- 1 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1796 OF 2013 (PAR) BETWEEN: SMT SHANKARAMMA, W/O G. BASAVARAJAIAH, AGED ABOUT 51 YEARS, R/A KOTTIGEHALLI VILLAGE, KIBBANAHALLI HOBLI, TIPTUR TALUK, TUMKUR DISTRICT - 572 201. …APPELLANT (BY SRI JAYAKIRTHI M C, ADVOCATE) AND: SRI SHANKARALINGAIAH, SINCE DEAD BY LR'S 1(a) PARVATHAMMA, W/O LATE SHAKARALINGAIAH, AGED ABOUT 67 YEARS, 1(b) SRI ASHOK KUMAR, S/O LATE SHAKARALINGAIAH, AGED ABOUT 42 YEARS, 1(c) SMT SHANKARAMANI, W/O NAGENDRA, D/O LATE SHANKARALINGAIAH, AGED ABOUT 40 YEARS, THALAKERE AT POST, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT - 572 214. Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 1(d) SRI PRADEEP, S/O LATE SHAKARALINGAIAH, AGED ABOUT 38 YEARS, RESPONDENTS 1(a), 1(b) AND 1(d) R/AT GOPALANAHALLI VILLAGE, SHEKTTIKERE HOBLI, C.N.HALLI TALUK, TUMKUR DISTRICT - 572 214. (AMENDMENT CARRIED OUT AS PER ORDER DATED 20.08.2024) …RESPONDENTS (BY SRI RAMESH P KULKARNI, ADVOCATE FOR R1(a), R1(b) & R1(d), R1(c) - SERVED) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 17.8.2013 PASSED IN R.A.NO.148/2012 ON THE FILE OF THE V ADDL. DISTRICT & SESSIONS JUDGE, TIPTUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 2.8.2012 PASSED IN O.S.NO.58/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDL. JMFC., TIPTUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is against the divergent finding regarding allotment of shares and concurrent finding relating to proof of execution of the Will. The admitted genealogy is as under:- - 3 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 Marinanjappa (dead) Nanjamma (dead) Siddagangamma (2nd wife) (1st wife) Shankaralingaiah Shankaramma (Defendant) (Plaintiff) 2. Marinanjappa was the propositus. Marinanjappa had two wives namely Nanjamma and Siddagangamma. Nanjamma is first wife and Siddagangamma is second wife. Second marriage has taken place after the demise of first wife. 3. From first wife-Nanjamma, the propositus has a son by name Shankaralingaiah. 4. The propositus has a daughter by name Shankaramma from Siddagangamma, second wife. 5. The suit for partition is filed by Shankaramma against her stepbrother Shankaralingaiah. Plaintiff claimed 1/2 share in the suit schedule properties. The defendant Shankaralingaiah raised a defence based on a Will dated 19.06.1991 said to have been executed by propositus - 4 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 Marinanjapa-his father and thus prayed for dismissal of the suit. 6. There is no dispute that the properties covered under the Will stood in the name of Marinanjappa. Defendant produced the said Will at Ex.D2. One of the attesting witnesses is examined. The Trial Court concluded that execution of the Will is proved. However, the Trial Court granted a decree for partition in respect of the properties on the premise that as on the date of execution of the Will, Marinanjapa had only 1/3 share. 7. Plaintiff filed first appeal challenging the finding relating to execution of the Will and also allotment of share. 8. The defendants filed cross-objection challenging the quantum of share on the premise that Marinanjappa had absolute right over the properties under the Will. 9. First Appellate Court has concluded that the execution of Will is proved and also came to the conclusion that since the Will was executed on 19.06.1991 before the 2005 amendment to Section 6 of Hindu Succession Act, - 5 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 1956, Shankaramma, the daughter did not have any right in the property as on the date of death of Marinanjappa who died on 10.05.1995. Hence, the present second appeal. 10. First Appellate Court has allowed the appeal and dismissed the suit in respect of all properties except item No.4 and 13 on the premise that those properties are not covered under the Will and First Appellate Court granted 1/3rd share to the plaintiff/appellant. 11. Learned counsel appearing for the plaintiff/ appellant would contend that the execution of Will is not proved. The properties are ancestral properties. The Will was not acted upon, the father had no intention to execute a Will in favour of the respondent by excluding the appellant and these suspicious circumstances surrounding the execution of the Will are not dispelled by the propounder by leading evidence. 12. It is also his further submission that the propounder of the Will has not led evidence personally and it - 6 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 is a serious lapse on the part of the propounder as he did not subject himself for the cross-examination. 13. In the alternative, it is submitted that the award of 1/3rd share in respect of items No.4 and 13 is erroneous in as much as the Will is not executed in respect of those two properties. The daughter would be entitled to equal share as Marinajnappa died intestate in respect of those two properties, is the submission. 14. Learned counsel for respondent would submit that Will is duly executed and execution is duly established. It was registered on 19.06.1991. The testator died on 10.05.1995. He lived for a considerable long time after execution of the Will. Thus one can conclude that the testator was in sound health and disposing state of mind. There is no warrant under the law that the propounder has to examine himself to prove the execution of the Will. What is required is only the examination of one of the attesting witnesses and one of the attesting witnesses has been examined. - 7 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 15. It is urged that witness has identified the signature of the testator and he has spoken about attestation. It is further urged that nothing is elicited in the cross-examination to disbelieve the evidence of the attesting witness. 