- 1 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF AUGUST 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100005 OF 2018 (PAR/POS-) BETWEEN: 1. SHRI PRAKASH JAKKAPPA JUVEKAR, AGE: 68 YEARS, OCC: BUSINESS, R/O: H.NO.384, KARBAR GALLI, VADGAON, BELAGAVI-590 005. 2. ANAND @ ANANT JAKKAPPA JUVEKAR, AMENDMENT CARRIED AS PER ORDER DATED 23/09/2024 2A. SUNITA W/O. ANAND @ ANANT JUVEKAR, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.384, KARBAR GALLI, VADGAON, BELAGAVI-590 005. 2B. AMIT S/O. ANAND @ ANANT JUVEKAR, AGE: 35 YEARS, OCC: AGRICULTURE & PRIVATE SERVICE, R/O: H.NO.384, KARBAR GALLI, VADGAON, BELAGAVI-590 005. 2C. KAVITA SANJAY MUJUKAR, AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.384, KARBAR GALLI, VADGAON, BELAGAVI-590 005. 3. SMT. SHUBHANGI W/O. MANOHAR MUTAGEKAR, AGE: 45 YEARS, OCC: HOUSEHOLD, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 R/O: MARUTI GALLI, SAMBRA, BELAGAVI-491 124. …APPELLANTS (BY SRI. VITHAL S. TELI, ADVOCATE) AND: 1. SMT. ANUSAYA W/O. LAXMAN JADHAV, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO. 86/B, VAZE GALLI, VADGAON, BELAGAVI-590 005. 2. MANJULA W/O. MALLAPPA CHOUGULE, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.1377, TEACHER COLONY, SAMBHAJI NAGAR, CHIKODI, TAL: NIPANI, DIST: BELAGAVI-591 237. …RESPONDENTS (BY SRI. SHREEVATSA S. HEGDE & SRI. ABHILASH HANAMANNAVAR, ADVOCATES) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 03.11.2017 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI IN O.S.NO.147/2015 IN SO FOR AS GRANT OF SHARE IN SUIT LANDS RS NO.65/1, 285/6/1/C & 415/2 IS CONCERNED; ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN O.S.NO.147/2015 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM BELAGAVI AND ETC. THIS APPEAL IS COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA - 3 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal is by the defendant Nos.1, 2 and 4 in OS No.147/2015 is directed against impugned judgment and decree dated 03.11.2017 passed by the I Addl. Senior Civil Judge and CJM, Belagavi1 whereby the said suit filed by the respondent Nos.1 and 2 against the appellants and respondent No.3-defendant No.3 for partition and separate possession for their alleged 1/6th share each in the suit schedule immovable properties was decreed in favour the plaintiffs against the defendants by the trial Court. 2. The brief facts giving raise to the present appeal are as follows:- The respondent Nos.1 and 2-plaintiffs are the daughters of Jakkappa who died on 16.05.2011 and Smt.Gangubai, who predeceased on 28.04.1992. The respondent No.1 and 2- plaitniffs instituted the aforesaid suit against the appellants- 1 Hereinafter referred as ‘trial court’ - 4 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 defendants 1, 2 and 4 and respondent No.3-defendant No.3 who are siblings for partition and separate possession of their alleged 1/6th share in the suit schedule immovable properties and for other releifs. The genealogical tree as pleaded in the plaint is as under: Jakkappa (died on 16.05.2011) =Smt. Gangubai (died on 22.08.1992) Prakash Anand Anusuya Manjula Sujata Shubhangi (D1=A1) (D2=A2) (P1=R1) (P2=R2) (D3=R3) (D4=A3) 3. As stated supra, the parties are siblings and their parents Jakkappa and Gangubai expired on 16.05.2011 and 28.04.1992 respectively. According to the plaintiffs, among the suit schedule properties, schedule ‘A’ property is a house property while schedule B, C, D and E are landed properties. In that schedule ‘B’ property is R.S.No.65/1 measuring 1 acre 28 guntas while schedule ‘C’ is R.S.No.285/6/1/C measuring 10 guntas and schedule ‘D’ is R.S.No.415/2 measuring 31 guntas and schedule ‘E’ is R.S.No.125/3 measuring 13 guntas situated at respective villages mentioned in the schedule to the plaint. - 5 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 4. It is an undisputed fact as borne out from the material on record that while schedule-‘B’ property bearing R.S.No.65/1 measuring 1 acre 28 guntas was owned and possessed by Smt.Gangubai, mother of the parties, remaining A, C, D and E schedule properties stood in the name of their father Jakkappa. According to the plaintiffs, since both Jakkappa and Gangubai died intestate living behind the parties to succeed to their estate as their class-I heirs, each one of the parties, being the children and class-I heirs of Jakkappa and Gangubai are entitled for 1/6th share in the suit schedule properties and consequently, the plaintiffs sought for partition and separate possession of their 1/6th share in the suit schedule properties and for other reliefs. 