- 1 - IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO.100320 OF 2019 C/W REGULAR FIRST APPEAL NO.100210 OF 2020 IN RFA NO.100320 OF 2019: BETWEEN: 1. SRI. SANGABASAPPA S/O. SANGAPPA GANIGER AGE: 79 YEARS OCC: RETIRED AND AGRICULTURE, R/O. SUNADHOLI, TQ: GOKAK, DIST: BELAGAVI NOW AT: DHARWAD. 2. [SRI. IRAPPA S/O. SANGAPPA GANIGER SINCE DECEASED BY HIS LR’s.] SMT. SUMITRA W/O. IRAPPA GANIGER AGE: 55 YEARS, OCC: HOUSE HOLD WORK AND AGRIL., R/O. SUNADHOLI, TQ: GOKAK, DIST: BELAGAVI. 3. SRI. SANGAPPA S/O. IRAPPA GANIGER AGE: 30 YEARS, OCC: SERVICE IN ARMY, R/O. SUNADHOLI, TQ: GOKAK, DIST: BELAGAVI. 4. KUM. SAVITA D/O. IRAPPA GANIGER AGE: 29 YEARS, OCC: STUDENT, R/O. SUNADHOLI, TQ: GOKAK, DIST: BELAGAVI. 5. SRI. RAJU S/O. IRAPPA GANIGER AGE: 27 YEARS, OCC: STUDENT, R/O. SUNADHOLI, TQ: GOKAK, DIST: BELAGAVI. 6. SMT. MEENAXI W/O. SHANKAR GANIGER APPELLANTS NO.7 TO 10 ARE TREATED AS LEGAL HEIRS OF DECEASED RESPONDENT NO.6. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.09 11:27:28 +0530 - 2 - 7. SRI. SHIVASANGAPPA S/O. SHANKAR GANIGER AGE: 48 YEARS, OCC: SERVICE, R/O: GOKAK, TQ: GOKAK, DIST: BELAGAVI. 8. SMT. BHARATI D/O. SHANKAR GANIGER AGE: 42 YEARS, OCC: NIL, R/O: GOKAK, TQ: GOKAK, DIST: BELAGAVI. 9. SMT. KARUNA D/O. SHANKAR GANIGER AGE: 41 YEARS, OCC: SERVICE, R/O: GOKAK, TQ: GOKAK, DIST: BELAGAVI. 10. SRI. ANAND S/O. SHANKAR GANIGER AGE: 39 YEARS, OCC: SERVICE, R/O. BOMBAY IN MAHARASTRA PETITINERS NO 6, 8, 9 and 10 ARE REPRESENTED BY THEIR P.A.HOLDER PETITIONER NO.7. …APPELLANTS (BY SRI. S.B.HEBBALLI AND SRI. M.C.HUKKERI, ADVOCATES) AND: 1. SRI. CHANDRAPPA S/O. ADRUSHAPPA GANIGER AGE: 58 YEARS, OCC: AGRICULTURE, R/O. MARADIMATH, TQ: GOKAK, DIST: BELAGAVI-591213. 2. SMT. KASTUREWWA W/O. KEMPANNA TELI AGE: 57 YEARS, OCC: AGRICULTURE, R/O. MARADIMATH, TQ: GOKAK, DIST: BELAGAVI-591213. 3. SRI. MAHADEV S/O. SANGAPPA GANIGER AGE: 65 YEARS, OCC: AGRICULTURE, R/O. MARADIMATH, TQ: GOKAK, DIST: BELAGAVI-591213. …RESPONDENTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R2 TO R5; SRI. I.C.PATIL, ADV. FOR R6; R1-DELETED; R7-DECEASED) THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 OF CPC., PRAYING TO, CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE GOKAK, AT. GOKAK, IN O.S.NO.160/2010 DATED 26.03.2019 AND DECREE THE SUIT. - 3 - IN RFA NO.100210 OF 2020: BETWEEN: SRI. CHANDRAPPA S/O. ADRUSHAPPA GANIGER AGE: 57 YEARS, OCC: AGRICULTURE, R/O. SUNADHOLI-591310, TQ: GOKAK, DIST: BELAGAVI. …APPELLANT (BY SRI. G.B.NAIK AND SMT. P.G.NAIK, ADVOCATES) AND: 1. SRI. SANGABASAPPA S/O. SANGAPPA GANIGER, AGE: 78 YEARS OCC: RETIRED AND AGRICULTURE, R/O. SUNADHOLI-591310, NOW AT: DHARWAD. 2. [SRI. IRAPPA S/O. SANGAPPA GANIGER SINCE DECEASED BY HIS LR’s., RESPONDENT NOS.2 TO 5] SMT. SUMITRA W/O. IRAPPA GANIGER AGE: 48 YEARS, OCC: HOUSE HOLD WORK AND AGRICULTURE, R/O. SUNADHOLI-591310, TQ: MUDALAGI, DIST: BELAGAVI. 3. SRI. SANGAPPA IRAPPA GANIGER AGE: 23 YEARS, OCC: ARMY, R/O. SUNADHOLI-591310, TQ: MUDALAGI, DIST: BELAGAVI. 4. SMT. SAVITA IRAPPA GANIGER AGE: 22 YEARS, OCC: STUDENT, R/O. SUNADHOLI-591310, TQ: MUDALAGI, DIST: BELAGAVI. 5. SRI. RAJU IRAPPA GANIGER AGE: 20 YEARS, OCC: STUDENT, R/O. SUNADHOLI-591310, TQ: MUDALAGI, DIST: BELAGAVI. 6. [SMT. MEENAXI W/O. SHANKAR GANIGER] AMENDMENT CARRIED OUT AS PER ORDER DATED 27-1-2025 AS PER HER LR’s ARE ALREADY ON RECORD AS APPELLANTS NO.7 TO 10. - 4 - 7. SRI. SHIVASANGAPPA S/O. SHANKAR GANIGER AGE: 47 YEARS, OCC: SERVICE, R/O: GOKAK-591307. 8. SMT. BHARATI D/O. SHANKAR GANIGER AGE: 41 YEARS, OCC: NIL, R/O: GOKAK-591307. 9. SMT. KARUNA D/O. SHANKAR GANIGER AGE: 40 YEARS, OCC: SERVICE, R/O: BELGAUM-590001. 10. SRI. ANAND SHANKAR GANIGER AGE: 38 YEARS, OCC: SERVICE, R/O. BOMBAY, MAHARASTRA. 11. SMT. KASTUREWWA W/O. KEMPANNA TELI AGE: 56 YEARS, OCC: AGRICULTURE, R/O. MARADIMATH-591231, TQ: GOKAK, DIST: BELAGAVI. 12. SHRI. MAHADEV S/O. SANGAPPA GANIGER AGE: 54 YEARS, OCC: AGRICULTURE, R/O. MARADIMATH-591231, TQ: GOKAK, DIST: BELAGAVI. RESPONDENTS NO. 6, 8 TO 10 ARE REPRESENTED BY THEIR GPA HOLDER RESPONDENT NO.7-SHIVASANGAPPA S/O. SHANKAR GANIGER. …RESPONDENTS (BY SRI. MALLIKARJUN C.HUKKERI, ADV. FOR R1 TO R5, R7 TO R10; SRI. S.B.HEBBALLI, ADV. FOR R1; R11 AND R12 ARE SERVED; R6-DECEASED) THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 OF CPC., PRAYING THAT, JUDGMENT AND DECREE DATED 26.03.2019 PASSED IN O.S.NO.160/2010 IN RESPECT OF ISSUE NOS.4 TO 7 BY THE I ADDITIONAL SENIOR CIVIL JUDGE GOKAK, MAY KINDLY BE SET ASIDE, IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 11.