IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.1572 OF 2013 (DEC/INJ) BETWEEN: NARASAPPA, S/O LATE HANUMANTHARAYAPPA, AGED ABOUT 70 YEARS, SINCE DECEASED REP. HIS LRS 1. SMT KARIYAMMA, W/O LATE NARASAPPA, AGED ABOUT 80 YEARS, 2. SMT MAHALAKSHMAMMA, W/O CHIKKANNA, D/O LATE NARASAPPA, AGED ABOUT 55 YEARS, BOTH ARE RESIDENTS OF BASAVANAHALLY, KASABA HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572132. 3. SMT JAYAMMA, W/O RAJANNA, D/O LATE NARASAPPA, AGED ABOUT 48 YEARS, NEAR ASSISTANT COMMISSIONERS' OFFICE, MADHUGIRI TOWN, TUMKUR DISTRICT - 572132. 4. SMT RATHNAMMA, W/O CHOWDAPPA, D/O LATE NARASAPPA, AGED ABOUT 45 YEARS, 2 RESIDENT OF BELLADAMADAGU VILLAGE, DODDERI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572132. 5. SMT PARVATHAMMA, W/O NADIKERAPPA, D/O LATE NARASAPPA, AGED ABOUT 40 YEARS, RESIDENT OF S.M.GOLLAHALLI VILLAGE, DODDERI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572132. 6. HANUMANTHARAYA B N, S/O LATE NARASAPPA, AGED ABOUT 36 YEARS, RESIDENT OF BASAVANAHALLY, KASABA HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572132. (AMENDED VIDE COURT ORDER DATED 31.01.2017) ...APPELLANTS (BY SRI GANGADHARAPPA A V, ADVOCATE) AND: SMT PUTTAMMA, W/O PUTTAIAH, (CLAIMS TO BE W/O LATE HANUMANTHARAYAPPA) AGED ABOUT 40 YEARS,R/O GIRYAMMANAPALYA, KASABA HOBLI, MADHGURI TALUK, TUMKUR DISTRICT - 572132. ...RESPONDENT (BY SRI HARISH H V, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.7.2013 PASSED IN R.A.NO.82/2003 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND 3 DECREE DATED 7.3.2003 PASSED IN O.S.NO.213/1989 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) MADHUGIRI. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01ST SEPTEMBER, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE CAV JUDGMENT This Second Appeal is arising from a concurrent finding in a suit for declaration of title and injunction. 2. The plaintiff claimed to be the legally wedded wife of late Hanumantharayappa and suit is decreed holding that the plaintiff being the wife of Hanumantharayappa is the owner and is in possession of the suit schedule property. Consequently, the defendant is restrained from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. 3. Three contentions of the defendant; (a) the plaintiff is not the wife of late Hanumantharayappa, (b) Hanumantharayappa executed a Will in favour of the defendant and (c) plea of previous partition between Hanumantharayappa and the defendant are rejected. 4 4. Aggrieved by the aforementioned judgment and decree, the defendant filed First Appeal. First Appellate Court confirmed the judgment and decree passed by the trial Court. Hence, this second appeal is by the defendant. 5. This appeal was admitted on 11.10.2013 to answer the following substantial questions of law: "1. Having concurrently held that the respondent has failed to prove her relationship with deceased Hanumantharayappa, whether the courts below are justified in law in granting the decree on sympathetic consideration and on the basis of surmises? 2. Having regard to the fact that the appellant has proved the execution of the Will by examining the attestors and the scribe and when nothing is elicited in their cross-examination to discredit their testimony, whether the courts below are justified in law in holding that the appellant has not proved the execution of the Will? 6. At the outset, it is to be clarified that there is no concurrent finding that the plaintiff is not the legally wedded wife of Hanumantharayappa. In fact both Courts have 5 concurrently held that the plaintiff is the wife of Hanumantharayappa. 7. Heard the learned counsel appearing for the appellants who are the legal representatives of the defendant as well as the learned counsel appearing for the plaintiff- respondent. 8. Learned counsel for the legal representatives of deceased appellant would contend that; 8.1 The plaintiff has not proved the fact that she is the legally wedded wife of Hanumantharayappa. The evidence of PWs.1 to 6 vary and not consistent and the marriage is not established. 8.2 Mere production of original title deed in the name of Hanumantharayappa by the plaintiff is not a sufficient ground to hold that plaintiff was married to Hanumantharayappa 8.3 The marriage is to be proved by adducing acceptable evidence and no acceptable evidence is produced to accept the plea relating to the marriage. 6 8.4 In the earlier suit in O.S.No.328/1988 filed by the plaintiff against Hanumantharayappa seeking maintenance, her status is not decided and after the demise of Hanumantharayappa, the suit is withdrawn. 8.5 In the said suit, Hanumantharayappa had not filed written statement and before could file written statement, Hanumantharayappa died and consequently, the suit is withdrawn. Thus, the pleading in the previous proceeding cannot be treated as a proof relating to the alleged marriage of the plaintiff with Hanumantharayappa. 9. Referring to the contention of previous partition between Hanumantharayappa and the defendant, it is urged on behalf of the appellants that the properties sold by Hanumantharayappa are treated as the properties allotted to his share and the remaining properties are treated as the properties of the defendant. 10. It is also urged that Hanumantharayappa executed a Will in favour of the defendant bequeathing the suit property and Hanumantharayappa was under the care of the defendant 7 who is his brother and he had every reason to execute a Will in favour of defendant who was taking care of Hanumantharayappa. 