- 1 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100323 OF 2020 (PAR/POS) BETWEEN: 1. SMT. RANGAVVA W/O. HANAMAPPA TALAWAR AGE: 64 YEARS, OCC: HOME MAKER, R/O: KURUGOVINAKOPPA, TQ. NARGUND, DIST: GADAG-582207. 2. SMT. SATYAVVA @ CHANNAVVA W/O. HANAMAPPA TALAWAR @ MALLAPUR AGE: 62 YEARS, OCC: HOME MAKER, R/O: KADADI, TQ: DIST: GADAG-582101. 3. SMT. KALLAVVA @ GANGAVVA W/O. BHARMAPPA TALAWAR @ MALLAPUR AGE:60 YEARS, OCC: HOME MAKER, R/O: KADADI, TQ: DIST: GADAG-582101. …APPELLANTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: 1. SMT. PARVATEVVA W/O. KALLAPPA TALAWAR @ YAVAGALLA AGE:69 YEARS, OCC: HOME MAKER, R/O: NEAR LAKKIHAL, ANAND NAGAR, HUBBALLI, DIST: DHARWAD-580020. 2. SRI. HANAMANTAPPA W/O. KALLAPPA TALWAR @ YAVAGALLA AGE:52 YEARS, OCC: AGRICULTURE, R/O: NEAR LAKKIHAL, ANAND NAGAR, HUBBALLI, DIST: DHARWAD-580020. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.02.27 15:52:02 +0530 - 2 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 2A) 2B) 2C) SINCE DECEASED BY HIS LRS SMT. SUSHILA W/O. HANUMANTHAPPA TALAWAR @ YAVAGAL AGE: 53 YEARS, OCC: HOME MAKER SRI. MANJUNATH S/O. HANUMANTHAPPA TALAWAR @ YAVAGAL AGE: 29 YEARS, OCC: PRIVATE WORK BOTH ARE R/O: HOUSE HO,153, DEVARAGUDIHAL ROAD, OPPOSITE LAKKIHAL, SUNDAT (MILAN) COLONY OLD HUBBALLI DIST. DHARWAD. SMT. DEEPA W/O. PRAVEEN SHIVALLI AGE: 27 YEARS, OCC: HOME MAKER, R/O: HOUSE NO.32, BEHIND HANUMAN TEMPLE, GOKAK DIST. BELAGAVI. 3. SRI. GURUNATH S/O. KALLAPPA TALAWAR @ YAVAGALLA AGE:49 YEARS, OCC: AGRICULTURE, R/O: NEAR LAKKIHAL, ANAND NAGAR, HUBBALLI, DIST: DHARWAD-580020. 4. SMT. RATNAVVA W/O. UDAYKUMAR TALAWAR @ YAVAGALLA AGE:36 YEARS, OCC: HOME MAKER, R/O: NEAR LAKKIHAL, ANAND NAGAR, HUBBALLI, DIST: DHARWAD-580020. 5. SRI. PRAJWAL S/O. UDAYKUAMR TALAWAR @ YAVAGALLA AGE:23 YEARS, OCC: AGRICULTURE, R/O: NEAR LAKKIHAL ANAND NAGAR, HUBBALLI, DIST: DHARWAD-580020. 6. SRI. GIREESH S/O. KALLAPA TALWAR @ YAVAGALLA AGE:44 YEARS, OCC:HOME MAKER, R/O: NEAR LAKKIHAL, ANAND NAGAR, HUBBALLI, DIST: DHARWAD-580020. - 3 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 7. SMT. KASHAVVA W/O. HANAMANTAPPA TALWAR @ YAVAGALLA AGE:66 YEARS, OCC:HOME MAKER, R/O: YASA HADAGALI, TQ: RON, DIST: GADAG-582101. 8. SRI. CHANDRAPPA S/O. HANAMANTAPPA TALAWAR @ YAVAGALLA, AGE:39 YEARS, OCC: AGRICULTURE, R/O: KAGADAL, TQ: NARGUND, DIST: GADAG-582207. 9. SMT. RENAVVA W/O. MALAKAJAPPA TIPPANNAVAR AGE:32 YEARS, OCC: HOME MAKER, R/O: ALAGAWADI, TQ: NAVALGUND, DIST: DHARWAD. 10. SRI. DEVAPPA S/O. HANUMANTAPPA TALAWAR @ YAVAGALLA AGE:36 YEARS, OCC: AGRICULTURE, R/O: YASA HADAGALI, TQ: RON, DIST: GADAG-582101. 11. SMT. FAKKIRAVVA W/O. YALLAPPA TALAWAR AGE:34 YEARS, OCC: HOME MAKER, R/O: YASA HADAGALI, TQ: RON, DIST: GADAG. 12. SRI. MANJAPPA S/O. HANUMANTAPPA TALAWAR AGE:32 YEARS, OCC: AGRICULTURE, R/O: YASA HADAGALI, TQ: RON, DIST: GADAG-582101. THE RESPONDENT NO.3/PLAINTIFF NO.3 IS THE GPA HOLDER OF RESPONDENT NO.1, 2 AND 4 TO 12/PLAINTIFF NO.1, 2 AND 4 TO 12. 13. SMT. HANAMAVVA W/O. RUDRAPPA TALAWAR AGE:60 YEARS, OCC: HOME MAKER, R/O: KRISHNAPUR ONI, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 14. SRI. MANJUNATH S/O. RUDRAPPA TALAWAR AGE:39 YEARS, - 4 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 R/O: KRISHNAPUR ONI, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 15. SRI. HANAMANTAPPA S/O. RUDRAPPA TALAWAR AGE:37 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O: KRISHNAPUR ONI, HALE-HUBBALLI HUBBALLI, DIST: DHARWAD. 16. SRI. GANESH S/O. RUDRAPPA TALAWAR AGE:37 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O: KRISHNAPUR ONI, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. RESPONDENT NO.15/PLAINTIFF NO.15 IS THE GPA HOLDER OF RESPONDENT NO.13, 14 AND 16/PLAINTIFF NO.13, 14 AND 16. 