- 1 - NC: 2025:KHC:14874 RSA No. 84 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 84 OF 2025 (PAR) BETWEEN: 1. SMT. NAGAMMA W/O NAGEGOWDA, AGED ABOUT 58 YEARS, 2. SRI. NAGEGOWDA, S/O NANJEGOWDA, AGED ABOUT 62 YEARS, BOTH ARE R/AT. SASALUPURA VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK-573116 …APPELLANTS (BY SRI. SATHISHA D J., ADVOCATE) AND: SMT. PARVATHAMMA, W/O KUMARA, AGED ABOUT 55 YEARS, R/AT. BEECHENAHALLI VILLAGE, HALEKOTE HOBLI, CHANNARAYAPATNA TALUK-573116. …RESPONDENT THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 10.07.2024 PASSED IN RA NO.1/2023 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 1.12.2022 PASSED IN OS NO.187/2014 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, CHANNARAYAPATNA. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14874 RSA No. 84 of 2025 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 10.07.2024 passed in R.A.No.1/2023 by the learned Additional Senior Civil Judge and JMFC, Channarayapatna, Hassan, confirming the judgment and decree dated 1.12.2022 passed in O.S.No.187/14 by the learned Principal Civil Judge and JMFC, Channarayapatna. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The Appellants were the defendants, and the respondent was the plaintiff. 3. Brief facts, leading rise to the filing of this appeal are as follows : The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that, plaintiff and defendant no.1 are the children - 3 - NC: 2025:KHC:14874 RSA No. 84 of 2025 of Haruvamma @ Jayamma and Karigowda. Defendant no.2 is the husband of defendant no.1. Haruvamma was the only daughter of Haruvegowda @ Papegowda. After their marriage, the Parents of plaintiff and defendant No.1, started to reside with their grandfather Haruvegowda, as he had no male issues. Item nos.1 to 4 and 6 of the suit schedule properties belong to their grand father. After his demise, the suit properties were mutated in the name of their mother, Haruvamma @ Jayamma. After the death of Haruvamma @ Jayamma, plaintiff and defendant no.1 succeeded to the suit schedule properties. The plaintiff and defendant no.1 are in joint possession and enjoyment of the suit schedule properties. The defendants, intending to deprive the legitimate share of the plaintiff, created an alleged Will dated 16.8.1987 , alleged to have been executed by Haruvamma in favour of defendant no.1 regarding item nos.1 to 4 and 6 of the suit schedule properties. Based on the Will dated 16.8.1987, the katha was transferred in the defendants names. - 4 - NC: 2025:KHC:14874 RSA No. 84 of 2025 3.1. It is contended that, defendant no.2 purchased item no.5 of the suit schedule property out of the income derived from item nos.1 to 4 suit properties. Item no.5 of the suit schedule property is also the joint family property. It is contended that, Item no.6 of the suit schedule property has been already acquired by the Special Land Acquisition Officer, Hassan, for the Hemavathi Reserve Project, and the compensation has been granted. The defendants have not given any share in the compensation to the plaintiff. The plaintiff demanded partition, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to grant a half share in the suit schedule properties. 3.2. The defendants filed a written statement admitting that, the plaintiff and defendant no.1 are the daughters of Haruvamma @ Jayamma and Karigowda, and also admitted that Haruvamma @Jayamma was the only daughter to their grand father Haruvegowda @ Pape - 5 - NC: 2025:KHC:14874 RSA No. 84 of 2025 Gowda. It is also admitted that, items no.1 to 4 & 6 of the suit schedule properties originally belonged to Haruvegowda @ Pape Gowda. They also admitted that, defendant no.2 is the husband of defendant no.1. It is contended that item no.5 of the suit schedule property is the absolute, and self-acquired property of defendant no.2, who had purchased the same under the registered sale deed dated 17.10.1998. The grandfather, during his lifetime, executed a registered Will dated 12.10.1970 bequeathing the suit schedule properties in favour of his daughter Haruvamma @ Jayamma. On the strength of the same, their mother acquired possession of the suit schedule property, and the katha was transferred in her name. It is contended that, after the marriage, the plaintiff joined the company of her husband at her matrimonial house. Defendant no.1 and defendant no.2 started residing with Haruvamma @ Jayamma. defendants developed the suit properties by their hard earned money. It is contended that, Haruvamma @ Jayamma, out of love and affection, executed a Will dated 16.8.1987 - 6 - NC: 2025:KHC:14874 RSA No. 84 of 2025 bequeathing the suit properties in favour of defendant no.1. After the death of Haruvamma @ Jayamma, the defendant no.1 became the absolute owner of the suit schedule properties. It is contended that, the plaintiff has no share in the suit schedule properties. Hence, prays to dismiss the suit. 3.3. The trial Court, based on the pleadings of the parties, framed the relevant issues, and additional issues. 