Karnataka High Court
Smt. Anasavva W/O Hanamanthappa ... vs Basavanneppa S/O Tirakawwa Talawar on 3 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA, R
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
RSA NO.100389 OF 2016 (DEC/INJ)
C/W. RSA NO.100548 OF 2024 (DEC/INJ)
& RSA CROB. NO.100009 OF 2016 (DEC/INJ)
RSA.NO.100389/2016:
BETWEEN:
1. BASAVANNEPPA S/O. TIRAKAWWA TALAWAR,
SINCE DECEASED BY HIS LRS.
1A. PARVATEVVA W/O. BASAVANNEPPA TALAVAR,
AGED: 70, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1B. HANUMAVVA W/O. CHANDRAPPA RATTEHALLI,
AGED: 46, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
Digitally signed by
SAROJA 1C. GANGAVVA W/O. PUTTAPPA LAKAMAPUR,
HANGARAKI
Location: High AGED: 44, OCC: HOUSE WIFE,
Court of Karnataka,
Dharwad Bench, R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
Dharwad
1D. MAHADEVAKKA W/O. YALLAPPA BASAPUR,
AGED: 40, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1E. MALLAVVA W/O.TIPPANNA TALAWAR,
AGED: 39, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1F. SHANTAVVA W/O. ASHOK SHIGEHALLI,
AGED: 38, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
1G. LAXMI W/O. MOHAN BALAMMANAVAR,
AGED: 35, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1H. ANAND S/O. BASAVANNEPPA TALAVAR,
AGED: 32, OCC: AGRICULTURE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
...APPELLANTS
(BY SRI. SOURABH S. SONDUR, ADVOCATE FOR
SRI. K.L.PATIL A/W SRI. VISHWANTH HEGDE, ADVOCATE)
AND:
1. SMT. ANASAVVA W/O. HANAMANTHAPPA ALADAKATTI,
AGE: 50 YEARS OCC: HOUSEHOLD WORK,
R/O: TIPALAPUR, TAL: BYADGI, DIST: HAVERI.
2. SMT. RENAVVA @ RENUKA W/O. YALLAPPA ALADAKATTI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: TIPPALAPUR, TAL: BYADGI,
NOW AT MANJUNATH NAGAR, HAVERI.
3. SMT. BASAVVA @ BASAMMA W/O. HEMANNA SOMANNAVAR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUTTAL, NEAR FLLOR MILL, GUTTAL,
TAL AND DISTRICT: HAVERI.
4. SMT. MANJULA W/O. MALATESH ALADAKATTI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: TIPLAPUR, TAL: BYADGI,
NOW RESIDING AT IJARILAKAMAPUR,
HAVERI, TAL AND DIST: HAVERI.
5. SHEKAPPA S/O. BASAVANNEPPA HAROGKOPPAD,
AGE: 68 YEARS, OCC: COOLIE,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
6. SHIVAPUTRAPPA S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 64 YEARS, OCC: SERVICE,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
7. BASAVARAJ S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAOUR, TAL & DIST: HAVERI.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
8. SMT. BANGAREVVA W/O. ADIVEPPA BUIDARAKOPPA,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAKOPPA, TAL: HANAGAL, DIST: HAVERI.
9. SMT. RATNAVVA W/O. MAILAREPPA TALLALLI,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR RAMADEVAR TEMPLE, SAVANUR
TAL: SAVANUR, DIST: HAVERI.
10. SMT. MUTTAVVA W/O. BASAVARAJ HANCHINMANI,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: POSTAL QUARTERS, STATION ROAD,
HAVERI, TAL AND DIST: HAVERI.
11. SMT. PREMA @ PREMAVVA W/O. BASAVARAJ GUNIJAL,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: BASAPPA GUNIJAL, RATION SHOP,
GOUDAGERI, TAL: KUNDAGOL, DIST: DHARWAD.
12. SMT. BASAVANNEVVA W/O. SIDDAPPA TALAWAR @
SOMANAHAL, AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMANHALLI, TAL: HIREKERUR, DIST: HAVERI.
13. KUMARI SHEKAVVA @ REKHA
D/O. SHEKAPPA TALAWAR,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: MANJUNATH NAGAR, TAL & DIST: HAVERI.
14. SMT. SUJATHA W/O BASAVARAJ TALAWAR,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: SMT. RATNAWWA
W/O. SHEKAPPA RODDAPPANAVAR,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
15. RAMAPPA @ ANJANEYA S/O. BASAVARAJ TALAWAR,
AGE: 18 YEARS, OCC: STUDENT,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
...RESPONDENTS
(BY SRI. D. NAGARAJ AND
SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATE FOR
C/R1, R2, R4, R5, AND R12;
R3, R6 TO R11 AND R13 ARE SERVED)
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 C. P. CODE
PRAYING TO CALL FOR RECORDS IN O.S.NO.5/2000 ON THE FILE
OF ADDITIONAL CIVIL JUDGE (SR.DN) AND JMFC AT HAVERI AND
THE RECORDS IN R.A.NO.13/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI. SET ASIDE THE
JUDGMENT AND DECREE UNDER APPEAL DATED 28.03.2016
PASSED IN R.A.NO.13/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI AND JUDGMENT AND
DECREE DATED 05.01.2010 PASSED IN O.S.NO.5/2000 DATED
05.01.2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC AT HAVERI BE CONFIRMED TO EXTENT OF FIRST 2 SUIT
SCHEDULE PROPERTIES BY ALLOWING THIS APPEAL AND ETC.,
RSA.NO.100548/2024:
BETWEEN:
BASAVANNEPPA S/O. TIRAKAWWA TALAWAR,
SINCE DECEASED BY HIS LRS.
1. PARVATEVVA W/O. BASAVANNEPPA TALAVAR,
AGED: 73, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI.
2. HANUMAVVA W/O. CHANDRAPPA RATTEHALLI,
AGED: 49, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
3. GANGAVVA W/O. PUTTAPPA LAKAMAPUR,
AGED: 47, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
4. MAHADEVAKKA W/O. YALLAPPA BASAPUR,
AGED: 43, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
5. MALLAVVA W/O.TIPPANNA TALAWAR,
AGED: 42, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
6. SHANTAVVA W/O. ASHOK SHIGEHALLI,
AGED: 41, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
7. LAXMI W/O. MOHAN BALAMMANAVAR,
AGED: 38, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
8. ANAND S/O. BASAVANNEPPA TALAVAR,
AGED: 35, OCC: AGRICULTURE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
...APPELLANTS
(BY SRI. SOURABH S. SONDUR, ADVOCATE FOR
SRI. K.L.PATIL A/W SRI. VISHWANTH HEGDE, ADVOCATE)
AND:
1. KUMARI SHEKAVVA @ REKHA
D/O. SHEKAPPA TALAWAR,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: MANJUNATH NAGAR,
TAL AND DIST: HAVERI - 581 110.
2. SMT. SUJATHA W/O. BASAVARAJ TALAWAR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: SMT. RATNAWWA
W/O. SHEKAPPA RODDAPPANAVAR,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE - 583 131.
