- 1 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100230 OF 2018 (PAR-) C/W REGULAR FIRST APPEAL NO. 100271 OF 2018 IN RFA NO. 100230 OF 2018 BETWEEN: 1. SRI. BASAGOUDA RAMAGOUDA PATIL AGE: 50 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 2. SRI. ANNAGOUDA RAMAGOUDA PATIL AGE: 46 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 3. SRI. GURUGOUDA RAMAGOUDA PATIL AGE: 44 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 4. SRI. SHANKARAGOUDA RAMAGOUDA PATIL AGE: 42 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 5. SRI. MAHADEV RAMAGOUDA PATIL AGE: 38 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.30 12:14:32 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 6. SRI. GHOOLAPPA CHANAGOUA PATIL AGE: 23 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 7. SRI. APPANNA CHANAGOUDA PATIL AGE: 19 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 8. KUMARI. SHIVALEELA D/O. CHANAGOUDA PATIL AGE: 21 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 9. SMT. KASTURI W/O. CHANAGOUDA PATIL AGE: 21 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. …APPELLANTS (BY SRI. CHETAN MUNNOLI, ADV) AND: 1. 1a. SRI. SHIVAGOUDA BHOJAGOUDA PATIL SINCE DECEASED BY HIS LR’S., KAKASAB S/O SHIVAGOUDA PATIL AGE: 55 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 2. 2a. SRI. MALAGOUDA BHOJAGOUDA PATIL SINCE DECEASED BY HIS LR’S., SMT. SIDLINGAVVA W/O MALAGOUDA PATIL AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. - 3 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 2b. 2c. 2d. 2e. 2f. SMT. KASHAVVA W/O MALAGOUDA PATIL AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. SMT. MAHADEVI W/O TIMMANNA HULASAD AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. SMT. SHRIDEVI W/O BASAVARAJ PATIL AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. VIDYASHRI D/O MALAGOUDA PATIL AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. SHRISHAIL S/O MALAGOUDA PATIL AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 3. SMT. LAXMIBAI W/O. RAMAGOUDA PATIL AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. NEJARE-413307, TQ: SANGOLA, DIST: SOLAPUR, MAHARASHTRA STATE. 4. SMT. GANGAWWA W/O. SHRISHAIL BHAVIKATTI AGE: 40 YEARS, OCC: AGRICULTURE, R/O. RADDERHATTI-591240, TQ: ATHANI, DIST: BELAGAVI. …RESPONDENTS (BY SRIYUTHS. PALLAVI S. PACHCHAPURE AND RAJENDRA R. PATIL, ADVS FOR R1(a) & R2(a to f) SRI. SHARAD M. PATIL, ADV FOR R3 & R4) - 4 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 RFA FILED UNDER SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT & DECREE DTD:17.04.2018 PASSED IN O.S.NO.95/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ATHANI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. IN RFA NO. 100271 OF 2018 BETWEEN: 1. SRI. BASAGOUDA RAMAGOUDA PATIL AGE: 50 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 2. SRI. ANNAGOUDA RAMAGOUDA PATIL AGE: 46 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 3. SRI. GURUGOUDA RAMAGOUDA PATIL AGE: 44 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 4. SRI. SHANKARAGOUDA RAMAGOUDA PATIL AGE: 42 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 5. SRI. MAHADEV RAMAGOUDA PATIL AGE: 38 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 6. SRI. GHOOLAPPA CHANAGOUA PATIL AGE: 23 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. - 5 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 7. SRI. APPANNA CHANAGOUDA PATIL AGE: 19 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 8. KUMARI. SHIVALEELA D/O. CHANAGOUDA PATIL AGE: 21 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 9. SMT. KASTURI W/O. CHANAGOUDA PATIL AGE: 21 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. …APPELLANTS (BY SRI. CHETAN MUNNOLI, ADV) AND: 1. 1a. SRI. SHIVAGOUDA BHOJAGOUDA PATIL SINCE DECEASED BY HIS LR’S., KAKASAB S/O SHIVAGOUDA PATIL AGE: 55 YEARS, OCC: AGRICULTURE, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 2. 2a. 2b. SRI. MALAGOUDA BHOJAGOUDA PATIL SINCE DECEASED BY HIS LR’S., SMT. SIDLINGAVVA W/O MALAGOUDA PATIL AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. SMT. KASHAVVA W/O MALAGOUDA PATIL AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. - 6 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 2c. 2d. 2e. 2f. SMT. MAHADEVI W/O TIMMANNA HULASAD AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. SMT. SHRIDEVI W/O BASAVARAJ PATIL AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. VIDYASHRI D/O MALAGOUDA PATIL AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. SHRISHAIL S/O MALAGOUDA PATIL AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLIGERI-591212, TQ: ATHANI, DIST: BELAGAVI. 