17. SMT. KAMALAVVA W/O. KALLAPPA TALAWAR AGE:64 YEARS, OCC: HOME MAKER, R/O: ISHWAR NAGAR, 15TH CROSS, GIRIYAL ROAD, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 18. SMT. RATNA @ NAGARATNA W/O. SHIVANANDA KONASAGAR, AGE:43 YEARS, OCC: HOME MAKER, R/O: ISHWAR NAGAR, 15TH CROSS, GIRIYAL ROAD, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 19. SMT. RAJESHWARI W/O. ULAVAPPA SAKRAPPANAVAR AGE:40 YEARS, OCC: HOME MAKER, R/O: NEAR WATER TANK, JANATA PLOT MISHRIKOTI, TQ: KALAGHATAGI DIST: DHARWAD-581204. 20. SRI. MANJUNATH W/O. KALLAPPA TALAWAR AGE:36 YEARS, OCC: BUSINESS, R/O:ISHWAR NAGAR, 15TH CROSS, - 5 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 GIRIYAL ROAD, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 21. SRI. MAHESH S/O. KALLAPPA TALAWAR AGE:24 YEARS, OCC: BUSINESS R/O:ISHWAR NAGAR, 15TH CROSS, GIRIYAL ROAD, HALE-HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 22. SMT. VIJAYALAKSHMI W/O. PARASHURAM TALAWAR @ YAVAGALLA, AGE:39 YEARS, OCC: HOME MAKER, R/O: KIRANI STORES, GABBUR, TQ: HUBBALLI, DIST: DHARWAD-580020. 23. SRI. MANJUNATH S/O. PARASHURAM TALAWAR @ YAVAGALLA, AGE:21 YEARS, OCC: STUDENT, R/O: KIRANI STORES, GABBUR, TQ: HUBBALLI, DIST: DHARWAD-580020. …RESPONDENTS (BY SRI. GURUBASAVARAJ S.M. ADVOCATE FOR R1, R2A TO R2C, R3 TO R16; NOTICE TO R17, R18, R19, R20, R21, R22 AND R23 SERVED) THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:02.03.2020 PASSED IN O.S.NO.185/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 6 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants, challenging the judgment and preliminary decree dated 02.03.2020, passed in O.S.No.185/2016 by the Additional Senior Civil Judge, Gadag. 2. For convenience, parties are referred to based on their ranking before the trial Court. 3. The appellants were defendant Nos.6 to 8, respondent Nos.1 to 16 were the plaintiffs and respondent Nos.17 to 23 were the other defendants. 4. The brief facts leading rise to the filing of this appeal are as follows: Plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that Bharamappa was the original propositus of plaintiffs and defendants’ family. He had a wife by name Basavva. Bharamappa and Basavva had seven children, namely, Hanumavva, Kallappa, Hanmappa Bharappa - 7 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 Talwar, Rangavva i.e. defendant No.6, Satyava @ Channavva, i.e. defendant, No.7 Kallavva @ Gangavva i.e. defendant No.8 and Rudrappa Bharamappa Talwar. The wife of Kallappa is plaintiff No.1 and plaintiff Nos.2 to 4, 6 and defendant No.9 are the children of plaintiff No.1 and Kallappa. Plaintiff Nos.5 is the son of plaintiff No.4 and defendant No.10 is the son of defendant No.9. Defendant No.1 is Kamalavva, grand-daughter of Hanamavva and defendant Nos.2 to 5 are the sons of defendant No.1. Plaintiff No.7 is the wife of Hanumantappa, plaintiff Nos.8 to 12 are the children of Hanumantappa. Plaintiff No.13 is the wife of Rudrappa, plaintiffs No.14 to 16 are the children of plaintiff No. 3 and Rudrappa. It is contended that suit ‘B’ and ‘C’ schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. They are in joint possession and enjoyment of the suit schedule properties. No partition is effected between the plaintiffs and the defendants. It is contended that Sl.Nos.4 and 5 of ‘B’ schedule properties are the Poojarki properties and the same was granted in favour of - 8 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 propositus Bharmappa. Such being the state of affairs, the plaintiffs demanded their share to the defendants in June 2016. The defendants have denied the partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, pray to decree the suit. 5. Though the summons was duly served, but defendants Nos.1 and 8 remained unrepresented and they were placed ex-parte. Defendant Nos.2 to 7, 9 to 10, appeared through their counsel. Defendant No.6 filed a written statement along with a counter claim, and the same has been adopted by defendant Nos.2 to 5 and 7 by filing a memo and defendant Nos.9 and 10 have filed a written statement. 