3. RAMAPPA @ ANJANEYA S/O. BASAVARAJ TALAWAR,
AGE: 24 YEARS, OCC: STUDENT,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
4. SMT. ANASAVVA W/O. HANAMANTHAPPA ALADAKATTI,
AGE: 58 YEARS OCC: HOUSEHOLD WORK,
R/O: TIPALAPUR, TAL: BYADGI,
DIST: HAVERI - 581 106.
5. SMT. RENAVVA @ RENUKA W/O. YALLAPPA ALADAKATTI,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
R/O: TIPPALAPUR, TAL: BYADGI,
NOW AT MANJUNATH NAGAR,
HAVERI - 581 106.
6. SMT. BASAVVA @ BASAMMA
W/O. HEMANNA SOMANNAVAR,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUTTAL, NEAR FLLOR MILL, GUTTAL,
TAL AND DISTRICT: HAVERI - 581 108.
7. SMT. MANJULA W/O. MALATESH ALADAKATTI,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: TIPLAPUR, TAL: BYADGI,
NOW RESIDING AT IJARILAKAMAPUR, HAVERI
TAL AND DIST: HAVERI - 581 110.
8. SHEKAPPA S/O. BASAVANNEPPA HAROGKOPPAD,
AGE: 76 YEARS, OCC: COOLIE,
R/O: IJARILAKAMAPUR,
TAL & DIST: HAVERI - 581 110.
9. SHIVAPUTRAPPA S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 72 YEARS, OCC: SERVICE,
R/O: IJARILAKAMAPUR,
TAL & DIST: HAVERI - 581 110.
10. BASAVARAJ S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAOUR,
TAL & DIST: HAVERI - 581 110.
11. SMT. BANGAREVVA W/O. ADIVEPPA BUIDARAKOPPA,
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAKOPPA, TAL: HANAGAL,
DIST: HAVERI - 581 110.
12. SMT. RATNAVVA W/O. MAILAREPPA TALLALLI,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR RAMADEVAR TEMPLE, SAVANUR
TAL: SAVANUR, DIST: HAVERI - 581 118.
13. SMT. MUTTAVVA W/O. BASAVARAJ HANCHINMANI,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: POSTAL QUARTERS, STATION ROAD,
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
HAVERI, TAL AND DIST: HAVERI - 581 110.
14. SMT. PREMA @ PREMAVVA W/O. BASAVARAJ GUNIJAL,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: BASAPPA GUNIJAL,
RATION SHOP, GOUDAGERI,
TAL: KUNDAGOL, DIST: DHARWAD - 581 113.
15. SMT. BASAVANNEVVA W/O. SIDDAPPA TALAWAR @
SOMANAHAL, AGE: 69 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SOMANHALLI, TAL: HIREKERUR,
DIST: HAVERI - 581 111.
...RESPONDENTS
(BY SRI. D. NAGARAJ AND
SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATE FOR
C/R1 TO R14)
THIS RSA IS FILED UNDER SECTION 100 C. P. CODE
PRAYING TO CALL FOR RECORDS IN O.S.NO.5/2000 ON THE FILE
OF ADDITIONAL CIVIL JUDGE (SR.DN) AND JMFC AT HAVERI AND
THE RECORDS IN R.A.NO.10/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI. SET ASIDE THE
JUDGMENT AND DECREE UNDER APPEAL DATED 28.03.2016
PASSED IN R.A.NO.10/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI AND JUDGMENT AND
DECREE DATED 05.01.2010 PASSED IN O.S.NO.5/2000 DATED
05.01.2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC AT HAVERI BE MODIFIED TO THE EXTENT OF ½ SHARE
IN SY.NO.29/1B/1 OF DEVAGIRI YELLAPUR VILLAGE MEASURING 4
ACRES 35 GUNTAS BY ALLOWING THIS APPEAL AND ETC.,
RSA.CROB.NO.100009/2016:
BETWEEN:
1. SMT. ANASAVVA
W/O. SRI. HANAMANTHAPPA ALADAKATTI,
AGE: 44 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O: TIPPALAPUR, TAL: BYADGI, DIST: HAVERI.
2. SMT. RENUKA W/O. YALLAPPA ALADAKATTI,
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE,
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
R/O: HAVERI.
3. SMT. BASAMMA @ PUSPA
W/O. SRI. HEMANNA SOMANNAVAR,
AGE: 34 YEARS, OCC: AGRICULTURE &HOUSEHOLD,
R/O: HAVERI.
4. SMT. MANJULA
W/O. SRI. MALATESH ALADAKATTI,
AGE: 34 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
5. SRI. SHEKAPPA
S/O. SRI BASAVANNEPPA HAROGKOPPAD,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
6. SRI. SHIVAPUTRAPPA
S/O. SRI. BASAVANNEPPA HAROGOPPAD,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAPUR, TAL AND DIST: HAVERI.
7. SRI. BASAVARAJ S/O. SRI. BASAVANNEPPA HAROGOPPAD,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAOUR, TAL & DIST: HAVERI.
8. SMT. BANGAREVVA W/O. ADIVEPPA BUIDARAKOPPA,
AGE: 58 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: MAKOPPA, TAL: HANAGAL, DIST: HAVERI.
9. SMT. RATNAVVA W/O. SRI. MAILAREPPA TALLALLI,
AGE: 52 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: SAVANUR, DIST: HAVERI.
10. SMT. MUTTAVVA W/O. SRI. BASAVARAJ HANCHINMANI,
AGE: 48 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: HAVERI.
11. SMT. PREMA W/O. BASAVARAJ GUNIJAL,
AGE: 44 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: GOUDAGERI, TAL: KUNDAGOL.
12. SMT. BASAVANNEVVA W/O. SRI SIDDAPPA TALAWAR,
R/O: SOMANHALLI, TAL: HIREKERUR.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
13. KUMARI REKHA D/O. SRI SHEKAPPA TALAWAR,
AGE: 19 YEARS, OCC: STUDENT,
R/O: IJARILAKAMPUR, TAL: HAVERI.
14. SMT. SUJATHA W/O SRI BASAVARAJ TALAWAR,
AGE: 32 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
15. SRI. KUMAR ANJANEYA S/O. SRI. BASAVARAJ TALAWAR,
AGE: 18 YEARS, OCC: STUDENT,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
SINCE MINOR REPRESENTED BY HIS
MINOR GUARDIAN I.E.CROSS OBJECTOR NO.14.
...CROSS OBJECTORS
(BY SRI. D. NAGARAJ AND
SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATES)
AND:
1. BASAVANNEPPA S/O. TIRAKAWWA TALAWAR,
SINCE DECEASED BY HIS LRS.
1A. PARVATEVVA W/O. BASAVANNEPPA TALAVAR,
AGED: 70, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1B. HANUMAVVA W/O. CHANDRAPPA RATTEHALLI,
AGED: 46, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1C. GANGAVVA W/O. PUTTAPPA LAKAMAPUR,
AGED: 44, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1D. MAHADEVAKKA W/O. YALLAPPA BASAPUR,
AGED: 40, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
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RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
1E. MALLAVVA W/O.TIPPANNA TALAWAR,
AGED: 39, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1F. SHANTAVVA W/O. ASHOK SHIGEHALLI,
AGED: 38, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1G. LAXMI W/O. MOHAN BALAMMANAVAR,
AGED: 35, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1H. ANAND S/O. BASAVANNEPPA TALAVAR,
AGED: 32, OCC: AGRICULTURE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1I. SHARAN S/O. MANJUNATH TALAVAR,
AGED: MINOR, SINCE MINOR,
R/IBY HIS GRAND MOTHER SMT. HANUMAVVA 1(B)
W/O. CHANDRAPPA RATTEHALLI.