3. SMT. LAXMIBAI W/O. RAMAGOUDA PATIL AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. NEJARE-413307, TQ: SANGOLA, DIST: SOLAPUR, MAHARASHTRA STATE. 4. SMT. GANGAWWA W/O. SHRISHAIL BHAVIKATTI AGE: 40 YEARS, OCC: AGRICULTURE, R/O. RADDERHATTI-591240, TQ: ATHANI, DIST: BELAGAVI. …RESPONDENTS (BY SRIYUTHS. PALLAVI S. PACHCHAPURE & RAJENDRA R. PATIL, ADVS FOR R1(a) & R2(a to f) SRI. SHARAD M. PATIL, ADV FOR R3 & R4) RFA FILED UNDER SEC. 96 OF CPC., 1908 AGAINST THE JUDGMENT & DECREE DTD:17.04.2018 PASSED IN O.S.NO.95/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE ATHANI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. - 7 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. These Regular First Appeals are filed by the appellants, challenging the Judgment and decree dated 17.04.2018 passed in O.S.No.95/2010 by the learned Principal Senior Civil Judge, Athani (for short ‘the Trial Court). 2. For convenience, the parties shall be referred to bases on their rankings before the Trial Court. The appellants in both appeals were defendants 1 to 9 and respondent Nos.1 and 2 were plaintiffs; the other respondents were the other defendants. 3. Brief facts, leading rise to the filing of these appeals are as follows: - 8 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 The plaintiff filed a suit against the defendant for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that one Bhojagouda was the original propositus. He had a wife by name Gangavva. Bhojagouda and Gangavva had three sons, namely Shivagouda, i.e. plaintiff No.1, Ramagouda, i.e., father of defendant Nos.1 to 5, as his legal heirs, and Malagouda i.e., is plaintiff No.2. It is the case of the plaintiffs that the suit schedule properties were acquired by the original propositus in a family partition, dated 10.07.1974 and that the said suit schedule properties are the ancestral properties of the plaintiffs and defendants. No partition has been affected between the plaintiffs and the defendants. Despite the demand made by the plaintiffs for partition and separate possession, the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file the suit for partition and separate possession. Accordingly, the plaintiffs pray to a decree the suit in their favor. - 9 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 4. Defendants No.1 to 3 filed a written statement contending that the suit filed by the plaintiff is not maintainable either in law or on the facts. It is further contended that in 1974, there was a partition between Bhojagouda and his three sons. As per the said partition, the suit properties were allotted to the share of Bhojagouda, and accordingly, during his lifetime, he was the absolute owner of the suit schedule properties, and he was in exclusive possession and enjoyment of the same. Neither the plaintiffs nor the deceased Ramagouda had any right, title or interest over the suit schedule properties. It is contended that Bhojagouda, out of love and affection towards defendants No.1 to 3, executed a Will dated 12.09.1978 in the presence of attesting witnesses, bequeathing the item 1 and 2 of the suit schedule properties in favour of Ramagouda. Bhojagouda died on 15.03.1983. After his demise, Ramagouda became the absolute owner of the said suit schedule properties by the Will dated 12.09.1978. The defendants are in peaceful - 10 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 possession and enjoyment of the suit schedule properties after the death of Ramagouda. It is contended that the plaintiffs have no right to claim any share in the suit schedule properties. Hence, prays to dismiss the suit against defendant Nos.1 to 3. Defendant No.4 filed a written statement reiterating the written statement filed by defendant Nos.1 to 3. Defendant No. 1 to 3 also sought a counter claim to declare that Defendant No. 1 to 11 are the owners of the suit properties and for a consequential relief of permanent injunction. 