16. The Court has considered the contentions raised at the bar and perused the records. 17. This appeal was admitted on 14.06.2016 to resolve the following substantial questions of law. "1) Whether the Lower Appellate Court is justified in modifying the judgment and decree of the trial court holding that the plaintiff is entitled to 1/3rd share only in item Nos.4 & 13 of suit 'A' schedule property on the basis of Ex.D2 when Ex.D2 was not proved in accordance with Section 68 of the Indian Evidence Act? 2) Whether the Lower Appellate Court is justified in modifying the judgment and decree of the trial court on the facts and circumstances of the case without considering the oral and documentary evidence on record?" - 8 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 18. After going through the evidence recorded by the Trial Court relating to the proof of Will and after considering the reasons assigned by the Trial Court and First Appellate Court, the Court does not find any error in appreciation of evidence to interfere in exercise of power under Section 100 of the Code of Civil Procedure as the finding relating to the proof of Will is certainly based on the acceptable evidence relating to such proof. 19. It is also noticed that the Will was duly registered on 19.06.1991. The testator died on 10.05.1995, 4 years after the execution of the Will. It also speaks about his sound health at the time of execution. The signature of the testator is not seriously disputed. 20. The contention that unless the propounder steps into the witness box to support the claim based on the Will, the Will cannot be accepted as it has no support in law. 21. Section 68 of Indian Evidence Act does not mandate evidence of the propounder to prove the execution of the Will. What is required is the evidence of attesting - 9 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 witnesses. It is quite possible that the testator may not be there when the Will was executed and his evidence may not necessary to prove execution of the Will in all cases. Merely because the propounder does not examine himself, does not mean that the execution is not proved. In the light of the concurrent findings recorded relating to proof of Will which are based on acceptable evidence, the Court does not find any reasons to interfere in the finding on proof the Will. 22. First Appellate Court held that the plaintiff/appellant is entitled to 1/3rd share in item No.4 and 13 properties on the premise that those properties are ancestral properties and there has to be a notional partition. 23. It is noticed that after the death of Marinanjappa, the property would devolve upon both Shankaralingaiah and Shankaramma and First Appellate Court could not have granted 1/3rd share. Though the learned counsel for the respondent has urged that there was a partition in the family where entire properties are allotted to the share of Shankaralingaiah-the defendant, there is no specific plea in - 10 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 the written statement relating to the alleged partition and the said partition does not reflect the division of the properties between two sharers, namely Shankaramma and Shankaralingaiah. In that view of the matter, the contention that there was a partition cannot be accepted. Thus the plaintiff will have half share and the defendant will have ½ share in the suit properties. 24. For the reasons recorded, the impugned judgment and decree of the Trial Court and First Appellate Court have to be modified. 25. Hence, the following: ORDER (i) Appeal is allowed-in-part. (ii) The judgment and decree dated 17.08.2013 in R.A.No.148/2012 on the file of V Additional District Judge, Tiptur are modified. - 11 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 (iii) The judgment and decree dated 02.08.2012 in O.S. No.58/2007 on the file of Senior Civil Judge Tiptur are modified. (iv) The suit of the plaintiff is decreed in part awarding 1/2 share and defendant is entitled to ½ share in items No.4 and 13 properties. (v) The suit is dismissed in respect of remaining properties. (vi) Since there are only 2 sharers, each having 1/2 share in the suit schedule properties, the final decree Court may provide the option of dividing the properties to the parties to the proceedings as it may reduce the time taken to conclude the final decree proceeding. (vii) In such an event referred to above, the party proposing division of the properties shall prepare the scheme of division and the other party will have first option of choosing either of two divisions proposed by the other party. (viii) And once such option referred to above, is exercised, the party choosing a particular portion of the properties shall be put in possession of the same and the properties - 12 - HC-KAR NC: 2025:KHC:30263 RSA No. 1796 of 2013 which form the other division shall be put in possession of the other party. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS