- 1 - NC: 2025:KHC:528 RSA No. 1435 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.1435 OF 2007 (PAR) BETWEEN: SMT.LAKSHMAMMA, DEAD BY LR SRI D.T. RANGEGOWDA, MAJOR, S/O. THIMMEGOWDA, R/O DODDAMATHIGATTA VILLAGE, DANDIGANAHALLI HOBLI, CHANARAYAPATNA TALUK, CHANNARAYAPATNA - 573 116. … APPELLANT [BY SRI H.N.M. PRASAD, ADVOCATE (PH)] AND: 1. SRI JAVAREGOWDA, S/O. NINGEGOWDA, MAJOR; 2. SRI NINGEGOWDA, S/O. JAVAREGOWDA, MAJOR 3. 3(A) LAKSHMEGOWDA, S/O. JAVAREGOWDA, DEAD BY LRS SMT.PUTTAMMA, W/O. LATE LAKSHMEGOWDA, AGED ABOUT 60 YEARS, 3(B) JAVEREGOWDA @ THAMIAH, S/O. LATE LAKSHMEGOWDA, AGED ABOUT 45 YEARS, 3(C) SMT.BIBITHA, D/O. LATE LAKSHMEGOWDA, AGED ABOUT 20 YEARS, 3(D) SMT.KAVITHA, D/O. LATE LAKSHMEGOWDA, AGED ABOUT 20 YEARS, MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.09 11:42:23 +0530 - 2 - NC: 2025:KHC:528 RSA No. 1435 of 2007 ALL ARE R/A DODDAMATHIGATHA VILLAGE, DANDIGANA HOBLI, C.R. PATNA TALUK - 573 116. 3(E) SMT.RADHA, W/O. MANJEGOWDA, MAJOR R/A CHANNAPURA VILLAGE, DANDIGANHALLI HOBLI, C.R. PATNA TALUK - 573 116. 3(F) SMT.PRATHIBHA, W/O. BYREGOWDA, AGE NOT KNOWN, R/A MASAKANAHALLI, DANDIGANAHALLI HOBLI, C.R.PATNA TALUK - 573 116. 3(G) SMT.SHOBHA, W/O. VASU, MAJOR, R/A KADABAHALLI VILLAGE, BINDIGANAVALE HOBLI, NAGAMANGALA TALUK - 571 432. 3(H) SMT.SUMA, W/O. SHIVARAMU, MAJOR, R/A MALLANAYAKANA KATTE, MANDYA TALUK, MANDYA DIST - 571 401. … RESPONDENTS [BY SRI JAGADEESH H.T., ADVOCATE FOR R3 (A, B, E & H) (AB); V/O DTD 05.06.2024 APPEAL AGAINST R2 - DISMISSED AS ABATED; V/O DTD 05.07.2024 APPEAL AGAINST R3 (G) IS DISMISSED; V/O DTD 29.08.2024 SERVICE OF NOTICE TO R1, R3 (C, D, F & G) ARE HELD SUFFICIENT] THIS RSA FILED U/S 100 CPC AGAINST THE JUDGMENT AND DECREE DATED: 16.11.2006 PASSED IN R.A.NO 126/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN), CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 20.10.2001 PASSED IN OS 525/1989 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC., CHANNARAYAPATNA, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.12.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VC FROM DHARWAD BENCH, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI - 3 - NC: 2025:KHC:528 RSA No. 1435 of 2007 CAV JUDGMENT Challenging judgment and decree dated 16.11.2006 passed by Civil Judge (Sr.Dn.), Channarayapatna, in R.A.no.126/2002 and judgment and decree dated 20.10.2001 passed by Civil Judge (Jr.Dn) and JMFC., Channarayapatna, in OS no.525/1989, this appeal is filed. 2. Brief facts as stated are that appellant was plaintiff in OS no.525/1989 for partition and separate possession of her half share in immovable landed properties detailed in ‘A’ schedule and movable properties detailed in ‘B’ schedule ('Suit Properties' for short), etc. 3. In plaint, it was stated Ningegowda - propositus had three children viz., Ramegowda (adopted by Akkamma), Javaregowda and Nanjegowda (plaintiff’s husband). It was stated, plaintiff and defendants constituted Hindu Undivided family and suit properties was undivided coparcenery properties belonging to joint family. It was stated as Ramegouda had gone in adoption and plaintiff’s husband Nanjegouda had died leaving plaintiff ass only heir, plaintiff was entitled for half share in suit properties. It was stated, after death of Nanjegouda, defendant no.1 was managing joint family - 4 - NC: 2025:KHC:528 RSA No. 1435 of 2007 properties with his sons defendants no.2 and 3. As plaintiff did not intend to continue in joint family, she demanded partition. When, defendant no.1 kept postponing it, suit was filed. 4. Upon appearance, defendants filed written statement admitting relationship as stated by plaintiff, Ramegowda going in adoption and death of plaintiff’s husband Nanjegowda issueless. They however, categorically denied existence of undivided Hindu Joint Family after Ramegowda was given in adoption. They stated after death of Ningegowda, only Nanjegowda and defendant no.1 continued in joint family and had divided family properties under panchayat palupatti on 04.02.1945 and were in possession and cultivation of their respective shares. 