...RESPONDENTS
(BY SRI. SOURABH S. SONDUR, ADVOCATE FOR
SRI. VISHWANTH HEGDE, ADVOCATE FOR R1(A- TO I);
R1(i) IS MINOR R/BY R1(B))
THIS RSA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CODE OF CIVIL PROCEDURE PRAYING TO CALL FOR RECORDS IN
O.S.NO.5/2000 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC AT HAVERI AND THE RECORDS IN R.A.NO.13/2010 ON
THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
HAVERI. SET ASIDE THE JUDGMENT AND DECREE DATED
05.01.2010 PASSED BY THE FILE OF ADDITIONAL CIVIL JUDGE
(SR.DN) AND JMFC AT HAVERI IN O.S.NO.5/2000 INSOFAR AS IT
RELATES TO SUIT SCHEDULE PROPERTY AT ITEM NO.1 AND
JUDGMENT AND DECREE DATED 28.03.2016 PASSED BY THE FILE
OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HAVERI IN
R.A.NO.13/2010 AND ORIGINAL SUIT FILED IN O.S.NO.5/2000 BY
THE RESPONDENT HEREIN MAY BE DISMISSED WITH COST
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUTIY & ETC.,
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RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
THESE APPEALS AND RSA CROB, COMING ON FOR FINAL
HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. These appeals and the cross-objection are filed by the both the plaintiff and the defendants in O.S. No.5/2000 against the judgment and decree dated 05.01.2010, passed by the Addl. Civil Judge (Sr.Dn.) Haveri (for short "the trial Court"). By the said judgment, the trial Court partly decreed the suit of the plaintiff, declaring him to be the owner and possessor of the Sl.No.1 suit schedule properties namely, land bearing R.S. No.43 measuring 2 acres 4 guntas and R.S. No.82 measuring 7 acres 3 guntas, both situated at Ijari Lakmapur Village and the defendants were permanently restrained from illegally interfering with or obstructing the plaintiff's lawful possession of these properties. However, the suit of the plaintiff in respect of the Sl. No. 2 of the suit schedule properties namely, land bearing R.S. No.29/1B/1 was dismissed.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
2. Aggrieved by the rejection of the relief regarding suit schedule Sl.No.2 property, the plaintiff filed an appeal in R.A. No.10/2010, while the defendants aggrieved by the decree in favour of the plaintiff in respect of suit schedule Sl.No.1 properties, preferred an appeal in R.A. No.30/2010 before the I-Addl. District and Sessions Judge, Haveri (for short "the First Appellate Court"). The First Appellate Court, by separate judgments passed on the same day i.e., on 28.03.2016, dismissed the appeal filed by the plaintiff in R.A. No.10/2010 and partly allowed the appeal filed by the defendants in R.A. No.30/2010, granting equal share in the suit schedule Sl.No.1 properties to the Plaintiff and Defendant Nos.1 to 6.
3. Aggrieved by the aforesaid judgments and decrees passed by the trial Court and the First Appellate Court, the plaintiff has filed RSA Nos.100389/2016 and 100548/2024 before this Court, while the defendants have filed RSA Cr.Ob. No.100009/2016.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
4. The subject matter of the suit are the properties described as follows:
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5. The original plaintiff, Basavanneppa son of Tirakavva Talawar, filed the suit in O.S. No.5/2000 seeking a declaration that he is the absolute owner of the suit schedule properties with a consequential relief of permanent injunction, contending inter alia;
(a) That one Basavva, also known as Tirakavva, had two sons and two daughters namely Ramappa, Basavanneppa (plaintiff), Gouramma (defendant No.7) and Basavannevva (defendant No.8). The suit properties originally belonged to the said
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR Tirakavva, who acquired them through a grant order dated 20.04.1975 under the provisions of Section 48-A(4) of the Karnataka Land Reforms Act. That, suit schedule Sl.No.2 property namely land bearing R.S.No.29/1B/1 measuring 4 acres 35 guntas was granted jointly in the name of Tirakavva and Honnappa Talawar. As such, Tirakavva had only half share right, title and interest in suit schedule Sl. No.2 property.
(b) That on 20.12.1974, Tirakavva executed a registered Will bequeathing the suit properties equally between her two sons. That her eldest son, Ramappa, had been living separately with his family for over 45 years. However, on account of the differences between her first son Ramappa and herself to avoid any future complications said Tirakavva revoked her earlier Will dated 20.12.1974 and executed a another Will dated 27.02.1989, bequeathing the properties exclusively in favour of her second son
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR Basavanneppa (the plaintiff). Thus in terms of the aforesaid last Will and testament executed by Tirakavva dated 27.02.1989, the plaintiff claims to have become the absolute owner and has been in enjoyment of the properties accordingly.
(c) That Tirakavva passed away on 30.12.1997.
During her life time, it was the plaintiff who was looking after the affairs of the suit schedule properties and his name was also mutated in the revenue records even during the life time of Tirakavva. The first son of Tirakavva, Ramappa later passed away, leaving behind defendant Nos.1 to 6 as his legal heirs.
(d) That defendant Nos.1 to 6, in collusion with defendant Nos.7 and 8 filed a suit in O.S. No.72/1997. Both the plaintiff as well as the deceased Tirakavva engaged the services of a counsel and contested the matter. That
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR subsequent to the death of said Tirakavva, the defendants challenged the mutation entries that were made in the name of the plaintiff by filing the proceedings in RTS: AP: 42/1999-2000, which was disposed of by the Assistant Commissioner in RTS: AP: No.107 / 1998-99 and RTS: AP: No.108 / 1998-99 directing the parties to have the genuineness of the Will adjudicated by a Civil Court of competent jurisdiction. It is under these circumstances, the plaintiff was constrained to file the present suit for seeking a declaration and a permanent injunction.
6. Defendant No.1 filed a written statement. While admitting the relationship between the parties and admitting that the suit properties belonged to Tirakavva and that she passed away leaving behind the plaintiff and the defendants as her legal representatives, denied the averments in the paragraph No.5 of the plaint, that Tirakavva executed a Will dated 20.12.1974 bequeathing
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR the suit properties equally to Ramappa and the plaintiff is denied for want of information. The Further claim of Tirakavva executing a subsequent Will dated 27.02.1989 by revoking her earlier will and bequeathing the entire property in favour of the plaintiff is also denied. It is alleged that the said Will dated 27.02.1989 appears to be created and fabricated with a malafide intention of usurping the suit properties. It is also contended that Tirakavva had no exclusive right to execute a Will in respect of the suit properties, as the grant made in her name was for the benefit of all the family members, including the defendants. The claim that the plaintiff managed the affairs of the suit properties during the lifetime of Tirakavva, and as such his name was entered in the revenue records, is also disputed. The claim made by the plaintiff of he having exclusive right over the suit properties based on the Will dated 27.02.1989 is also denied.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
7. Defendant Nos.2 to 6 adopted the written statement filed by defendant No.1 by filing a memo dated 13.07.2004.
8. Based on the pleadings, the trial Court framed the following issues:
1. Whether plaintiff proves that, on the basis of registered will executed by Tirakavva dated 27.02.1989, he alone has become absolute owner of suit properties?
