- 1 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100215 OF 2018 (PAR) BETWEEN: 1. SHRI. SANGAPPA S/O HANAMAPPA HADAPAD AGE: 53 YEARS, OCC: AGRICULTURE, R/O. MALLAPUR SL, TQ:BADAMI, DISTRICT: BAGALKOT-582118. 2. SMT. BASAVVA D/O HANAMAPPA HADAPAD AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O. MALLAPUR SL, TQ: BADAMI, DISTRICT:BAGALKOT-582118. …APPELLANTS (BY SRI. S.N. RAJENDRA, ADVOCATE) AND: 1. SANGAVVA W/O TIPPANNA HADAPAD AGE: 68 YEARS, OCC: AGRICULTURE, R/O TOUDIHAL, TQ: YELBURGA, DIST:GULBARGA-575385. 2. NEELAVVA W/O SHARANAPPA HADAPAD AGE: 65 YEARS, OCC: AGRICULTURE, R/O LAKHAMAPUR, MUDENGUDI, TQ:RON, DIST:GADAG-585280. …RESPONDENTS (BY SRI. R.K. KULKARNI, ADVOCATE FOR R1; NOTICE TO R2 –SERVED & UNREPRESENTED) THIS RSA IS FILED U/SEC.100 OF CPC, 1908, AGAINST THE JUDGMENT & DECREE DATED 25.1.2018 PASSED IN R.A.NO.12/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC BADAMI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.2.2012, PASSED IN O.S. NO.34/2005 ON THE FILE OF THE CIVIL JUDGE, BADAMI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 ORAL JUDGMENT 1. This appeal is filed by defendant Nos.3 and 4 challenging the judgment and decree dated 24.01.2018 passed in RA No.12 of 2012 on the file of the Senior Civil Judge and JMFC, Badami, (for short, ‘First Appellate Court’) dismissing the appeal and confirming the judgment and decree dated 17.02.2012 passed in OS No.34 of 2005 on the file of the Civil Judge and JMFC, Badami, (for short, ‘Trial Court’), decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that, the plaintiff and defendant Nos.1 and 2 are children of Smt. Yellavva. Suit property belongs to Smt. Yellavva and she has died on 18.07.1948 leaving behind the plaintiff and - 3 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 defendant Nos.1 and 2 to succeed to suit schedule property. It is stated that, the mother of the plaintiff and defendant Nos.1 and 2-Yellavva predeceased her mother Mallavva and the said Mallava has taken care of the plaintiff and defendant Nos.1 and 2. It is also stated in the plaint that the suit schedule property has to be devolved among the plaintiff and defendant Nos.1 and 2 and hence, the plaintiff has filed OS No.34 of 2005 seeking relief of partition and separate possession in respect of suit schedule property. 4. After service of summons, the defendant Nos.1, 3 and 4 entered appearance and filed detailed written statement denying the averments made in the plaint. Defendant No.2 served but remained absent. Hence, placed ex-parte. It is the specific case of the defendant No.1 that, the land bearing Sy.No. 11/2A and Sy.No.33 are the self acquired properties of deceased Mallavva and land bearing Sy.No.11/1A is - 4 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 belonging to her mother-Yellavva. The grand mother of the defendant No.1-Mallavva died on 25.03.1972 leaving behind the registered Will dated 19.11.1971 bequeathing the land bearing Sy.No.11/2A and Sy.No.33/1 and house property in favour of defendant No.1 and therefore, the defendant No.1 is in possession of the suit schedule property and accordingly, sought for dismissal of the suit. 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish their case, the plaintiff examined two witnesses as PW1 and PW2 and got marked 07 documents as Exs.P1 to P7. On the other hand, defendants examined three witnesses as DW1 to DW3 and produced 11 documents as Exs.D1 to D11. - 5 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 7. The Trial Court, after considering the material on record, by its judgment and decree dated 17.02.2012 decreed the suit of the plaintiff holding that the plaintiff, defendant No.1 and 2 are entitled for 1/3rd share each in the suit schedule property and being aggrieved by the same, the defendant Nos.1, 3 and 4 have preferred Regular Appeal in RA No.12 of 2012 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 24.01.2018 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.34 of 2005. Being aggrieved by the same, the appellants/defendant Nos.3 and 4 have preferred this Regular Second Appeal under Section 100 of CPC. - 6 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 8. I have heard Sri. S.N.Rajendra, learned counsel for the appellants and Sri. R.K.Kulkarni, learned counsel appearing for the respondents. 9. Sri. S.N.Rajendra, learned counsel for the appellants argued that the both the courts below have committed an error in not considering the fact that, defendant No.1, being propounder of the Will has proved the same in a manner known to law and therefore, the said aspect of the matter has not been considered by both the courts below. It is also contended by the learned counsel appearing for the appellants that, the suit is filed during the year 2005 after the lapse of three decades from the execution of the registered Will dated 19.07.1971 and as such, sought for interference of this court. It is also argued that the plaintiff was aware about the change of mutation entries and the possession of the suit schedule property is with the defendant No.1 despite - 7 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 the same, both the courts below have decreed the suit and as such, sought for interference of this court. 10. Sri. R.K.Kulkarni, learned counsel for the respondents submits that the defendant No.1 being propounder of the Will has not proved the Will as per Section 63(c) of Indian Succession Act and therefore, sought for dismissal of the appeal. 11. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by the both the courts below. In order to under the relationship between the parties, the genealogy of the parties is extracted below: Mallavva Yellavva Sangawwa Shankrawwa Neelawwa (Plaff) (Def.No.1) (Def No.2) Sangappa Basawwa (Def.No.3) (Def.No.4) - 8 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 12. On careful examination of genealogy would indicate that, Mallavva is the original propositus, having a daughter by name, Yellavva. Plaintiff, defendant Nod.1 and 2 are the children of Yellavva. Defendant Nos.3 and 4 are the children of defendant No.1. It is not in dispute that, the suit schedule property belonging to Mallavva as well as Yellavva and Yellavva died predeceased her mother-Mallavva. It also to be noted that Mallavva had executed registered Will dated 19.11.1971 (Ex.D10) and died on 25.03.1972. The defendants have set up a case stating that, the said Mallavva died leaving behind registered Will and the said will at Ex.D10 has not been proved by the defendant No.1 in a manner known to law by complying with the provisions contained under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act. Taking into consideration as the defendant No.1 being - 9 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 propounder of the Will has not proved the Will as per Section 63(c) of the Indian Succession Act, by examining the witness to identify the signature of the deceased attestors and therefore, following the declaration of the law made by the Hon'ble Supreme Court in the case of Murthy and others vs. C. Sharadambal and others reported in (2022) 3 SCC 209, I do not find any merit in the appeal as both the courts below rightly appreciated the entire material on record and arrived at a conclusion that, the defendant No.1 being propounder of the Will has not proved the Will in a manner known to law. It is also to be noted that, the propounder has to prove the Will in accordance with law made by the Hon’ble Supreme Court in the case of H.Venkatachala Iyengar vs. B.N. Thimmajamma and others reported in AIR 1959 SC 443. In that view of the matter, I do not find material irregularity or perversity in the - 10 - NC: 2025:KHC-D:6485 RSA No. 100215 of 2018 judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. Since, the defendants/appellants have not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, the Regular Second Appeal is to be dismissed at the Admission stage itself. Sd/- (E.S.INDIRESH) JUDGE SB LIST NO.: 1 SL NO.: 17