- 1 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200317 OF 2021 (DEC/INJ) BETWEEN: RAMESH S/O GOPALRAO DESHPANDE AGE: 55 YEARS, OCC: AGRICULTURE, R/O: PARTHANHALLI, TQ: ATHANI, DIST: BELAGAVI. …APPELLANT (BY SRI MANVENDRA REDDY AND SRI NARENDRA M. REDDY, ADVOCATES) AND: 1. SHAMRAO S/O RAMACHANDRA KULKARNI SINCE DECEASED AND APPELLANT AND RESPONDENT NO.2 ARE TREATED AS LRS. 2. SMT. RADHABAI W/O VASANTRAO KULKARNI AGE: 65 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: JAINAPUR, TQ: AND DIST: VIJAYAPURA. …RESPONDENTS Amended as per order of this Hon’ble Court dated 09.03.2024 Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 (BY SRI SHRAVANKUMAR MATH, ADVOCATE FOR R2; V/O DATED 27.08.2024 THE APPEAL AGAINST R1 IS DISMISSED AS ABATED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, VIJAYAPURA IN R.A.NO.34/2015 DATED 01.02.2021 AND ALSO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE VIJAYAPURA IN O.S.NO.212/2011 DATED 22.01.2015 BY ALLOWING THE APPEAL IN ITS ENTIRETY. THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL HEARING, 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) This appeal is arising from the concurrent finding in a suit for partition and separate possession. 2. The admitted genealogy of the parties is as under: Ramachandra (Propositus) Hanamanthrao (Died bachelor about 16 years prior to suit) Vasanthrao (Died about 35 years back) – Radhabai (Deft-2) Indirabai Wife of Gopalrao Deshpande Died in 2006 Ramesh (Plaintiff) Venkatesh (Died on 31.05.2011) Shamarao (Deft -1) - 3 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 3. Admittedly, Ramachandra was the propositus and Bhimabai was his wife. Couple had four sons and one daughter. Elder son Hanaumanthrao was a bachelor and died issueless. Plaintiff is the grandson of Ramachandra and Bhimabai, from their daughter Indirabai. Among remaining three sons of propositus, second son Shamarao is arrayed as defendant No.1. Radhabhai, defendant No.2 is widow of Vasantrao the third son of the propositus and last son Venkatesh died on 31.05.2011 and his wife and children had predeceased him. 4. The suit is filed claiming 1/3rd share in the suit properties i.e., item Nos.1 and 2, which are agricultural lands inherited from the propositus, on the premise that fourth son of the propositus Venkatesh had executed a Will dated 31.05.2011, (day on which he died ) in favour of the plaintiff. 5. The plaintiff sought a declaration that item No.3 property is exclusive property of Venkatesh and claimed absolute ownership over the said property based on the aforementioned Will. - 4 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 6. Defendant No.1 contested the suit and defendant No.2 remained ex-parte. Defendant No.1 died during the pendency of the Regular Appeal. 7. The suit is dismissed on the premise that the alleged Will dated 31.05.2011, said to have been executed by the deceased-Venkatesh is not proved. On appeal filed by the plaintiff, the First Appellate Court concurred the findings of the Trial Court and dismissed the appeal. 8. Aggrieved by the aforementioned judgment and decree, the plaintiff is in appeal. This appeal was admitted on 21.09.2024, to consider the following substantial question of law: “Whether the Trial Court and the First Appellate Court were justified in holding that the alleged Will by Venkatesh said to have been executed on 31.05.2011 i.e., on the date of his death is not proved?” 9. The Trial Court and the First Appellate Court have held that item No.3 property i.e., residential house is the self acquired property of deceased-Venkatesh. - 5 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 10. Learned counsel appearing for the plaintiff/appellant would contend that the Will dated 31.05.2011 is duly established as two attesting witnesses have been examined, and both attesting witnesses have testified that they attested the execution of Will by Venkatesh. It is also urged that the signature on the Will and the fact that the plaintiff and his mother were looking after deceased-Venkatesh are admitted in the cross examination by Dw1. Since testator’s son had predeceased him, he had every reason to execute the Will in favour of plaintiff, who was looking after Venkatesh is the submission. It is urged that these aspects have not been considered by the Trial Court and erroneously dismissed the suit. 11. Learned counsel appearing for the respondents would contend that the suspicious circumstances surrounding the Will have not been properly explained. The testator died on 31.05.2011, the day on which Will is allegedly executed. The death certificate would reveal that he died in the hospital. However, the witness states that testator was at home throughout the day and the Will was executed at home. In the plaint itself has stated that the Will was drafted in the - 6 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 morning. However, the stamp paper on which alleged Will is written would reveal that the stamp paper was obtained on 04.01 p.m. Merely because the signature is admitted, it doesn’t mean that the execution is proved. Learned Counsel would also urge that no acceptable evidence is placed to establish that deceased was possessing sound state of disposing mind and admittedly, the Will is said to have been executed on the same day on which Venkatesh died and the very fact that Venkatesh died in the hospital would establish that he was not well. Under these circumstances, the heavy burden was on the plaintiff to establish that the Will is duly executed by Venkatesh is the submission. 