KALLAPPA SIDDAPPA BIRADAR vs LAXMAN BHIMAPPA MARADDI
- Court
- Karnataka High Court
- 1 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
th
DATED THIS THE 08 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE
REGULAR SECOND APPEAL NO.2023 OF 2006
C/W
REGULAR SECOND APPEAL NO.2024 OF 2006
IN RSA NO.2023/2006
BETWEEN:
1. KALLAPPA SIDDAPPA BIRADAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
2. SMT. GOURAWWA W/O SATTEPPA LAKKANNAVAR
AGE: MAJOR, OCC: HOUSE HOLD,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
3. MISS GANGAWWA D/O SIDDAPPA BIRADAR
AGE: MAJOR, OCC. HOUSEHOLD,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
4. MISS UMAWWA D/O SIDDAPPA BIRADAR
AGE: MAJOR, OCC. HOUSEHOLD,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5. SIDDAPPA KALLAPPA BIRADAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
…APPELLANTS
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
Digitally signed by
GIRIJA A.
BYAHATTI
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2026.10.22
12:18:26 +0530
- 2 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
AND:
1. SHRI LAXMAN BHIMAPPA MARADDI
AGE: 35 YEARS, OCC: AGRICULTURE
R/O. YALLATTI,
TQ. JAMKHANDI, DIST. BAGALKOT.
2. SMT. SAYAWWA W/O BHIMAPPA MARADDI
SINCE DECEASED BY LRS
2A) LAXMAN S/O. BHIMAPPA MARADI
AGE: 60 YEARS, OCC. AGRICULTURE,
R/O. YALLATTI,
TQ. BANAHATTI, DIST. BAGALKOT.
2B) KENCHAVVA D/O BHIMAPPA MARADI
KENCHAVVA W/O SHANKAR ZALAKI
AGE: 55 YEARS, OCC. AGRICULTURE,
R/O. YALLATTI,
TQ. BANAHATTI, DIST. BAGALKOT.
3. SMT. KENCHAWWA W/O SHANKAR JALAKI
AGE: MAJOR, OCC: AGRICULTURE
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
4. SMT. LAXMIBAI CHANNAMALLAPPA BIRADAR
AGE: MAJOR, OCC: HOUSEHOLD
R/O. SIDDAPUR, TQ. RAIBAG,
DIST. BELAGAVI.
5. SMT. HANAMAWWA W/O RAMAPPA JALAKI
SINCE DECEASED BY LRS
5A) DUNDAPPA S/O RAMAPPA ZALAKI
AGE: 65 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5B) SHANKAR S/O RAMAPPA ZALAKI
AGE: 64 YEARS, OCC. AGRICULTURE,
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5C) PUNDU S/O RAMAPPA ZALAKI
AGE: 62 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5D) SHRISHAIL S/O RAMAPPA ZALAKI
AGE: 59 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5E) ALLAPPA S/O RAMAPPA ZALAKI
AGE: 58 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5F) GANGAWWA D/O RAMAPPA ZALAKI
GANGAWWA CHANNAPPA MEGANNAVAR
AGE: 55 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5G) SATYAWWA D/O RAMAPPA ZALAKI
SATYAWWA W/O SANANING AVARADI
AGE: 53 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
…RESPONDENTS
(BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE FOR R1;
SRI. A.R. PATIL, ADVOCATE FOR R4;
NOTICE TO R2(A), R2(B) AND R5(A) TO R5(G) ARE SERVED )
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET
ASIDE THE JUDGMENT & DECREE DATED: 20.04.2006 PASSED
IN R.A.NO.59/2002 ON THE FILE OF THE DISTRICT & SESSIONS
JUDGE, FAST TRACK COURT-I, CHIKODI, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:
16.07.2002 PASSED IN OS.NO.4/1991 ON THE FILE OF THE
- 4 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
CIVIL JUDGE (SR.DN.) AND ASSISTANT SESSIONS JUDGE,
ATHANI, IN THE INTEREST OF JUSTICE.
IN RSA NO.2024/2006
BETWEEN:
1. KALLAPPA SIDDAPPA BIRADAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
2. SMT. GOURAWWA W/O SATTEPPA LAKKANNAVAR
AGE: MAJOR, OCC: HOUSE HOLD,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
3. MISS GANGAWWA D/O SIDDAPPA BIRADAR
AGE: MAJOR, OCC. HOUSEHOLD,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
4. MISS UMAWWA D/O SIDDAPPA BIRADAR
AGE: MAJOR, OCC. HOUSEHOLD,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5. SIDDAPPA KALLAPPA BIRADAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
…APPELLANTS
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
AND:
1. SHRI LAXMAN BHIMAPPA MARADDI
AGE: 35 YEARS, OCC: AGRICULTURE
R/O. YALLATTI,
TQ. JAMKHANDI, DIST. BAGALKOT.
2. SMT. SAYAWWA W/O BHIMAPPA MARADDI
- 5 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
SINCE DECEASED BY LRS
2A) LAXMAN S/O. BHIMAPPA MARADI
AGE: 60 YEARS, OCC. AGRICULTURE,
R/O. YALLATTI,
TQ. BANAHATTI, DIST. BAGALKOT.
2B) KENCHAVVA D/O BHIMAPPA MARADI
KENCHAVVA W/O SHANKAR ZALAKI
AGE: 55 YEARS, OCC. AGRICULTURE,
R/O. YALLATTI,
TQ. BANAHATTI, DIST. BAGALKOT.
3. SMT. KENCHAWWA W/O SHANKAR JALAKI
AGE: MAJOR, OCC: AGRICULTURE
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
4. SMT. LAXMIBAI CHANNAMALLAPPA BIRADAR
AGE: MAJOR, OCC: HOUSEHOLD
R/O. SIDDAPUR, TQ. RAIBAG,
DIST. BELAGAVI.
5. SMT. HANAMAWWA W/O RAMAPPA JALAKI
SINCE DECEASED BY LRS
5A) DUNDAPPA S/O RAMAPPA ZALAKI
AGE: 65 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5B) SHANKAR S/O RAMAPPA ZALAKI
AGE: 64 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5C) PUNDU S/O RAMAPPA ZALAKI
AGE: 62 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
- 6 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
5D) SHRISHAIL S/O RAMAPPA ZALAKI
AGE: 59 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5E) ALLAPPA S/O RAMAPPA ZALAKI
AGE: 58 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5F) GANGAWWA D/O RAMAPPA ZALAKI
GANGAWWA CHANNAPPA MEGANNAVAR
AGE: 55 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
5G) SATYAWWA D/O RAMAPPA ZALAKI
SATYAWWA W/O SANANING AVARADI
AGE: 53 YEARS, OCC. AGRICULTURE,
R/O. SHANKARHATTI,
TQ. ATHANI, DIST. BELAGAVI.
