- 1 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 06TH DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100226 OF 2019 C/W REGULAR FIRST APPEAL NO. 100227 OF 2019(PAR/POS) IN RFA NO. 100226 OF 2019 BETWEEN: 1. NANDKISHOR S/O VIRUPAX BIDKAR AGE: 50 YEARS, OCC: BUSINESS, R/O: H.NO.20, NAZAR CAMP VADAGAON, TQ & DIST: BELAGAVI-590003. …APPELLANT (BY SRI. DINESH M KULKARNI, ADV) AND: 1. SMT. MANGALA W/O UMAKANT RAGATE AGE: 57 YEARS, OCC: HOUSE HOLD, R/O: A-1 SAHIL SOCIETY, TEJPAL SCHEME ROAD, NO.4 VILE PARLE, EAST MUMBAI-400057. 2. SMT. SAVITA W/O SATISH HIREGOUDAR AGE: 47 YEARS, OCC: HOUSE HOLD, R/O: 29/30, WHISPERING WIND, SY.NO.135/2, PASHAN BANER, LINK ROAD, PASHAN, PUNE-411021, MAHARASHTRA. 3. SMT. SARITA W/O SUDHAKAR RAJ AGE: 43 YEARS, OCC: HOUSE HOLD, Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 R/O: 920/1, CH-21, “SHRI JAYA DURGA APPARTMENT”, S-2, 1ST MAIN, LAXMI PURAM, MYSURU-4. …RESPONDENTS (BY SRI. VITTHAL S TELI, ADV FOR R1 TO R3) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 AND 2 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED 23.02.2019 PASSED IN O.S.NO.246/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR PARTION, SEPARATE POSSESSION, DECLARATION, PERMANENT INJUNCTION AND OTHER ANCILLIARY RELIEFS. IN RFA NO.100227 OF 2019 BETWEEN: 1. NANDKISHOR S/O VIRUPAX BIDKAR AGE: 57 YEARS, OCC: BUSINESS, R/O: H.NO.20, NAZAR CAMP VADAGAON, TQ & DIST: BELAGAVI-590003. …APPELLANT (BY SRI. DINESH M KULKARNI, ADV) AND: 1. SMT. MANGALA W/O UMAKANT RAGATE AGE: 65 YEARS, OCC: HOUSE HOLD, R/O: A-1 SAHIL SOCIETY, TEJPAL SCHEME ROAD, NO.4 VILE PARLE, EAST MUMBAI-400057. 2. SMT. SAVITA - 3 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 W/O SATISH HIREGOUDAR AGE: 55 YEARS, OCC: HOUSE HOLD, R/O: 29/30, WHISPERING WIND, SY.NO.135/2, PASHAN BANER, LINK ROAD, PASHAN, PUNE-411021, MAHARASHTRA. 3. SMT. SARITA W/O SUDHAKAR RAJ AGE: 51 YEARS, OCC: HOUSE HOLD, R/O: SHAKUNTALA, 1-1495, 39/2A, GODUTORI NAGAR, KALABURAGI-585101. …RESPONDENTS (BY SRI. VITTHAL S TELI, ADV FOR R1 TO R3) THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 23.02.2019 PASSED IN O.S NO.68/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION. THESE APPEALS, 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 - 4 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) These two appeals are filed challenging the common judgment and decree dated 23.02.2019 passed in O.S. No.68/2017 clubbed with O.S. No. 246/2015 by the learned Principal Senior Civil Judge and CJM, Belagavi. 2. For convenience, the parties are referred to, as per their ranking in O.S. No.246/2015. The appellant was the defendant, and the respondents were the plaintiffs. 3. The plaintiffs filed a suit against the defendant for partition and separate possession in O.S. No.246/2015. The defendant filed a suit for the relief of declaration and consequential relief of permanent injunction in O.S. No.68/2017. 4. Brief facts leading rise to the filing of O.S. No.246/2015 are as under: One Sri. Balappa Bidkar was the original propositus. He was the resident of Beed village near Kolhapur in Maharashtra State. For the sake of his livelihood, he came to Ichalkaranji along with his only son Sri. Mahadev and settled there. - 5 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 Balappa died at Ichalkaranji. Mahadev started a petty business of watch repairing and gradually, went on purchasing handlooms and got himself involved in the textile business. Due to his hard work, honesty and sincerity, he flourished in the said business. He earned sufficient income by carrying on the said business. He acquired moveable and immoveable properties at Ichalkaranji and other places. He got married to one Smt. Sonabai and out of their wedlock, they were blessed with 5 sons namely Virupax, Shankar, Sudhakar, Chandrakant and Suryakant and three daughters namely, Pramila, Sushila and Shanta. The propositus and the other members of the family were all residing and messing together at Ichalkaranji. Mahadev, during his lifetime, had performed the marriage of his children. The marriage of Shri Virupax was performed with Smt. Champa and out of their wedlock, plaintiff Nos.1 to 3 and the defendant were born to them. It is stated that, Mahadev during his lifetime, has effected a partition in respect of the suit properties and distributed all such properties amongst his children under a Deed of Partition dated 06.08.1955. In the said partition, the property bearing Plot Nos.1 and 2 consisting of an open space and the small building situated at Rajawada - 6 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 compound, Vadagoan, Belagavi, and Plot No.13 situated at Ichalkaranji, 10 power looms and shares of the different companies were allotted to the plaintiffs’ father’s share i.e. late Virupax. Likewise, the said document contains as to, what are the other properties allotted to the other children. The plaintiffs’ father came in possession of the suit properties. The suit schedule properties are the ancestral joint family properties and they were/are in joint possession and enjoyment of the same during the lifetime of their father as well as, after his demise. The marriage ceremony of Smt. Pramila came to be performed with Sri. Iranna Bastwad of Belagavi. After her marriage, she led a married life at Belagavi and in those days, Belagavi was considered to be far away from Ichalakaranji. The plaintiffs’ grandfather-Mahadev sent the plaintiffs’ father to Belagavi to look after his daughter-Pramila as her husband was suffering from tuberculosis and ultimately, he succumbed. Thereafter, she went to Ichalakaranji and stayed along with her parents. The plaintiff’s grandfather, late Mahadev purchased handlooms with an intention to see that, the plaintiff’s father settle at Belagavi and earn his livelihood. The plaintiff’s father continued the family textile business at Belagavi and - 7 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 constructed a residential house in the ancestral properties i.e., Plot Nos.1 and 2. The plaintiff’s grandfather rented House No.406/1A at Bazaar Galli, Vadagaon, Belagavi. During the partition, the said property was allotted to the plaintiff’s uncle share namely, Sri. Sudhakar, hence, the plaintiffs’ father had to vacate the said premises and Sri. Sudhakar started to reside in the said property along with his family. After the death of Sudhakar, his family members stayed there for some years and later shifted to Ichalakaranji and took the said property for sale. The plaintiffs’ father purchased R.S.No.349/2 at Pandarpur, along with above said property out of the income of joint family textile business. The said properties assumed the characteristic of the Joint Family Properties. The plaintiffs’ father was suffering from ailment. He was admitted as an inpatient in the hospital and he died on 22.02.2006. The plaintiffs have spent huge amount of money for the purpose of providing medical facilities to their father for a period of two years, prior to his death. It is contended that, the defendant induced the plaintiffs to execute irrevocable General Power of Attorney for the purpose of looking after moveable and immoveable properties of the joint family. The defendant got - 8 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 drafted the irrevocable general power of attorney and got executed the same from the plaintiffs on 04.01.2007 at Belagavi. The defendant never disclosed the alleged Will. After the execution of the power of attorney, the plaintiffs started suspecting the defendant and they came to know that, the defendant is trying to misuse the authority with an intention to deprive all their legitimate shares in the suit schedule properties. Plaintiff No.3, revoked the irrevocable general power of attorney and made it known to the public at large by way of publication in Tarun Bharat NEWS paper dated 13.01.2007. It is stated that, the plaintiffs and the defendant are the members of a Hindu undivided family. There is no partition effected between the plaintiffs and the defendant. It is contended that, the plaintiffs denied the execution of the alleged Will in favour of the defendant. It is stated that, the defendant, based on the alleged Will dated 15.10.2005 filed a suit in O.S. No.915/2009 against the plaintiffs on the file of the learned IV Additional Civil Judge, Belagavi for the relief of declaration and permanent injunction. The plaintiffs filed a written statement and denied the execution of the alleged will dated 15.10.2005. It is contended that, the defendant got - 9 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 created the alleged Will. The alleged will is surrounded by suspicious circumstances. The plaintiffs’ father had no legal right to execute any testamentary document. The said Will is not binding on the plaintiffs. Hence, on these grounds, pray to decree the suit. 5. The defendant filed a written statement denying the averments made in the plaint. It is contended that, the great grandfather of the plaintiffs, late Balappa Bidkar was the native of Beed village near Kolhapur in Maharashtra State. He came to Ichalkaranji for his livelihood along with son Sri. Mahadev and stayed over there. The great grandfather of