5. It was stated, after said partition, defendant no.1 had purchased several items i.e. item no.12 of suit property under sale deed dated 20.02.1975; item no.17 under sale deed dated 18.09.1965; item no.8 under registered sale deed dated 26.03.1969; item no.1 under sale deed dated 19.04.1974; item no.18 under sale deed dated 02.07.1970; item no.6 under sale deed dated 20.07.1970; item no.14 under sale deed dated 17.11.1976; item no.3 under sale deed dated 10.03.1973 and - 5 - NC: 2025:KHC:528 RSA No. 1435 of 2007 item no.7 under sale deed dated 14.04.1953. It was therefore claimed that these properties were self acquired properties of defendant no.1. It was stated during his lifetime, Nanjegowda had bequeathed to defendant no.3 under Will dated 16.09.1970 properties allotted to him under panchayat palupatti dated 04.02.1945. It was also stated, since death of Nanjegowda on 22.11.1985, defendant no.3 was in possession and enjoyment of properties. It was further stated, defendants had divided properties between themselves under registered partition deed dated 20.09.1976 and were enjoying respective shares. 6. In view of above, it was stated, plaintiff did not have any right to execute alleged Will dated 15.04.1987 and that it was shrouded by suspicious circumstances. It was alleged, plaintiff - Lakshmamma was not in sound and disposing state of mind and that alleged Will was created to grab suit properties. On above grounds sought dismissal of suit. 7. Based on pleadings, trial Court framed following issues and additional issues: 1. Whether the plaintiff proves that she is entitled for 1/2 share in the suit schedule properties? 2. Whether the plaintiff proves that the 1st defendant, Hindu undivided family at the time of the date of her husband? - 6 - NC: 2025:KHC:528 RSA No. 1435 of 2007 3. Whether the plaintiff proves that the suit schedule properties were the joint family properties? 4. Whether the defendants prove that the 1st defendant and the husband of the plaintiff got the properties divided in the presence of the panchaitdars and in that respect, palupatti was also drawn on 04.02.1945? 5. Whether the defendants prove that the husband of the plaintiff has bequeathed the properties which have fallen to his share which have been palupatti dated 04.02.1945, in favour of the 3rd defendant, through a Will? 6. Whether the suit is not maintainable? 7. Whether the court fee paid is sufficient? 8. To what relief is any are the parties entitled? ADDITIONAL ISSUES 1. Whether the defendant proves that late Nanjegowda brother of 1st defendant and husband of the plaintiff has executed the registered will dated 18-9-1970 and bequeathed all his properties fallen to his share in favour of 3rd defendant and deceased Lakshmamma has no right to execute the alleged will dated 15-4- 1987? 2. Whether the defendants prove the will dated 15- 4-1987 executed by deceased Lakshmamma is forged and got up one averred in para 4 of the additional written statement? 3. Whether the defendant proved legal heirs of Lakshmamma is necessary party to the suit and as such suit is not maintainable? 4. Whether the defendant proves that the defendants partitioned as per the registered partition deed dated 20-9-1976 and enjoying the - 7 - NC: 2025:KHC:528 RSA No. 1435 of 2007 properties as averred in para of the Addl. written statement? 8. On behalf of plaintiff, four witnesses as PWs 1 to 4 were examined and Exs.P1 to P24 got marked. In rebuttal, defendant no.3 and three others were examined as DWs.1 to 4 and Exs.D1 to D33 were got marked. 9. On consideration, trial Court answered issues no.1 to 3, 6, additional issues no.2 and 3 in negative; issues no.4, 5, 7, additional issue no.1 and additional issue no.4 in affirmative and issue no.8 by dismissing suit. 10. Aggrieved, plaintiff filed RA no.126/2002 on various grounds. Based on same, first appellate Court framed following points: 1. Whether the Trial Court went wrong in holding that there was a partition in the joint family consisting the deceased 1st defendant & husband of the plaintiff deceased Nanjegowda as per the palupatti dated 04.02.1945 - Ex.D.33? 2. Whether the Trial Court went wrong in holding that defendants have proved that deceased Nanjegowda husband of the deceased original plaintiff - Lakshmamma had executed the will date 18.09.1970 in favour of the 3rd defendant Lakshmegowda as per Ex.D.1 and bequeathed all the properties fallen to his share in favour of deceased 3rd defendant Lakshmegowda ? 3. Whether the Trial Court went wrong in holding that D.T. Rangegowda S/o Thimmegowda had a - 8 - NC: 2025:KHC:528 RSA No. 1435 of 2007 right to prosecute the suit as the legal representative of the deceased plaintiff Lakshmamma? 4. Whether the impugned Judgment & Decree of the Trial Court calls for interference? 5. What Order or Decree? 11. On consideration, it answered points no.1 to 4 in negative and point no.5 by dismissing appeal. Hence, plaintiff had filed this appeal. 