…RESPONDENTS
(BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE FOR R1;
SRI. A.R. PATIL, ADVOCATE FOR R4;
NOTICE TO R2(A), R2(B), R3 AND R5(A) TO R5(G) ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT & DECREE DATED: 20.4.2006 PASSED IN
R.A.NO.60/2002 ON THE FILE OF THE DISTRICT & SESSIONS
JUDGE, FAST TRACK COURT-I, CHIKODI, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:
16.07.2002 PASSED IN OS.NO.6/2000 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) AND ASSISTANT SESSIONS JUDGE,
ATHANI AND SUIT OS.NO.6/2000 MAY KINDLY BE DISMISSED,
IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 31.08.2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
CORAM: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE
CAV JUDGMENT
1. These two appeals are by the plaintiff. RSA
No.2023/2006 is filed assailing the judgment and decree
dated 20.04.2006 passed in R.A. No.59/2002 by the Fast
Track Court-I, District and Sessions Judge, Chikkodi (for
short, ‘the first appellate Court’), whereby the judgment
and decree dated 16.07.2002 passed in O.S. No.4/1991 by
the learned Civil Judge (Senior Division), Athani (for short,
‘the trial court’), which came to be reversed.
2. Whereas, RSA No. 2024/2006 is filed assailing
the judgment and decree dated 20.04.2006 passed in R.A.
No.60/2002 by the Fast Track Court-I, District and Sessions
Judge, Chikkodi, (for short First Appellate court) whereby
the judgment and decree dated 16.07.2002 passed in O.S.
No. 60/2002 by the learned Civil Judge (Senior Division)
(for short Trial Court) Athani, came to be reversed.
3. For the convenience reference, the parties are
hereinafter referred to as the ‘plaintiff’ and the ‘defendants’,
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
as they were described in the suit in O.S.No.4/1991 on the
file Civil Judge (Senior Division), Athani.
4. The genealogy of the parties is set out under as
mentioned in O.S.No.4/1991:
Ramappa (propositus)
Shivalingawwa Bhimappa Laxmibai Hanamawwa
(plff.1) (Deft.1) (Deft.2) (Deft.3)
Laxman -
(Deft.4)
5. The suit schedule properties are described as
under:
a) Agricultural lands which are described below:
Sl.
No.
Village R.S.No. Area
Ac-Gs
Assessment
Approximate
Rs.Ps.
Value in Rs.
1) Shegunshi 294/2 6-35 13.69 50,000/-
Tq. Athani
2) Sankaratti 137/1 8-06 13.51 60,000/-
Tq. Athani
3) Yallatti 25/4/1+2 3-00 4.38 15,000/-
Tq.Jamkhandi
4) Kullalli 201/2 6-04 16.23 50,000/-
Tq.Jamkhandi
5) Asangi 38/2A+2B 2-38 26.91 12,000/-
Tq.Jamkhandi
All these lands are full survey numbers, hence the boundaries of
the same are not given.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
b) The house properties which are described below:
Sy.
No.
Village M.P.C.Nos. Approximate
Value in Rs.
1) Shankratti 252 40,000/-
Tq. Athani
2) Yallatti 21 8,000/-
Tq.Jamkhandi
3) Yallatti 31 40,000/-
Tq.Jamkhandi
6. The plaintiff’s case in O.S.No.4/1991:
The propositus of the family namely, Ramappa had four
st
children, namely, Bhimappa the 1 defendant, Laxmibai
(defendant No.2), Hanamawwa (defendant No.3)
Shivalingawwa and Laxman who is the is son of Bhimappa
(Defendant No.1)
7. The case of the plaintiff in O.S. No.4/1991 is that
the suit schedule properties comprise, in all, five
agricultural lands and three house properties. The plaintiff
and the defendant Nos.1 to 3 are the children of the
propositus Ramappa, who died on 19.02.1990.
8. It is the specific case of the plaintiff that, all the
suit schedule properties except item no.3 originally
belonged to the propositus Ramappa. During his lifetime, he
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
purchased item no.3 of the suit properties bearing Survey
No. 25/4/1+2, while the remaining suit properties were
ancestral properties.
9. It is further contended that, a partition had taken
place between the propositus Ramappa, and defendant
No.1, who is his son, in respect of Survey Nos.294/2 and
137/1, (item no.1 and 2) pursuant to the decree passed by
the Munsiff Court, Athani, in O.S. No.377/1974 dated
17.09.1974. Under the said decree, the propositus,
Ramappa was allotted Survey Nos.294/2 and 137/1 towards
his share.
10. According to the plaintiff, defendant No. 1 had no
right, title or interest whatsoever in the said two (item no.1
and 2) properties. It is further contended that, the
remaining suit properties, including the other agricultural
lands and house properties were never partitioned between
the propositus and defendant No.1. The plaintiff and the
defendants continued to be in joint possession and
enjoyment of the said properties.
- 11 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
11. It is further case of the plaintiff that, despite the
same, defendant No.1 and the other defendants got their
names entered in the revenue records by obtaining
mutation entries bearing M.R. Nos.5623, 1133 and 2263 in
respect of R.S. Nos.201/2, (item No.4) 25/4/1+2 (item
No.3) and 38/2A-2B, (item No.5) respectively, behind the
back of the plaintiff and without her knowledge or consent.
12. The plaintiff therefore contends that, the said
mutation entries were illegally effected and are not binding
upon her or her lawful share and interest in the suit
schedule properties.
13. Further, it is the case of the plaintiff that, the
propositus Ramappa was never executed any Will in favour
of defendant No.4 bequeathing the properties bearing R.S.
Nos.294/2 and 137/1. It is contended that, there were no
cordial relation between the deceased Ramappa and
defendant Nos.1 and 4 and the relationship between them
was strained.
14. The plaintiff has further contended that, she used
to frequently visit her father and look after him with the
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
assistance of her husband. According to the plaintiff, taking
advantage of the strained relationship between the
propositus and defendant Nos.1 and 4, all the defendants in
collusion with the husband of defendant No. 2, created the
alleged Will dated 11.11.1989.
15. It is specifically contended that, the propositus
Ramappa was never intended to execute any Will in favour
of defendant No.4 and defendant Nos.1 to 4 had actively
participated in bringing the said Will into existence. It is
further contended that, defendant No.4 had never resided
with the propositus, as their relationship was not cordial.
The plaintiff has therefore contended that, the alleged Will
is surrounded by suspicious circumstances and is not
genuine or valid.