3.4. The plaintiff, to substantiate her case, examined herself as PW.1, and marked 21 documents as exhibits P.1 to P.21. On the other hand, defendant no.2 was examined as DW.1, defendant no.1 was examined as DW.2, examined 3 witnesses as DWs.3 to 5, and marked 9 documents as exhibits D.1 to D.9. The Court Commissioner was examined as CW.1, and marked 4 documents as exhibits C.1 to C.4. 3.5. The trial, Court after recording the evidence, and having on both sides, and on assessing the verbal and documentary evidence, decreed the suit of the plaintiff in - 7 - NC: 2025:KHC:14874 RSA No. 84 of 2025 part vide judgment dated 01.12.2022. It is ordered and declared that, the plaintiff is entitled to a half share in item nos.1 to 4 properties. Further, defendant No.1 is also entitled to a half share in items No.1 to 4 properties. 3.6. The defendants, aggrieved by the judgment and preliminary decree passed in O.S.No.187/2014, filed an appeal in R.A.No.1/2023 on the file of the learned Additional Senior Civil Judge and JMFC, Channarayapatna. The first Appellate Court, on reassessing verbal and documentary evidence, dismissed the appeal vide judgment dated 10.7.2024. The defendants, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4.Heard the arguments of learned counsel for the defendants. 5. Learned counsel for the defendants submits that, the suit schedule properties were owned and possessed by the grandfather of the plaintiff and defendant no.1. He, during his lifetime, executed a registered Will in favour of - 8 - NC: 2025:KHC:14874 RSA No. 84 of 2025 the mother of the plaintiff and defendant no.1 bequeathing items no.1 to 4 and 6 of the suit schedule properties. The mother of the plaintiff and defendant no.1, on the strength of the Will executed by the grandfather, became the absolute owner of the suit schedule properties. He submits that, the mother of the plaintiff and defendant no.1, Haruvamma, bequeathed the suit schedule properties, i.e. items no.1 to 4 and 6, in favour of the defendant No.1 under a Will dated 16.8.1987. He submits that Haruvamma died, and after her demise, the defendant No.1 became the absolute owners of items no.1 to 4 and 6 of the suit schedule properties. He submits that, defendant no.2 had purchased item no.5 of the suit schedule property under a registered sale deed. It is the self acquired property of defendant no.2. He also submits that, to prove the execution of the Will, the defendants have examined the attesting witness as DW.3 and also examined DW.4 and DW.5, who are the sons of attesting witnesses to the Will executed by Haruvamma in favour of defendants No.1. The said aspect was not properly - 9 - NC: 2025:KHC:14874 RSA No. 84 of 2025 considered by the Courts below. He submits that, he has complied with the requirements of Section 68 of the Indian Evidence Act, 1872. Hence, on these grounds, he prays to allow the appeal. 6. Perused the records, and considered the submissions of the learned counsel for the defendants. 7. There is no dispute that, items no.1 to 4 and 6 of the suit schedule properties originally belonged to the grand father of the plaintiff and defendant no.1, i.e., Haruvegowda @ Papegowda. During the lifetime of Haruvegowda @ Papegowda, the suit schedule properties were mutated in the name of his daughter Haravamma @ Jayamma under a registered Will dated 12.10.1970. In pursuance of the said Will, Haruvamma @ Jayamma, mother of plaintiff and defendant No.1, was in possession and enjoyment of the suit schedule properties as an absolute owner. It is the defence of the defendants that, Haruvamma had executed a Will on 16.8.1987 bequeathing items no.1 to 4 and 6 of the suit schedule - 10 - NC: 2025:KHC:14874 RSA No. 84 of 2025 properties in favour of the defendant No.1. To prove the execution of the Will by Haruvamma, in favour of the defendant No.1 dated 16.8.1987, the defendants have examined themselves as DWs.1 and 2. To prove the execution, they have examined one attesting witness as DW.3, who deposed that Haruvamma bequeathed the suit schedule properties i.e., items no.1 to 4 and 6 in favour of the defendant No.1 under a Will, and the said Will is marked as Ex.D.4. He deposed that, the contents of the Will has been read over and explained to her. Haruvamma has affixed her thumb impression on Ex.D.4. He deposed that, he and one Amaregowda have subscribed their signature to Ex.D.4 as an attesting witnesses. During the cross-examination, he pleaded ignorance as to who had given instructions to prepare the Will i.e. Ex.D.4, and the contents of the Will have not been explained to him. DW.3 does not know the contents of the Will, which he has subscribed his signature on Ex.D.4. - 11 - NC: 2025:KHC:14874 RSA No. 84 of 2025 7.1. The defendants also examined the son of one of the attesting witness, i.e., Nanjundegowda, as DW.4. He has deposed that, his father has subscribed his signature to Ex.D.4. In the course of cross examination, he deposed the fact that, Haruvamma has made a document regarding the land, but he pleaded ignorance as to said document. Further, the defendants also examined the son of Basavegowda, as D.W.5 who is also said to be the attesting witness to Ex.D.4. He has deposed that, his father has subscribed his signature to the Will dated 12.10.1970 executed by Haruvegowda in favour of Haruvamma. 