12. Sri HNM Prasad, learned counsel for plaintiff submitted appeal was by plaintiff against concurrent erroneous findings in suit for partition and separate possession. It was submitted, Ningegowda - propositus had three children namely Rangegowda, Nanjegowda and Javaregowda. After death of propositus, his children were in joint possession and enjoyment of suit properties. Admittedly, Rangegowda went in adoption. Therefore, on death of Nanjegowda, plaintiff as his sole legal heir was entitled for half share in suit properties. Claiming same, suit was filed. It was submitted during pendency of suit, plaintiff died by executing Will and bequeathing her share in suit properties in favour of DT Rangegowda. Hence, he was impleaded as legal representative of plaintiff, in suit. - 9 - NC: 2025:KHC:528 RSA No. 1435 of 2007 13. It was submitted, though defendants contended suit properties were already partitioned as per panchayat palupatti, no proper distribution of share to Nanjegowda. However, relationship as well as nature of properties was not disputed. Since, prima facie, though it appear about creation of alleged Will at Ex.D1 to deprive share of plaintiff, both Courts failed to appreciate said fact and erred in concurrently dismissing suit without assigning share in suit properties by decreeing suit. 14. It was submitted, after death of Ningegowda there was partition between Javaregowda and Nanjegowda, as per panchayath palupatti dated 04.02.1945. Though unregistered, it was marked as Ex.D33 for collateral purpose. It was submitted, as plaintiff and Nanjegowda were issueless, for performance of death ceremonies, Nanjegowda had bequeathed properties allotted to him under palupatti, to defendant no.3, under Ex.D1 - Registered Will dated 16.09.1970 is disputed. 15. Thereafter, under registered partition deed dated 20.09.1976 all properties were further divided amongst defendants with mutation of revenue records in year 1981. It was submitted, in written statement, defendants stated Will dated 16.09.1970 was acted upon during life time of testator. - 10 - NC: 2025:KHC:528 RSA No. 1435 of 2007 It was submitted, bequeathal of all properties allegedly allotted to Nanjegowda under panchayat palupatti, in favour of defendant no.3 was suspicious. It was submitted, Ex.D1 was shrouded in following suspicious circumstances: a. The Will has been acted upon during the life time of testator could be seen from para 5 and 6 of the written statement. b. The properties in the alleged Will were also included in the partition deed dated 20.09.1976 marked as Ex.D32 i.e., during the life time of Nanjegowda. c. Disinheritance of the plaintiff and no share is allotted to her by husband. d. Similar pencil mark reflected in Ex.D1 and D33. e. Cramped/insertions writings in the Will just above the thumb impression of Nanjegowda. f. The scribe of the Will was no more. His son identified his father's signature. g. Only attesting witness is one Hucchegowda he is examined as DW.3 and it is alleged that he has impersonated in the proceedings and he is not attester. When this was discovered and brought to the notice of the 1st appellate Court vide para 12 of the judgment. The 1 appellate Court holds that this was canvassed for the 1 time and it is was not contended before the trial Court and not canvassed before the trial Court. In the absence of certified copy or original register from the office of Sub-Registrar it cannot be held as tampered document. The 1 appellate Court acted with material irregularity in throwing burden on the plaintiff rather than the propounder of the Will. Hence, the approaches of the Courts are erroneous. - 11 - NC: 2025:KHC:528 RSA No. 1435 of 2007 16. It was submitted, both Courts erred in holding Ex.D1 - Will as proved by referring to Section 90 of Indian Evidence Act, contrary to following ratio laid down in case of Ashutosh Samanta v. Ranjan Bala Dasi, reported in 2023 SCC OnLine SC 255: "13 …….Wills cannot be proved only on the basis of their age the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it come to proof of Wills". 17. It was submitted, there was improper consideration of suspicious circumstances by both Courts by relying on decision of Hon’ble Supreme Court, in case of Kavita Kanwar v. Pamela Mehta, reported in (2021) 11 SCC 209, wherein it was held: “15.1. As regards the objection of Respondent 2 that the property in question was an ancestral property, the trial court referred to the decision of this Court in Chiranjilal Shrilal Goenka v. Jasjit Singh [Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507] and held that the said objection would not be entertained because the “question of right, title, share and ownership is not to be decided in the probate proceedings”. The trial court also found that the testatrix was of sound mind at the time of execution