16. The plaintiff contended that she is entitled to
1/3rd share in the properties bearing R.S. Nos.294/2 and
137/1 and he further contended that, she is entitled to
1/8th share in the remaining suit schedule properties. Since
the defendants failed and neglected to allot her legitimate
share in the suit schedule properties, she was constrained
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
to institute the suit in O.S. No.4/1991 before Trial Court on
30.01.1991, seeking partition and separate possession of
her share in the suit schedule properties.
17. On the other hand, defendant No.4 (as per
genealogy mention in O.S.No.4/1991) namely, Laxmana
son of defendant No.1, had instituted a suit in O.S.
No.15/1991 on 04.01.1991, prior to the institution of O.S.
No.4/1991 by the plaintiff. Subsequently, O.S. No.15/1991
was transferred to the Trial Court and was renumbered as
O.S. No.6/2000.
18. In O.S. No.6/2000, defendant No.4 herein, who
was the plaintiff therein contended that, the suit schedule
properties comprising five agricultural lands and three
house properties originally belonged to the propositus,
Ramappa.
19. It was further contended that, the plaintiff
herein, being the married daughter of the propositus, after
her marriage and during the lifetime of her father, severed
her connection with the joint family and had been living
separately for a considerable period prior to the death of
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
the propositus. On that basis, it was contended that the suit
filed by her seeking partition and separate possession was
not maintainable.
20. Insofar as the house properties are concerned, it
was contended that the said properties were dwelling
houses and the plaintiff being a female heir and a married
daughter was not entitled to claim any share therein.
21. It was admitted that, the properties bearing R.S.
Nos.294/2 and 137/1 had been allotted to the share of the
deceased Ramappa by virtue of the decree passed in O.S.
No.377/1974. It was contended that, pursuant to the said
decree, Ramappa had become the absolute owner of the
said two properties.
22. It was further contended that, the plaintiff had
no cause of action to institute O.S. No. 4/1991 and the
institution of O.S. No.15/1991 by defendant No.4 which is a
prior suit than O.S. No.4/1991, could not constitute a cause
of action for the plaintiff to institute the said suit. The
defendants also contended that, the suit filed by the plaintiff
was barred by limitation.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
23. The defendants further contended that, there had
been a partition between the propositus Ramappa and
defendant No. 1 as early as in the year 1968. Pursuant to
the said partition, the properties bearing R.S. Nos. 25/4/1-
2, (item No.3) 201/2 (item No.4) and 38/2A-2B (item No.5)
had fallen to the share of defendant No. 1.
24. It was further contended that, the propositus
Ramappa himself had submitted the necessary varadi to the
Village Accountant and accordingly, the name of defendant
No.1 was entered in the revenue records in respect of the
said properties in the year 1968 itself. According to the
defendants, defendant No.1 had thereby become the
absolute owner of the said properties during the lifetime of
Ramappa and consequently, that there was no occasion for
the plaintiff or any other person succeeding to the said
properties upon the death of Ramappa arise.
25. Insofar as the properties bearing R.S. Nos. 137/1
and 294/2 are concerned, the defendants contended that
the propositus Ramappa during his lifetime had bequeathed
the said properties in favour of his grandson, defendant No.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
4, by executing a Will dated 11.11.1989. On the basis of the
said Will, defendant No. 4 claimed to have become the
absolute owner of the said two properties and consequently
contended that the plaintiff was not entitled to claim any
share therein.
26. The defendants further contended that, the
partition which had taken place in the year 1968 between
defendant No. 1 and his father was subsequently evidenced
and recognised in O.S. No. 377/1974. Therefore, according
to the defendants, the plaintiff was not entitled to claim any
share in the said properties.
27. It was further contended that, the Will executed
by Ramappa in favour of defendant No. 4 was legal, valid
and binding, and the plaintiff had no right to challenge the
same. It was also contended that, as the plaintiff and
defendant Nos. 1 to 3 were causing obstruction to the
peaceful possession and enjoyment of the said two
properties by defendant No. 4, he was constrained to
institute the suit seeking appropriate relief.
- 17 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
28. On the basis of the pleadings of the parties, the
Trial Court framed the following issues in O.S. No.4/1991
and O.S. No. 6/2000:
Issues framed in O.S. No. 4/1991:
1) Whether the suit properties bearing
R.S.Nos.25/4/1+2, 38/2A/2B and R.S.No.201/2 of MPC
No.252, 21, 31 and R.S.NO.294/2 and 137/1 are the joint
family properties as alleged?
2) Whether the defendants prove that the plaintiff has
no locus standi to file this suit and the sale is not
maintainable as contended in para No.3 and 5 of the
written statement?
3) Whether the defendant No.1 proves that deceased
Ramappa has, executed a Will in favour of the defendant
No.4 on 11.11.1989?
4) Whether the suit is barred by the law of limitation?
5) Whether the valuation for the purposes of Court fee
and jurisdiction is improper?
6) Whether this court has no jurisdiction to entertain the
suit as alleged?
7) Whether the plaintiff is entitled to the reliefs sought
for?
8) What Decree or Order?
Issues framed in O.S. No. 6/2000:
1) Does plaintiff prove his right, title and interest and
possession over suit properties?
2) Whether the plaintiff proves the execution of the Will
by his grand-father Ramappa on 11.11.1989 and that
Ramappa had great love and affection towards him?
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
3) Does defendant No.4 prove that the Will relied upon
by plaintiff is bogus, false and forged, document and
has been created by plaintiff and other defendants
along with husband of defendant No.2 Laxmibai and
that it is a suspicious document?
4) Does the plaintiff prove the alleged interference by
the defendants?
5) Is the plaintiff entitled to the relief of declaration and
injunction?
6) What decree or order?
29. The Trial Court though clubbed O.S. No.4/1991
and O.S. No. 6/2000, recorded the evidence separately in
the respective suits.
30. During the pendency of O.S. No.4/1991, the
original plaintiff namely, Shivalingawwa died and her legal
representatives were brought on record. Her legal
representative, L.R. No.1A, who is the son of the original
plaintiff, was examined as P.W.1. One witness was
examined as P.W.2. and got marked documents as Exs.P1
to P15.
31. The first defendant Bhimappa was also died
during the pendency of the proceedings and his legal
representatives were brought on record. Defendant No.1(a),
st
Sayavva, wife of 1 defendant was examined as D.W.1 and
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
one witness was examined as D.W.2. However, no
documents were marked on behalf of the defendants in O.S.
No.4/1991.
32. In O.S. No. 6/2000, defendant No.4, Laxman
Bheemappa, who was the plaintiff therein, was examined as
P.W.1. Three witnesses were examined as P.Ws.2 to 4, and
got the documents marked as Exs.P1 to P25.