6. Defendant No.6 filed a written statement, admitting the genealogy furnished by the plaintiffs and denied the remaining contentions of the plaint. It is stated that the suit of the plaintiffs is barred by time. It is contended that defendant No.6 is the owner of the suit - 9 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 properties except 5 acres in R.S.No.44/3, by way of adverse possession. Defendant No.6 is in possession of the property for more than 12 years before the filing of suit without obstruction or interference as an owner and it is contended that Bharmappa’s daughters and their children have only a share in the suit properties and plaintiffs and defendant Nos.9 and 10 have no share. Hence, pray to dismiss the suit and to declare that defendant No.6 is the absolute owner of the suit schedule property except 5 acres in R.S.No.44/3. 7. Defendant Nos.9 and 10 filed a written statement admitting the contentions of the plaint and contended that the property bearing CTS No.2923/28/1 measuring 122.2/9 square yards, is the ancestral property of plaintiffs and defendants. The said property was sold by the plaintiffs, and the plaintiffs have inserted the said property. It is contended that the suit of the plaintiffs is not maintainable, as it is bad for non-joinder of existing family properties, and hence, pray to dismiss the suit. - 10 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 8. Plaintiff No.1 has filed a re-joinder to the written statement, denying the defense of defendant Nos.9 and 10 and prays to decree the suit. 9. The trial court based on the pleadings of the parties framed the following issues and additional issues: Issues 1. Whether the plaintiffs prove that, they are members of Hindu Undivided family and suit schedule properties are their ancestral joint family properties and available for the partition? 2. Whether the defendant No.9 & 10 prove that the suit is bad for non joinder of necessary parties? 3. Whether the def.no.9 & 10 further prove that, suit is bad for partial partition? 4. Whether the defendants No.9 & 10 further prove that, they are entitled for their share as contended in para 20 of their written statement? 5. Whether the plaintiffs proves that, the property CTS No.2923/28/1 mentioned in the - 11 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 counter claim of def.no.9 & 10 is the self acquired and stridhana property of plaintiff No.1? 6. Whether the plaintiffs are entitled for the relief as claimed in plaint? 7. what order or decree? ADDITIONAL ISSUE DTD. 10.08.2018 1. Whether the defendants 2 to 7 prove that, suit is barred by limitation as contended in para No.4 of their written statement? 2. Whether the defendants 2 to 7 further proves that the defendant No.6 is cultivating the suit schedule properties more than 12 years with the knowledge of the plaintiffs arid other defendants and has perfected her rights over the R.S.no.44/3 as contended in para No. 17 of their written statement? 3. Whether the defendants No.2 to 7 prove that, the deceased Bharmappa had executed will deed dated. 18.1.1991 in respect of suit schedule R.S.no.44/3 as contended in para No.17 of their written statement? - 12 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 4. Whether the def.no.6 is entitled for the counter claim as claimed in her written statement? 10. The plaintiffs, to substantiate their case, plaintiff No.3 was examined as PW-1, plaintiff No.2 was examined as PW-2 and got marked 14 documents as Exs.P1 to P14. On the other hand, defendant No.9 was examined as DW-1 and also examined five witnesses as DW-2 to DW-6 and marked 14 space documents as Exs.D1 to D14. 