of the will, particularly when she was handling her own affairs including bank account and property; was leading a very active life till her death; and was also attending club and driving her own car. 24.8. We need not multiply the references to all and other decisions cited at the Bar, which - 12 - NC: 2025:KHC:528 RSA No. 1435 of 2007 essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277], this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a will as follows: (SCC pp. 309-10, para 12) “12. … 12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon. 12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will. 12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate - 13 - NC: 2025:KHC:528 RSA No. 1435 of 2007 suspicions before the document can be accepted as the last will of the testator. 12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 12.6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”. 12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. - 14 - NC: 2025:KHC:528 RSA No. 1435 of 2007 12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will? 12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.” 28. There is no doubt that any of the factors taken into account by the trial court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded will. That is to say that, the will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the court is not - 15 - NC: 2025:KHC:528 RSA No. 1435 of 2007 satisfied that the will in question truly represents the last wish and propositions of the testator, the will cannot get the approval of the court; and, other way round, if on a holistic view of the matter, the court feels satisfied that the document propounded as will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the will shall not be disapproved merely for one doubtful circumstance here or another factor there.” 18. It was submitted Will would always come into effect after death of testator, unlike as contended by defendants that Ex.D1 was acted upon during life time of testator. It was submitted, such contention itself was a suspicious circumstance. In support of submission he relied on decision in case of Ghanshyam v. Yogendra Rathi, reported in (2023) 7 SCC 361. 19. It was lastly contended, judgment and decree passed by first appellate Court was not in conformity with Order XLI Rule 31 of CPC, and ratio laid down in B.V. Nagesh v. H.V. Sreenivasa Murthy, reported in (2010) 13 SCC 530, as follows: “4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by - 16 - NC: 2025:KHC:528 RSA No. 1435 of 2007 reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179: JT (2001) 2 SCC 407], SCC p.188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756], SCC p.758, para 5).” 20. On above grounds sought for answering substantial questions of law in favour of appellants and allow appeal. 21. None appeared for respondents. 22. It is seen, Appeal was dismissed against respondent no.2 as abated vide order dated 05.06.2024 and dismissed against respondent no.3 (g) vide order dated 29.08.2024. But, estate of respondent no.2 is substantially represented by presence of his father Javaregowda - defendant no.1. Likewise on death of Lakshmegowda – defendant no.3, legal representatives are brought on record. All others, except respondent no.3 (g) are served and represented. Thus, as per ratio in Shivshankara v. H.P. Vedavyasa Char, reported in (2023) 13 SCC 1, appeal would not abate. - 17 - NC: 2025:KHC:528 RSA No. 1435 of 2007 23. Appeal was admitted on 07.10.2009 to consider substantial questions of law as in memorandum of appeal, which are as follows: 1. Whether the courts below have not erred in law in relying upon exhibits-D-33 i.e., palupatti dated 4/2/1945 and recording a finding that there was partition in the family of the parties when admittedly the said document was admitted for only a collateral purpose? 2. Whether the courts below are justified in law in coming to the conclusion that exhibits D-1 will dated 16/9/1970 has been proved even though the person who had attested the will and the person who deposed before the court below i.e., DW.3 are entirely different? 3. Whether the judgment and decree passed by the Courts below are not vitiated on account of fraud played by the respondents by impersonating the attester to Exhibit D-1? 4. Whether the Trial Court had not committed an error in law in coming to the conclusion that “it is an admitted fact that both deceased Nanjegowda and Javaregowda were continued in a joint family till alleged palupatti dated 4/2/1945 even though it is not the case of the appellant at any stage of proceeding and there being no such admission? 