2. Whether plaintiff proves that, he is entitled for relief of declaration as prayed?
3. Whether plaintiff proves that, he is entitled for relief of permanent injunction as prayed?
4. Whether Court fee paid is proper?
5. What order or decree?
9. The plaintiff examined himself as PW1 and produced three more witnesses as PW2, PW3 and PW4. He also exhibited 68 documents, which were marked as Exhibits P1 to P68. On behalf of the defendants, four witnesses were examined as DW1 to DW4, and 17 documents were exhibited, marked as Exhibits D1 to D17.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
10. On appreciation of evidence, the trial Court answered issue Nos.1 to 3 partly in the affirmative and issue No.4 in the affirmative declaring the plaintiff to be absolute owner of the suit properties on the basis of registered will executed by Tirakavva dated 27.02.1989, and consequently, partly decreed the suit as noted above. However dismissed the suit in respect of suit schedule Sl.No.2 property for want better description.
11. The plaintiff being aggrieved by the said judgment and decree to the extent rejecting his suit in respect of suit schedule Sl.No.2 property preferred an appeal in R.A. No.10 of 2010. The defendants also preferred an appeal in R.A. No.13 of 2010 to the extent declaring the Plaintiff to be the owner of the remaining suit properties.
12. The First Appellate Court, while considering the grounds urged in the appeal memorandum in R.A. No.10 of 2010, framed the following points for its consideration:
1. Whether the judgment and decree passed in O.S.No.5/2000, dated 05.01.2010 by the trial court in respect of suit schedule Sl.No.2
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR property bearing R.S.No.29/1B/1 is justifiable or not?
2. If so, whether the interference of this court is required in the trial court's judgment and decree?
3. If so, what order?
13. As regards the appeal in R.A. No.13 of 2010, the First Appellate Court framed the following points for its consideration:
1. Whether the judgment and decree passed in O.S.No.5/2000, dated 05.01.2010 by the trial court is justifiable or not?
2. If so, whether the interference of this court is required in the trial court's judgment and decree?
3. If so, what order?
14. First Appellate Court set aside the Judgment and Decree of the trial Court to the extent of declaring the plaintiff to be the absolute owner of the suit properties on the premise that Tirakavva could not have executed the Will bequeathing the entire property in favour of the plaintiff by opining that the Land Tribunal in its order dated 29.05.1981 while granting occupancy rights in favour of Tirakavva had
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR imposed a condition restraining her from handing over the possession of the tenanted property to anybody till completion of 15 years and that execution of the said Will dated 27.02.1989 by Tirukavva was in contravention and in violation of the said condition imposed by the Land Tribunal. That the said Will has come into existence only within 7 years, 8 months, 26 days in violation to the conditions imposed and that she could have executed only to the extent of her share but not the entire extent of the properties as done in the present case. The First Appellate Court also declined to grant any share to the daughters, citing the provision under subsection (12) of Section 2 of the Karnataka Land Reforms Act. Accordingly, held that the sons of deceased Tirakavva, namely Basavanneppa and the deceased Ramappa are each entitled to 1½ share in the suit properties thereby allowed the appeal filed in RA No.13/2010 filed by the defendants. It however confirmed the decree dismissing the suit in respect of Sl.No. 2 of the suit Schedule Properties and dismissed the appeal filed by Plaintiff in RA No.10 of 2010.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
15. Aggrieved by the same, the plaintiff is in in RSA No.100389/2016 and RSA No.100548/2024. While the defendants are RSA Cr. Ob. No.100009/2016 before this court;
16. This Court, by order dated 20.10.2016, admitted the appeal in RSA No.100389/2016 to consider the following substantial question of law:
"Whether the judgment and decree of the First Appellate Court is perverse in misreading Section 61 of the Karnataka Land Reforms Act and consequently, hold that the Will is void?"
17. By order dated 26.06.2025, this Court admitted the RSA Cr. Ob. No.100009/2016 to consider the following substantial question of law:
"Whether the trial Court is justified in accepting the Will dated 27.02.1989 as per Exhibit P1 as proved on the premise of compliance of Sections 68 and 69 of the Evidence Act merely on the basis of the examination of legal representatives of the attesting witnesses to the said Will, without adverting to the second part of Section 69 of the Evidence Act requiring proof of execution of the said Will by the testator?
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
18. The appeal in RSA No. 100548/2024 is admitted to consider the following substantial question of law:
"Whether the trial Court and the First Appellate Court are justified in rejecting the suit of the plaintiff in respect of Item No.2 of the suit schedule properties merely on the premise of same did not depict the boundaries and description to establish its identity?
19. Learned counsel appearing for the appellant / plaintiff in RSA No.100389/2016 and RSA No.100548/2024 took this Court through the records and the reasoning assigned by both the trial Court and the First Appellate Court and submitted;
(a) That neither the trial Court nor the First Appellate Court discredited the authenticity of the Will. That though the trial Court accepted the case of the plaintiff of being the absolute owner of the suit schedule properties by virtue of the Will dated 27.02.1989, it erred in dismissing the suit in respect of the suit schedule Sl.No.2 property merely because the same did not contain detail description of its boundaries. That
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR the said finding and the conclusion arrived at by the trial Court is contrary to the provisions of Order 7 Rule 3 of the CPC, which only requires that the properties be described sufficiently enough to be identified and understood by the parties.
(b) That the survey number, extent and location of the properties were explicitly mentioned in the plaint, which has not been taken note of by the trial Court. He relied on the judgment of the Coordinate Bench of this Court in the case of SHANTAMMA W/O. GOUDAPPAGOUDA PATIL VS. SOMASHEKHARGOUDA @ SHANKARGOUDA PATIL AND OTHERS1, wherein it was held that strict compliance with Order 7 Rule 3 of the CPC is not mandatory if the properties are otherwise identifiable. Therefore, he contended that the trial Court erred in dismissing the suit in respect 1 RFA No.200066 of 2020, DD: 26.09.2024
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR of suit schedule Sl.No.2 property based on this erroneous factual and legal premise.
(c) With regard to the Judgment and Order passed by the First Appellate Court in R.A. No.13 of 2010, whereby the First Appellate Court set aside the Judgment and Decree of the trial Court and granted equal shares to the plaintiff and the legal heir of other son of Tirakavva on the premise in contravention of the condition of grant, Learned counsel submits that the finding and the conclusion arrived at by the First Appellate Court are contrary to the settled position of law. He submits that the execution of a Will does not amount to alienation, as understood by the First Appellate Court. He further submits that the said issue is no more res intigra in the light of the judgments passed by the Apex Court in the case of SANGAPPA KALYANAPPA BHANGI VS. LAND
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR 2 TRIBUNAL, JAMAKANDI & OTHERS and in the case of JAYAMMA VS. MARIYA BAI (DECEASED 3 BY L.RS.) AND ANOTHER . Thus he submitted that the First Appellate Court ought not to have held that Tirakavva had no right to execute the Will.
