- 1 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO.100612 OF 2019 (DEC/PAR) BETWEEN: SMT. AKKAMAHADEVI W/O BASANGOUDA PATIL, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: NANDISHWAR NAGAR, KALASAPUR ROAD, GADAG, DIST: GADAG. …APPELLANT (BY SRI. C S SHETTAR, ADVOCATE) AND: 1. SANGAPPA S/O MAHANTAPPA MANAKAWAD, AGE: 70 YEARS, OCC: PRIVATE SERVICE, R/O: PANCHAXARI NAGAR, GADAG, DIST: GADAG. 2. SHIDDALINGAPPA, S/O MAHANTAPPA MANAKAWAD, AGE: 67 YEARS, 3. BASALINGAPPA, S/O MAHANTAPPA MANAKAWAD, AGE: 64 YEARS, 4. GURUSHANTAPPA, S/O MAHANTAPPA MANAKAWAD, AGE: 60 YEARS, OCC: PVT. SERVICE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 RESPONDENT NOS.2 TO 4 ARE R/O: KAUL PET, NAVALGUND, TQ: NAVALGUND, DIST: DHARWAD. 5. ASHOK S/O MAHANTAPPA MANAKAWAD, AGE: 55 YEARS, OCC: GOVT. EMPLOYEE, NOW AT KSRTC DEPOT, LAXMESHWAR, TQ: SHIRHATTI, DIST: GADAG. 6. ANAND S/O MAHANTAPPA MANAKAWAD, AGE: 47 YEARS, OCC: GOVT. EMPLOYEE, NOW AT KSRTC DEPOT, LAXMESHWAR TQ: SHIRHATTI, DIST: GADAG. 7. SMT. ANNAPURNA W/O KALLAPPA GADDI, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: NAVALGUND, TQ: NAVALGUND, DIST: DHARWAD. …RESPONDENTS (BY SRI. SMT. CHETANA S. BIRAJ, ADV. FOR R7; SRI. G.G. GADAG, ADV. FOR R1; NOTICE TO R2, R3, R5 AND R6 ARE SERVED V/O. DATED. 23.02.2024 R4 HELD SUFFICIENT) THIS RFA FILED UNDER SEC. 96 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DTD.23.09.2019 PASSED IN O.S.NO.272/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, NAVALGUND, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND PARTITION AND SEPARATE POSSESSION AND MESNE PROFIT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA JUDGMENT (PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) Captioned appeal is by the plaintiff No.1, who has assailed the judgment and preliminary decree dated 23rd - 3 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 September, 2019 passed in O.S No.272 of 2015 on the file of the Senior Civil Judge and JMFC, Navalgund, insofar as denying share in Schedule ‘A’ Properties. 2. For the sake of brevity, the parties herein are referred to by their rank and status before the trial Court. 3. Before this Court delves into the matter, it necessary to cull out the family tree which is furnished along with the appeal memo. The same is extracted as under: Mahantappa (propositus) Wife Iravva (plaintiff No.2) 4. One Mahantappa is the propositus who has wife-Iravva (plaintiff No.2). The said couple is blessed with seven children. Akkamahadevi-Plaintiff No.1 who is the daughter of widow of Mahantappa, had filed a partition suit claiming share in Schedule ‘A’ and ‘B’ properties. Plaintiffs contend that, they along with defendants 1 to 6, constitute an undivided joint family and after the death of Mahantappa they have inherited the suit properties as legal heirs of deceased Mahantappa. Sangappa (D1) Shidlingappa (D2)` Basalingappa (D3) Gurushantappa (D4) Ashok (D5) Akkamahadevi (Plaintiff-1) Anand (D6) - 4 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 Plaintiffs specifically asserted that there is no severance in the family and they are in joint possession and enjoyment of all the suit schedule properties. Plaintiffs further pleaded that during the lifetime of Mahantappa, Defendant No.1-Sangappa commenced a business in the name and style “Sangameshwar Ginning Factory”, in which the deceased Mahantappa, Shiddaligappa, Ashok and Anand were partners having 25% share. The defendant No.1 was the sole working partner of the Firm. 5. Present suit is filed alleging that defendants 1 to 6 have managed to get their names entered in the records of rights by creating false documents taking undue advantage of the names reflected in the RTC. The suit schedule 1(A) and 1(B) properties including the ginning factory, machinery, tools are sold to defendant No.7 without the knowledge and behind the back of plaintiffs. Plaintiffs have further alleged that defendant No.1 has sold suit schedule 1(A) and 1(B) properties through the registered sale deeds dated 05th January, 2000 and 19th February, 2003 to defendant No.7. Hence, present suit is filed by the mother who is arrayed as plaintiff No.2 and daughter - 5 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 who is arrayed as plaintiff No.1, against sons, who are arrayed as defendants 1 to 6. 6. Pending Suit, Iravva died and the plaintiff No.1 is asserting title in Schedule ‘A’, as well as, Schedule ‘B’ properties alleging that the mother had bequeathed properties in favour of plaintiff No.1 under unregistered Will dated 15th October, 2015. 7. Defendants, on receipt of summons, tendered appearance and contested the suit by filing written statement. The defendants stoutly denied the entire averments made in the suit. Defendants, on the contrary, set up a plea of prior partition in the family. Defendants therefore claim that in terms of family partition, Schedule ‘A’ properties are exclusively allotted to the share of defendant No.1 who was also saddled with the responsibility of discharging all the loans raised by the Partnership Firm. Hence, prayed for dismissal of the suit by contending that he has sold Schedule ‘A’ properties to discharge the debt of the joint family. Defendant No.1 also claims that plaintiff No.2-mother is party to the said Partition Deed entered into in the year 1998 where she was allotted four - 6 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 acres of fertile land and this fact is suppressed by plaintiff No.2-mother. 