24. From above, it is seen plaintiffs’ claim for partition stems from assertion that her husband Nanjegowda and his brothers Rangegowda and Jawaregowda were children of propositus Ningegowda, that Rangegowda went in adoption therefore joint family continued with only two brothers and due - 18 - NC: 2025:KHC:528 RSA No. 1435 of 2007 to death of Nanjegowda issueless, plaintiff-his widow was entitled for his share in joint family properties. 25. Same is denied by defendants on ground that during his lifetime of Nanjegowda, after Rangegowda went in adoption, there was partition between Jawaregowda and Nanjegowda as per Ex.D.33 - Pancyahath palupatti dated 04.02.1945. As Nanjegowda was issueless, he executed Ex.D.1 - Will bequeathing all properties received by him under Ex.D.33 - Panchayath palupatti, in favour of defendant no.3. And in terms of Will, defendants were in possession of properties. They had thereafter included said properties in further partition between themselves as reflected by separate entries in revenue records. They also claim, several items of properties included in suit schedule were self acquired properties of defendants. 26. Defendants also opposed continuation of suit by legatee under Ex.P.1 - Will dated 15.04.1987, on ground that bequeathal by Nanjegowda under Ex.D1 in favour of defendant no.3 had already taken effect, thereby divesting plaintiff of right to bequeath. They alleged Will suffered from suspicious circumstances. After evaluating same, trial Court answered additional issue no.2 holding Ex.P1 as proved. Said finding is - 19 - NC: 2025:KHC:528 RSA No. 1435 of 2007 not challenged. In fact, no point for consideration was framed by first appellate Court. 27. However, dismissal of suit by trial Court hinges entirely on its finding about Ex.D1 - Will. While giving finding on issues no.5 and additional issue no.1, trial Court took note of grounds on which plaintiff questioned Ex.D1 – Will, namely, dis-inheriting plaintiff who was wife of testator, registration of Will on next day after its execution, pencil marks and delay in acting on it. 28. It found recital by testator that in case of his death prior to his wife, legatee was under obligation to maintain her, to be sufficient. It also observed, execution of Will in every case was intended to interfere with natural succession. Insofar as discrepancy in deposition of DW.3 about date of registration of Ex.D1, it observed witness was aged 77 years while deposing in respect of an event that occurred more than 30 years earlier. Taking note of similarity in pencil marks on Ex.D1 and Ex.D33, it accepted explanation that they were made by registering authorities. Insofar as delay in staking claim under Will, trial Court chose to overlook same on ground that Testator died on 25.11.1985 and suit was filed on 17.03.1987, i.e. shortly after - 20 - NC: 2025:KHC:528 RSA No. 1435 of 2007 death of Nanjegowda, when plaintiff moved from house of defendants to house of her legatee. 29. Referring to admission by PW.2 – Krishnegowda that he was aware about execution of Will by Nanjegowda in favour of Lakshmegowda as well as admission by PW-4 Rangegowda that on death of Nanjegowda, Lakshmegowda had tonsured his head, which according to trial Court would corroborate claim of defendants that defendant no.3 had acted in terms of intention of testator. It also noted plaintiff had not made any allegation against her husband testator about dis- inheritance being due to any ill-will, to hold that no suspicious circumstance was substantiated. It observed as compliance with requirements of Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 and suspicious circumstances were duly explained, it held Ex.D1 duly proved. 30. In appeal, first appellate Court took note of grounds urged in Appeal, framed points for consideration and passed impugned judgment and decree concurring with findings of trial Court after independent assessment and assigning reasons. Bare perusal of points framed for consideration would reveal application of mind to grounds urged. Hence, it is held - 21 - NC: 2025:KHC:528 RSA No. 1435 of 2007 contention about first appellate Court not complying with Order XLI Rule 31 of CPC while passing impugned judgment and decree would not stand substantiated. 