the plaintiffs passed away at Ichalakaranji. It is denied that, Mahadev has flourished in the said business and earned sufficient income by carrying on the said business and also denied that, he acquired moveable and immoveable properties at Ichalakaranji and other places. It is contended that, the original propositus- Mahadev during his lifetime itself effected a partition in respect of all his properties and distributed all such properties amongst his children under the registered Deed of Partition dated 06.08.1955. It is denied that, Plot Nos.1 and 2 situated at Rajawada compound, Vadagoan, Belagavi and the property - 10 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 bearing Plot No.13 situated at Ichalakaranji, 10 powerlooms and shares of different companies came to be allotted to the plaintiffs’ father and the palintiffs’ father was in possession of the properties. It is denied that, the plaintiffs’ grandfather Sri. Mahadev sent Sri. Virupax to Belagavi for the purpose of looking after Smt. Pramila as her husband was suffering from tuberculosis. It is denied that, the plaintiffs’ father engaged himself in the textile business as well as in the power loom business at Belagavi with the financial assistance of his father and later, he shifted his family from Ichalkaranji to Belagavi for the purpose of educating his children. It is denied that, in order to carry on the ancestral textile business, plaintiffs’ grand father late Sri. Mahadev took a rented house at Belagavi. It is contended that, power looms at Ichalkaranji belonging to Sri. Mahadev were installed by him. He got constructed a residential house in the ancestral properties bearing Plot Nos.1 and 2. It is denied that, the plaintiff’s grandfather rented a House No.406/1A, Bazaar Galli, Vadagaon, Belagavi in the name of the plaintiff’s father by investing his savings. It is denied that, after the demise of Sudhakar, his family members stayed there for some years and later they shifted to - 11 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 Ichalkaranji. It is denied that, the plaintiffs’ father was suffering from ailment. It is stated that, the plaintiffs’ father has executed a Will dated 15.10.2005 bequeathing the suit schedule properties. By virtue of the Will dated 15.10.2005, the defendant became the absolute owner of the suit schedule properties. Hence, on these grounds, pray to dismiss O.S. No.246/2015. 6. Brief facts in O.S. No. 68/2017 are as follows: It is the case of the plaintiff/defendant in O.S. No.246/2015 that, the plaintiff and the defendants are own brother and sisters. Deceased Virupax Mahadev Bidkar was having one son and three daughters, who are the plaintiff and the defendants. Marriages of the defendants have been performed about 20-30 years back and they are residing in their respective husband’s house. The plaintiff’s father was doing textile and power loom business. He was earning sufficient income. From the said income, he had purchased the suit properties. Suit ‘A’ schedule properties are the self acquired properties of deceased Virupax Mahadev Bidkar. The said Virupax and his properties were looked after throughout his life by the plaintiff and the suit schedule properties were - 12 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 and are in possession and enjoyment of the plaintiff. The plaintiff’s father had great love and affection towards the plaintiff. He expressed his opinion regarding execution of the Will. He executed a Will in favour of the plaintiff which is written in his own handwriting in the presence of attesting witnesses. After writing, the contents of the said documents i.e., the Will dated 15.10.2015 was read over and explained to the attesting witnesses by the testator or by the executant i.e., the plaintiff’s father personally. Sri. Virupax and the attesting witnesses signed on the Will. Virupax died on 22.02.2006. The plaintiff became the absolute owner and is in possession, use and enjoyment over the suit properties. The plaintiff alleged that, the defendants started obstructing and disturbing the plaintiff’s possession and enjoyment over the suit schedule ‘A’ properties by denying the plaintiff’s rights over the suit properties without having any right, title and interest over the suit properties. Hence, a cause of action arose for the plaintiff to file a suit for the relief of declaration and consequential relief of permanent injunction. Accordingly, prayed to decree the suit. - 13 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 7. Defendant Nos.2 and 3 filed their written statement denying the averments made in the plaint. They have reiterated the plaint averments made in O.S. 246/2015 in their written statement. 