8. Plaintiffs and defendants to substantiate their respective claims, have let in oral and documentary evidence and the trial Court taking cognizance of the sale deed executed in favour of defendant No.7 measuring 38 guntas in Survey No.155/C/1B through Registered Sale Deed dated 02nd December, 1999 evidenced at Exhibit P16 and defendant No.1 through Registered Sale Deed dated 19th February, 2003 evidenced at Exhibit P17 in respect of 5 guntas of land in Survey No.155/C/1, held that these lands were sold, to discharge the loan availed from KSFC. Trial Court also held that this loan was availed by the partnership firm during lifetime of father of plaintiff and defendant No.1 and therefore, declined to accede to plaintiff’s contention that defendant No.1 had no authority to sell agriculture land bearing Survey No.155/C/1 and land in Survey No.155/C/1B. The trial Court, while examining the Additional Issue No.1, also held that plaintiff No.1 has failed to prove the Will alleged to have been executed by her mother in her favour. The trial Court however, proceeded to partly decree the suit granting share in the Schedule ‘B’ and ‘C’ - 7 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 properties. Defendants have not questioned the preliminary decree granting share in the Schedule ‘B’ and ‘C’ properties. However, plaintiff who is the sister of defendants, has filed the present Appeal feeling aggrieved by the finding recorded on Additional Issue No.1 wherein the trial Court has negatived the said Issue and concluded that the Will is not substantiated by the plaintiff. 9. Having heard the learned Counsel appearing for the plaintiff and the learned Counsel appearing for the defendants, following points would arise for consideration: 1. Whether the finding of the trial Court that defendant No.1, under compelling circumstances had to sell Schedule ‘A’ Property to defendant No.7 to clear off family debt, is palpably erroneous and warrants interference at the hands of this Court? 2. Whether the finding recorded by the trial Court that the plaintiff No.1 has failed to specifically prove the Will dated 15th October, 2015 executed by her mother-plaintiff No.2 is perverse and warrants interference at the hands of this court? - 8 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 Finding on Point No.1: 10. Records reveal that Schedule ‘A’ property was mortgaged to Karnataka State Financial Corporation while availing loan. Exhibit D2 which is the Discharge/Release Deed obtained by defendant No.1, clearly reveals that the Partnership Firm had availed the loan by mortgaging the property under Mortgage Deed dated 14th May, 1986. The Firm which was established by the plaintiff’s father, had availed the loan of Rs.4,10,000/- way back in the year 1986. After demise of plaintiff’s father, defendants who continued to manage the Partnership Firm, have secured the Release Deed by discharging the debt. This Release Deed is dated 27th July, 1999. Though defendants 1 to 6 have not produced any specific document to substantiate that they had availed hand loan from defendant No.7 in advance so as to clear the debts and get the property released from the Financial Corporation, the oral rebuttal evidence let in by defendants 1 to 6 clearly leads to an inference that under compelling reasons defendants 1 to 6 had to sell Schedule ‘A’ properties to defendant No.7. The date of alienation also plays a vital role in examining the plaintiff’s right to seek partition in 2015. Schedule ‘A’ - 9 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 Properties were dealt and disposed off by defendant No.1 based on an unregistered Partition Deed. 11. The records indicate that during the lifetime of the father of both the plaintiff and the Defendant No.1, the family Partnership Firm had availed a loan amounting to Rs.4,10,000/- by mortgaging the properties listed as Suit Schedule A 1(i) and (ii). As the Karnataka State Financial Corporation initiated recovery proceedings against the outstanding loan, the male co-parceners of the family contemplated the sale of these properties to discharge the debt. In furtherance of this decision, Defendants 1 to 4 submitted a wardi (written statement or request), following which a mutation was effected, resulting in the name of Defendant No.1 being recorded in the RTC and there were no objections to this mutation, which effectively authorized Defendant No.1 to take necessary steps to clear the financial liability incurred for the expansion of the family business. Given these circumstances, if Suit Schedule A 1(i) and (ii) properties were indeed sold to discharge the family debt and if the sale deeds executed by Defendant No.1 in favuor of Defendant No.7 were found to be closely proximate to the date on which the loan was repaid, the plaintiff cannot now, - 10 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 at this belated stage, claim a share in these properties. The alienation of these properties was not arbitrary but was necessitated by the need to settle financial obligations and was undertaken in the interest of the family’s financial stability. The sale deeds for these properties were executed in the years 1999 and 2003, and the present suit for partition was filed only in 2015. Furthermore, the plaintiff’s claim is barred by the law of Limitation. As per Article 110 of the Limitation Act, 1963, a suit for partition, in cases involving alienation by a co-parcener, must be filed within twelve years from the date of such alienation. Since the impugned transactions took place in 1999 and 2003, and the present suit was instituted only in 2015, it is clearly beyond the prescribed limitation period. Consequently, the plaintiff’s claim is legally untenable and is liable to be dismissed on grounds of limitation as well as on the basis of the necessity and