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA - 5 - CAV JUDGMENT (PER: THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM) These two captioned Regular First Appeals arise out of the judgment and decree rendered by the trial court in O.S.No.160/2010. 2. RFA No.100320/2019 is filed by the plaintiffs and RFA No.100210/2020 is filed by defendant No.1. 3. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 4. Before we proceed to examine the claim of the plaintiffs and defendant No.1, we deem it appropriate to extract the family tree, which is as under: [Satteppa Ganiger] [Neelawwa] [Sangappa] [Channappa] Sangawwa [Shinawwa] [Irappa] Shankar Sanganbasappa Sumitra Meenaxi P1 P2A P3 Sangappa Savita Raju P2B P2C P2D Shivasangappa Bharati Karuna Anand P4 P5 P6 P7 - 6 - 5. The plaintiffs who represent the branch of Sangappa have filed a suit for declaration seeking declaration of title and permanent injunction in O.S.No.160/2010. The subject matter of the suit is agricultural lands bearing Sy.No.156/1+2 measuring 2 acres 30 guntas and Sy.No.150/2A measuring 4 acres 27 guntas. It is not in dispute that these lands are originally owned by Channappa Satteppa Ganiger. While the plaintiffs are asserting that said Channappa has bequeathed the suit schedule properties under Will dated 23.05.1988, defendant No.1 who is Shingavva’s nephew (Shingavva’s brother’s son) is also asserting that the said Shingavva after the death of Channappa, acquired absolute title and she has bequeathed the properties in his favour under Will dated 23.05.1988. While defendant No.2 claiming to be Shingavva’s sister’s daughter also asserted that during the lifetime of Shingavva, there was an oral partition and petition properties were allotted to her share and mutation is also effected. Therefore, defendant No.2 is also asserting title. - 7 - 6. The plaintiff and defendant No.1 to substantiate their respective Will, let in oral and documentary evidence. The trial court held that the plaintiff and defendant No.1 both have failed to prove that Will is in their favour. Consequently, the suit is dismissed. Hence, these two appeals are filed by the plaintiffs and defendant No.1. 7. Defendant No.2 has not set up any counter claim and no appeal is filed by defendant No.2. 8. We have heard the learned counsel appearing for the plaintiffs and learned counsel for defendant Nos.1 and 2. 9. We have given our anxious consideration to the pleadings, oral and documentary evidence let in by the respective parties. The following points would arise for our consideration; 1) Whether the trial court erred in holding that the plaintiffs have failed to substantiate that propositus Channappa bequeathed the suit schedule properties in their favour under Will - 8 - dated 23.05.1988, and erred in dismissing the suit having held that defendant No.1 is also failed to substantiate the Will? 2) Whether the finding of the trial court that defendant No.1 failed to substantiate that widow of Channappa namely, Shingavva has bequeathed the suit schedule properties in his favour under registered Will dated 25.02.2004 in respect of entire Sy.No.156/1+2 measuring 2 acres 30 guntas in R.S.No.150/2 is perverse and palpably erroneous? 3) Whether the finding of the trial court that defendant No.1 has failed to substantiate his possession over the suit lands suffers from perversity and warrants interference? 10. The finding on point No.2 would have a direct bearing on the plaintiffs’ entitlement over the suit schedule properties irrespective of the result of the other Will - 9 - alleged to have been obtained by the plaintiffs. We deem it appropriate to first answer point No.2. Finding on point No.2. 