31. Insofar as first substantial question of law that Ex.D33 was marked for collateral purposes, therefore finding of both Courts about partition between Nanjegowda and Jawaregowda was perverse, it is seen both Courts took note of fact that it was marked only for collateral purpose namely to substantiate severance of joint family status. But, admittedly plaintiff was wife of Nanjegowda and could not have claimed separate/independent share than her husband during his life time. Such right would arise only after death of her husband. Admittedly, Ex.D1 was executed by her husband during his lifetime, when he was absolute owner. Merely on ground that bequeathal was to take effect after his death, and plaintiff who was next in line of succession was dis-inherited, would not be sufficient to upset claim under validly executed and duly proved Will. 32. This Court in case of Thabagouda Satteppa Umarani v. Satteppa, reported in 2014 SCC OnLine Kar 12028, held: - 22 - NC: 2025:KHC:528 RSA No. 1435 of 2007 “13. The co-sharer namely the husband/father, mother and wife have sought for ⅛th share as held by both the Courts below. So far as the Bombay School of Mitakshara Law, in similar circumstances, it is enunciated referring to provision of Hindu Law and recently upon amendment of 2005, by the Bombay High Court in the case of Jayamati Narendra Shah (Deceased By L.Rs.) v. Narendra Amritlal Shah [AIR 2014 Bombay 119] , that wife cannot demand partition of joint family property, she would get a share only if partition is demanded by her husband or sons and property is actually partitioned. However, as an exception it has been said that widow can demand for a partition which her deceased husband was entitled to. Further what has been explained in paras 11, 12, 13, 14 and 19 of the judgment is, in a Hindu undivided family only sons and brothers laterally would constitute a coparcenary in ajoint Hindu Family; their wives may be members of the joint Hindu family but are not co-parceners. The proprietary rights are of a co-parcener if the joint Hindu family owns any property. The wives of co- parceners do not get any interest in the joint property owned and held by co-parceners who are co-owners. 14. To clarify this position here it is to be noted that co-parcener refers to a male issue i.e., may be a father or a son. The wives of co-owners do not get any interest by virtue of their marriage. It is only a Hindu widow who gets the interest of her husband in the co-parcenary or in the joint family property upon the death of her husband. That interest enables her to claim maintenance and residence. Only a widow can demand partition of the interest which her deceased husband would have been entitled to. Consequently, a wife has no share, right title or interest in the Hindu Undivided Family in which her husband is a co-parcener with his brothers, father or sons and after the amendment of Section 6 of the Hindu Succession Act, 2005 with his sisters and daughters also. The wife, may be a member of a joint Hindu Family, but by virtue of being a member in the joint Hindu Family she - 23 - NC: 2025:KHC:528 RSA No. 1435 of 2007 cannot get any share, right, title or interest in the joint Hindu Family property which that family owns. A wife cannot demand for partition unlike a daughter. She would get a share only if partition is demanded by her husband or sons and the property is actually partitioned. The claim by a wife during lifetime of the husband in the share and interest which has as a co-parcener in his Hindu Undivided Family is wholly premature and completely misconceived. 15. This position clarifies that though the wife is entitled for interest i.e., share, it is to be along with her husband. Any such decision being taken by both the Courts below earmarking separate share for herself and one share in the share of her husband cannot in any way is recognized. Even the decision of the Apex Court in the noted decision in Shir Omani, is also not enabling the wife to have an independent share.” 33. Both, second and third substantial questions of law are about an imposter being examined as DW-3 attester of Ex.D1 and consequently judgment and decree passed by both Courts being vitiated by fraud. But, such contention was not urged in first appeal and therefore, cannot be permitted to be urged for first time in second appeal. 34. Lastly observation by trial Court that continuation of Nanjegowda and Jawaregowda in joint family was admitted was without any basis, it is held above that plaintiff did not have right in respect of suit properties during life time of her - 24 - NC: 2025:KHC:528 RSA No. 1435 of 2007 husband and that her husband Nanjegowda had right to bequeath properties received by him in partition. 35. In view of above, none of substantial questions of law would arise for consideration. Consequently, following: ORDER Appeal is dismissed with costs. SD/- (RAVI V HOSMANI) JUDGE PSG/GRD/EM CT:PA LIST NO.: 19 SL NO.: 1