5. The plaintiff filed a rejoinder to the written statement filed by defendant Nos.1 to 3, stating that the defendant Nos.1 to 3 created the alleged Will, and it is contended that the Bhojagouda never executed the said Will deed bequeathing the suit schedule properties in favour of Ramagouda. It is further contended that the Will has not seen the light of the day, and the said Will is bogus and surrounded by suspicious circumstances. - 11 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 Hence, prays to decree the suit and to dismiss the counter claim made by Defendant No. 1 to 3. 6. The Trial Court, based on the pleadings of the parties, framed the following issues and additional issues, which are as follows: ISSUES 1. Whether plaintiffs proves that they and defendants are the joint owners and possessors of suit lands? 2. Whether defendant no.4 proves that as per Will-Deed dated: 12.9.1978, the father of defendant no.4 became absolute owner and possessor of suit lands? 3. Whether plaintiffs are entitle for the relief sought for? 4. What Decree or Order? ADDL. ISSUES 1. Whether defendants no.1 to 3 prove that by executing Will on 12.9.1978 Bhojagouda bequeathed suit lands bearing RS No.99 and 100 to the Ramagouda? 2. Whether defendants 1 to 3 prove their exclusive and lawful possession of suit lands bearing RS No.99 and 100 as on the date of suit? 3. Whether defendants no.1 to 3 prove that suit is barred by time? 4 Whether plaintiffs prove that there is no cause of action for the counter claim? 5. Whether defendants 1 to 3 prove unlawful interference in enjoyment lands bearing RS No.99 and 100? - 12 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 6. Whether defendants 1 to 3 are entitled for the reliefs as prayed? 7. The plaintiff, to substantiate their case, plaintiff No.1 was examined as PW-1, another witness was examined as PW-2, and marked 59 documents as Ex.P.1 to P.59. In rebuttal, defendant No.1 examined himself as DW-1, and defendant No.4 was examined as DW-2, examined one witness as DW-3, and marked one document as Ex.D.1. 8. The Trial Court, after recording the evidence, hearing both sides, and after assessing the of verbal and documentary evidence, answered issue Nos.1, 3 and additional issue No.4 in the affirmative, Issue No.2 and additional issue Nos.1, 2, 3, 5 and 6 were answered in the negative and issue No.4 as per the final order. The suit of the plaintiffs was decreed with costs vide judgment dated 17.04.2018. It was ordered and declared that the plaintiffs are entitled to a 1/3rd share each in the suit schedule properties by way of partition and separate possession by - 13 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 metes and bounds. It was also ordered that the plaintiffs have obtain their legitimate share in the suit schedule properties by appointing a Court Commissioner, as required under the provisions of the amended Civil Procedure Code (CPC) The counter claim of the defendants was dismissed. The defendants, aggrieved by said Judgment and preliminary decree passed in O.S.No.95/2010 i.e., regarding the decree of the suit and the dismissal of the counter claim, have filed these Regular First Appeals. 9. Heard the arguments of the learned counsel for the defendants, and the learned counsel for the plaintiffs. 10. Learned counsel for the defendants submits that the defendants restrict their claim only to the extent of issue No.2, and the dismissal of their counterclaim. He submits that the Bhojagouda executed a registered Will in favour of Ramagouda, and after the demise of the testator, the propounder of the Will became the absolute owner of the suit schedule properties. He also submits that - 14 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 defendants No.1 to 3 had sought a counterclaim seeking a declaration that they are the absolute owners of the suit schedule properties by the Will. He contends that the Trial Court committed an error in dismissing the counterclaim of the defendants. He further submits that the defendants examined the attesting witness to prove the execution of Will dated 12.09.1978, as DW-3 and have complied with the requirements under Section 68 of the Indian Evidence Act, 1872. Hence, the Trial Court committed an error in answering issue No.2 in the negative and dismissing the counterclaim of the defendants. Therefore, on these grounds, he prays to allow the appeals. 