- 1 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1821 OF 2022 (PAR) BETWEEN: SRI. JAYARAME GOWDA, S/O LATE LAXME GOWDA, AGED ABOUT 53 YEARS, R/AT SARASWATHIPURA VILLAGE AND POST, KASABA HOBLI, KADUR TALUK, CHIKMAGALUR - 577 548. …APPELLANT (BY SRI. SHRIKANTA SHARMA, ADVOCATE) AND: 1. SRI. RAJE GOWDA, S/O LATE LAXME GOWDA, AGED 49 YEARS, SARASWATHIPURA VILLAGE AND POST, KASABA HOBLI, KADUR TALUK, CHIKMAGALUR - 577 548. ALSO AT BILEKALLAHALLI, UDDEBORANAHALLI POST, LAKYA HOBLI, CHIKKAMAGALUR TALUK - 577 168. 2. SMT. GOWRAMMA, W/O LATE SIDDE GOWDA, AGED 47 YEARS, R/O BILEKALLAHALLI VILLAGE, UDDEBORANAHALLI POST, LAKYA HOBLI, CHIKKAMAGALURU - 577 126. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 3. SMT. GANGAMMA, W/O LATE LAXME GOWDA, AGED 46 YEARS, AGRICULTURIST, R/O MALLENAHALLI VILLAGE, LINGADAHALLI POST, TARIKERE TALUK - 577 228. 4. SMT.JAYALAXMAMMA, W/O LATE LAXME GOWDA, AGED ABOUT 68 YEARS, R/O BILEKALLAHALLI VILLAGE, UDDEBORANAHALLI POST, LAKYA HOBLI, CHIKKMAGALURU TALUK - 577 126. …RESPONDENTS *** THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 01.09.2022 PASSED IN R.A.No.75/2022 ON THE FILE OF THE PRINCIPAL JUDGE (DISTRICT AND SESSIONS JUDGE), FAMILY COURT, CHIKKAMAGALURU, DISMISSING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 21.08.2021 PASSED IN O.S No.141/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKAMAGALURU. THIS RSA, COMING ON FOR ADMISSION, 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 appellant, challenging the judgment and decree dated 01.09.2022 - 3 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 passed in R.A.No.75/2022, by the learned Principal Judge, Family Court, Chikkamagaluru and the judgment and decree dated 21.08.2021 passed in O.S.No.141/2017, by the learned II Additional Senior Civil Judge and JMFC, Chikkamagaluru. 2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant herein was defendant No.1, respondent No.1 herein was the plaintiff and the other respondents herein were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the defendants for partition and separate possession, for mesne profits, and etc. It is the case of the plaintiff that the plaintiff and defendant Nos.1 and 3 are the children and defendant No.2 is the daughter-in-law, i.e. the wife of pre-deceased son and defendant No.4 is the wife of one late B.R. Laxme Gowda. The suit schedule properties are the joint family - 4 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 properties of the plaintiff and defendants and they are in joint and constructive possession of the suit schedule properties. The suit schedule properties were acquired out of the joint family income. The plaintiff has got legal rights over the suit schedule properties. The plaintiff is a co-parcener. The plaintiff demanded for a partition and separate possession, 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 decree the suit. 5. Defendant Nos.1 and 3 filed the separate written statements, defendant Nos.2 and 4 adopted the written statement filed by defendant No.3. Defendant No.3 admitted the entire averments made in the plaint on the ground that she has also got a share in all the suit properties and prays to decree the suit. 6. The defendant No.1 filed a written statement, denying the averments made in the plaint. It is contended that the suit schedule properties are the self-acquired - 5 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 properties of late B.R. Laxme Gowda and said Laxme Gowda bequeathed the suit schedule properties in favour of defendant No.1, by two Wills dated 07.08.2014 and 22.08.2014. After the demise of late B.R. Laxme Gowda, the properties were transferred in the name of defendant No.1. Defendant No.1 is in physical possession and enjoyment of the suit schedule properties and hence, prays to dismiss the suit. 7. The Trial Court, based on the pleadings of the parties, framed the relevant issues for its consideration. The plaintiff, to substantiate his case, examined himself as PW-1 and marked 12 documents as Exhibits Ex.P-1 to P-12. Defendant No.1 was examined as DW-1, examined three witnesses as DW-2 to DW-4 and marked 31 documents as Exhibits D-1 to D-31. 8. The Trial Court, after recording the evidence, hearing on both sides and, assessment of the oral and documentary evidence, decreed the suit of the plaintiff with costs. It is declared that the plaintiff and defendants - 6 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 No.1 to 3 are entitled to 6/25th share each in all the suit schedule properties and defendant No.4, being the wife of deceased late B.R. Laxme Gowda, is entitled to 1/25th share in all the suit schedule properties subject to the payment of court fee. 9. Defendant No.1, aggrieved by the judgment and preliminary decree passed by the Trial Court in O.S.No.141/2017, preferred an appeal in R.A.No.75/2022 on the file of the Principal Judge, Family Court, at Chikkamagaluru. 10. The First Appellate Court, on re-assessment of the oral and documentary evidence, dismissed the appeal, however, it modified the judgment and preliminary decree passed by the Trial Court in O.S.No.141/2017. It ordered and decreed that the plaintiff and defendant Nos.1 to 4 are entitled to 1/5th share each in the schedule properties by metes and bounds. Defendant No.1, aggrieved by the impugned judgments, has filed this regular second appeal. 11. Heard the argument of the learned counsel for defendant No.1. - 7 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 12. Learned counsel for defendant No.1 submits that the suit schedule properties are the self-acquired properties of late B.R. Laxme Gowda. He bequeathed the suit schedule properties under two Wills, after the demise of late B.R. Laxme Gowda, defendant No.1 became the absolute owner, based on the Wills executed by late B.R. Laxme Gowda in favour of defendant No.1. 12.1. He submits that based on the Wills, the name of defendant No.1 came to be entered in the revenue records. 12.2. He further submits that to prove execution of the Wills, defendant No.1 examined the attesting witnesses to the Wills. The said aspect was not properly considered by the Courts below. 12.3. He also submits that PW-1 has admitted that he has not included the other existing joint family properties and therefore, the suit for a partition is not maintainable. The said aspect was not considered by the Courts below and passed the impugned judgments. - 8 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 12.4. The impugned judgments passed by the Courts below are arbitrary, erroneous and the same are liable to be set aside. He also submits that the Trial Court has not properly framed issues. Hence, on these grounds, he prays to allow the appeal. 13. Perused the records and considered the submission of the learned counsel for defendant No.1. 14. The plaintiff, to substantiate his case, examined himself as PW-1. To prove that the suit schedule properties were owned and possessed by the father, late B.R. Laxme Gowda, the plaintiff has produced the records. Ex.P-1 is the Death Certificate of late B.R. Laxme Gowda, Exs.P-2 to P-8 are the RTC extracts of the suit schedule properties, Exs.P-9 to P-11 are the applications, Ex.P-12 is the certified copy of the registered Sale Deed. 15. During the course of cross-examination of PW-1, it was suggested to PW-1 that late B.R. Laxme Gowda executed a Will, bequeathing the suit schedule properties in favour of defendant No.1 and, based on the Wills, the defendant No.1 became the owner of the suit schedule - 9 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 properties. The said suggestion was denied by PW-1. On the other hand, defendant No.1 examined himself as DW-1 and he has deposed that the suit schedule properties were purchased by late B.R. Laxme Gowda and the suit schedule properties are the self-acquired properties of late B.R. Laxme Gowda. Defendant No.1 was taking care of late B.R. Laxme Gowda and out of love and affection, late B.R. Laxme Gowda bequeathed the suit schedule properties in favour of defendant No.1 by executing the Wills in favour of defendant No.1, and after his demise, defendant No.1 became the absolute owner of the suit schedule properties, based on the Wills. 