12. This Court has considered the contentions raised at the Bar and perused the records. 13. On perusal of the plaint, it is noticed that, the plaintiff has pleaded that the Will was executed in the morning on 31.05.2011. This contention is erroneous as the stamp paper on which the Will is drafted was obtained at 04.01. p.m. on the same day. - 7 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 14. It is noticed that the witnesses have stated that Venkatesh has executed the Will at his residence. However, the death certificate produced by the plaintiff itself would reveal that deceased died in Annapurna Hospital, Jamakhandi. 15. The witnesses to the alleged Will have not stated whether Venkatesh was admitted to the hospital on the same day or otherwise. Assuming that they are not aware as to whether he was admitted to the hospital after the execution of the Will, the plaintiff was under an obligation to explain under what circumstances, Venkatesh was taken to the hospital. No such explanation is forthcoming from the plaintiff. On the other hand, the plaintiff contended that Venkatesh was not in the hospital on the date of his death. However the death certificate speaks otherwise. 16. Venkatesh died on the same day on which Will is said to have been executed. He was aged 72 at the time of the alleged execution of Will. There is no acceptable evidence as to his sound state of mind. 17. This being the position, when the execution of Will was seriously disputed, the plaintiff was required to explain - 8 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 whether Venkatesh was admitted to the hospital on the day when the Will was allegedly executed. Since no such explanation is forthcoming, this Court is of the view that the suspicious circumstances surrounding the execution of the Will are not properly explained, and both the Courts have rightly held that the execution of the Will is not established. 18. Considering the reasons assigned by the Trial Court and the First Appellate Court, this Court is of the view that the concurrent findings on the finding relating to the execution of the Will do not call for interference. 19. However, it is noticed that defendant No.1 - Shamarao died during the pendency of the appeal and he had filed a written statement. Though defendant No.2, who is respondent No.2 in this case has not filed a written statement, after the death of Shamarao, defendant No.2 who is class-II heir stands in the shoes of Shamarao and can take shelter under the written statement filed by Shamarao. Thus, the fact that defendant No.2 who is the wife of Vasanthrao, did not file written statement and lead independent evidence does not - 9 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 come in the way of defendant No.2 defending the impugned judgment and decree. 20. As already noticed, among four sons and one daughter of Ramachandra and Bhimabai, all are dead. Plaintiff is claiming under the daughter Indirabai. Defendant No.2 is claiming under Vasantrao as his widow. Thus, only two heirs of Ramachandra – propositus are surviving to claim the properties. Hence, the plaintiff is entitled to ½ share and defendant No.2 is entitled to ½ share in the suit schedule property. 21. It is noticed that the plaintiff has not claimed partition in respect of all the properties. However, all the properties are included in the suit. Hence, by moulding the relief, the decree for partition is granted in respect of ½ share in the suit schedule properties in favour of the plaintiff, and the remaining ½ share shall go to defendant No.2/respondent No.2. 22. Hence, the following: ORDER i. The appeal is allowed in-part. - 10 - NC: 2025:KHC-K:2561 RSA No. 200317 of 2021 ii. The impugned judgment and decree dated 01.02.2021 in R.A.No.34/2015 on the file of the learned Principal District Judge, Vijayapura are modified. iii. The impugned judgment and decree dated 22.01.2015 in O.S.No.212/2011 on the file of I Additional Senior Civil Judge, Vijayapura are modified. iv. Suit of the plaintiff in O.S.No.212/2011 on the file of I Additional Senior Civil Judge, Vijayapura is decreed granting ½ share to the plaintiff and ½ share to defendant No.2. v. Both parties are at liberty to initiate proceedings for recovery of mense profit, if any, payable to each other, in respect of income exclusively derived by respective parties. vi. No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE TMP List No.: 1 Sl No.: 46