8. The trial Court, based on the pleadings of the parties, framed the following issues and additional issues: ISSUES IN O.S. NO.68/2017 1. Whether the plaintiff proves that, he is the owner in possession of the suit schedule property by virtue of “Will” dated 15.10.2005 ? 2. Whether the plaintiff proves the disturbance and obstruction by the defendants in his peaceful possession and enjoyment over the suit schedule property ? 3. Whether the defendants prove that the suit schedule properties are ancestral and joint family properties purchased out of joint family funds ? 4. Whether the defendants prove that the suit of plaintiff is barred by limitation ? 5. What order or decree ? ADDL-ISSUES 1. Whether the plaintiff proves that the suit properties are the self acquired properties of deceased Virupax Mahadev Bidikar ? - 14 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 2. Whether the plaintiff proves that deceased Virupax Mahadev Bidikar has executed the alleged will deed dated 15-02-2005 in sound disposing state of mind and body ? 3. Whether the suit of the plaintiff is properly valued for the purpose of court fee and jurisdiction? 4. What order or decree ? ISSUES IN O.S. NO.246/2015 1. Whether the plaintiffs prove that the suit schedule properties are the Joint Family Properties of the plaintiffs and defendant ? 2. Whether the defendant proves that the genealogy shown in the plaint is incomplete ? 3. Whether the defendant proves that the suit of the plf is bad for non-joinder of necessary parties ?hether the defendant proves that the father of the plaintiffs due to his hard work and vision and out of his self acquisition has earned the suit properties Sl. No.1, 2 and 5 as contended in para 18 of W.S. ? 4. Whether the defendant proves that Sl. No.3 is purchased by the defendant and his wife through their own earnings as contended ? 5. Whether the defendant proves that Sl. No.4 of the plaint was allotted to the Virupax under lease bases from Industrial Corporation Ichalkaranji and in the year 2010 the said property was given back to Industrial Corporation ? - 15 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 6. Whether the defendant proves that the properties as Sl. No.5 of the plaint has been sold in the year 2009 to meet out the expenses for the medical treatment of Sri. Virupaxi ? 7. Whether the defendant proves that the properties which were acquired by the Virupax were bequeathed in the name of the defendant through a Will on 15.10.2005 in respect of property Sl. No.1 and 2, 4 of suit properties ? 8. Whether the defendant proves that the suit is not properly valued for the purpose of court fee and jurisdiction? 9. Whether the defendant proves that court fee paid insufficient ? 10. Whether the plaintiff is entitled for the relief as prayed ? 11. What order or decree ? 9. The trial Court clubbed both the suits and recorded common evidence. Plaintiff in O.S. No.68/2017 examined himself as PW.1 and examined two witnesses as PWs.2 and 3 and marked 21 documents as Exs.P-1 to P-21. Defendant No.3 in O.S No.68/2017 /plaintiff No.3 in O.S. No.246/2015 examined herself as DW.1 and marked 26 documents as Ex.D-1 to D-26. - 16 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 10. The trial Court, after recording the evidence, hearing on both the sides and on the assessment of oral and documentary evidence, answered issue Nos.1, 2, 4 and additional issue Nos.1 to 3 in the Negative and issue No.3 partly in the affirmative, and issue No.5 and additional issue No.4 as per the final order in O.S. No.68/2017. In O.S. No.246/2015, issue Nos.1 and 11 are answered partly in the affirmative, issue Nos.2 to 4 and 8 to 10 in the negative, issue Nos.5 to 7 in the affirmative and issue No.12 as per the final order. 11. The trial Court dismissed O.S. No.68/2017 and decreed the suit in part in O.S. No.246/2015 and it is declared that the plaintiffs are entitled to 1/4th share each or together 3/4th share in the suit properties pertaining to para IV Sl.No.1 and Sl.No.2 of the plaint by metes and bounds. The suit of the plaintiffs with regard to the suit properties in para IV Sl.No.3, Sl.No.4 and Sl.No.5 of the plaint was dismissed. 12. The plaintiff in O.S. No.68/2017, who is the defendant in O.S. No.246/2015 aggrieved by the common - 17 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 judgment passed in O.S. No.68/2017 and O.S. No.246/2017 has filed these appeals. 