5. The appellant-defendant Nos.1 to 4 filed their written statement interalia disputing the claim of the plaintiffs, while respondent No.3-defendant No.3 supported the claim of the plaintiffs. In their written statement, the appellants- defendant Nos.1 to 4 specifically contended that there was a oral partition during the life time of their father Jakkappa under which schedule A, C and D fell to the share of the appellant - 6 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 Nos.1 and 2-defendants 1 and 2 and schedule ‘E’ property had been sold by the father himself during his life time. In addition to the aforesaid plea regarding oral partition, insofar as schedule-B of the plaint schedule properties are concerned, the appellants specifically contended that the same had been bequeathed in favour of the appellant Nos.1 and 2 by their mother Smt.Gangubai vide a last will and testament dated 29.02.1992 pursuant to which the appellant Nos.1 and 2 have become the absolute and sole owners of schedule ‘B’ property. Under these circumstances, the appellants sought for dismissal of the suit. 6. Based on the aforesaid pleadings, the trial Court framed the following issues: 1. Whether the plaintiffs prove that the suit properties are the joint family properties of parties to the suit and they have been in joint possession of the same with the defendants? 2. Whether the defendant Nos.1, 2 and 4 proves that already there was an oral partition between the parties to the suit during the lifetime of their father Jakkappa and in the said partition all the sisters including the plaintiffs have orally relinquished their shares in favour of defendant Nos.1 and 2? - 7 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 3. Whether the above defendants further prove that their mother Smt. Gangubai had bequeathed R.S.No.65/1 of Vadagaon in favour of defendant Nos. 1 and 2 equally by executing Will Deed on 29.2.1992? 4. Whether the above defendants prove that H.No.384 (CTS No.1068) of Karbar Galli, Vadagaon is the self acquired property of defendant nos. 1 and 2? 5. Whether the defendant Nos. 1, 2 and 4 proves that R.S.No.125/3 of Angol is not available for partition as contended in Para No.13 of their written statement? 6. Whether the plaintiffs are entitled for any share in the sit properties? If so, to what share? 7. To what reliefs the parties are entitled to? 8. What order or decree? 7. The respondents-plaintiffs examined the plaintiff No.1 as PW.1 and documentary evidence at Ex.P1 to P11 were marked on their behalf. The appellants examined Defendant No.1 as DW.1 and defendant No.3 who supported the claim of the plaintiff examined herself as DW.2. The appellants- defendant Nos.1, 2 and 4 marked a mutation extract as Ex.D1 by way of documentary evidence. - 8 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 8. After hearing both sides, the trial Court came to the conclusion that the appellants-defendant Nos.1, 2 and 4 who had put forth the plea of oral partition under which schedule ‘C’ and ‘D’ properties alleged to have fallen to their share had failed to substantiate the said claim by way of legal and acceptable evidence and the defendants contend that schedule ‘A’ property is their separate and self acquired property and that the plaintiffs are not entitled for any share in the said property, consequently proceeded to decree the suit insofar as schedule ‘C’ and ‘D’ properties are concerned. The trial Court also held that the appellants have not produced the alleged Will dated 29.02.1992 under which the mother Gangubai has allegedly bequeathed the schedule ‘B’ property in their favour. Accordingly, decreed the suit in favour of schedule ‘B’ property also. However, the trial Court came to the conclusion that schedule ‘A’ property was separate and self acquired property of the appellant Nos.1 and 2 and schedule ‘E’ property has been alienated by the father during his life time, the said property was not available for partition and accordingly, dismissed the suit in relation to schedule ‘A’ and schedule ‘E’ properties. - 9 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 9. It is a matter of record that the respondent Nos.1 and 2-plaintiffs have not challenged the impugned judgment and decree insofar as rejection of their plaint in respect of plaint schedule ‘A’ and ‘E’ properties are concerned and the impugned judgment and decree insofar as said properties are concerned has attained finality and become conclusive and binding upon the respondent Nos.1 and 2. 10. Learned counsel for the appellants on instruction would indicate that the limited scope of scrutiny/examination in the present appeal is as is restricted to item No.2-schedule ‘B’ property i.e., land bearing survey No.65/1 and as to whether the appellant Nos.1, 2 and 4/defendant Nos.1, 2 and 4 had proved the plea of earlier partition in relation to item schedule ‘C’ and ‘D’ of the plaint schedule properties are concerned. 