33. On behalf of the defendants in O.S. No. 6/2000,
defendant No. 1 was examined as D.W.1 and one witness
was examined as D.W.2. The defendants also produced and
marked documents as Exs.D1 to D4.
34. After hearing the respective parties and upon
appreciation of the oral and documentary evidence available
on record, the learned Trial judge answered the issues
framed in O.S. No. 4/1991 and O.S. No. 6/2000 as under:
Issues in O.S.No.4/1991
Issue No.1 : Affirmative
Issue Nos.2 to 4 : Negative
Issue Nos.5 and 6 : Already answered as Negative.
Issue Nos.7 and 8 : As per Final Order.
Issue in O.S.No.6/2000
Issue Nos.1 and 3 : Negative
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
Issue No.3 : Affirmative
Issue No.5 and 4 : Negative
Issue No.6 : As per final order for the following
35. Upon appreciation of the evidence on record, the
Trial Court, by passing the common judgment and decree
dated 16.07.2002, decreed the suit filed by the plaintiff
partly in O.S. No. 4/1991 and passed the following order:
The Suit of the plaintiff in O.S.NO.6/00 is dismissed
without cost.
2. The Suit O.S.NO.4/9l is partly decreed as follows
without cost.
3. The plaintiff in O.S.NO.4/1991 is entitled to claim
th
1/4 Share in suit lands bearing Sy.Nos. 294/2 and 137/1
th
and she is entitled to claim 1/8 share in the landed
properties bearing Sy.Nos.25/4/1-2, 38/2A-2E and R. S.No.
201/2.
4. The Claim of the Flaintiff in O.S.No.4/91 in respect of
suit house properties i.e. "PC Nos. 252, 21 and 31 is
rejected.
5. Draw up Preliminary Decree Accordingly.
36. At the same time, the suit filed by defendant No.
4, who was the plaintiff in O.S. No. 6/2000, came to be
dismissed.
37. Being aggrieved by the judgment and decree of
the Trial Court partly decreeing the suit in O.S. No.4/1991,
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
defendant No.4 preferred appeal in R.A. No.59/2002 before
the First Appellate Court. Likewise, being aggrieved by the
dismissal of the suit in O.S. No.6/2000, the plaintiff therein,
namely, defendant No.4 in O.S. No.4/1991, preferred the
appeal in R.A. No.60/2002 before the First Appellate Court.
38. The First Appellate Court, upon re-appreciation of
the oral and documentary evidence on record, proceeded to
dispose of both the appeals by a common judgment dated
20.04.2006. By the said judgment, R.A. No.59/2002
preferred by defendant No. 4 came to be allowed and the
judgment and decree passed by the Trial Court in O.S. No.
4/1991 was set aside and thereby Consequently, the suit
filed by the plaintiff in O.S. No. 4/1991 came to be
dismissed.
39. Further, R.A. No.60/2002 preferred by the
plaintiff in O.S. No. 6/2000, challenging the dismissal of his
suit, came to be allowed and thereby, the judgment and
decree of the Trial Court dismissing O.S. No. 6/2000 was
set aside and the said suit came to be decreed in favour of
th
the plaintiff therein (4 defendant herein).
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
40. Being aggrieved by the common judgment and
decree passed by the learned First Appellate Court in R.A.
Nos.59/2002 and 60/2002, the plaintiff in O.S. No.4/1991,
who was the first respondent in R.A. No.59/2002, preferred
RSA No. 2023/2006 before this Court.
41. Likewise, being aggrieved by the judgment and
decree passed in R.A. No.60/2002 allowing the suit filed by
defendant No. 4, the first respondent in R.A No.60/2002,
preferred RSA No. 2024/2006.
42. Since both the appeals arise out of the common
judgment passed by the learned First Appellate Court in
R.A. Nos.59/2002 and 60/2002, the parties to both the
appeals are the same and the subject matter of the suits
relates to the same suit schedule properties, both the
appeals were clubbed together and are being disposed of by
this common judgment.
43. At the time of admission of the appeals, this
Court framed the following substantial questions of law:
a. Whether the First Appellate Court was right in law
in holding that the plaintiff in O.S. No. 6/2000 had
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
proved the Will dated 11.11.1989 and consequently
was in lawful and peaceful possession and
enjoyment of the two suit lands covered under the
said Will, by reversing the finding recorded by the
Trial Court?
b. Whether the First Appellate Court was justified in
law in holding that the plaintiff in O.S. No. 4/1991
had failed to prove that the suit lands are the joint
family properties of the parties?
44. The appeals were admitted by order dated
10.08.2007. The records of the Trial Court were secured.
45. Heard the learned counsels appearing for the
respective parties in both the appeals and perused the
records.
st
46. Learned Counsel for the 1 respondent has filed
written synopsis and has relied upon the following judgment
in support of his case:
1. Kavita Kanwar Vs. Pamela Mehta and Others
reported in (2021) 11 SCC 209.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
47. As already stated, for the sake of convenience,
the parties shall hereinafter be referred to as the “plaintiff”
and the “defendants” as they were arrayed in O.S. No.
4/1991.
48. The facts which are not in dispute that, the
propositus Ramappa had four children, namely, the plaintiff,
Shivalingawwa, defendant No. 1 Bhimappa, defendant No.
2, Lakshmibai, and defendant No. 3 Hanamavva. Defendant
No. 4 is none other than the son of defendant No. 1.
49. According to the plaintiff, the suit schedule
properties comprise five agricultural lands and three house
properties. Out of the five agricultural lands, one property
bearing R.S. No.25/4/1-2 was purchased by the propositus,
Ramappa during his lifetime, while the remaining properties
were ancestral properties of the propositus.
50. It is the specific case of the plaintiff that, during
the lifetime of the propositus Ramappa, a partition had
taken place between him and his son, defendant No. 1. In
this regard, O.S. No. 377/1974 was instituted and pursuant
to the decree passed therein dated 17.09.1974, a partition
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
was effected in respect of the two suit lands bearing R.S.
Nos. 294/2 and 137/1.
51. Under the said decree, the properties bearing
R.S. Nos.294/2 and 137/1 were allotted to the share of the
propositus Ramappa. Thereafter, Ramappa continued to be
in possession and enjoyment of the said two properties
along with the remaining three agricultural properties and
the three house properties.
52. It is therefore the contention of the plaintiff that,
she and the defendants continued to be in joint possession
and enjoyment of the suit schedule properties. It is further
the case of the plaintiff that the propositus Ramappa died
on 19.02.1990 which is undisputed.
53. After the death of the propositus, Ramappa
Laxman Maraddi, who was the father of the plaintiff, the
plaintiff instituted the suit seeking partition and separate
possession of her share in the suit schedule properties.