(d) That the First Appellate Court failed to comply with the requirement of Rule 30 of Order 41 of the CPC while disposing of the matter. In support of this contention, he relied on the judgment of the Apex Court in the case of UNITED ENGINEERS AND CONTRACTORS VS. SECURITY TO GOVT., A.P. & ORS.4.
(e) With regard to the cross objection filed by the defendants challenging the proof of Will, learned counsel relied on the judgment of the High Court of Kerala in the case of C.G. RAVEENDRAN AND 2 AIR 1998 SC 3229 3 AIR 2004 SC 3957 4 AIR 2013 SC 2239
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR 5 OTHERS VERSUS C.G. GOPI AND OTHERS . He submitted that judicial precedents have always been in favour of proof of the Will and not to find out missing links in the proof of Will. In the present case, he submits that the Will is registered. Though the attesting witnesses of the Will not being available on account of their demise, their representatives were examined as PW2 and PW3, and they identified the signatures of the attesting witnesses. In addition, PW4 who had accompanied deceased Tirakavva and the attesting witnesses to the office of Sub-Registrar, who deposed that he witnessed the execution of the Will. Thus, he submitted that there is a substantial compliance with the requirements of Sections 68 and 69 of the Evidence Act. In any event, he emphasized that the trial Court had already upheld the validity of the Will and though the First Appellate Court did not gone into this 5 AIR 2015 KERALA 250
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR aspect of the matter, the proof of Will is required to be taken as having proved in the manner known to law.
(f) That in view of the appeal that was filed by the defendants in R.A. No.13 of 2010, the defendant themselves filed an application in I.A. No.III under Order XIII Rule 10 read with Section 151 of CPC before the First Appellate Court seeking to summon the vakalath of the deceased Tirakavva filed in O.S. No.72/1997 which had been filed by the defendants and the said vakalath was indeed called for by the First Appellate Court. Subsequently the plaintiff filed another application in another application in IV under Order XXVI Rule 10A of the PC read with Section 45 of the Indian Evidence Act, seeking reference of the vakalath and the Will in question for signature verification. However, by order dated 07.06.2013, the First Appellate Court rejected
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR the application filed by the plaintiff seeking reference of the signature verification, though I.A. No.III had been allowed, he submitted that the reason assigned by the First Appellate Court was that the burden of proving the signature was on the defendants. Therefore, the plaintiff did not find it appropriate or necessary to proceed further in the matter. That under these circumstances, he insists, that it is just and proper that the Will should be held having proved.
(g) Alternatively, he prayed that since the documents are already on record, in the ends of justice, the same may be referred for signature verification, which would assist in the effective adjudication of the matter. He relied on the judgment of the Apex Court in the case of SANJAY KUMAR SINGH VS. STATE OF
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR 6 JHARKHAND in support of this submission. Hence, he seeks for allowing of the appeal.
(h) That even in terms of Section 105 of the CPC read with Order 43 Rule 1A, the order rejecting the application filed by the plaintiff before the First Appellate Court seeking verification of thumb impression of the deceased Tirakavva, can be considered along with the appeal. Hence, seeks for allowing of the appeal.
20. Per contra, Sri.D.Nagaraj along with Sri.Rajashekhar R Gunjalli, learned counsel appearing for the defendants submits;
(a) That even by the very averment made in the plaint by the plaintiff deceased Tirakavva had in the year 1974 executed a Will bequeathing the suit properties equally between her two sons which allegedly was revoked by the Will dated 27.02.1989. That the plaintiff who had 6 Civil Appeal No.1760 of 2022, DD: 10.03.2022
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR propounded the Will has not discharged the statutory obligation of proving the same in the manner known to law.
(b) Referring to Sections 68 and 69 of the Evidence Act particularly, the counsel vehemently submits that admittedly the attesting witnesses were not available as they having passed on. Though the plaintiff had examined PW.2 and PW.3 being the legal representatives of the attesting witnesses, the said examination would only satisfy the requirement of first part of Section 69 of Evidence Act, whereas the second part of Section 69 of Evidence Act requiring proof of handwriting of the testator had not been complied with. That the plaintiff who is statutorily obligated to have discharge this requirement, has failed besides he having had opportunity at every level and has not utilised the same.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
(c) It is his submission that though the plaintiff ought to have discharged this burden, he had made an attempt to summon the vakalaths purportedly filed by Tirakavva in O.S.No.72/1997 which was objected to by the defendants on the premise of the said thumb impression found on the vakalath not having been identified by the advocate who represented the said Tirakavva in the said suit. As such, it was not safe to rely upon the said thumb impression. He submits objections were also raised on the premise that if such a course was adopted that would amount to leading fresh evidence which was not permissible. That though the First Appellate Court had accepted the contention raised by the defendants in declining to send the said thumb impression for signature verification, the reason assigned there was inappropriate. That the First Appellate Court had erroneously held the burden of proving the signature was on the defendants
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR as they have disputed the signature which was contrary to the requirement of Section 69 of the Evidence Act. That as the law propounded by the Apex Court even if the defendant had remained silent without raising any objection whatsoever with regard to the authenticity or otherwise of the Will, the liability/burden of the plaintiff to discharge the proof of execution the Will does not get diluted. That the plaintiff not having availed the opportunity even before the First Appellate Court, cannot be permitted to raise that issue in this appeal.
(d) That the present appeal filed by the plaintiff in RSA No.100389/2016 is restricted only to the rejection of the Will by the First Appellate Court in view of the condition that was imposed regarding non-alienation and not with regard to the requirement of proof of the Will. That the Will not having been proved, the Trial Court erred in
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR accepting the same in declaring that the right, title and entitlement of the plaintiff in respect of Sl.No.1 of the suit property even though it rejected the claim of the plaintiff in respect of Sl.No.2 of the suit property.
(e) Remand of the matter at this juncture according to the counsel is not only unwarranted but also would be an exercise in futility. Both the Trial Court and the First Appellate Court not having adverted to the requirement of law with regard to proof of Will and the Will admittedly not having been put in a manner known to law, no purpose would be served if the matter is remanded.
(f) He submits in the fitness of things, the judgement and decree passed by the First Appellate Court awarding half share to the original plaintiff Ramappa needs to be modified.
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR In that, share to the daughters is also required to be given equally as that of a son.
(g) That the First Appellate Court declined to grant share to the daughters only in the light of provision contained in Sub-section (12) to Section 2 of the Karnataka Land Reforms Act and the law with respect to said provision as it stood then. He submits the said position of law has now changed. In that, even the married daughters are entitled for share in the land granted under the Land Reforms Act. In view of the settled position of law, the decree passed by the First Appellate Court requires to be modified and ends of justice would thereby be met with.
(h) As regards the submission made by the counsel for the appellant seeking reference of the documents available on record for the purpose of verification of the thumb impression, he re- iterates the submission that was made before the
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR First Appellate Court and further adds that the suit as such originally filed in the year 2000 and the present appeal is pending consideration since 2016 and the plaintiff at this juncture seeking to fill up the lacuna by leading further evidence cannot be permitted.