11. We have heard the learned counsel for the appellants and learned counsel for the respondent Nos.1 and 2 and perused the material on record. 12. The following points arise for consideration in the present appeal: - 10 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 i) Whether the trial Court was justified in rejecting the plea of earlier oral partition in respect of schedule ‘C’ and ‘E’ of the plaint schedule properties are concerned and decreeing the suit of the plaintiffs in respect of these properties? ii) Whether the trial Court was justified in rejecting the plea of the appellants that their mother Smt.Gangubai had executed a Will dated 29.02.2022 bequeathing schedule ‘B’ property in their favour and consequently decreeing the suit of the plaintiff in respect of this property also? Regarding point no.(i): 13. The trial Court came to the conclusion that in the light of the undisputed relationship between the parties and well settled position of law that the plea of earlier partition rests heavily on a person putting forth the said contention, came to the conclusion that the appellants-defendant Nos.1, 2 and 4 had failed to establish the plea of earlier partition set up by them in relation to items ‘C’ and ‘D’ of the suit schedule properties are concerned. While arriving at the said conclusion, - 11 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 the trial Court considered the issue Nos.1 and 2 and came to the following conclusion: 19.(iii) R.S.No.285/6/1/C: The RTC for the said land is at Exh.P.3. There is no defence specifically taken on behalf of the defendants with regard to the said land. The counsel for plaintiff has relied upon [2017] SCCR 826 (Jaspal Kaur Cheema and others vs. Industrial Trade Links and others) wherein, it is held that the defendant is required to deny or dispute the statements made in the plaint categorically, as evasive denial would amount for admission and also the said property find place in Exh.P.10 which was allotted to Jakkappa. Hence, the plaintiffs are having share in the said land. 19.(iv) R.S.No.415/2: The RTC for the said land is at Exh.P.4, wherein the name of Jakkappa will appears to the said land. The said land is allotted to Jakkappa. The defendants contend that they are cultivating the said land, but the said land is allotted to the father of the parties. Hence, the plaintiffs are having share in that property. 14. As could be seen from the aforesaid finding recorded by the trial Court, the material on record produced by the parties clearly indicate that aforesaid item C and D plaint schedule properties were owned and possessed by Sri.Jakkappa and upon his demise, same devolved upon all the parties - 12 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 including the plaintiffs and defendants, and all of them are entitled to 1/6th share each in these properties. The trial Court also took note of the fact that the appellants-defendants who had put forth the specific plea of earlier oral partition during the life time of Jakkappa had failed to substantiate the said plea by producing any legal or acceptable evidence and consequently declared that all the parties are entitled for 1/6th share each in the schedule ‘C’ and ‘D’ properties. 15. Upon re-appreciation, revaluation and reconsideration of the entire material on record, we are of the considered opinion that in the absence of any material to establish the plea of earlier partition, the trial Court has fully justified in decreeing the suit of the plaintiffs in relation to schedule ‘C’ and ‘D’ properties and consequently impugned judgment and decree qua schedule C and D properties does not warrant interference by this Court in the present appeal. Accordingly, point No.(i) is answered against the appellants. Regarding point No.2: 16. The material on record undisputedly indicates that schedule ‘B’ property i.e., land bearing survey No.65/1 was - 13 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 owned and possessed by Smt.Gangubai. While plaintiffs specifically contend that Smt.Gangubai died intestate, appellants-defendant Nos.1, 2 and 4 have propounded an alleged Will dated 29.02.1992 according to which the said schedule ‘B’ property was alleged to have been bequeathed in favour of defendant Nos.1 and 2-appellant Nos.1 and 2. In order to prove the said contention, the appellants did not produce the alleged Will during the course of evidence before the trial Court. However, reliance is placed by the appellants upon an alleged admission in the cross examination of PW.1 in order to point out that PW.1 (plaintiff No.1) had