11. Defendant No.1 having set up a registered Will in his favour alleged to have been executed by widow of Channappa namely, Shingavva, was called upon to prove the Will in the manner known to law. 12. Mere production of registered Will, will not in itself amounts to proof of Will. To establish proper execution of Will the propounder has to prove that testator was in a disposing mind free from all extraneous influences with a sound mental mind. The onus of proof of Will is always on the propounder. The existence of suspicious circumstances makes the onus of proof very heavy and such circumstances are required to be removed by the propounder before the document can be accepted as the last Will of the testator. The Apex Court in the case of Guro (Smt.) vs. Atma Singh1 has opined as under: 1 (1992) 2 SCC 507 - 10 - "With regard to proof of a Will, the law is well-settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator." 13. Therefore what emerges from the above said principles is that the Will as a document has to be proved by a primary evidence. Since it is required to be attested as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the - 11 - attesting witnesses at least has been called for the purpose proving its execution. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act,1925. In short, it is the duty of the party propounding the Will to call atleast one attesting witness. Mere production of Will, will not in itself satisfy the mandatory requirements of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. The initial onus of proof is always on the propounder of the testament. He is bound to satisfy the conscience of the Court that the instrument is the last Will of a free and capable testator. Admittedly, there is no presumption that the Will in question is a legal and valid Will unless its execution is proved in accordance with law. 14. In the present case on hand, though defendant No.1 examined the attesting witness as D.W.2 in support of his claim, the attesting witness has clearly failed to satisfy the mandatory requirement of Section 68 of the Indian Succession Act read with Section 63 of the Indian Evidence Act. The attesting witness has unfortunately - 12 - made a statement on oath that he is not aware of the contents of Ex.D1. He further deposed that, he was not aware, as to whether these contents were drafted by Shingavva. He has failed to furnish the details, as to whether the Will set up by defendant No.1 was written on a white or green paper. He has also stated that while Ex.D1 was prepared, except defendant No.1 and Shingavva, no one were present. On meticulous examination of the evidence of D.W.2, we are of the view that the thumb impression appearing on Ex.D1 is not substantiated by the attesting witness on the disputed Will marked at Ex.D1. There is also evidence indicating that Shingavva was paralytic and this also cast doubt in regard to sound and disposal state of mind of Shingavva, at the time of execution of Ex.D1. 15. Therefore, we are of the view that the evidence of the attesting witness who is examined as D.W.2 does not satisfy the requisite ingredients as provided under Section 68 of the Indian Succession Act read with Section 63 of the Indian Evidence Act. Therefore, we are of the - 13 - view that defendant No.1 has failed to prove due execution of Ex.D1. Accordingly, we answer point No.2 in the negative. Finding on point No.1. 16. The learned counsel appearing for the plaintiffs, during the course of his arguments, has explicitly abandoned the plaintiffs’ claim based on the Will dated 23.05.1988. Instead, the plaintiffs have primarily contended before this Court that their claim to the suit properties is tenable under the framework of intestate succession as prescribed by Section 8 of the Hindu Succession Act, 1956. The plaintiffs assert that, in the event the Will set up by defendant No.1 is not proved, they are entitled to succeed to the estate as Class-II heirs of the deceased Channappa. Given that both Channappa and Shingavva passed away without leaving any direct legal heirs, the plaintiffs argue that the properties held by them should rightfully devolve upon Sangappa’s branch of the family, to which the plaintiffs belong. - 14 - 17. Upon careful consideration of the plaintiffs' submissions, we find substantial merit in their argument. Even assuming that the plaintiffs have failed to establish the testamentary disposition allegedly executed by Channappa, their right to inherit the properties as Class-II heirs remains unaffected. The succession of property in such cases is governed by the principles laid down under Section 8 of the Hindu Succession Act, which provides for devolution of property in the absence of a Will. Given that the plaintiffs fall within the category of Class-II heirs and that no direct lineal descendants of Channappa and Shingavva exist, the estate should naturally revert to the heirs of Sangappa’s branch. 