- 1 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200175 OF 2025 (DEC/POS) BETWEEN: KAPAGAL BASAVARAJ S/O SIDDARAMAPPA KAPAGAL, AGED ABOUT 63 YEARS, OCC: AGRI., R/O: SIRWAR VILLAGE, TQ: SIRWAR, DIST: RAICHUR – 585 401. …APPELLANT (BY SRI SHARANAKUMAR BASAVARAJ HANGARKI, ADVOCATE) AND: 1a. GIRIVINAMMA W/O LATE BUDEPPA KAPAGAL SINCE DECEASED BY LRS SUGAMMA W/O MALLIKARJUNA, AGE ABOUT 41 YEARS, OCC: HOUSEHOLD, R/O: SIRWAR VILLAGE, TQ: MANVI, DIST: RAICHUR – 585 401. …RESPONDENT (BY SMT. RATNA N. SHIVAYOGIMATH, SRI AJAYKUMAR A.K., AND SRI S.S. HIREMATH, ADVOCATES FOR C/R1 (A)) Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO ALLOW THIS APPEAL AND SETA-ASIDE THE JUDGMENT AND DECREE DATED 16.01.2025 PASSED IN R.A.NO.43/2024 BY THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT RAICHUR, AND THEREBY CONFIRM THE JUDGMENT AND DECREE DATED 10.07.2024 PASSED IN O.S.NO.8/2023 (O.S.NO.104/2009 OLD) BY THE SENIOR CIVIL JUDGE AND J.M.F.C., MANVI, BY DISMISSING THE SUIT OF THE PLAINTIFF / RESPONDENT IN THE INTEREST OF JUSTICE. THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. With the consent of both the learned counsel, the matter is taken up for final disposal. 2. The parties are referred as per their ranking before the Trial Court. 3. The present appeal is arising out a divergent finding in a suit for declaration and injunction. The suit is - 3 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 dismissed. On an appeal filed by the legal representative of the deceased-plaintiff, the Appellate Court allowed the appeal and consequently, decreed the suit. 4. The First Appellate Court granted a declaration of title in respect of suit schedule properties and also concluded that the legal representative of the deceased- plaintiff, who came on record based on the alleged Will dated 31.08.2009, said to have been executed by the original plaintiff, is in possession of the property and granted the relief of injunction. 5. It is relevant to note that original plaintiff died during the pendency of the suit. And an application is filed to come on record, by the legatee as the legal representative of deceased-plaintiff based on the alleged Will dated 31.08.2009. The Trial Court recorded evidence on the application based on the Will and concluded that execution of alleged Will is not proved. 6. The First Appellate Court without discussing the evidence relating to the alleged execution of the Will has - 4 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 concluded that, prima facie the legal representative under the alleged Will is in possession of the property and granted the relief of injunction. 7. It is relevant to notice that the adjudication on an application to substitute the legal representative of a deceased party in a proceeding is not a final adjudication relating to the execution of the Will and the finding on the said application is not a finding relating to the title. The finding on such application to come on record as a legal representative has limited application which enables the legatee to prosecute the proceeding and should not be treated as finding on the title of the legatee. 8. Under these circumstances, this Court is of the view that the legal representative of deceased-appellant, who prosecuted the suit based on alleged Will dated 31.08.2009, is required to establish the execution of the Will in the manner known to law by instituting a proper proceeding. - 5 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 9. Coming to the facts of the case, it is stated that one Basavarajappa Kapagal was the propositus and he had three sons and one daughter. His second son is Budeppa. Original plaintiff is wife of Budeppa. Plaintiff claimed that her husband Budeppa purchased the suit schedule properties in 1965. After his death, original plaintiff claims to have succeeded to his property as the sole heir. 10. It is an admitted fact that Budeppa and his wife Girivenamma did not have any issues. It is further admitted that Sharadamma, the second wife of Budeppa, is also not having any issues. 11. The Plaintiff-Girivenamma filed the suit claiming that there was a partition in the family of Budeppa and his brothers and after the partition he purchased the suit schedule properties in the year-1965, and all the suit schedule properties are his self-acquired properties. - 6 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 12. Defendant, who is the lineal descendants of Sidramappa- the brother of Budeppa contested the suit on the premise that Budeppa purchased the suit properties from the joint family income and even Sidramappa- the brother of Budeppa had share in the properties. 13. The Trial Court ought to have framed an issues relating to the previous partition pleaded by the original plaintiff-Girivenamma. It is noticed that no issue is framed relating to previous partition. 14. After going through the evidence led by the parties before the Trial Court, this Court is of the view that, the evidence is also not led on alleged previous partition among the brothers of Budeppa. Without giving a finding relating to alleged previous partition, the Trial Court concluded that the suit schedule properties were purchased from joint family nucleus. 15. Agreed by the aforementioned judgment and decree, the legal representative of deceased-original plaintiff who came on record based on alleged Will of the - 7 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 original plaintiff filed an appeal. The First Appellate Court accepted the contentions of the appellant and concluded that original plaintiff became the absolute owner of the suit schedule properties after the demise of her husband- Budeppa and granted injunction in favor of legatee under the alleged Will of the deceased plaintiff. 16. Learned counsel appearing for the appellant would contend that the finding relating to the exclusive ownership of Budeppa could not have been granted without giving a finding relating to alleged previous partition. It is his submission that unless the alleged previous partition is established. The plaintiff, who claims under Budeppa cannot contend that Budeppa was the absolute owner of the suit schedule properties. Thus, he would contend that the First Appellate Court erred in granting the relief of declaration of title in favour of original plaintiff-Girivenamma as a successor of properties in the hands of Budeppa. - 8 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 17. It is also urged by the learned counsel appearing for the appellant that the First Appellate Court could not have given a finding that legatee under the Will is in exclusive possession of the suit properties without analyzing the evidence relating to the alleged Will in favour of Sugamma. 