13. Heard Sri. Dinesh M. Kulkarni, learned counsel for the plaintiff in O.S. No.68/2017/defendant in O.S. No.246/2015 and Sri. Vitthal S. Teli, learned counsel for the plaintiffs in O.S. No.246/2015/defendants in O.S. No.68/2017. 14. The learned counsel for the plaintiff in O.S. No.68/2017 submitted that the plaintiff has proved the execution of the Will dated 15.10.2005 by examining two witnesses as PWs.2 and 3. PW.2 identified the signatures of the parties to the Will. There was a compliance of Sections 63 and 68 of the Indian Evidence Act. He submits that the trial Court has committed an error in recording the finding that the Will is surrounded by suspicious circumstances. He submits that the Will is scribed by the testator himself. The plaintiff had proved the contents of Ex.P.1 i.e., the Will. He submits that the Court cannot decide the validity of the document based on the style of execution of the document. He submits that the trial Court has committed an error in comparing the handwriting and signature of the executant. - 18 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 The trial Court is not expert in the field of handwriting. The trial Court has committed an error in decreeing the suit filed by the sisters and dismissing the suit of the plaintiff. The common judgment and decree passed by the trial Court is arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeals. 15. Per contra, learned counsel for the defendants in O.S. No.68/2017 submits that the Will is surrounded by suspicious circumstances and the defendants being the coparceners are entitled to share in the suit schedule properties. He submits that the suit schedule properties are the ancestral properties of the plaintiff and the defendants. They are members of a Hindu undivided joint family and no partition is effected between the plaintiff and the defendants. The trial Court was justified in recording a finding that the plaintiffs have failed to prove the execution of Ex.P.1 and rightly granted a share to the plaintiff in O.S. No.246 of 2015. Hence, on these grounds, prays to dismiss the appeals. - 19 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 16. Perused the records and considered the submission of the learned counsel for the parties. 17. The points that arise for our consideration are: (i) Whether the plaintiff in O.S. No.68/2017 proves the execution of Will dated 15.10.2005 executed by Virupax bequeathing the suit schedule properties in Item Nos.1, 2 and 4 of the suit schedule properties? (ii) Whether the defendants in O.S. No.68 of 2017 prove that the suit schedule properties are the joint family properties of the plaintiff and the defendants? (iii) Whether the plaintiff in O.S. No.68/2017 proves that the common judgment and decree passed by the Court below is arbitrary and erroneous? (iv) What order or decree? 18. Point No.(i): It is the case of the plaintiff that Virupax was the absolute owner of the suit schedule properties, as the same were inherited by him from his father. The plaintiff was taking care of his father and out of love and affection, he bequeathed Item Nos.1, 2 and 4 of the - 20 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 suit schedule properties in favour of a plaintiff through Will dated 15.10.2005. The father of the plaintiff died leaving behind the plaintiff and the defendants. After the demise of the father of the plaintiff, the plaintiff became the absolute owner of the item Nos.1, 2 and 4 of the suit schedule properties. The plaintiff to prove the execution of a Will, produced Ex.P.1 and the signature of plaintiff’s father is marked as Ex.P-1(a). Signature of PW.2 is marked as Ex.P- 1(c) and the signature of PW.3 is marked as Ex.P-1(d). Ex.P.2 is the Record of Rights pertaining to the suit schedule properties; Ex.P-3 is M.R. Register pertaining to the suit properties; Ex.P4 is the MR register pertaining to the suit properties; Exs.P5 and 6 are the City Survey Records pertaining to the suit schedule properties; Ex.P7 is the certified copy of the registered partition deed dated 12.08.1955 which discloses that the partition was affected between Balappa, Mahadev, Sudhakar, Chandrakant and Suryakant and Virupax. It is stated that, they are the joint family members consisting of the joint family properties which is owned under the name and style as Veerbhadra - 21 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 Weaving Mills at Ichalakaranji. The said Mill is a partnership firm comprising of 7 partners, power loom, 1/7th share out of House No.317 situated at Ichalkaranji and the property was allotted to the share of Virupax which disclose that there was partition effected between the above said persons; Ex.P- 8 is the medical