According to the plaintiff, she subsequently came to know
that, insofar as the two suit lands bearing R.S. Nos. 294/2
and 137/1 are concerned, her father Ramappa had allegedly
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
executed a Will dated 11.11.1989 in favour of defendant
No. 4.
54. The plaintiff contended that, her father had never
executed the said Will and the alleged Will had been created
by defendant Nos. 1 to 4 with an intention to deprive her
legitimate share in the suit schedule properties. It was her
specific case that, being the daughter of the propositus,
Ramappa, she was entitled to succeed to his properties
upon his death. Accordingly, she claimed 1/3rd share in the
properties bearing R.S. Nos.294/2 and 137/1 and 1/8th
share in the remaining suit schedule properties.
55. On the other hand defendant No. 4 namely,
Laxmana Bhimappa, who had instituted O.S. No. 15/1991,
which was subsequently transferred and renumbered as
O.S. No. 6/2000, contended that, insofar as the properties
bearing R.S. Nos.294/2 and 137/1 are concerned, his
grandfather, the propositus Ramappa had executed a Will
dated 11.11.1989 in his favour.
56. It was further contended by defendant No. 4
that, pursuant to the said Will, he had been in peaceful
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
possession and enjoyment of the said two properties from
the date of execution of the Will and in any event from the
date of death of his grandfather, namely, 19.02.1990. On
that basis, he claimed to be the absolute owner of the said
two properties and contended that the plaintiff had no right,
title or interest therein.
57. Insofar as the remaining suit schedule properties
are concerned, defendant No.1 and the other defendants
contended that, there had already been a partition between
the propositus Ramappa and defendant No. 1 in the year
1968 itself. According to them, pursuant to the said
partition the remaining suit properties had fallen to the
share of defendant No. 1 and therefore, no properties were
available for partition among the parties.
58. It was further contended that, the plaintiff being
a married daughter, had been living separately in her
matrimonial home even during the lifetime of the
propositus, Ramappa. Therefore, she was not entitled to
claim any share in the suit schedule properties. The
defendants reiterated that, in view of the partition which
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
had already taken place in the year 1968, no joint family
properties were in existence for partition.
59. On the aforesaid grounds, the defendants sought
dismissal of the suit in O.S. No.4/1991, whereas defendant
No. 4 sought a decree in O.S. No.6/2000 in respect of the
properties bearing R.S. Nos. 294/2 and 137/1.
60. The Trial Court, upon appreciation of the oral and
documentary evidence on record, partly decreed the suit
filed by the plaintiff in O.S. No.4/1991.
61. The Trial Court held that, the plaintiff was
entitled to 1/4th share in the suit lands bearing R.S. Nos.
294/2 and 137/1 and 1/8th share in the landed properties
bearing R.S. Nos. 25/4/1-2, 38/2A-2B and 201/2.
62. However, the claim of the plaintiff in respect of
the suit house properties bearing M.P.C. Nos.252, 21 and
31 was rejected.
63. Consequently, the suit filed by defendant No.4,
namely, O.S. No. 6/2000 was came to be dismissed.
64. The First Appellate Court reversed the judgment
and decree passed by the Trial Court, whereby the suit in
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
O.S. No.6/2000 filed by the first defendant was decreed and
the suit in O.S. No.4/1991 filed by the plaintiff was
dismissed. Being aggrieved by the reversal of the judgment
and decree passed by the Trial Court, the plaintiff has
preferred both these second appeals.
65. Learned counsel for the plaintiffs contended that,
the Trial Court had rightly held that, defendant No.4 had
failed to prove the alleged execution of the Will dated
11.11.1989 in respect of the said two properties. The Trial
Court had further held that, defendants Nos.1 to 4 had
failed to prove that, there was a partition between the
propositus Ramappa and defendant No.1 in the year 1968,
as contended by them, in respect of the remaining three
landed properties.
66. Learned counsel for the appellants further argued
that, the First Appellate Court without properly appreciating
the evidence on record had erroneously come to the
conclusion that, defendant No.4 who is the plaintiff in O.S.
No.6/2000 had proved the Will dated 11.11.1989 and
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
thereby, had become the absolute owner of the said two
properties bearing Survey Nos.294/2 and 137/1.
67. Further, the First Appellate Court also held that
there had been a partition in respect of the suit properties,
as contended by the defendants, and in view of the said
partition, the plaintiffs were not entitled to any share in the
suit properties and accordingly dismissed the suit.
68. In these second appeals, the following
substantial questions of law arise for consideration:
i. Whether the First Appellate Court was justified in
holding that the plaintiff in O.S. No.6/2000 had
proved the Will dated 11.11.1989 and, thereby, had
become the absolute owner of the two properties
bearing Survey Nos.294/2 and 137/1?
ii. Whether the First Appellate Court was justified in
holding that the plaintiff in O.S. No.4/1991 had
failed to prove that the suit lands were the joint
family properties?
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
69. To answer the aforesaid substantial questions of
law, in view of the divergent findings recorded by the Trial
Court and the First Appellate Court, it is necessary to re-
appreciate the evidence on record for the proper
adjudication of the substantial questions of law.
70. The defendant namely Laxmana, who was the
plaintiff in O.S. No.6/2000 (old No.15/1991) contended
that, his grandfather, the propositus Ramappa, had
executed a Will dated 11.11.1989 in his favour in respect of
the two properties bearing R.S. Nos. 294/2 and 137/1. He
examined himself as P.W.1 in O.S. No. 6/2000.
71. He (P.W.1) deposed that, his grandfather had
been allotted the aforesaid two properties in the earlier
partition and out of love and affection towards him, his
grandfather had bequeathed the said properties in his
favour under the Will dated 11.11.1989. He further stated
that, he was residing with his grandfather and was
cultivating the suit lands along with him.
72. Apart from examining himself as P.W.1, he has
examined one attesting witnesses to the said will as P.W.2
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
and the scribe of the Will examined as P.W.4, in order to
establish the due execution of the Will. P.W.2, the attesting
witness, and P.W.4, the scribe, deposed regarding the
execution of the Will by the propositus in favour of
defendant No. 4.
73. Defendant No. 4 apart from relying upon the oral
evidence of himself and the aforesaid witnesses, produced
the original Will, which was marked as Ex.P1 in O.S. No.
6/2000. Admittedly, Ex.P1 is an unregistered Will.
74. The specific case of the plaintiff in O.S.No.4/1991
is that, Ex.P1 is a concocted and fabricated document and
the propositus Ramappa had never executed the said Will.
It is contended that, with an intention to deprive the
plaintiff of her legitimate share and to appropriate the two
valuable properties bearing R.S. Nos. 294/2 and 137/1,
defendant Nos. 1 to 4, in collusion with each other brought
the alleged Will into existence.