16. To prove the ownership, defendant No.1 had produced two Wills, marked as Exhibits D-1 and D-2, which disclose that late B.R. Laxme Gowda bequeathed the suit schedule properties in favour of defendant No.1. Exs.D-3 to D-6 are the mutation extracts, which disclose that based on the Wills at Exhibits D-1 and D-2, the name of defendant No.1 was mutated in the revenue records in respect of the suit schedule properties. Exs.D-7 and D-8 - 10 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 are the receipts, Ex.D-9 is the certified copy of the order passed by the Tahisldar, Ex.D-10 is the Death Certificate of late B.R. Laxme Gowda, Exs.D-11 to D-16 are the RTC extracts. Exs.D-17 to D-23 are the record of rights, Exs.D-24 to D-27 are the Certificates, Exs.D-28 to D-30 are the RTC extracts and D-31 is the letter of Kaveri Grameena Bank. 17. During the course of cross-examination of defendant No.1, it was suggested that the suit schedule properties are the self-acquired properties of late B.R. Laxme Gowda. The said suggestion was admitted by DW-1. 18. To prove the contents of Ex.D-1 and Ex.D-2, Defendant No.1 examined four witnesses, who are said to be the attesting witnesses to the two Wills. The perusal of Exs.D-1 and D-2 discloses that the testator has not explained why he was not bequeathing the suit schedule properties in favour of his wife and other children. Defendant No.1 has also neither pleaded nor - 11 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 explained why the testator has disinherited the natural legal heirs. 19. The Hon'ble Apex Court had an occasion to deal with the suspicious circumstances, which invalidates the execution of a Will, in the case of Bharpur Singh & Ors. Vs. Shamsher Singh reported in AIR 2009 SUPREME COURT 1766. The Hon'ble Apex Court, at paragraph 17, held as follows: "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. 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. - 12 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 viii. Incorrect recitals of essential facts." 20. However, the defendant has not produced any records to establish the testator's mind, at the time of execution of the alleged two Wills at Exs.D-1 and D-2. The Wills are surrounded by the suspicious circumstances, where it disinherited the natural legal heirs. Defendant No.1 has not examined any witnesses to show the mental status of the testator at the time of execution of the Wills. 21. The Trial Court as well as the First Appellate Court were justified in recording a finding that the Wills at Exs.D-1 and D-2 are surrounded by the suspicious circumstances and rightly disbelieved the execution of the Wills at Ex.D-1 and D-2 by late B.R. Laxme Gowda in favour of defendant No.1. Both the Courts below have concurrently recorded finding of facts against defendant No.1 regarding the execution of Wills. 22. Learned counsel for defendant No.1 contends that the Trial Court has not properly framed the issues. If - 13 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 the Trial Court had not properly framed the issues, nothing prevented defendant No.1 from making an application for framing the additional issues as per Order XIV Rule 1 of the Code of Civil Procedure. Once the parties understood the pleadings and went for trial, taking the said ground is unacceptable, to set aside the impugned judgments. 23. The co-ordinate Bench of this Court, in the case of M.C.Suresh Vs. Sri.B. Srinivas Naik and others reported in ILR 2009 KAR 3897, held that mere omission to frame an issue is not fatal to the trial of the suit unless it has affected the disposal on merits. Defendant No.1 has not established that non-framing of an issue is fatal to the trial of the suit, and it has affected the disposal, on merits. Both the Courts below were justified in passing the impugned judgments. Hence, I do not find any error in the impugned judgment passed by the First Appellate Court nor any substantial questions of law would arise for consideration, in this appeal. Accordingly, I proceed to pass the following: - 14 - NC: 2025:KHC:10370 RSA No. 1821 of 2022 ORDER i) The Regular Second Appeal is dismissed. ii) The impugned judgment and decree dated 01.09.2022 passed in R.A.No.75/2022 by the learned Principal Judge, Family Court, Chikkamagalur, is hereby confirmed. iii) No order as to costs. BMV* List No.: 1 Sl No.: 32 Sd/- (ASHOK S.KINAGI) JUDGE