legitimacy of the alienation undertaken to discharge the family debt. 12. Though the evidence is found to be too slender, however, having regard to the fact that the plaintiff had slept over her rights up to 2015, the defendant No.7 who is the purchaser of Schedule ‘A’ Property needs to be protected in the - 11 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 light of the law laid down by the Hon'ble Apex Court in the case of Chhedi Lal Yadav And Others v. Hari Kishore Yadav (Dead) Through LRs And Others1. Defendant No.7 has purchased this property way back in the year 2003, while the partition suit is filed in 2015. The rebuttal evidence, more particularly Exhibit D2, clearly reveals that defendants had to secure Release Deed-Exhibit D3 and defendant No.1 acting on an unregistered Partition Deed, has sold the Schedule ‘A’ properties. Records also reveal that the family owns substantial property, which are referred as Schedule ‘B’ and ‘C’. Family, in fact, owns lands close to 26.27 acres. Therefore, the plaintiff can work out her equities in the properties retained by the family. 13. Though the partition set up by defendants is not accepted by the trial Court, there is no serious challenge to the said finding recorded by the trial Court. It is only the defendant No.7 who has purchased Schedule ‘A’ properties is before this Court to defend in the appeal insofar as Schedule ‘A’ properties are concerned. The fact that Schedule ‘A’ properties were lost by the family way back in 2000 which was preceded 1 (2018)12 SCC 527 - 12 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 by a Release Deed obtained from Karnataka State Financial Corporation is evidenced at Exhibit D2. This Court is also of the view that the plaintiff is not entitled to seek share in Schedule ‘A’ properties. Plaintiff has failed to substantiate that Schedule ‘A’ properties were retained by the family. 14. On the contrary, rebuttal evidence reveals that the family had already lost Schedule ‘A’ properties way back in the year 2000 and therefore, the partition suit filed alleging that the plaintiff is in joint possession insofar as Schedule ‘A’ properties, cannot be entertained. Therefore, this Court is not inclined to grant any relief insofar as Schedule ‘A’ properties. Accordingly, point No.1 is answered in the negative. Finding on Point No.2: 15. The plaintiff has sought to establish her claim over the Schedule ‘A’ properties by tracing her right through her mother. However, she has failed to substantiate an independent legal right over the properties. In this context, we have carefully analyzed the evidence presented by the plaintiff, particularly in relation to the Will dated 15th October 2015. The burden of proving the due execution of a Will lies on the party - 13 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 propounding it, as mandated under Section 68 of the Indian Evidence Act, 1872, read with Section 63 of the Indian Succession Act, 1925. These provisions collectively require that the Will must be attested by at least two witnesses, and at least one of them must be examined to prove its execution in accordance with law. 16. Mere production of registered Will, will not in itself amount 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 and 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 Singh2 has opined as under: "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 2(1992) 2 SCC 507 - 14 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 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." 17. 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 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 - 15 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 party propounding the Will to call at least 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. 18. The Supreme Court in Jagjit Singh v. Pamela Manmohan Singh3, has held that the propounder of a Will must prove its due execution by providing reliable evidence, including the testimony of attesting witnesses. However, once the initial burden of proof is discharged, the onus shifts to the person challenging the Will to prove the existence of suspicious circumstances that could invalidate it. 19. The plaintiff has relied on the deposition of the attesting witness, examined as PW2. However, upon scrutiny of his oral testimony, it is evident that he has failed to meet the 3 (2010) 5 SCC 157 - 16 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 statutory requirements for proving the due execution of the Will. He has categorically admitted in his cross-examination that he was not present at the time when the Will was drafted. Furthermore, he has pleaded ignorance regarding whether the testator was made aware of the contents of the Will or if the same was read over and explained to him. These crucial admissions significantly weaken the credibility of the Will’s execution. The requirement that the testator must execute the Will in the presence of attesting witnesses, who in turn, must attest it in the presence of the testator, has not been satisfactorily established. 20. Given these lapses in evidence and the non- compliance with mandatory legal formalities, this Court is of the firm view that the plaintiff has failed to discharge her burden of proving the due execution and validity of the Will dated 15th October 2015. Accordingly, Point No.2 is answered in the negative. 21. For the foregoing reasons the appeal is devoid of merits. Accordingly, we pass the following: - 17 - NC: 2025:KHC-D:4220-DB RFA No. 100612 of 2019 O R D E R Appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE Lnn Ct-cmu List No.: 1 Sl No.: 20