11. Per contra, learned counsel for the plaintiffs, submits that the suit schedule properties are ancestral properties and that Bhojagouda had no right to execute a Will bequeathing the suit schedule properties in favour of Ramagowda. She further submits that the Will is surrounded by suspicious circumstances, including the exclusion of the natural legal heirs. She submits that the - 15 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 defendants have not explained why the plaintiffs were excluded from the Will, and also submit that the Will has not seen the light of day, till it was produced before the Trial Court. To buttress her arguments, she relied upon the Judgment of the Hon’ble Apex Court in the case of Bharpur Singh and others vs. Shamsher Singh reported in (2009) 3 Supreme Court Cases 687. She submits that the evidence of DW-3 does not support the defendants case to prove the execution of the alleged Will dated 12.09.1978, purportedly executed by the late Bhojagouda in favour of Ramagouda. Hence, she submits that the Trial Court was justified in answering issue No.2 in the negative, and has rightly dismissed the counterclaim of the defendants. The Judgment and preliminary decree passed by the Trial Court is just and proper, and do not require any interference at the hands of this Court. She also submits that there is an overwriting in the Will, and the end of the page is torn, and it does not bear the signature of late Bhojagouda. All these things clearly - 16 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 establish that the Will is surrounded by suspicious circumstances. Hence, on these grounds, she prays for the dismissal of the appeals. 12. Perused the records and considered the submissions of the learned counsel for the parties. 13. The points, that would arise for my consideration in this appeal are as follows: (i) Whether defendants No.1 to 3 prove that Bhojagouda executed a Will dated 12.09.1978 in respect of item Nos.1 and 2, bequeathing the suit schedule properties in favour of Ramagouda? (ii) Whether the defendants prove that the Trial Court committed an error in dismissing the counterclaim in respect of item Nos.1 and 2? (iii) Whether the defendants prove that the judgment and decree passed by the Trial Court is erroneous, perverse or arbitrary? (iv) What order and decree? - 17 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 Regarding Point No.(i) 14. There is no dispute regarding relationship between the parties to the suit, and also the nature of suit schedule properties, being the ancestral properties of both, the plaintiffs and the defendants. The only defence of the defendants is that the original propositus Bhojagouda executed a Will dated 12.09.1978, bequeathing item Nos.1 and 2 of the suit schedule properties in favour of Ramagouda. The burden is on the defendants to prove that Bhojagouda executed the said Will dated 12.09.1978, bequeathing item Nos.1 and 2 of the suit schedule properties. The plaintiffs have denied the execution of the alleged Will by late Bhojagouda in favour of Ramagouda. The defendant to prove their defence, Defendant No.1 was examined as DW-1, and reiterated the averments made in the written statement is his examination-in-chief. To prove the execution of the Will by Bhojagouda in favour of defendant Nos.1 to 3 concerning item Nos.1 and 2 of the suit schedule - 18 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 properties, the defendants produced the Will marked as Ex.D.1, and also examined one witness as DW-3, who is said to be an attesting witness to Ex.D.1. 