. So the said sale deed cannot be stated that as illegal one as defendant No.2 was having legal share in the suit schedule properties. But regarding the possession over
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR the property, it is admitted fact that he was residing at Melmatti village, but however it is admitted that they are in joint possession and enjoyment of the property and there is no partition by metes and bounds. Even though it is taken that they had made strips in the land and cultivating the same, that does not mean that there is division in the property, after all it is a only family arrangement. Admittedly the purchaser is a stranger to the family and unless and until he takes his share by filing the suit for general partition he cannot make any interference or obstruction in the peaceful possession and enjoyment of the property by co- parceners of the family. In this regard it was argued that the co-parceners have to file the suit for partition and not the stranger. But legally it is the purchaser of the property, if he is a stranger to the family, he has to file suit for general partition and get his share by metes and bounds. So by considering all these facts it has answered issue No.2 partly in the affirmative and issue No.3 in the affirmative, because execution of the sale deed itself is a presumed interference and the interference may not be physical force only. So on going through entire judgment passed by trial court, I do not find any illegality, which requires the interference of this court for setting aside the said judgment and decree. Therefore, I have answered point No.1 and 2 in the negative in both cases.
POINT No.3:-
55. For the above said reasons and discussions made above, I proceed to pass the following:
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR ::ORDER::
The regular appeal preferred by the appellant/plaintiff in R.A.No.63/2009 Under Order 41 Rule 1 r/w Sec.96 of CPC is hereby dismissed.
No order as to cost.
The regular appeal preferred by the appellant/No. 1 in defendant R.A.No.65/2009 Under Order 41 Rule 1 r/w Sec.96(1) of CPC is hereby dismissed.
No order as to cost.
The judgment and decree passed by the trial court in O.S.No.456/1997 dated 19/09/2009 is hereby confirmed.
Draw the decree accordingly.
Send back the records to the trial court immediately along with copy of judgment.
Keep the copy of the judgment in
R.A.No.65/2009."
11. It is a matter of record that the impugned
judgments and decrees passed by the Trial Court as well as the first Appellate Court against defendant No.1/respondent No.1 insofar as it relates to grant of permanent injunction has attained finality and the same has not been challenged by him before this Court.
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR
12. This appeal was admitted on 15.03.2018. On hearing the learned counsel for the parties, the following substantial questions of law arises for consideration this second appeal:
i) Whether the Trial Court as well as the first Appellate Court were justified in coming to the conclusion that the alleged 'Will' dated 06.05.1988 alleged to have been executed by Kadappa in favour of the appellant/plaintiff was not proved by the appellant/plaintiff in accordance with law and that the same was not a legal or valid document?
ii) Whether both the Courts were justified in rejecting the claim of the appellant/plaintiff for a declaration that he was entitled to 2/3rd share in the suit schedule properties and consequently, declaring him to be entitled to only half share in the suit schedule properties?
13. Both the aforesaid substantial questions of law being interlinked, they are taken up together for consideration.
14. A perusal of the material on record, as stated supra, will indicate that though several contentions were urged by both sides in support of their respective claims before the Trial
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR Court and the first Appellate Court, the limited contention urged by the appellant before this Court in this appeal is as regards the validity, execution, attestation, genuineness, authenticity, proof etc. of the alleged will dated 06.05.1988 said to have been executed by Kadappa in favour of the appellant/plaintiff. In this context, it is relevant to state that the aforesaid alleged 'Will' which is marked as Ex.P.4 was alleged executed on 06.05.1988 and it is an unregistered document; it is also a matter of record and an undisputed fact that the aforesaid Kadappa died on 06.04.1989. In order to prove the alleged 'Will', the appellant/plaintiff examined the attesting witness viz., Sri. Dastgir Meerasab Terni as P.W.2.
Both P.W.1 (plaintiff) and P.W.2 (attesting witness) were extensively cross-examined by the respondents/defendants before the Trial Court. Their evidence including the cross-
examination containing various admissions, discrepancies, contradictions, inconsistencies etc. were taken note of by the Trial Court in order to come to the conclusion that apart from the fact that there was no legal or acceptable evidence to establish due execution and attestation, the evidence of P.W.1 and P.W.2 was also inconsistent with regard to the validity,
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR execution and attestation of the alleged 'Will' by Kadappa. Both the Trial Court and the first Appellate Court also took into account that the appellant/plaintiff being the propounder of the alleged 'Will' had not only actively participated in the execution alleged 'Will', but had also obtained substantial benefit from the 'Will' inasmuch as the 1/3rd share of Kadappa had allegedly stood bequeathed in his favour and the appellant who was the propounder of the 'Will' actively participating in the execution of the will and obtaining substantial benefit would tantamount to suspicious circumstances surrounding the execution of the 'Will', the Trial Court proceeded to reject the claim put forth by the appellant/plaintiff under the 'Will'. The Trial Court also took into account the fact that the alleged 'Will' dated 06.05.1988 had not seen the light of the day for almost seven years after the date of demise of Kadappa on 06.04.1989 and the long delay in said will being produced or propounded anywhere, was also yet another suspicious circumstance surrounding the execution of the 'Will'. The Trial Court also noticed the fact that on an earlier occasion, the defendants had been placed ex parte and had adduced evidence after remand by the first Appellate Court pursuant to which he was not examined by the
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR appellant on remand, and though he was available and after remand, the signature of the scribe was not sought to be identified by examining any of his children. Under these circumstances, the Trial Court came to the conclusion that in view of the highly discrepant oral evidence of P.W.1 and P.W.2 coupled with the existence of many suspicious circumstances surrounding the execution of the 'Will', the appellant/plaintiff had failed to prove the execution and validity of the alleged 'Will' propounded by him and consequently declared that both the appellant and respondent No.2 would be entitled to half share in the suit schedule properties by recording a finding as stated supra.
15. The aforementioned findings of fact recorded by the Trial Court based on the pleadings and evidence was confirmed by the first Appellate Court by recording findings as stated supra. In my considered opinion, the aforesaid findings of fact concurrently recorded by the Trial Court and the first Appellate Court as regards the lack of proof of execution, attestation, validity of the alleged 'Will' of Kadappa cannot be said to suffer from any illegality or infirmity nor can the same be said to be
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NC: 2025:KHC-D:9473 RSA No. 5344 of 2011 HC-KAR capricious or perverse or against the weight of evidence warranting interference by this Court in the present appeal.
Accordingly, both the substantial question of law are answered against the appellant/plaintiff and I do not find any merit in the appeal. Accordingly, the appeal is dismissed.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE KMS Ct:vh List No.: 1 Sl No.: 10