- 1 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 819 OF 2011 (PAR) BETWEEN: DODDAMMA, W/O LATE BASAVACHARI, AGED 69 YEARS, R/O GUDDE THIMMASANDRA VILLAGE, GOWDAGERE POST, MALUR HOBLI, CHANNAPATNA TALUK - 571 510. …APPELLANT (BY SMT. VIDHYA S., ADVOCATE) AND: 1. RACHACHARI, SINCE DEAD REP. BY HIS LR'S. 1(A) RAMYA, D/O LATE RACHACHARI, AGED ABOUT 35 YEARS. 1(B) RANJINATH, S/O LATE RACHACHARI, AGED ABOUT 33 YEARS. 2. SIDDA RAJACHARI, S/O LATE BASAVACHARI, MAJOR. 3. BASAVAMMA, SINCE DEAD BY HER LR'S. Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 3(A) CHIKKATHAYAMMA, D/O LATE BASAVACHARI, W/O PUTTASWAMY, AGED ABOUT 45 YEARS, 3(B) DODDAMMA, D/O LATE BASAVACHARI, W/O KRISHNACHARI, AGED ABOUT 40 YEARS, ALL ARE RESIDENTS OF GUDDE THIMMASANDRA VILLAGE, GOWDAGERE POST MALUR HOBLI, CHANNAPATNA TALUK. …RESPONDENTS (BY SRI. JAGADEESHA P, ADVOCATE FOR R1(A & B), R2 AND R3(A & B)) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.11.2010 PASSED IN R.A.NO.108/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY ALLOWING THE APPEAL AND CONFIRM THE JUDGMENT AND DECREE DATED 25.06.2007 PASSED IN O.S.NO.153/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JD.DN.) & JMFC,CHANNAPATNA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE - 3 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 ORAL JUDGMENT This second appeal is against a divergent finding in a suit for partition. Admittedly, one Basavachari was the propositus and he had two wives. Second marriage is void as first wife was still alive when he married second wife. From first wife, Basavachari had two sons and two daughters and from second wife, he had two daughters and one son. 2. The suit is filed by first wife and her two sons against the second wife and her two daughters and one son. Two daughters of the first wife are not parties to the suit. 3. Before the Trial Court, the second wife raised the defence that her husband executed a Will on 23.11.1988 and he died on 30.12.1998 and claimed the title over the property on the basis of the Will executed by the proposed Basavachari. It is also contended that there was an oral partition during the lifetime of Basavachari, between Basavachari and his first wife and half share in the residential house was allotted to first wife and the remaining - 4 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 half share was retained by Basavachari. Thus, the defendants prayed for dismissal of the suit. 4. The Trial Court decreed the suit awarding 1/2 share to the plaintiffs and 1/2 share to the defendants. 5. Aggrieved by the aforementioned judgment and decree, defendants filed an appeal. The appeal is allowed in part. The First Appellate Court awarded 1/7th share to each of the plaintiffs and to each of defendants No.2 to 4. Both the Courts have concurrently held that the Will is not proved. 6. Aggrieved by the judgments and decrees passed by the Trial Court as well as the First Appellate Court, 2nd wife and children are before this Court. 7. Learned counsel appearing for the appellants would submit that the Will was executed on 23.11.1988, it was duly registered and Basavachari died 10 years after the execution of the Will and in terms of the Will, defendant No.1 his 2nd wife is entitled to succeed the suit property. It is her contention that the attesting witnesses were not alive as - 5 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 such the scribe of the Will is examined. The Trial Court and the First Appellate Court ignored the evidence of the scribe of the Will and came to the conclusion that the Will is not proved. It is her contention that since attesting witnesses are not alive, the Trial Court and the First Appellate Court ought to have considered the evidence of the scribe of the Will. 8. It is also contended that two daughters of 1st wife are not made parties to the suit, as such the suit is not maintainable. In addition, it is also the contention that the suit is filed only in respect of the residential house and the remaining properties are not included, as such the said suit is not maintainable. 9. Learned counsel appearing for the respondents/plaintiffs would contend that no evidence is led to conclude that the attesting witnesses were not alive. Without there being any such evidence, the evidence of the scribe is not sufficient to prove the Will. He would submit that atleast one of the attesting witnesses ought to have - 6 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 been examined and without such evidence, both Courts have rightly concluded that the Will is not proved. 10. It is also the contention of the plaintiffs/respondents that there is adequate representation of the branch of 1st wife of Basavachari and daughters of Basavachari from 1st wife are not raising any dispute on the premise that they are not made parties. And in any case, the Court has awarded the share to the branch of 1st wife of Basavachari, as such the suit is not defective. 11. It is further contended that the suit is filed only in respect of the residential house as the entry was made without any basis in the name of 1st wife. As far as the remaining properties are concerned, there was no dispute among the parties and later the dispute started and subsequently one more suit is filed for other properties and the said suit is decreed in respect of the remaining properties. 12. This Court has considered the contentions raised at the bar. - 7 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 13. Admittedly, the attesting witnesses to the Will are not examined. There is nothing on record to conclude that attesting witnesses were not available at the time of recording evidence or they were dead. Even before the First Appellate Court and even before this Court, no evidence is led to conclude that the attesting witnesses were dead when the evidence was recorded. 14. Under these circumstances, only the evidence of the scribe of the Will is not sufficient to conclude that the Will is proved. In the absence of evidence of attesting witnesses, the Trial Court and the First Appellate Court have rightly concluded that the execution of the Will is not proved. This Court does not find any reasons to interfere with the said finding and the proof of Will by the Trial Court and the First Appellate Court. 15. As far as the contention relating to the previous oral partition during the life time of Basavachari is concerned, it is noticed that no entry evidencing oral partition is placed before the Court. And it is not the case of - 8 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 the defendants that in the oral partition all the sharers are allotted share. This being the position, the Trial Court and the First Appellate Court were justified in holding that oral partition is not established. 16. As far as the contention relating to non-joinder of necessary parties is concerned, it is to be noticed that though 1st wife has two daughters, the suit is filed by two sons and 1st wife of Basavachari. The Court can certainly recognize the share of the daughters while awarding the share and the First Appellate Court has taken note of the share of the daughters. 17. Under these circumstances, it is not open for the children of 2nd wife and 2nd wife to contend that the daughters of 1st wife are also necessary parties to the suit. 18. As far as the contention relating to the nature of the property, both the Courts have concurrently held that the properties exclusively belonged to Basavachari. The said finding is based on records. There are no materials to hold that Basavachari inherited the said property from his - 9 - HC-KAR NC: 2025:KHC:20214 RSA No. 819 of 2011 ancestors. Thus, after the death of Basavachari in the year 1998 all the children from 1st wife and 1st wife and all the children of 2nd wife, will acquire one share each. 19. When the suit was filed there were eight sharers. It is noticed by the First Appellate Court that 1st wife has died during the pendency of the appeal. Under these circumstances, each of the sons of Basavamma will have 1/7th share and each daughters of Basavamma will have 1/7th share and each daughters of 2nd wife will have 1/7th share and one son of 2nd wife will have 1/7th share. Computation of the share by the First Appellate Court is also in accordance with law. 20. No substantial question of law would arise and accordingly, the appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE CPN, GVP List No.: 1 Sl No.: 30 CT: BHK