11. After recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, the trial Court answered issue No.1 partly in the affirmative, issue Nos.2 to 4 and additional issue Nos.1 to 4 in the Negative, issue Nos.5 and 6 in the affirmative, and issue No.7 as per the final order. The suit of the plaintiffs was partly decreed. It is declared that plaintiff Nos.1 to 5 and defendant Nos.9 and 10 are jointly entitled to share at 8/28th, plaintiff Nos.7 to 12 are jointly entitled - 13 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 to share at 8/28th and plaintiff Nos.13 to 16 are jointly entitled for share at 8/28th in the suit ‘B’ schedule properties. Defendant Nos.1 to 5 are entitled to share at 1/28th, jointly and defendant Nos.6 to 8 are entitled to 1/28th share each in the suit ‘B’ schedule properties. Further, the suit of the plaintiffs regarding the suit ‘C’ schedule property was dismissed. 12. Defendant Nos.6 to 8 aggrieved by the judgment and the preliminary decree passed by the trial court, filed this Regular First Appeal. 13. Heard learned counsel for defendant Nos.6 to 8 and learned counsel for the plaintiffs. 14. Learned counsel for defendant Nos.6 to 8 submits that the judgment and decree passed by the trial court is contrary to the records. He submits that Bharamappa had the exclusive right to execute the Will bequeathing property bearing R.S.No.44/3, measuring 5 acres out of 10 acres 28 guntas, in favour of defendant No.6. He also submits that the quantum of share allotted - 14 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 to the parties is incorrect. Hence, on these grounds, prays to allow the appeal. 15. Per contra, learned counsel for the plaintiffs supported the impugned judgment and contended that Bharamappa had no exclusive right to execute the Will bequeathing a part of property bearing R.S.No.44/3 as it is an ancestral property. He concedes that the quantum of shares awarded by the trial court is incorrect. Hence, he submits that the quantum of share may be modified; hence, on these grounds, he prays to dispose of the appeal. 16. Perused the records and considered the submissions of learned counsel for the parties. 17. Points that arise for our consideration are as follows: i. Whether the plaintiffs prove that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants? - 15 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 ii. Whether defendant No.6 proves that Bharamappa had an exclusive right to execute the Will, bequeathing the property bearing R.S.No.44/3, measuring 5 acres, out of 10.28 guntas? iii. Whether defendants No.6 to 8 prove that the quantum of share granted by the trial court is incorrect? iv. What order? 18. Point No.1:- It is the case of the plaintiff that one Bharamappa was the original propositus. He had a wife by name Basavva. They died leaving behind their seven children, i.e. Hanamavva, Kallappa, Hanmappa, Rangavva, Satyava@ Channavva, Kallavva @ Gangavva, and Rudrappa. The suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants. The plaintiffs and defendants are the members of the Hindu joint family and no partition is effected between the parties to the suit. The plaintiffs demanded partition and separate possession, the defendants refused to effect the partition. The plaintiffs to prove their case, plaintiff No.3 - 16 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 was examined as PW-1. She reiterated the plaint averments in the examination-in-chief and plaintiff No. 2 was examined as PW-2. PW-2 has spoken more or less of PW-1. 19. In order to prove the oral evidence of the plaintiffs, they have produced the records, marked at Exs.P1 to P14. Ex.P1 is the GPA executed by plaintiff Nos.1, 2, 4, 5 and 6, in favour of Gurunath Kallappa Talavar as their power of attorney holder and authorised him to file applications, writ, suits, etc and to do all such acts, deeds etc. Ex-P2 – general power of attorney executed by plaintiff Nos.13, 14 and 16 in favour of plaintiff No.15 and they authorized him to file the necessary application and to file a suit and to do all other things that are necessary in respect of the properties mentioned in Ex.P2. Ex.P3 – copy of RTC extract of land bearing R.S.No.49/2A stands in the name of Talawar Kallappa S/o Venkappa and others. Ex.P4 is the RTC