75. The plaintiff therefore contended that, the
circumstances surrounding the execution of Ex.P1 are
suspicious and defendant No. 4, being the profounder and
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
beneficiary under the Will had failed to establish its due
execution and genuineness by removing the suspicious
circumstances surrounding the same.
76. The Trial Court, upon appreciation of the
evidence on record came to the conclusion that, the
execution of Ex.P1 was surrounded by suspicious
circumstances and defendant No. 4 had failed to establish
the genuineness and due execution of the Will.
Consequently, the Trial Court disbelieved the alleged Will
and dismissed the suit filed by defendant No. 4 in O.S. No.
6/2000.
77. It is the specific contention of the plaintiff that,
Ex.P1 is a concocted and fabricated Will brought into
existence by defendant Nos. 1 to 4. In order to substantiate
the said contention and to demonstrate the suspicious
circumstances surrounding the alleged execution of the Will,
the learned counsel for the plaintiff cross-examined P.W.1,
namely, Laxmana, in O.S. No. 6/2000.
78. In the course of his cross-examination P.W.1
admitted that, his father and his grandfather were residing
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
separately. He further stated that he did not know the
particulars of the properties owned by his grandfather.
79. P.W.1 also admitted that, after his father and
grandfather started residing separately, he was not fully
aware, the house in which his grandfather was residing.
When questioned about the residential house of his
grandfather, he stated that his grandfather was residing in
House No.252 situated at Shankarhatti village.
80. P.W.1 further stated that, he did not know
whether his grandfather had a ration card at the time of his
death or in respect of which house the ration card stood. He
also stated that, he was not aware of the house in respect
of which the voter list of his grandfather had been
maintained.
81. It has further been elicited in his evidence that,
until his death, the propositus was independently attending
to his household affairs and was carrying on his household
activities himself.
82. P.W.1 also admitted that, his grandfather had
three daughters and that all of them were married. He
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
further admitted that, after their marriage, the daughters
used to visit their parental home.
83. Significantly, P.W.1 admitted that, the plaintiff in
O.S. No. 4/1991, who was the defendant in O.S. No.
6/2000, was married to a person residing in a nearby
village where the suit properties are situated and that she
used to frequently visit her father's house.
84. The aforesaid admissions of P.W.1 assume
considerable significance while considering his claim that,
he had been residing with the propositus and cultivating the
suit lands along with him. His own evidence indicates that,
the propositus and his father were residing separately and
that he was not in a position to give clear particulars
regarding the residence, household affairs and properties of
the propositus.
85. Therefore, the assertion of P.W.1 that he was
residing with his grandfather and cultivating the suit lands
along with him requires careful scrutiny. His admissions,
when considered along with the other evidence on record,
constitute one of the circumstances relevant for determining
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
whether the alleged Will, Ex.P1 was voluntarily and
genuinely executed by the propositus in favour of defendant
No. 4.
86. Further, P.W.1 has stated in his evidence that, he
pursued his schooling at Banahatti village, which is situated
in Jamkhandi Taluk. He has stated that Banhatti village is
situated at a distance of about 3 kilometres from Yallatti
village. Admittedly, P.W.1 is a resident of Yallatti village,
whereas the propositus was a resident of Shankarhatti
village.
87. P.W.1 has stated that, he used to attend school
from Yallatti village. However, he has admitted that he has
no documentary evidence to establish that, he was residing
with his grandfather, the propositus in Shankarhatti village.
88. P.W.1 has further admitted that, his grandfather
was residing at Shankarhatti village and was having cordial
relations with the villagers. He has also admitted that, his
grandfather was not on talking terms with the father of
P.W.1. Thus, on a careful appreciation of the evidence of
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
P.W.1, it emerges that he was not residing with his
grandfather, the propositus, at Shankarhatti village.
89. Though P.W.1, in his examination-in-chief has
stated that, he was residing with his grandfather, the said
assertion is not supported by any independent or
documentary evidence. Had P.W.1 actually been residing
with the propositus and looking after him, there ought to
have been some material evidence supporting such a claim.
On the contrary, his own evidence establishes that the
propositus was residing at Shankarhatti village, whereas
P.W.1 was residing at Yallatti village and used to attend his
school from there.
90. Therefore, the assertion of P.W.1 that, he was
residing with his grandfather and looking after him does not
inspire confidence and appears to be an assertion made
only to support the bequest made in his favour under Ex.P1.
91. P.W.1 has further stated that, Ex.P1 the alleged
Will does not specifically state any reason for excluding the
daughters of the propositus from inheritance, nor does it
contain any material establishing that, the daughters were
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
residing separately or had otherwise relinquished their
rights in the properties.
92. On perusal of Ex.P1, which was marked in O.S.
No. 6/2000, it is seen that the alleged Will is executed on
plain paper consisting of four pages. In the Will, it is stated
that the three daughters of the propositus were married and
were living happily in their respective matrimonial homes
and, therefore, the propositus did not intend to give any
property to his daughters.
93. The Will further recites that, the plaintiff therein
namely Laxmana, who is the grandson of the propositus,
had been residing with him for several years and out of love
and affection towards him, the propositus intended to
bequeath his properties in favour of his grandson.
Accordingly, the alleged Will came to be executed in favour
of defendant No. 4.
94. However, the said recital in the Will is not
supported by the evidence of P.W.1. As already discussed,
P.W.1 himself has admitted that, he was residing at Yallatti
village and attending school from there, whereas the
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
propositus was residing at Shankarhatti village. There is no
independent evidence to establish that P.W.1 was actually
residing with the propositus for several years prior to the
execution of Ex.P1.
95. It is also the specific case of the plaintiff in O.S.
No. 4/1991 that, the sister of defendant No. 4, namely,
Kenchavva, was married to the son of defendant No. 3,
Hanumavva. Defendant No. 3, Hanumavva, is also one of
the children of the propositus.
96. P.W.1 has further admitted that, defendant No.
2, Lakshmi Bai, had four children and Sayavva, the
daughter of Lakshmi Bai, is the mother of P.W.1, namely,
defendant No. 4 in O.S. No. 4/1991.
97. The aforesaid evidence establishes the close
relationship between defendant Nos. 1 to 4 and the
members of their respective families. The plaintiff alone was
excluded from the alleged arrangement and from the
benefit of Ex.P1. This circumstance, when considered along
with the other circumstances discussed above, assumes
significance in determining whether the alleged Will was
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
executed voluntarily and without any undue influence or
other suspicious circumstances.
98. Therefore, the recital in Ex.P1 that P.W.1 had
been residing with the propositus for several years and was
being looked after by him is not corroborated by the
evidence on record. On the contrary, the admissions of
P.W.1 himself render the said recital doubtful and constitute
one of the circumstances which surround the execution of
Ex.P1 with suspicion.