(i) He relies upon the following judgements in support of his submission:
i) H.Venkatachala Iyengar Vs. B.N.Thimmajamma and Others7 (para 19)
ii) Om Prakash (dead) through his legal representatives vs. Shanti Devi and Others8 (para 7)
iii) Babu Singh and Others Vs. Ram Sahai alias Ram Singh9 (para 16, 17, 18)
iv) K Laxmanan Vs. Thekkayil Padmini and Others10 (para 32)
v) Rukmini Bai and Another Vs. Umabai Shankar Jadhav and Others11 (para 15).7
AIR 1959 SC 443 8 (2015) 4 SCC 601 9 (2008) 14 SCC 754 10 (2009) 1 SCC 354 11 2008 (1) AIR KAR R 594
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
vi) Gaiv Dinshaw Irani and Others Vs. Tehmtan Irani and Others12 (para 14, 48 and 55)
vii) Rangappa Vs.Jayamma13 (para 2, 5, 8.2, 8.3, 8.5, 8.6, 8.7 and 9)
viii) Ramesh Verma (dead) through legal representatives vs. Lajesh Saxena (dead) by legal representatives and Another14 (para 13 and 14)
ix) The Municipal Corporation of Greater Bombay Vs. Lala Pancham and Others15 (para 9 marked portion)
x) S.Rajagopal vs. C.M.Armugam and Others16 (para 7)
xi) Smt.Pramod Kumari Bhatia Vs. Om Prakash Bhatia and Others17 (para 8)
xii) N. Kamalam (dead) and Another Vs. Ayyaswamy and Another18 (para 19)
xiii) Neelawwa Vs. Shivawwa19 (para 11)
21. Hence, he seeks for answering the substantial question of law framed in the cross-objection in the affirmative and allow the appeal.
12
(2014) 8 SCC 294 13 ILR 1987 Karnataka 2889 14 (2017) 1 SCC 257 15 AIR 1965 SC 1008 16 AIR 1969 SC 101 17 AIR 1980 SC 446 18 AIR 2001 SC 2802 19 ILR 1988 KAR 2761
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
22. Heard and perused the records.
23. Necessary at the outset to note that Tirakavva was admittedly a devadasi. The land bearing R.S. No.43 measuring 2 acres 4 guntas and R.S. No.82 measuring 7 acres 3 guntas, both situated at Ijari Lakmapur Village having been granted exclusively in favour of said Tirakavva, and land R.S.No.29/1B/1 measuring 4 acres 35 guntas having been granted jointly in the name of Tirakavva and Honnappa Talawar is also not in dispute. The said Tirakavva having had two sons by name Ramappa (father of defendants No.1 to 6) and Basavanneppa (plaintiff) and two daughters namely Gouravva and Basavannevva (defendants Nos.7 and 8 respectively) is also not in dispute.
24. Even according to the plaintiff the said Tirakavva had executed Will dated 20.12.1974 bequeathing her properties equally between her first son Ramappa and the plaintiff Basavanneppa. According to the plaintiff, due to certain differences, the first son Ramappa had parted ways and was staying separately along with his family and in
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR furtherance to the said differences the said Tirakavva had executed the Will subject dated 27.02.1989 matter of the present suit revoking her earlier Will and bequeathing the entire suit properties in favour of the plaintiff alone. Thus, the basis of suit for declaration and injunction being filed by the plaintiff is the aforesaid Will dated 27.02.1989.
25. Sections 68 and 69 of the Evidence Act provide the manner in which Will is required to be proved which are extracted hereunder for immediate reference:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
69. Proof where no attesting witness found.--
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person."
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR
26. Admittedly, evidence of attesting witnesses the Will could not be completed as they had passed on. This constrained the plaintiff to examine PW.2 and PW.3 who are stated to be the sons of the respective attesting witnesses. The said witnesses appear to have identified and acknowledged the signatures of the attesting witnesses found on the Will. To this extent, there appears to be compliance with regard to the first part of Section 69 of Evidence Act.
27. The dispute which is lingering in this matter is with regard to the last part of Section 69 of the Evidence Act which reads as under:
"and that the signature of the person executing the document is in the handwriting of that person"
28. The Apex Court in the case of BABU SINGH supra adverting to requirement of Section 69 of the Evidence Act at paragraph Nos.16, 17 and 18 has held as under:
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR "16. Section 69 of the Act reads, thus:
"69. Proof where no attesting witness found.--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved."
29. Similarly, the Apex Court in the case of OM PRAKASH supra at paragraph No.7 has held as under:
"7. ............... It is at once apparent that this provision anticipates a reasonable anxiety emerging out of the peremptoriness of Section 68, in that it addresses, inter alia, a situation where none of the attesting witnesses to a document (a gift deed, in this case) are alive at the time of the curial investigation thereof. Not leaving litigants forlorn for proof under Section 68, Section 69 of the Evidence Act places emphasis on handwriting(s) of the putative deceased or the "not found" attestator(s), along with the signatures of the executant. We must be quick to elucidate that the position is akin to the reception of
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR secondary evidence, in that the successful passage from the rigours of Section 68 can be met contingent upon the proved non-availability of the attesting witnesses to a document. The litigants are, therefore, not faced with an evidentiary cul-de-sac. They can discharge their burden by proving, in the alternate mode and manners conceived by the Evidence Act, the signatures of the putative attestators along with the handwriting of the executant. The appellant herein palpably failed in proving the signatures of the attestators to the gift deed, and, therefore, has pursued his case by evoking Section 90 of the Evidence Act as the cornerstone of his pleadings."
30. Similarly, the Apex Court in the case of RAMESH VERMA supra at paragraph No.13 and 14 has held as under:
"13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
14. In Savithri v. Karthyayani Amma this Court has held as under SCC page 629 para 17),:-
"17. A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine."
31. Suffice it to state in the light of the aforesaid provisions of the Evidence Act and the enunciation of law by the Apex Court, the burden is on the plaintiff to prove the Will strictly in terms of Section 68 of the Evidence Act and in the absence of circumstances contemplated therein as per Section 69 of the Evidence Act. Necessary therefore to analyse if the plaintiff has discharged this statutory obligation of proving the Will in the instant case.
32. PW.2 is one Kumaraswamy Rudrayya Matada stated to be the son of Rudrayya Matada and PW.3 is Kumar also known as Kumaraswami son of Kotrayya Sandimath. The aforesaid Rudrayya Matada and Kotrayya
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR Sandimath are stated to be the attesting witnesses of the Will. The said witnesses have indeed identified the signatures of the said attesting witnesses. Plaintiff has examined PW.4 one Sri. Nandeppagouda who in his deposition has stated that he was present when the Will was read over to the deceased Tirakavva and when the same was being registered. It is only these three witnesses who have been examined by the plaintiff in proof of the execution of the Will.
33. The plaint is conspicuously silent with regard to the source of knowledge of the plaintiff with regard to existence of Will. It is not the case of the plaintiff that he either accompanied Tirakavva for execution and registration of the Will or that the Tirakavva had handed over the Will to him. Though in the plaint it is averred that even during the lifetime of the Tirakavva he had managed the affairs of the property, nowhere is there any mention in the plaint that he was either having knowledge or was in possession of the Will. In the deposition of PW.1 recorded on 03.12.2009 at
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR page 11, the PW.1 has admitted that he was not present at the time of making of Will of 1989 and he is not even aware of the place where the said Will was prepared and that he is also not even aware as to who had accompanied Tirakavva at the time of execution of the Will. Thus, the circumstance of the Will coming into the hands of the plaintiff has remained a secret.