11. It is also urged that merely because there is a delay of 13 years in raising a pleading about the execution of the Will, it does not mean that the Will is not proved. The Will has to be considered in the light of the evidence led by the attesting witnesses and nothing is elicited in the cross- examination of the witnesses to disbelieve the execution of the Will. 12. Learned counsel appearing for the plaintiff/respondent would urge that; 12.1 The plaintiff's claim as the legally wedded wife of Hanumantharayappa is duly established. The plaintiff filed a suit against Hanumantharayappa seeking maintenance is more than enough to hold that she is the legally wedded wife. 12.2 The plaintiff's claim is supported by entry in the voter's list and more than anything else Hanumantharayappa did not contest the said suit filed by the plaintiff. 8 12.3 The defendant did not dispute the plaintiff's status as wife of Hanumantharayappa in the reply notice issued to plaintiff's notice. 12.4 Witnesses who have witnessed the marriage have been examined and said witnesses are from the same village and their evidence is un-impeached. 13. Disputing the Will, it is urged that Will is not pleaded at the earliest opportunity and stand based on the Will is incorporated 13 years after the suit by way of amendment which is sufficient to disbelieve the Will. 14. This Court has considered the contentions raised at the bar and perused the records. 15. The defendant to substantiate the contention of oral partition has produced the memorandum of alleged oral partition. However, the said document was not marked in evidence for want of registration. Later, the order rejecting its admissibility was called in question before this Court in C.R.P.No.1590/1998. Vide order dated 27.01.1999, the document was permitted to be marked only for a collateral purpose of considering the severance of status of the party. 9 16. The order holding that the alleged memorandum of partition is inadmissible has attained finality. Thus, the said document cannot be considered to accept the plea of previous partition. 17. Under these circumstances, this Court is only required to consider whether the plaintiff has established her status as wife of Hanumantharayappa and where the defendant has established his status as the legatee of Hanumantharayappa. 18. There is no dispute that the plaintiff had filed a suit claiming maintenance in O.S.No.328/1988 against Hanumantharayappa describing herself as the wife of Hanumantharayappa. It is indeed true that the said suit was not decided on merit as Hanumantharayappa died before he filed written statement. After his demise, the suit was dismissed as withdrawn. However, it is relevant to notice that during the lifetime of Hanumantharayappa, the plaintiff made a claim that she is the legally wedded wife of Hanumantharayappa and Hanumantharayappa did not contest the said claim by filing written statement. 10 19. It is also noticed that the plaintiff in support of her claim as legally wedded wife of Hanumantharayappa has produced the wedding invitation card marked at Ex.P.1 and the title deed pertaining to the suit properties. The production of title deed pertaining to suit properties from the custody of the plaintiff is not in dispute. 20. The defendant contends that the plaintiff has illegally taken the documents from the house of Hanumantharayappa after his demise. The Trial Court while considering issue No.1 relating to the status of the plaintiff as the wife of Hanumantharayappa has referred to the pleading in O.S.No.328/1988 which is produced by the defendant himself. 21. It is relevant to notice that when the plaintiff issued a notice to the defendant claiming to be the wife of Hanumantharayappa, the defendant has issued reply notice dated 16.06.1989. In the said reply notice, the defendant contended that the suit property is allotted to the share of Hanumantharayappa’s brother however, has not disputed the status of the plaintiff as wife of Hanumantharayappa. The relevant portion of Ex.P.3 reads as under: 11 "The Notice issued by you dated 29.05.1989 on behalf of your client Smt. Puttamma W/o. Hanumantharayappa of Giriyammanapalya Village, to my client Sri. Narasappa S/o. Hanumantharayappa of Basavanahalli, Madhugiri Taluk is placed in my hands with instructions as follows:- That the averments made in your notice that your client Puttamma is the wife of Hanumantharayappa who is the brother of my client. It is true that his brother died on 11.05.1989. It is false to say that she has succeeded to the Notice schedule properties as pleaded in your Notice and it is further false to say that she is in possession of the same. All the properties mentioned in the Notice are the ancestral properties of my client and the same was allotted to the share of my client in the family partition between brothers and what ever properties allotted to the share of his brother Hanumantharayappa has been sold by him and he has no right what-so-ever in respect of Notice schedule properties." 22. From the tenor of the reply notice, it is evident that the defendant has not disputed the status of the plaintiff as the wife of Hanumantharayappa at the earliest opportunity. The said status is disputed for first time in the written statement. In the written statement, it is alleged that Hanumantharayappa had married one Mallakka and after her demise, Hanumantharayappa did not marry anyone. The defendant has also taken a stand in the written statement that name of the plaintiff's husband is Puttanna and said name is reflected in the voter’s list of 1988 pertaining to Giriyammanapalya. 12 23. The voter’s list produced before the Court would indicate that plaintiff is shown as the wife of Puttanna. It is admitted in the cross-examination that Hanumantharayappa was also known as Puttanna. 24. The Trial Court has concluded that the evidence of the witnesses examined on behalf of the plaintiff to establish the marriage between plaintiff and Hanumantharayappa coupled with the fact that plaintiff has produced the original title deed pertaining to the suit property which would establish her status as the wife of Hanumantharayappa. The Trial Court has also observed that in Indian culture, a woman would not make a claim that a person to whom she is not married is her husband and more so, in a situation when the person who is claimed to be the husband is not a wealthy man. 25. First Appellate Court has also arrived at similar conclusion. 26. Considering these materials, both the Courts have concluded that plaintiff has established her status as wife of Hanumantharayappa. 13 27. Though there is little bit of inconsistency as to the season in which the marriage took place, that cannot be said to be fatal to the case of the plaintiff, the views taken by the Trial Court and First Appellate Court are certainly a plausible view based on the assessment of facts and circumstances and cannot be construed as one capable of correction in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 28. The next question is, "Whether the defendant has established the execution of the Will in favour of the defendant by Hanumantharayappa?" 29. The defendant raised a contention that he is the legatee of Hanumantharayappa and has produced the Will dated 03.11.1988 at Ex.D1 and the said Will was not pleaded in the written statement initially. Subsequently, it was pleaded by way of an amendment in the year 2002 after 13 years. It is relevant to note that the suit is of the year 1989. 30. The trial Court has considered the evidence led in support of the execution of the alleged Will and disbelieved the alleged execution of the Will in favour of the defendant. 14 31. The trial Court and First Appellate Court have also taken note of the fact that the defendant has taken part in the execution of the alleged Will which is in suspicious circumstances surrounding the Will. 32. Admittedly, the suit is filed in the year 1989. Prior to the suit, the plaintiff had issued notice dated 29.05.1989 calling upon the defendant not to interfere with the possession of the plaintiff. To the said notice, defendant on 16.06.1989 has replied. In the said reply, there is no reference to the Will said to have been executed in favour of the defendant. Thereafter, the plaintiff filed a suit making a claim that she is the absolute owner of the property being the wife of late Hanumantharayappa. The defendant filed written statement on 11.08.1989 disputing the plaintiff's claim and asserts right over the property based on the previous partition on the premise that the property is allotted to the share of the defendant in the previous partition between defendant and Hanumantharayappa. 33. Recording of evidence commenced from 24.10.1994. However, the application for amendment of written statement is filed in 2012 seeking leave of the Court to 15 amend the written statement incorporating the plea relating to the alleged Will dated 03.11.1988. The application was allowed on 09.01.2003. Thereafter, evidence of the witnesses were led and both the Courts have concurrently held that execution of the Will is not proved. The reasons assigned by the Courts below can be summarised as under: (a) The defendant claims that he came to know about the Will in September, 1989, after filing of the written statement dated 11.08.1989. The Trial Court has observed that defendant has stated so, only to get over the contention as to why the written statement filed on 11.08.1989 does not disclose the execution of the alleged Will. (b) However, in the cross examination, it is admitted that alleged Will was handed over to the defendant within 15 days or a month from the date of death of Hanumantharayappa. Hanumantharayappa died on 11.05.1989. Thus, the defendant must have received the alleged Will somewhere in May or June, 1989. However, the written statement filed on 11.08.1989 does not refer to the Will. 16 (c) One of the attesting witnesses to the Will has deposed that the defendant as well as his son were present at the time of execution of the alleged Will whereas the defendant himself claims that he came to know about the Will after 15 days to one month after the death of Hanumantharayappa. (d) One of the attesting witnesses has stated that he cannot identify the signature of the testator. 34. First Appellate Court has also concurred with the findings of the Trial Court on the finding of the Trial Court on execution of Will. 35. This Court is of the view that those findings recorded by the Trial Court and First Appellate Court disbelieving the execution of the Will are in accordance with the well established principles of law and not capable of correction in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 36. When a person makes a claim based on a Will, the burden is on the person to prove the execution of the Will. The propounder must explain all suspicious circumstances surrounding the Will. The omission on the part of the 17 defendant to make a reference to the alleged Will in the written statement is one of the strong circumstances to disbelieve the execution of the Will. 37. There is inordinate delay of 13 years in raising the plea based on the alleged Will. Under these circumstances, this Court is of the view that the defense raised on the alleged Will of Hanumantharayappa is not established. 38. This Court does not find any reason to interfere with the judgment and decree under appeal. Hence, the substantial question of law relating to the proof of Will has to be answered in favour of the respondent and against the appellants. 39. So far as first substantial question of law is concerned, it is to be noticed that it has been framed under a wrong premise that the respondent has failed to establish her relationship before the Trial Court and First Appellate Court. In fact, both the Courts have concurrently held that the respondent/plaintiff has established her relationship as the wife of deceased Hanumantharayappa. 18 40. Hence the following: ORDER (i) Appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS/brn