99. PW1 has also admitted that, the plaintiff
Shivalingawa not near relative to him. He has also admitted
that, there is no cordial relationship between himself, and
the plaintiff and his family. He has denied the suggestion
that, so as to deny the share to the plaintiff, he has created
the Will Ex.P1.
100. Further in this case it is relevant to mention that
as per the contention of the plaintiff that, the suit schedule
properties are the ancestral and joint family properties.
101. The defendants have not denied that, suit
schedule properties are the properties belonging to original
- 41 -
RSA No.2023 of 2006
C/w RSA No.2024 of 2006
propositus Ramappa. However the first defendant's case is
that, during the lifetime of Ramappa the first defendant
being the son that there was dispute between them and
they got partitioned the suit properties.
102. It is contended by the first defendant that, in the
year 1968 itself there was a partition in the family and
during the said partition the property bearing No.294/2 and
137/1 allotted to the share of the propositus Ramappa and
those properties said to have bequeathed in favour of the
defendant.
103. Though the first defendant contended that, the
remaining 3 properties allotted to his share in the said
partition held in the year 1968, however, no documents
produced in that regard.
104. On perusal of the decree dated 17.09.1974
passed in OS No.377/1974 as per Ex.P12, only 2 properties
are the subject matter of the said suit OS No. 377/1974.
105. In the said decree it is specifically mentioned that
survey No.294 to an extent of 15 acres allotted to the share
of first defendant and the remaining 6 acre 33 guntas and
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
another survey No.137/1 allotted to the share of the
propositus Ramappa. So except these properties the
remaining properties were not the subject matter of the
said suit. If at all, the contention of the defendant no. 1
that, the other 3 properties also allotted to the share of the
defendant No.1 then the first defendant ought to have
produced the documents.
106. It is the contention of the first defendant that,
since long back the mutation has come in his name in
respect of the remaining 3 properties and he has produced
the RTC extract marked as Ex.P4 that is in respect of survey
No.25/4/1 + 2 which stands in the name defendant no. 1.
However in the column No. 9 there is no mention as to how
it has come to the name of the first defendant.
107. Likewise as per Ex.P5 in respect of survey
No.201/2 it also stands in the name of first defendant
Bhimappa and further insofar as another property, that is
survey No.38 is also concerned, it is in the name of
Bimappa, that marked as Ex.P6. It is the contention of the
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
plaintiff that all the said RTC extracts are behind the back of
the plaintiff.
108. On perusal of the mutation entry marked as
Ex.P11 it is mentioned that, the father of the first defendant
namely Ramappa died on 19.02.1990 and after the death of
propositus Ramappa, the properties mutated in the name of
st
Bhimappa Ramappa Murdiya the 1 defendant herein who is
the male member of the family. Further, it is mentioned
that on behalf of all the legal heirs of Ramappa namely
Bimappa, Hanumauva, Lakshmi Bai and Shivalingawa
together property mutated jointly. The mutation entry is
dated 26.05.1990. It discloses that, there was no partition
in the family at all. Therefore the contention of the first
defendant that, there was partition in respect of the other 3
properties not proved by the first defendant.
109. Insofar as proof of execution of the Will as per
Ex.P1 is concerned, though the PW1 in OS No. 6/2000, that
is the defendant no. 4 in OS No. 4/1991 examined himself
as PW1, however on going through the evidence extracted
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
from him, he is not at all residing along with his grandfather
Ramappa.
110. Further he has admitted that, his sister is
married to the son of third defendant, namely Hanamavva.
Further he has also admitted that, his mother Satyamma is
none other than Daughter of defendant no. 2, Laxmi Bai.
Therefore, that there is close relationship between the
defendant no. 1, 2 and 3, as well as defendant no. 4.
Further, PW1 has also admitted that, the plaintiff
Shivalingamma was not in cordial relationship with the
family of defendant no. 4.
111. Therefore, the suspicious circumstances arise in
execution of the said Will Ex.P1. It is pertinent to note that,
the Ex.P1 Will is dated 11.11.1989. Whereas, the propositus
Ramappa died on 19.02.1990. That is only after the
execution of 3 months of execution of the Will he is said to
have died.
112. Further it is also pertinent to mention that, the
defedant No.4, to prove the execution of the Will has
examined PW1, and one of the attesting witness to the
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
PW3. She deposed that, her father the Propositus Ramappa
3 months prior to his death, took her and her two sisters
and also husband of defendant no. 2 to Jamakhandi wherein
Propositus Ramappa dictated the terms of the Will and she
and PW2 has signed on the said Will as attesting witness.
She was cross examined by the plaintiff's counsel.
113. In the cross examination she has admitted that,
she does not know the contents of Will. Further she has also
stated that, as she was asked to sign on the said Will she
has signed.
114. Further she has also admitted that she does not
know what are the properties mentioned in the Will. Further
it is elicited that, she is none other than the daughter of the
executant of the Will and she is in cordial terms with the
defendants No. 1 to 4 and they are on cordial relationship
except the plaintiff.
115. Further the plaintiff OS No.6/2000 examined
P.W.4 the scribe of the document Ex.P1. P.W.4, the scribe
of the alleged Will deposed that, he was a document writer
for about 22 years and he knew the plaintiff, the defendants
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
and the deceased propositus Ramappa. He further deposed
that, on one occasion, Ramappa along with defendant Nos.
1 to 4 came before him and requested him to prepare a
Will. Accordingly, he prepared the Will as per Ex.P1. He
further stated that, the contents of the Will were dictated by
Ramappa.
116. P.W.4 was cross-examined by the learned
counsel for the plaintiff. In his cross-examination, he
admitted that he had not seen the thumb impression of
Ramappa on any other document. He further admitted that,
defendant No. 4 had brought him (P.W.4) to the Court for
the purpose of giving evidence and he had not received any
summons from the Court to depose in respect of Ex.P1.
117. The specific case of the plaintiff is that,
defendant Nos. 1 to 4, in collusion with each other and with
an intention to deprive her legitimate share in the suit
schedule properties, had created the alleged Will Ex.P1.
118. The learned counsel for the plaintiff argued that,
the evidence of P.W.1, who is the legatee under the Will,
P.W.2, one of the attesting witnesses and P.W.4, the scribe
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
of the Will, clearly establishes the existence of several
suspicious circumstances surrounding the execution of
Ex.P1.
119. From the evidence of these witnesses, it is
evident that, the plaintiff was not on cordial terms with
defendant Nos. 1 to 4. On the other hand, the evidence of
P.W.1 indicates that, defendant Nos. 1 to 3 were closely
related to and on cordial terms with defendant No. 4. It has
also come in evidence that, the sister of P.W.3 was married
to the son of defendant No. 3. Further, the mother of
defendant No. 4 is the daughter of defendant No. 2. Thus,
the evidence discloses close family relationships between
defendant Nos. 1 to 4.
120. These circumstances assume significance while
examining the genuineness of Ex.P1, particularly when the
plaintiff, who was also a daughter of the propositus was
excluded from the bequest.
121. It is further relevant to consider the contention of
defendant No. 1 that, all the suit properties except the two
properties allegedly bequeathed under Ex.P1 had fallen to
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
his share pursuant to a partition said to have taken place in
the year 1968.
122. However, defendant No. 1 has not produced any
satisfactory documentary evidence to establish either the
alleged partition or the allotment of the remaining three
properties exclusively to his share.
123. Though the revenue records in respect of the
said properties stand in the name of defendant No. 1, the
mutation extract produced in evidence and marked as Ex.P6
in O.S. No. 15/1991 (new O.S.No.6/2000) discloses that,
after the death of the propositus, the properties were
entered jointly in the names of the legal heirs.
124. Therefore, the mere fact that the revenue
records subsequently stood in the name of defendant No. 1
cannot by itself establish that, the properties had been
allotted exclusively to him pursuant to the alleged partition
of 1968. Consequently, defendant No. 1 has failed to
establish that, the remaining three agricultural properties
had fallen to his exclusive share in the alleged partition.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
125. The specific case of the plaintiff in O.S.
No.4/1991 is that, the said three properties were ancestral
properties of herself and the defendants. Having regard to
the evidence on record, particularly the absence of
satisfactory evidence regarding the alleged partition and the
mutation entries made after the death of the propositus, the
said properties are liable to be treated as properties
available for partition among the legal heirs of Ramappa.
126. Insofar as the two properties bearing R.S.
Nos.294/2 and 137/1 are concerned, defendant No. 4, who
was the plaintiff in O.S. No. 6/2000, relies upon Ex.P1 Will
said to have been executed by the propositus Ramappa in
his favour. However, on careful appreciation of the evidence
on record, several suspicious circumstances surrounding the
execution of Ex.P1 emerge.
127. Firstly, there is no satisfactory explanation in the
Will as to why the daughters of the propositus were
excluded from the bequest. Though the Will refers to the
daughters as being happily married and residing in their
respective matrimonial homes, the said circumstance by
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C/w RSA No.2024 of 2006
itself does not furnish a satisfactory explanation for
completely excluding them from the properties of the
propositus.
128. Secondly, defendant No. 4 contended that, he
had been residing with and looking after the propositus and
the properties were bequeathed to him out of love and
affection. However, the evidence on record does not
satisfactorily establish that, defendant No. 4 was residing
with the propositus during the relevant period.
129. On the contrary, it has come in the evidence that
the propositus was residing separately in another village
and his relationship with his son, who was the father of
defendant No. 4, was not cordial.
130. Thirdly, the evidence discloses that, defendant
Nos. 1 to 4 were closely related to each other and were on
cordial terms, whereas the plaintiff alone was not on cordial
terms with them. This circumstance assumes significance in
considering the allegation that, the Will was brought into
existence to deprive the plaintiff of her legitimate share.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
131. Fourthly, Ex.P1 is dated 11.11.1989, whereas the
propositus, Ramappa was died on 19.02.1990. Thus, the
Will was executed only a short period prior to his death. The
proximity between the date of execution of the Will and the
death of the testator, when considered along with the other
circumstances, requires the profounder of the Will to
establish its genuineness by satisfactory evidence.
132. Fifthly, the alleged Will is an unregistered
document. Though registration of a Will is not mandatory
and the fact that, the Will is unregistered, coupled with the
other suspicious circumstances surrounding its execution,
assumes relevance in the present case.
133. Sixthly, one of the attesting witnesses examined
on behalf of defendant No. 4 is the daughter of the testator.
In her evidence, she admitted that she was not aware of
the contents of the Will and she had signed the document
when she was asked to do so. She also admitted that, she
was not aware of the properties covered by the Will.
134. Similarly, the evidence of the scribe P.W.4, does
not satisfactorily dispel the suspicious circumstances. His
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
admission that, he had not seen the thumb impression of
Ramappa on any other document and defendant No. 4 had
brought him to the Court for the purpose of giving evidence
is also a circumstance which requires consideration.
135. The cumulative effect of the aforesaid
circumstances creates a serious doubt regarding the
genuineness and due execution of Ex.P1. The propounder of
the Will was therefore required to remove the said
suspicious circumstances by leading cogent and satisfactory
evidence. In the considered opinion of this Court, the
evidence placed on record does not satisfactorily discharge
that burden.
136. Accordingly, the finding of the Trial Court that,
defendant No. 4 failed to establish the due execution and
genuineness of Ex.P1 Will does not call for interference.
137. The Trial Court, upon proper appreciation of the
oral and documentary evidence on record rightly held that,
the plaintiff in O.S. No. 4/1991 was entitled to a 1/4th
share in the properties bearing R.S. Nos. 294/2 and 137/1
th
and 1/8 share in the remaining landed properties.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
138. The Trial Court also rightly dismissed the suit in
O.S. No. 6/2000, as defendant No. 4 failed to establish the
Will, Ex.P1, in accordance with law.
139. The First Appellate Court, however, reversed the
well-considered findings of the Trial Court without properly
appreciating the material evidence on record and the
suspicious circumstances surrounding Ex.P1. The findings
recorded by the First Appellate Court are therefore
unsustainable in law. Hence, the substantial questions of
law are answered in favour of the appellants. Accordingly,
this Court proceeds to pass the following:
ORDER
Both the appeals RSA No.2023/2006 and RSA
No.2024/2006, are allowed.
The common judgment and decree dated 20.04.2006
passed by the Fast Track Court I-District and Sessions
Judge, Chikkodi in R.A. Nos. 59/2002 and 60/2002 are
hereby set aside.
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RSA No.2023 of 2006
C/w RSA No.2024 of 2006
The common judgment and decree dated 16.07.2002
passed by the Civil Judge (Sr.Dn.) Athani in O.S. No.4/1991
and O.S. No. 6/2000 are hereby restored and confirmed.
Accordingly, the plaintiff in O.S. No. 4/1991 shall be
entitled to the share decreed by the trial court.
The suit in O.S. No. 6/2000 shall stand dismissed.
In view of the facts and circumstances of the case,
there shall be no order as to costs.
Registry is directed to return the Trial court records
along with copy of this judgment.
Sd/-
(RAJESHWARI N.HEGDE)
JUDGE
AC
CT:CMU