34. Even if the evidence of PW.2 and PW.3 is accepted, evidence of PW.4 and the purpose of his examination have remained unclear. That PW.4 is neither a witness nor a signatory in any capacity whatsoever to the Will in question. It is also not clear as to the circumstances under which the plaintiff learnt about the presence of PW.4 at the time of purported execution of the Will by the deceased Tirakavva. The said witness do not fall in any other categories of the witnesses required to be examined under Sections 68 or 69 of the Evidence Act. Though the said witness has deposed that he has seen Tirakavva executing the Will and registering the same, the least that
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR could have been done by the plaintiff while he was in the witness box was to confront the signature/thumb impression of Tirakavva found on the said Will. Not even a suggestion is made to the said witness of he recognising or identifying the signature/thumb impression of Tirakavva.
35. Reliance placed by the counsel for the appellant on to the judgement of the Kerala High Court in the case of C.G. RAVEENDRAN AND OTHERS VS. C.G. GOPI AND OTHERS in RFA No.315/2013 to impress upon this Court to consider the examination of witness-PW.4 as substantial compliance of Section 69 of Evidence Act cannot be countenanced. For, even as seen at para No.20 of the said judgment of the Kerala High Court, DW.2 therein who was examined to prove the ingredients of Section 69 of the Evidence Act was a person who had identified the signature of the testator as well as his own signature on the Will which is the distinguishable factor between the said judgement of the Kerala High Court and the one at hand. Evidence of PW.4 could have come to the aid of the plaintiff
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR had he been the person who had identified the signature of the testator Tirakavva which is not the case at hand. Therefore, though there cannot be any dispute with regard to the principle of law laid down in the said judgement of the Kerala High Court, on the facts, the same cannot be made applicable to the instant case.
36. The other submission made by the counsel for the appellant/plaintiff is that the efforts were made before the First Appellate Court by filing application in I.A.No.3 in summoning the vakalath which was allowed; and the subsequent attempt made by filing another application in I.A.No.4 before the First Appellate Court seeking reference of the matter for signature/handwriting verification which was declined; would according to him, indicate that the plaintiff indeed had taken steps to comply with the law requiring proof of handwriting; and that the plaintiff is entitled to urge said grounds even before this Court under Section 105 of the CPC. This contention also cannot be countenanced for as seen in the order passed by the First
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR Appellate Court on the application in I.A.No.4, a specific finding is given at para No.10 which reads as under:
"It is also important to note that the vakalath sought to be sent to handwriting expert is not the part of the record of this appeal and the same is summoned only for the limited purpose for comparison and this Court summoned the same for the limited purpose and respondent is also not invoked application under Order 41 Rule 27 to treat the same as additional evidence and in the said document is not part of the record, the same cannot be sent to handwriting expert and there is no material that the said signature is belongs to the Tirakavva only and the same is disputed with appellant that the counsel who filed the vakalath on behalf of the Tirakavva not identified the signature and the signature belongs to Tirakavva only and hence I do not find any force in the contention of the first respondent counsel to send the document to the handwriting expert and hence the application deserves to be dismissed."
37. Thus, one of the reasons for First Appellate Court not to accept the request of the plaintiff to send the thumb impression for verification by the handwriting expert was that there was no material on record to support the contention of the plaintiff that the signature/thumb impression was that of Tirakavva.
38. Section 105 of CPC reads as under:
"105. Other orders .- (1)Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2)Notwithstanding anything contained in sub-
section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
39. Rule 1A of Order 43 of CPC reads as under:
"1A. Right to challenge non-appealable orders in appeal against decree.
(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded."
40. The aforesaid provisions of CPC would indicate that once an appeal is filed, the appellant is entitled to challenge the correctness of any interlocutory order passed in such suit in the appeal raising a ground that such order ought not to have been passed and would not be necessary in such a case that he should prefer an independent appeal
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR against the order dismissing an interlocutory application even it was appealable. Perusal of the present appeal does not indicate that the appellant/plaintiff has taken any such ground to challenge the finding given by the Trial Court on the said I.A.No.4 rejecting the request for referring the matter for signature/ thumb impression verification.
41. Necessary also to note that the counsel for the appellant/Plaintiff after arguing the matter substantially, sought permission of this Court to file an application at the last moment. The suit is of the year 2000. Regular Appeal was filed in the year 2010, which was disposed of in the year 2016 and these appeals are pending consideration before this Court for the past over 14 years. In the light of the requirement of proof of Will as noted above, and the opportunity that has already been availed by the plaintiff before the First Appellate Court, this Court do not see any reason to allow the Appellant/plaintiff at this belated stage to seek verification of the thumb impression of the deceased Tirakavva. This view of this Court, apart from being in consideration of the factual aspect of the matter, is
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR also supported by the view taken by the Apex Court in the similar circumstances in the case of N. KAMALAM supra wherein at para No.19, it has held as under:
"19. Incidentally, the provisions of Order 41 Rule 27 has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal - It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in The Municipal Corporation of Greater Bombay v. Lala Pancham and others (AIR 1965 SC 1008) has been candid enough to record that the requirement of the high Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In paragraph 9 of the judgment, this Court observed:
"...................This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports in a large measure the plaintiffs contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under cl. (b) of sub-r.(1) of r.27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision."
Further in Smt. Pramod Kumari Bhatia v. Om Parkash Bhatia and Others (AIR 1980 SC 446) this Court also in more or less in an identical situation laid down
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, question of interfering with the discretion exercised by the High Court in refusing to receive an additional evidence at that stage would not arise. The time lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April, 1983 but the application for permission to adduce additional evidence came to be made only in August, 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time: In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned Trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it, to be a stage managed affair in order somehow to defeat the claim of the respondents - and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court can not be found fault with for rejecting the prayer of the appellant for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs being the appellant herein."
42. The Apex Court also in the case of SMT.PRAMOD KUMARI BHATIA supra, held as under:
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR "8. Before the High Court, Pramod Kumari filed an application for reception of additional evidence. The principal additional evidence sought to be adduced was an alleged letter said to have been written by late Pearey Lal Singh to the bank nominating Pramod Kumari as the person entitled to the amount in deposit with the Bank. The letter itself was not filed along with the application but a request was made to summon the letter from the Bank. The High Court rejected the application. The application to the High Court was made very many years after the suit had been filed, and also quite some years after the appeal had been filed before the High Court, and we do not think that we will be justified in interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage. The appeal is therefore dismissed but in the circumstances with no order as to costs."