18. The trial court, while adjudicating the matter, appears to have overlooked these fundamental aspects of inheritance law and has erred in dismissing the suit solely on the ground that the plaintiffs failed to prove due execution of the Will. This approach is legally flawed, as the plaintiffs' claim is independently sustainable under intestate succession. The trial court ought to have - 15 - examined the plaintiffs’ rights within the broader framework of inheritance law rather than restricting its analysis to the proof of the Will. In light of the foregoing, we hold that the plaintiffs have successfully established their right to seek a declaration of ownership over the properties in question. Accordingly, we answer point No.1 in the affirmative. 19. With respect to the claim put forth by defendant No.2, this Court finds no merit in her arguments. Although learned counsel for defendant No.2 made an attempt to assert her rights over the suit properties, we are not inclined to entertain such a claim. The primary contention advanced by defendant No.2 revolves around an alleged oral partition with Shingavva, through which she purports to have acquired a share in the suit properties. However, this assertion is legally untenable for multiple reasons. 20. Firstly, it is undisputed that defendant No.2 is the daughter of Shingavva’s sister, making her a collateral relative rather than a direct heir with any pre-existing right in the estate. The properties in question originally - 16 - belonged to Channappa and later came into the possession of Shingavva as in-law’s property. Under established principles of Hindu succession, defendant No.2, being a relative from the maternal side, does not possess any inherent legal claim over such properties. 21. Secondly, the assertion of an oral partition is fraught with inconsistencies and lacks legal sanctity. It is well settled that a valid partition, particularly one involving immovable properties, requires cogent evidence and, in most instances, formal documentation to be legally recognized. Defendant No.2 has failed to substantiate her claim with any reliable proof, making her plea legally untenable. 22. Furthermore, the claim of defendant No.2 is primarily based on mutations and revenue entries in the Record of Rights (RTC). However, this Court has consistently held in multiple judgments that mere mutation entries do not confer any legal title upon an individual. The process of revenue mutation serves only administrative purposes and cannot be relied upon as - 17 - conclusive proof of ownership. In the absence of any substantive documentary evidence or a counterclaim challenging the decree sought by the plaintiffs, defendant No.2’s claim lacks legitimacy. 23. In view of the above, we find no justification to grant any indulgence to defendant No.2 in this matter. Accordingly, her plea stands dismissed, and the plaintiffs' claim remains unchallenged on legal grounds. Finding on point No.3. 24. We have meticulously examined the pleadings set up by defendant No.1 in the written statement. Paragraph 10 would be crucial to examine the possessory rights of defendant No.1 over the suit schedule properties. The same is extracted, which reads as under: “10. After the death of Channappa the suit lands were inherited by Shingavva, this defendant looked after her and he has spent for her medical expenses etc., she was living with this defendant. She has executed a Registered WILL in favour of this defendant on 25-02- 2004 she bequeathed the entire Sy No-156/1+2, measuring 02A-30Gs and 2 Acers out of Sy No-150/2A, till her death she was personally cultivating the suit - 18 - lands with the help of this defendant and she has paid revenue taxes personally and taking the yields of the suit lands. After the death of said Shingavva this defendant has taken the possession of the suit lands and he is cultivating them personally.” 