7.2. As could be seen from the evidence led by the defendants, the said Will is surrounded by suspicious circumstances like : 1) The defendants have not explained as to why the testator has disinherited the other natural heirs; - 12 - NC: 2025:KHC:14874 RSA No. 84 of 2025 2) DW.2, being a propounder of the Will, has actively participated at the time of execution of the alleged Will. Further, from the perusal of Ex.D.4, Haruvamma bequeathed the suit items no.1 to 4 and 6 of the suit schedule properties in favour of the defendant No.1, but the alleged Will Ex.D.4 discloses that, the Will has been executed only by defendant no.1. The attesting witness i.e., DW.3 during the course of cross examination, has deposed that, he does not know the contents of the Will, and it was not read over and explained to him. 8. The Hon’ble Apex Court had an occasion to consider the suspicious circumstances in the case of Bharpur Singh & Ors vs. Shamsher Singh reported in AIR 2009 SC 1766 wherein in paragraph (17) it is held as under : “17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. - 13 - NC: 2025:KHC:14874 RSA No. 84 of 2025 iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts. From a perusal of the judgment of the Hon’ble Apex Court in Barpur Singh referred supra, the disposition may be unnatural, improbable or unfair in the light of the relevant circumstances like the exclusion of or absence of adequate provisions for the natural heirs without any reason, where propounder takes a prominent part in the execution of Will which confers on him substantial benefit. As observed above, the defendants have not explained why the mother has not given any piece of land to the plaintiff, and why she was excluded. Further, DW.2, being the propounder of the Will, has taken a - 14 - NC: 2025:KHC:14874 RSA No. 84 of 2025 prominent part in the execution of the Will. The Will is surrounded by suspicious circumstances. The defendants have not removed the suspicious circumstances surrounding the Will. 9. The trial Court was justified in recording a finding that, the defendants failed to prove the execution of the Will by Haruvamma @ Jayamma in favour of defendant No.1. 10. It is the defence of the defendants that, item no.5 is not the joint family property of the plaintiff and defendant no.1, as the said property was purchased by defendant no.2 under a registered sale deed dated 17.10.1998, however, defendant no.2, to establish that, he had a separate source of income for purchasing suit item no.5 of the suit schedule property, has not produced any records. Further, DW.1, during the course of cross examination, has deposed to the effect that out of the income derived from the business of selling coconuts and sheep, he had purchased item no.5 of the property. - 15 - NC: 2025:KHC:14874 RSA No. 84 of 2025 However, to substantiate his defence, the defendants have not produced any records. 11. On the other hand, the plaintiff has proved that items no. 1 to 4 and 6 of the suit schedule properties were the joint family properties of the plaintiff and defendant no.1, and out of the income derived from items no.1 to 4 and 6, defendant no.2 had purchased item no.5 of the suit schedule property. Defendant no.2 failed to establish that item no.5 was purchased from his own income. The defendants have failed to establish that item no.5 was the self-acquired property of defendant no.2. 12. Both the courts below have concurrently recorded a finding of facts that, the suit schedule properties items no.1 to 6 are the joint family properties of the plaintiff and defendant no.1, and the plaintiff, being the daughter of Haruvamma, is entitled to a half share in ithe suit schedule properties. Both the Courts below have considered the entire evidence on record, and have rightly passed the impugned judgments. I do not find any error in - 16 - NC: 2025:KHC:14874 RSA No. 84 of 2025 the impugned judgments or any substantial question of law that arises for consideration in this appeal. 13. Accordingly, I proceed to pass the following order : ORDER i) The Appeal is dismissed ; ii) The judgments, and decrees passed by the Courts below are, hereby confirmed; No order as to the costs. In view of the dismissal of the appeal, I.A.2/25 does not arise for consideration, and is accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE rs