43. In the light of the above discussion and analysis this court is of the considered view that the Plaintiff has failed to prove the execution of Will dated 27.02.1989 in the manner required under the law. Thus having held as above, necessary to advert to consequences of the judgement and Decree passed by the First Appellate Court as under;
44. The appeal in RSA No.100389/2016 is filed primarily on the premise of First Appellate Court having dismissed the suit of the plaintiff in its entirety on the premise of Tirakavva having violated the terms of the grant
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR by executing the Will within period of 15 years of non- alienation period. Though the said reasoning assigned by the First Appellate Court cannot be countenanced in view of the law laid down in the case of SANGAPPA KALYANAPPA BHANGI supra and JAYAMMA supra, wherein the Apex Court analysing the provisions of the Karnataka Land Reforms Act more particularly Sections 21 and 24 of the Karnataka Land Reforms Act imposing the restriction on alienation has laid down the law that execution of Will in favour of natural heir would not amount to alienation/ assignment violating the terms and conditions. However, even if the said finding and conclusion arrived by the First Appellate Court in the appeal in R.A.No.13/2010 filed by the defendants is set aside, in the light of the conclusion arrived by this Court on the question of Plaintiff failing to prove the execution of Will, Plaintiff cannot be held to the sole owner of the suit properties.
45. The obvious consequences of inheritance / succession of the suit properties by the natural heirs
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR Tirakavva as per law would therefore have to ensue. Suit will have to be consequently disposed of by moulding the relief by holding that all the children of Tirakavva, namely, Ramappa her first son since deceased now represented by defendants Nos.1 to 6, Basavanneppa her second son the original plaintiff since deceased now represented by his legal representatives, Gouravva her daughter since deceased now represented by her legal representatives and Basavannevva the other daughter, each being entitled for 1/4th equal share in the suit schedule properties. This view of this Court is fortified by the law laid down by the Apex Court in the case of GAIV DINSHAW IRANI supra wherein at para Nos.48 and 55, the Apex Court has held as under:
"48. Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of parties are crystallised on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or on the entire purpose of the suit, the courts taking note
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR of the same should mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Patterson v. Alabama [79 L Ed 1082 : 294 US 600 (1935)] followed in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [(1941) 53 LW 373 :
AIR 1941 FC 5] . The aforementioned cases were recognised by this Court in Pasupuleti Venkateswarlu v. Motor and General Traders wherein he stated that: (SCC pp. 772-73, para 4) "4. ... It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."
55. In wake of the above, we are of the opinion that the High Court taking note of the subsequent events has
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR correctly moulded the relief and allotted five flats to Respondents 1 to 5 as per their share." As well as the judgement of the Division Bench of this Court in the case of RANGAPPA supra wherein at para No.8.7 and 9 referring to the earlier judgment has held as under:
"8.7. In Rame Gowda v. Kuntalinge Gowda and Others, a Division Bench following the aforesaid two decisions in Lingappa and Ramaiah's cases held thus :
"Though this is a suit for declaration of title and possession only, there is nothing unusual in giving relief to the parties by directing a partition of the properties as has been done in other cases of this kind in order to avoid unnecessary litigation and waste of time of Courts ; vide Lingappa vs. Chennabasappa (1917) 22 Mys. C.C.R. 293) and Ramaiah vs. Siddalingappa (1942) 48 Mys. H.C.R. 317)."
Thus, apart from the fact that the view taken by us is quite in conformity with the provisions contained in Order VII Rule 7 of C.P.C. which are in very wide terms, it also receives support from the several authorities referred to above. For the reasons stated above, we hold that the Trial Court is not justified in refusing to pass a preliminary decree for partition and separate possession of the plaintiff's half share in the suit properties. Point No. 2 is accordingly answered in the negative and in favour of the plaintiff-appellant.
9. For the reasons stated above, the appeal is allowed in part. In modification of the decree of the Trial Court, there shall be a preliminary decree for partition and separate possession of the plaintiff's half share in the suit properties. The house property shall be partitioned through a Court Commissioner and the landed properties assessed to revenue shall be partitioned in accordance with the preliminary decree as
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR per Section 54 of the C.P. Code. There shall be an enquiry into future mense profits under Order XX Rule 18(2) of the C.P. Code. In this appeal, there will be no order as to costs."
46. Similarly in the case of NEELAWWA, the Division Bench of this Court at para No.11 it is held as under:
"11. For the reasons stated above, this appeal is allowed. The judgment and decree of the trial Court are set aside. The plaintiff is declared to be the owner to the extent of half share in the suit land more fully described in Schedule 'B' to the plaint. There shall be a preliminary decree for partition and separate possession of her half share in the suit land which shall be effected by the Deputy Commissioner of the District or his Gazetted Assistant as per S. 54 of the Civil P. C. There shall also be an enquiry into future menses profits under O. XX, R. 18(2) ntof the Civil P. C. The necessary deficit Court-fee if any, as per the valuation made by the plaintiff be paid by the plaintiff on the plaint as well as on the memorandum of appeal as per S. 35(2) of the Karnataka Court-fees and Suits Valuation Act and then the decree be drawn."
47. As rightly contended by the learned counsel for the Appellant trial Court and the First Appellate Court are not justified in rejecting the suit of the plaintiff in respect of suit schedule Sl. No.2 property merely on the premise of same did not depict the boundaries and description to establish its identity, as the parties have not disputed the
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR same. That apart there is sufficient information provided enabling identification of same.
48. In view of the aforesaid factual and legal aspects the substantial questions of law framed are answered accordingly. Consequently, the following:
ORDER i. Appeal in RSA No.100389/2016 filed by the plaintiff is dismissed.
ii. RSA Cross-Objection No.100009/2016 filed in the said appeal by the defendants is allowed.
iii. Appeal in RSA No.100548/2024 is partly allowed.
iv. In view of the land bearing R.S. No.43 measuring 2 acres 4 guntas and R.S. No.82 measuring 7 acres 3 guntas, both situated at Ijari Lakmapur Village ( Sl. No.1 of the suit schedule properties) having been granted exclusively in favour of said Tirakavva, and land R.S.No.29/1B/1 measuring 4 acres 35 guntas ( Sl No.2 of the suit schedule property) being granted
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR jointly in the name of Tirakavva and Honnappa Talawar in which Tirakavva was entitled for her half share, children/legal representatives of deceased Tirakavva are held entitled for equal shares in the suit properties as under;
(a) Defendants No.1 to 6 being children of Ramappa together would be entitled for 1/4th share in the suit schedule Sl.No.1 property and for 1/8th share in the suit schedule Sl.No.2 property.
(b) Plaintiff now being represented by his legal representatives would be entitled for 1/4th share in the suit schedule Sl.No.1 property and for 1/8th share in the suit schedule Sl.No.2 property.
(c) Defendants No.7(a) to 7(g) being the legal representatives of Gouravva (defendant No.7)together are entitled for 1/4th share in the suit schedule Sl.No.1 property and for 1/8th share in the suit schedule Sl.No.2 property.
(d) Basavannevva - defendant No.8 would be entitled for 1/4th share in the
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NC: 2025:KHC-D:8350 RSA No. 100389 of 2016 C/W RSA No. 100548 of 2024 RSA.CROB No. 100009 of 2016 HC-KAR suit schedule Sl.No.1 property and for 1/8th share in the suit schedule Sl.No.2 property.
v. Draw preliminary decree accordingly. vi. In the circumstances, cost made easy.
Sd/-
(M.G.S. KAMAL) JUDGE VNP & SH / CT-ASC List No.: 1 Sl No.: 2