25. Upon a detailed examination of the averments made in paragraph 10 of the written statement, it becomes evident that defendant No.1 has failed to establish any independent possessory rights over the suit schedule properties. A close reading of his own admission in paragraph 10 clearly demonstrates that Shingavva was in actual control and possession of the suit lands until her demise. Defendant No.1 himself acknowledges that Shingavva was personally cultivating the lands with his assistance, paying the requisite revenue taxes from her own resources, and collecting the yield derived from the agricultural activities. These admissions unequivocally establish that the possessory rights over the suit lands rested solely with Shingavva during her lifetime, and defendant No.1 merely played a subsidiary role in assisting her, rather than possessing any direct or independent interest in the properties. - 19 - 26. Furthermore, in legal contemplation, mere assistance in cultivation or financial expenditure towards the maintenance of a property does not confer possessory rights or ownership in the absence of a valid and legally recognized transfer of title. Defendant No.1 has not placed on record any substantive documentary or oral evidence to prove that he was in exclusive and independent possession of the suit lands either during Shingavva’s lifetime or subsequent to her demise. The reliance placed on the alleged Will dated 25-02-2004 does not, in itself, establish his claim to possession, particularly when the validity of the Will itself remains a contested issue. 27. Additionally, as we have already held while answering point No.1, the plaintiffs have succeeded to the properties left behind by Channappa through intestate succession under the provisions of the Hindu Succession Act. It is a well-settled principle of law that where title is established, possession is presumed to follow title unless proven otherwise by cogent evidence. In the present case, as the plaintiffs have successfully demonstrated their legal - 20 - entitlement to the suit schedule properties, the burden was on defendant No.1 to provide irrefutable proof of his alleged possessory rights. However, he has failed to discharge this burden. 28. In light of the foregoing discussion, it is abundantly clear that defendant No.1 has no legitimate possessory rights over the suit schedule properties. His claim of possession is not supported by any credible evidence, and his admissions, rather than supporting his case, reinforce the conclusion that the properties remained in the possession of Shingavva until her demise. Consequently, we find no basis to extend any indulgence to defendant No.1. Accordingly, we answer point No.3 in the negative. 29. We have given our anxious consideration to the amendment sought in I.A.No.2/2020. In the light of the finding recorded while answering point No.1, we are of the view that amendment application filed in I.A.No.2/2020 does not survive for consideration. Since plaintiffs relationship with Shingavva is not in dispute, we proceed - 21 - to hold that prayer sought in the amendment application does not survive for consideration. 30. For the forgoing reasons, we pass the following order. ORDER i) The appeal filed by the plaintiffs in RFA No.100320/2019 is allowed. ii) The judgment and decree passed by the trial court in O.S.No.160/2010 is hereby set aside. The plaintiffs are declared to be the absolute owners in possession of the suit schedule properties. iii) Defendant Nos.1 and 2 are hereby restrained by way of permanent injunction from interfering with the plaintiffs’ peaceful possession. iv) Consequently, the appeal filed by defendant No.1 in RFA No.100210/2020 is hereby dismissed. - 22 - v) The application filed in I.A.No.2/2020 for amendment of plaint does not survive for consideration. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE MBS Ct:vh