18. It is further urged that the Trial Court has recorded a finding that the alleged Will is not established and that too, when the evidence is recorded based on an application to come on record as a legatee of a party who died during the pendency of the suit, the Court could not have granted the relief of injunction. 19. The learned counsel appearing for the respondent- plaintiff would contained that the property was purchased in the name of Budeppa under registered sale deed and there is a presumption that the said properties are a self-acquired properties and in case the defendants contend that the said properties are the joint family properties, the burden is on the defendants and the - 9 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 defendants have not led any evidence to rebut the presumption of self-acquisition in favour of Budeppa and burden is not discharged by the defendants. 20. It is also his further contention that deceased- plaintiff was issueless and she was looked after by Sugamma who came on record as legatee of deceased- plaintiff under the Will dated 31.08.2009. The Trial Court erred in holding that execution of Will is not proved and the First Appellate Court on re-appreciation of evidence has concluded that the Will is established, as such, the judgment and decree passed by the First Appellate Court do not require any interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 21. This Court has considered the contentions raised at the Bar and perused the records. 22. Following substantial questions of law could arise for consideration: - 10 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 a. Whether the Trial Court and the First Appellate Court were justified in deciding the case without deciding the question relating to alleged previous partition? b. Whether the finding on the Will on an interlocutory application comes in the way of legatee establishing her claim based on the Will in a separate suit? 23. After going through the impugned judgment in the decree passed by the Trial Court, it is noticed that issue relating to previous partition is not claimed by the Trial Court. 24. It is also noticed that the plaintiff has claimed that suit properties are purchased after the partition in the family of purchaser-Budeppa. Though there is no specific reference to a specific date or year of the partition, what is pleaded with certain clarity is that there was a partition before the purchase of the suit properties in the name of Budeppa. The plaintiff, who is the sole class-I heir of Budeppa, claims exclusive title based on the premise that - 11 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 the suit schedule properties are purchased after the previous partition, which is said to have taken place in the family of Budeppa and his brothers. This aspect is disputed by the defendants. 25. The defendants contend that the suit schedule properties are purchased when the property was still joint. Under these circumstances, whether the suit schedule properties are the self-acquired properties of Budeppa or the joint family properties can be adjudicated only after the finding is recorded as to whether partition took place prior to the purchase of the suit schedule properties. Hence, there should have been an issue in this regard. This aspect resulted in miscarriage of justice as parties did not lead evidence. Under these circumstances, this Court is of the view that the impugned judgment and decree have to be set-aside. 26. As far as second substantial question of law is concerned, it is noticed that the Trial Court has given a finding on an application filed by legatee that the alleged - 12 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 Will of the original plaintiff is not established. The First Appellate Court, without analyzing the evidence, has concluded that the legatee is entitled to the relief of injunction. 27. It is a well-settled position of law that finding on an application based on a Will of a party, who died during the pendency of the suit does not come in the way of legatee establishing his title or the property based on the said Will. The finding on an application to come on record based on the Will is only a tentative finding to prosecute the proceedings or to defend the proceedings. 28. Under these circumstances, this Court is of the view, that legatee is entitled to file a fresh suit or in case a suit is filed by the appellant challenging the execution of alleged Will, the legatee is entitled to defend the said suit based on alleged Will. 29. In such an event without reference to any of the observations made in the judgment and decree of the Trial Court or of the First Appellate Court, the Court shall - 13 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 decide the claim based on the alleged Will on its merit considering the evidence to be led in such suit. 30. Since the original plaintiff is no more, this Court does not deem it appropriate to remand the matter to the Trial Court. However, reserves the liberty to the legatee to file a suit based on the alleged Will of the original plaintiff- Girivenamma. Liberty is also reserved to the defendant to file a suit challenging the validity of the alleged Will of plaintiff Girivenamma. If such a suit is filed and the plaintiff pleads that the partition has taken place before purchase of the property by Budeppa and if the claim is disputed by the defendants, the Trial Court shall frame an issue relating to the previous partition and thereafter, shall decide as to whether the property exclusively belonged to Budeppa or not. 31. Liberty is reserved to both parties to file a suit for appropriate relief as indicated above. - 14 - NC: 2025:KHC-K:2403 RSA No. 200175 of 2025 32. It is made clear that finding relating to the alleged previous partition or finding relating to the execution or otherwise of the alleged Will passed by the Trial Court and the First Appellate Court shall not come in the way of the Court deciding the fresh suit to be filed in the manner known to law. Hence, the following: ORDER (i) The impugned judgment and decree dated 10.07.2024 in O.S.No.08/2023 on the file of the Senior Civil Judge Court and the judgment and decree dated 16.01.2025 in R.A.No.43/2024 on the file of the Principal District & Sessions Judge at Raichur are set-aside reserving the liberty as indicated above. (ii) No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE TMP List No.: 1 Sl No.: 45