herself admitted that their mother had executed a Will in favour of the appellants-defendant Nos.1 and 2, thereby proving the execution, attestation and validity of the alleged Will in their favour. The relevant portion of the cross examination of PW.1 relied upon by the appellants is as under: “12. It is true to that RS no. 65/1 is purchased by my mother from Laxman Savant in 1961. It is true to that my mother has bequeathed the said land by 'Will' to Prakash and Anand. I do not know on 29.02.1992 my mother has executed the said 'Will'. It is true to that the diary is certified on the basis of 'Will'. I have not challenged the diary entries in respect of said 'Will'. My mother was - 14 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 staying with defendants 1 & 2 till her death and brothers have looked after her. Witness says I also was attending. It is false to suggest that I have not attended funeral of my father.” 17. Per contra, learned counsel for the respondents would support the impugned judgment and decree and contends that merely because there is a stray admission on the part of the PW.1 that there was a Will said to have been executed by their mother in favour of the appellants, in the absence of the production of the original Will and proof of the same by the propounder of the Will who was the appellant Nos.1 and 2-defendant Nos.1 and 2, the said stray admission could not have been made as a basis to approve the claim of the appellants and trial Court has correctly rejected the said plea of the appellants by passing the impugned judgment and decree which does not warrant interference by this Court in the present appeal. 18. As stated earlier except producing the mutation entry which purports to indicate that the khata was mutated into the name of the appellants pursuant to the alleged Will, the original Will itself has not been produced by the appellants - 15 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 who are the propounders of the alleged Will. It is well settled that the burden of proving due execution, attestation, testamentary capacity and absence of suspicious circumstances surrounding the execution of the Will rests heavily on the propounders of the Will. In this context, it is relevant to extract Section 68 of the Evidence Act which reads as under: “68. Proof of execution of document required by law to be attested.––If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 19. A bare perusal of the aforesaid provision is sufficient to come to the conclusion that insofar as registered documents are concerned, unless the execution is specifically denied, it is not necessary to examine the witness to prove due - 16 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 execution of compulsorily attestable document. However, the said dispensation of requirement of summoning an attesting witness to a compulsorily attestable document would not apply to a Will as is clear from the proviso to Section 68 of the Evidence Act. In addition thereto, all that forthcoming from the alleged admission made in paragraph 12 of the cross examination of PW1 is that she is purported to admit that there exists a Will but goes on to say that she does not know that the mother has executed a Will on 29.02.1992 and that the mutation entry is certified on the basis of the Will. 20. It is needless to state that mere non-challenge of the mutation entry would not lead to an inference that there was a Will executed by the mother in favour of the appellants. It is also pertinent to note that mutation entries will not have the effect of creating or extinguishing rights in immovable property. 21. As rightly held by the trial Court, in the absence of the alleged Will dated 29.02.1992 and without the same being proved in accordance with law as contemplated under Section 68 of the Evidence Act r/w Section 63 of the Indian Succession - 17 - HC-KAR NC: 2025:KHC-D:10042-DB RFA No. 100005 of 2018 Act, we are of the considered opinion that the trial Court was fully justified in rejecting the plea of bequest put forth by the appellants and accordingly, upholding the claim of respondents- plaintiffs. 22. Under these circumstances, we do not find any illegality or infirmity in the impugned judgment and decree insofar as schedule ‘B’ property is concerned and as such, the impugned judgment and decree in relation to this property also does not warrant interference by this Court in the present appeal. Point No.(ii) is accordingly answered against the appellants. 23. In view of the foregoing discussion, we do not find any merit in the appeal and the same is hereby dismissed. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE HMB CT-MCK List No.: 1 Sl No.: 20