extract of land bearing survey No.49 stands in the name of - 17 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 Talawar Kallappa S/o Venkappa. Ex.P5 is RTC extract of land for Sy.No.44 standing in the name of Talwar Parvatavva and others. Ex.P6 – RTC extract of sy.No.57 stands in the name of Maruti Devara vahivatadaara Talawar Bharamappa Hanumappa. Ex.P7 is the RTC extract of sy.No.57 stands in the name of Talawara Bharamappa Hanumappa. Ex.P8 is the certified copy of the registered sale deed, which discloses that plaintiff No.1 has purchased the property mentioned in Ex.P8. Ex.P9 is the Death Certificate of Bharamappa who passed away on 19.01.1992. Exs.P-5, 10 and 11 are the school certificates. Ex.P-12 is the death certificate of Kallappa i.e., husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 and 6 and defendant No.9, who passed away on 27.09.1994. Ex.P13 is the leaving certificate of Parashuram Yavagal i.e. husband of defendant No.9 and father of defendant No.10. Ex.P14 is the endorsement issued by the Sub-Registrar, Naragund, stating that the death certificates are not registered in his office. Further, plaintiff No.15 has also examined one - 18 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 Hanumanthappa as PW-2. He has stated that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants and they are the members of Hindu undivided family and no partition is effected between them. 20. During the cross-examination of PW1 and PW2, the defendants have suggested that defendant No.6 cultivated item No.3 of the suit schedule property for more than 12 years, with the knowledge of the plaintiffs and other defendants and had perfected her right over RS.No.44/3 by virtue of adverse possession and further suggested that the deceased Bharamappa had executed a Will dated 18.01.1991 in respect of R.S.No.44/3. The said suggestion was denied by PW-1. 21. In rebuttal, Defendant No.9, examined herself as DW1. She has reiterated the written statement averments in the examination-in-chief and to prove their defense, the defendants produced the documents marked as Ex.D-1, i.e. original registered sale deed dated 15.10.2011. Ex.D2 - 19 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 is the original will, it discloses that Bharamappa executed a Will, bequeathing property bearing R.S.No.44/3 measuring 5 acres, in favour of defendant on 18.01.1991. Ex.D3 is the death certificate of Hanumavva Talawar i.e. mother of defendant No.1, who died on 12.09.2010. Ex.D4 is the Death Certificate of Guru Sangappa, who passed away on 27.08.2018. Ex.D5 is the Death Certificate of Venkappa, who passed away on 13.02.2003. Ex.D6 is the Death Certificate of Basangouda, who passed away on 28.06.2019. Ex.D7 is the Aadhar card of Rangavva Talawar and defendant No.8 is the voter identity card of Rangavva. Ex.D19 is the Aadhar card of Kallappa Talawar i.e., defendant No.1. Ex.D10 is the voter identity card of Kallappa Hanamappa Talawar, Ex.D11 and 12 are the Adhar and voter identity cards of Yellappa Talwar, Ex.D13 is the Aadhar card of Ravi Hanumappa Talawar and Ex.D14 is the voter identity card of Ravi Hanumappa Talawar. However, it is the case of the defendants that the Bharamappa had bequeathed the part of item No.3 of the - 20 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 suit schedule property, measuring 5 acres. Admittedly, from the perusal of the documents produced by the plaintiffs, clearly discloses that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. They are the members of the Hindu undivided family. The defendants examined 5 witnesses as DWs-2 to 6. The defendant No.6 has taken a defense that he has perfected her title through adverse possession. 22. It is well established principle of law that the co-owners cannot claim adverse possession against the coparceners. The plaintiffs by producing the records has proved that the suit schedule properties are the ancestral joint family properties and they are the members of Hindu undivided family. In view of the above discussion, we answer point No.1 in the affirmative. 23. Point No.2:-It is the defense of defendant Nos.2 to 7 that deceased Bharamappa executed a Will, dated 18.01.1991 in respect of property bearing RS.No.44/3, and the defendants have produced the original Will executed by - 21 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 Bharamappa in favour of the defendants, bequeathing the aforesaid property. Admittedly, the suit schedule properties are the ancestral joint family properties of Bharamappa and Basavva and they had no right to execute the Will with respect to the ancestral joint family properties. To prove the execution of the Will, defendant Nos.2 to 7 have not examined any attesting witness. As per Section 68 of the Evidence Act, to prove the execution of the Will, one of the attesting witnesses is to be examined. Admittedly, in the instant case, the defendants have not examined any attesting witness to prove the contents of the Will. 24. Further the defendants have not produced any records to establish the mental status of the Bharamappa as on the date of execution of the alleged Will. However, the Will is surrounded by suspicious circumstances i.e., the plaintiffs are the daughters and coparceners and an unjust exclusion of a legal heir is also, one of the suspicious circumstances as held by the Hon’ble Apex Court in the - 22 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 case of Barpur Singh and others –vs- Shamsher Singh, reported in AIR 2009 SCC 1766. The defendant Nos.2 to 7 have failed to remove the suspicious circumstances surrounding the Will. Defendant Nos.2 to 7 have failed to prove the execution of the alleged Will by Bharamappa, bequeathing the property bearing R.S.No.44/3. In view of the above discussion we answer point No.2 in the negative. 25. Pont No.3:- Admittedly, the suit schedule properties are the ancestral joint family properties and the plaintiffs and the defendants are the members of the Hindu joint family and no partition is effected. Bharamappa died leaving behind his seven children including i.e defendant Nos.6 to 8. However, plaintiffs and defendants are the legal heirs of Hanumappa, Kallappa, Hanumavva, and Rudrappa. The parties are governed by Hindu Mitakshara Law, and if the notional partition is effected, each branch will get a 1/7th share. Defendant Nos.1 to 5 together are entitled to 1/7th share, plaintiff No.1 to 6, defendant Nos.9 - 23 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 and 10 together are entitled to 1/7th share. Plaintiff Nos. 7 to 12 together are entitled to 1/7th share, defendant Nos.6 to 8 are entitled to 1/7th share each, and plaintiff Nos.13 to 16 together are entitled to 1/7th share, but the trial court has granted 8/28th share. The share granted by the trial court is incorrect. To that extent, the judgment and decree passed by the trial court is to be modified. In view of the above discussion, we answer point No.3 in the affirmative. 26. Point No.4:- As we have already answered point Nos.1 to 3 as above, we accordingly pass the following: ORDER (i) The Appeal is allowed in part. (ii) The Judgment and decree dated 02.03.2020 in O.S.No.185/2016 on the file of Additional Senior Civil Judge, Gadag is modified. (iii) The plaintiff Nos.1 to 3 and 6, each are entitled to 1/42 share (1/6th of 1/7th share), - 24 - NC: 2025:KHC-D:2964-DB RFA No. 100323 of 2020 plaintiff Nos.7 to 12 together are entitled to 1/7th share, plaintiff Nos.13 to 16 together are entitled for 1/7th share. Defendant Nos.1 to 5 together are entitled for 1/7th share, defendant No.6 to 8 are entitled for 1/7th share each, defendant Nos.9 and 10 together are entitled for 1/6th of 1/7th share. Plaintiff Nos.4 and 5 together are entitled to 1/42 share, in the suit properties. Draw a decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 11