15. From the perusal of Ex.D.1, it is observed that the last line of the said document is systematically cut down, and there is no signature of the executor on the first page. There is also overwriting of survey numbers in paragraph No.2 of Ex.D.1. It does not bear the initials of the testator, wherever there is an overwriting of survey numbers in Ex.D.2. The plaintiffs have denied the execution of the Ex.D.1. Further, it is brought to the notice of the Court that the said defendants have not acted upon on the alleged Will, till the said document was produced before the Court. The Will is surrounded by suspicious circumstances, such as the defendants have not explained why the plaintiffs were excluded from the Will, and why the Bhojagouda has not given any properties to the plaintiffs under Ex.D.1. Further, the Will had not seen the light of day till it was produced before the Trial Court. The - 19 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 Hon’ble Apex Court in the case of Bharpur Singh and others (supra), held the following regarding the suspicious circumstances at paragraph No.23, which reads as follows: 23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts. 16. From the perusal of Ex.D.1, it is clear that the defendants have not explained the exclusion of other natural heirs without any reason. Secondly, the exclusion does not appear to be the result of the testator’s free will - 20 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 and intention, as no properties were bequeathed in favour of the plaintiffs. Further, the Will did not see the light of day till it was produced before the Trial Court. Further, the overwriting in Ex.D.1 creates suspicious circumstance. The Trial Court, taking into consideration, the overwriting in the Ex.D.1, the cut portion at the end of the first page, as it does not bear the signature of the testator’s on page No.1 of Ex.D.1, as well as the fact that the Will had not seen the light of day till it was produced before the Court, the trial court was justified in recording a finding that the defendants have failed to prove the execution of the Will by Bhojagouda in favour of Ramagouda, and rightly answered issue No.2 in the negative. In view of the above discussion, point No.(i) is answered in the negative. Regarding point No.(ii) 17. The defendants have sought a counterclaim seeking a declaration that they are the absolute owners of the suit schedule properties regarding item Nos.1 and 2 of the suit schedule properties based on Ex.D.1. As observed - 21 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 above, in point No.(i), this Court has held that the defendants have failed to prove the execution of the Will by Bhojagouda in favour of Ramagouda as per Ex.D.1. The defendants have failed to prove the execution of the Will. Hence, the question of acquiring title over item Nos.1 and 2 of the suit schedule properties by the of Ex.D.1 do not arise. The Trial Court has rightly dismissed the counterclaim of the defendants insofar as item Nos.1 and 2 of the suit schedule properties, are concerned on the ground that the defendants have failed to prove the execution of Ex.D.1 and rightly dismissed the counterclaim of the defendents. Accordingly, I do not find any error in dismissing the counterclaim of the defendants. In view of the above discussion, point No.(ii) is answered in the negative. Regarding Point No.(iii) 18. The Trial Court, considering the entire evidence on record, has rightly recorded a finding that the suit schedule properties are the ancestral properties of the - 22 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 plaintiffs and defendants, and no partition is effected between the plaintiffs and defendants by metes and bounds, and has rightly granted the 1/3rd share each to the plaintiffs in the suit schedule properties. The Trial Court has also rightly recorded a finding that the defendants failed to prove the execution of the Will insofar as item Nos.1 and 2 of the suit schedule properties are concerned, and rightly decreed the suit of the plaintiff and dismissed the counterclaim of the defendants. I do not find any error in the impugned Judgment and decree. Accordingly, point No.(iii) is answered in the negative. Regarding point No.(iv): 19. As I have already answered Point No. 1 to 3 in favour of the plaintiffs, accordingly, I proceed to pass the following order: ORDER (i) The Appeals are dismissed. - 23 - HC-KAR NC: 2025:KHC-D:9329 RFA No. 100230 of 2018 C/W RFA No. 100271 of 2018 (ii) The Judgment and decree dated 17.04.2018 passed in O.S.No.95/2010 by the learned Principal Senior Civil Judge, Athani, is hereby confirmed. (iii) No order as to costs. (iv) In view of the dismissal of the appeals, pending I.A.’s if any, stand disposed of. Sd/- (ASHOK S. KINAGI) JUDGE RHR/- CT: BSB List No.: 1 Sl No.: 7