bills in 67 numbers; Ex.P.9 is the cash vouchers 67 in number; Ex.P.10 is Form No. 2 dated 21.09.1983 which discloses the name of the applicant as NandKishore; Ex.P.11 is the copy of letter dated 12.8.1987 which discloses that NandKishore authorised Mr. Bharat Mehta(Accountant) to attend the assessment to show the Books of Accounts and all pertaining documents and records on behalf of Sharada textiles; Ex.P.12 is the statement of sales for the year ending 31.12.1985 pertaining to Sahrada Textiles; Ex.P-13 is the statement of Sharada Textiles; Ex.P- 14 is the balance sheet of Sharada Textiles dated 31.12.1985; Ex.P-15 is the original registered sale deed which discloses that the plaintiffs father purchased the property; Ex.P-16 is the original registered sale deed purchased by the plaintiff’s mother; Ex.P-17 is the original - 22 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 registered sale deed purchased by the plaintiff; Ex.P-18 is the original sale deed purchased by the plaintiff; Ex.P-19 is the passport the plaintiff’s father; Ex.P-20 is the receipt; Ex.P-21 is the electricity bill pertaining to the suit properties. During the cross-examination of PW.1, PW.1 has admitted that the partition was effected in 1955 and the partition deed was registered. He admits that, his parents were residing at Ichalkaranji. He admits that since 2003, his father was suffering from ailment and house bearing number 406/1A was used for commercial purpose and Rajawad compound house was used for the residential purpose. At the time of purchasing the property at Pandarpur, his father was earning from the textile business. 19. The plaintiff to prove the execution of the Will, he has examined two attesting witnesses as PW.2 and PW.3. PW.2 has deposed that the father of the plaintiff executed a Will dated 15.10.2005 in favour of the plaintiff in respect of properties bearing Ward No.9, House No.23, Now numbered as Ward No.18, House No.149 situated at old Industrial Estate, Ichalakaranji, (2) Plot Nos.1 and 2 situated Bazaar - 23 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 camp, Vadagoan, Belagavi, and now both Plot Nos.1 and 2 are numbered as RCC house property, No.20 Rajwada camp, Vodagoan, (3) R.S. No.349/2 measuring 3 hectare 71 out of which 1 hectare 86 situate at Tharapur taluka, Pandarpur district, Solapur, (4) RCC house property No.405 now numbered as 406/1A situate at Bazar Galli, Vadagaon, Belgaum. He has deposed that the testator called him on 15.10.2005 to his house early in the morning and informed that he is going to execute his last Will. Accordingly, the testator executed a Will in favour of the plaintiff bequeathing the properties i.e. item Nos.1, 2 and 4 in favour of the plaintiff and PW 2 has affixed his signature on Exhibit P1. He identified his signature marked as Ex.P1(c). During the course of cross-examination, PW.2 pleaded ignorance about the ill-health and admission of the testator in different hospitals from 2005 and further, he is not aware as to who has drafted the examination-in-chief and he pleaded that he does not remember how many signatures are put by the testator on Ex.P1. - 24 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 20. Further, the plaintiff examined PW.3, who is an advocate by profession. He has deposed that, he knows the testator, who was the resident of Belagavi. PW.2 has introduced the testator on 14.10.2005 at Raibag. On that day, PW.2 informed that testator is intending to execute a Will in respect of the suit schedule properties item Nos.1, 2 and 4. As per the wish and will of testator, he had executed a Will on 15.10.2005. The testator himself has written his last Will in Marathi language and he read the same, as he knows the Marathi language and the executant has put his signature on Ex.P1 and PW.3 has put his signature. Thereafter, PW.2 has put his signature on Ex.P1 and he has deposed that he was not acquainted with the testator. He was introduced by PW.2. He has deposed that, when PWs.2 and 3 came to the house of the testator, his son Nandkishore was present in the house. During the course of cross- examination, he pleads ignorance that he does not remember as to how many signatures the testator has affixed on Ex.P1. PW.3 does not possess any property either at Ichalakaranji or at Belagavi or at Raibag. PW.3 is the - 25 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 resident of Raibag whereas testator was resident of Vadagoan, Belagavi. The plaintiff has not explained as to why PW.3 was introduced by PW.2 when the relatives of the testator were residing at Belagavi. 21. From the perusal of cross-examination of PW.3, it discloses that the plaintiff was present at the time of execution of alleged Will-Ex.P1. The presence of the plaintiff at the time of execution of the alleged Will is also one of the suspicious circumstance. From the perusal of evidence of PWs.1 to 3, the plaintiff has failed to prove the execution of the Will alleged to have been executed by Virupax Bidkar as per Ex.P1 and further, the said Will was written on the letterhead of Falcon Couriers and Marketing Limited. The said Falcon Couriers and Marketing Limited is not concerned to the family of the plaintiff and the defendants. The plaintiff has not explained why the Will was executed on the letterhead of Falcon Couriers And Marketing Limited, Bombay. 22. From the perusal of the evidence of PWs.1 to 3, it is clear that, the Will is surrounded by suspicious - 26 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 circumstances. The plaintiff has also not examined any witnesses regarding the sound disposition of mind of the testator. Admittedly, Virupax was suffering from ailment since 2005 and he was admitted in different hospitals and the plaintiff himself has produced the medical bills marked as Exs.8 and 9. Neither PW.2 nor PW.3 is the relative of the plaintiffs and the defendants. PW.2 is the friend of the plaintiff. The plaintiff has not explained why the testator has not executed the Will in the presence of his relatives, who are residing at Belgavi. PWs.2 and 3 are not the residents of Belagavi. Thus, it creates a doubt regarding the execution of Ex.P1 by Virupax in favour of the plaintiff. The evidence of PWs.2 and 3 do not support the case of the plaintiff to prove the execution of a Will. Admittedly, the defendants are the sisters of the plaintiff. The plaintiff has failed to prove the execution of the Will dated 15.10.2005. Admittedly, the suit properties were owned and possessed by Virupax. The sisters are coparceners and entitled to share in the suit properties. - 27 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 23. In view of the above discussion, we answer point No.(i) in the negative. 24. Point No.(ii): The plaintiff and the defendants are the brother and sisters. Admittedly, the suit properties were owned and possessed by their father, and their father acquired the suit schedule properties under a partition held in the year 1955 as per Ex.P7. Admittedly, no partition is effected between the plaintiff and the defendants. The plaintiff and the defendants are the members of Hindu undivided family. The defendants are the daughters of Virupax are entitled to a share as per Section 6 of Hindu Succession (Amendment) Act, 2005. The trial Court considering Section 6 of the Hindu Succession (Amendment) Act, has rightly held that the defendants are entitled to 1/4th share each and the plaintiff is entitled to 1/4th share. As observed above, the plaintiff has failed to prove the execution of the Will. Hence, the defendants are entitled to a share in the suit schedule properties. The trial Court was justified in decreeing the suit in O.S. No.246/2015 filed by defendants in O.S. No.68/2017. - 28 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 25. Thus, in view of the above discussion, we answer point No.(ii) in the affirmative. 26. Point No.(iii): The trial Court, considering the entire evidence lead by both the parties, has rightly held that the plaintiff has failed to prove the execution of the Will dated 15.10.2005 in respect of the property Item Nos.1, 2 and 4 of the suit schedule properties and rightly held that the defendants being the sisters of the plaintiff are the co- parceners as per Section 6 of the Hindu Succession (Amendment) Act, 2005, and they are entitled to equal share as per the law laid down by the Hon’ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others1 The trial Court was justified in passing impugned judgment. Hence, we do not find any error in the impugned judgment. 27. In view of the above discussion, we answer Point No.(iii) in the negative. 28. Point No.(iv): In view of the above discussion, we proceed to pass the following: 1 ILR 2020 KAR 4370 - 29 - NC: 2025:KHC-D:90-DB RFA No. 100226 of 2019 C/W RFA No. 100227 of 2019 ORDER The appeals are dismissed. The common judgment and decree dated 23.02.2019 passed in O.S. No.68/2017 clubbed with O.S. No.246/2015 by the learned Principal Senior Civil Judge and CJM, Belagavi, is hereby confirmed. No order as to the cost. In view of dismissal of the appeals, pending I.As. do not survive for consideration. Accordingly, they are disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB