- 1 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 06TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 4096 OF 2012 (PAR-) BETWEEN: 1. HONNAPPA S/O. FAKKIRAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 64 YEARS, OCC: AGRICULTURE 2. NAGAPPA S/O. FAKKIRAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 62 YEARS, OCC: AGRICULTURE, 3. SHIVAPPA S/O. FAKKIRAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 58 YEARS, OCC: AGRICULTURE, 4. SMT. SHANTAVVA W/O. HONNAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 59 YEARS, OCC: HOUSEHOLD WORK, 5. MUDDUKAPPA S/O. HONNAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 35 YEARS, OCC: AGRICULTURE, 6. PARASAPPA S/O. HONNAPPA GOVINDAPPANAVAR @ TALWAR, AGE: MAJOR, OCC: AGRICULTURE, 7. JAGADEVAPPA S/O. HONNAPPA GOVINDAPPANNAVAR @ TALWAR, AGE: MAJOR, OCC: AGRICULTURE, 8. SMT. DURGAVVA W/O. SHIVAPPA GOVINDAPPANAVAR @ TALWAR, AGE: MAJOR, OCC: AGRICULTURE, ALL ARE R/O. KONANATAMBAGI, TQ & DIST: HAVERI. …APPELLANTS (BY SRI. SANTOSH B. MANE, ADV) MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 AND: 1. SMT. YELLAVVA W/O. FAKIRAPPA GOVINDAPPANAVAR @ TALWAR, SINCE DECESED, 2. HANUMANTAPPA S/O. FAKIRAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 40 YEARS, OCC: AGRICULTURE, 3. 3a. 3b. 3c. 3d. MAHADEVAPPA S/O. FAKIRAPPA GOVINDAPPANAVAR @ TALAWAR, SINCE DECEASED BY LR’S., SMT. HONNAVVA W/O MAHADEVAPPA GOVINDAPPANAVAR, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, FAKKIRAPPA S/O MAHADEVAPPA GOVINDAPPANAVAR, AGE: 27 YEARS, OCC: AGRICULTURE, HONNAPPA S/O MAHADEVAPPA GOVINDAPPANAVAR, AGE: 25 YEARS, OCC: AGRICULTURE, JAGADISH MAHADEVAPPA GOVINDAPPANAVAR, AGE: 23 YEARS, OCC: AGRICULTURE, (ALL ARE R/O. JANATHA PLOT, KONANATHAMBIGI VILLAGE, TQ & DIST: HAVERI. 4. YALLAPPA S/O. FAKIRAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 49 YEARS, ALL ARE R/O. KONANATAMBAGI, TQ & DIST: HAVERI. 5. TIPPANNA S/O. HANUMANTAPPA GOVINDAPPANAVAR @ TALWAR, AGE: 69 YEARS, R/O. KONANATAMBAGI, - 3 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 NOW AT KATENAHALLI, NEAR POND OF KWANAVALLI, TQ & DIST: HAVERI. …RESPONDENTS (BY SRI. V.P. KULKARNI, ADV FOR R1; SRI. VIJAYENDRA S. BHIMAKKANAVAR, ADV FOR R2; SRI. MAHANTA GOUDA, ADVFOR R4; NOTICE TO R3(A) IS DISPENSED WITH; NOTICE TO R3(B TO D) & R5 ARE SERVED) THIS RFA IS FILED U/SEC.96 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD:18-02-2012 PASSED IN O.S.NO.35/2009 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, HAVERI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, 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. This Regular First Appeal is filed by the appellants, challenging the Judgment and the preliminary decree dated 18.02.2012 passed in O.S.No.35/2009 by the learned Additional Senior Civil Judge, Haveri (for short ‘the Trial Court’). - 4 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 2. For convenience, the parties are referred to, based on their rankings before the Trial Court. The appellants were defendant Nos.1 to 3 and 6 to 10, respondent Nos.1 and 3 were the plaintiffs, and the other respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed the suit against the defendants for partition and separate possession regarding the suit schedule properties. One Fakkirappa was the original propositus, and he had a wife by name Yellavva. Fakkirappa and Yellavva had nine sons, i.e., plaintiff Nos.2 and 3 and defendant Nos.1 to 5. Defendant No.6 is the wife of defendant No.1, and defendant Nos.7 to 9 are the children of defendant Nos.1, and 6. Defendant No.10 is the wife of defendant No.3, and one more son of plaintiff No.1, namely Totappa, who died about 16 years back who is unmarried. Siddappa had gone in adoption to the family of Durgapap Talwar. Plaintiff No.1 succeeded to the right of - 5 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 Totappa. During the pendency of the suit, plaintiff No.2 died, and his name was encircled from the cause title. The family of the plaintiffs and defendants constitute a Hindu undivided joint family. The propositus Fakkirappa died on 10.02.1989, leaving behind the plaintiffs, and defendant Nos.1 to 5, as his legal heirs and they are residing jointly. After the demise of Fakkirappa, the suit schedule A-4 property in R.S.No.161/5 was purchased in the name of defendant Nos.7 to 9 out of the joint family nucleus. Similarly, suit schedule A-1 property, i.e., R.S.No.97/2, was purchased in the name of defendant Nos.1 to 5 out of the joint family nucleus. It is contended that, R.S.No.161/2 and R.S.No.185/3 were the inam lands. The deceased Fakkirappa was an occupant, and occupancy rights were granted in the name of deceased Fakkirappa. Accordingly, the mutation was effected in the name of deceased Fakkirappa. It is also contended that, during his lifetime, the deceased Fakkirappa was doing vegetable business and rearing sheep. Fakkirappa during his life time - 6 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 had sold R.S.No.185/3 to Puttappa Govindappa Kallimani @ Talawar in private, and the said land was mutated in the name of a vendee, i.e., a purchaser. It is contended that the Fakkirappa was cultivating the lands based on kore lavani in private, and the income from the said property was used for the joint family. As far as the suit schedule-A-2 property is contended it was irrigated with the help of one Govindappa Mailrappanavar in 1975-76. The deceased Fakkirappa was managing the entire joint family affairs till his death. After the death of Fakkirappa defendant No.1 is managing the entire joint family affairs. Similarly, defendant No.1 was cultivating the other properties based on kore lavani and irrigating the family properties. 4. Further, suit schedule-B properties, i.e. schedule B-2 to B-4 properties, were part and parcel of VPC No.55. VPC No.55 is the joint family property, and the deceased Fakkirappa purchased VPC No.53 from one Hanamantappa out of the joint family nucleus. It is also - 7 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 contended that suit schedule B-5 property i.e. VPC No.57 is purchased out of joint family nucleus and suit schedule B-6 property i.e. VPC No.196/1A is purchased in the name of defendant No.5 out of joint family funds. As such suit schedule-A and B properties are the joint family properties of plaintiff and defendants. The plaintiffs and the defendants are in joint possession and enjoyment of the suit schedule properties. The plaintiffs demanded partition and separate possession, but 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, prays to decree the suit. 5. Defendant Nos.1 to 11 appeared through their counsel. Defendant Nos.1 to 3 filed a written statement, and the remaining defendants filed a memo adopting the written statement filed by defendant Nos.1 to 3. Defendant Nos.1 to 3 filed a written statement except admitting the relationship, denied the entire averments made in the plaint. It is contended that suit schedule B-2 - 8 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 to B-4 properties are the part and parcel of VPC No.55 which was divided among the plaintiffs and defendants. It is contended that, defendant No.1 had purchased the suit schedule B-5 property in the name of defendant Nos.2 and 4. The suit schedule B-6 property is the self acquired properties of defendant No.5 and the suit schedule-E property was purchased in the name of defendant No.5. The suit schedule B-5 and B-6 and schedule-E properties are the self-acquired properties of the defendants. It is also contended that, defendant No.1 agreed to sell suit schedule A-3 property and received Rs.1,50,000/- as an advance sale consideration amount. It is contended that the suit schedule B-5, B-6 and schedule-E properties are the self-acquired properties of defendant Nos.2, 4 and 5. Hence, prays to dismiss the suit insofar as suit schedule B-5, B-6 and schedule-E properties. 6. The Trial Court, based on the pleadings of the parties, framed the following issues: - 9 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 ISSUES 1. Whether the plaintiffs prove that, the themselves and defendants are member of the Hindu joint family? 2. Whether the plaintiffs prove that, themselves and deft.No.1 to 6 are joint owner and joint possessor of suit schedule properties? 3. Whether the plaintiffs prove that, the suit schedule A42 property is acquired from the joint family fund? 4. Whether plaintiffs prove that, the suit schedule land R.S.No.161/2 measuring 1 acre 30 gunta, R.S.No.185/3 measuring 35 gunta granted in the name of Fakkirappa as joint family properties? 5. Whether the deft.No.1 proves that, the suit is bad for non-joinder of necessary parties? 6. Whether deft.No.1 proves that, the family partition was taken place? 7. Whether deft.No.1 proves that, suit of the plaintiffs is not maintainable for non-inclusion of the joint family properties? 8. Whether deft.No.1 proves that, suit schedule B-5 is the self-acquired property of deft.No.2 and 4 and suit schedule B-6 is self-acquired property of the deft.No.5? 9. Whether deft.No.1 proves that, he has agreed to sale the suit schedule A-3 property for ₹1,50,000/- in order to clear the family debt? - 10 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 10. Whether deft.No.2 and 3 prove that, the existence of debt of ₹.6/- lakh and plaintiffs are liable to pay the debt? 11. Whether deft.No.2 and 3 prove that, suit schedule E property is self-acquired property of deft.No.5? 12. Whether plaintiffs are entitle the relief of partition and separate possession? 13. What order or decree? 7. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW-1, examined one witness as PW-2, and marked 31 documents as Ex.P1 to P31. In rebuttal, defendant No.1 was examined as DW-1, examined seven witnesses as DW-2 to DW-8 and marked 10 documents as Ex.D1 to D10. 8. The Trial Court after recording the evidence, hearing on both sides, and after assessing verbal and documentary evidence held that, the plaintiffs and defendants are the members of a Hindu undivided joint family and proves that they are the joint owners in joint possession of the suit schedule properties and held that - 11 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 the plaintiff has acquired the suit schedule A-2 property, and it is the self acquired property of the plaintiffs and held that R.S.No.161/2 measuring 1 acre 30 guntas, R.S.No.185/3 measuring 35 guntas granted in the name of Fakkirappa as a joint family properties. The said issue was answered partly in the affirmative. Further, it is held that the defendant No.1 has failed to prove that the suit is bad for non-joinder of necessary parties, and defendant No.1 has failed to prove that there was a prior partition between the plaintiffs and defendants. Further, it is held that the defendants have failed to prove that the suit of the plaintiffs is not maintainable for non-inclusion of the other joint family properties. Further, it is held that defendant No.1 has failed to prove that the suit schedule B-5 property is the self-acquired property of defendant Nos.2 and 4 and suit schedule B-6 property is the self-acquired property of defendant No.5. Further, it is also held that defendant No.1 failed to prove that he had agreed to sell the suit schedule A-3 property for a - 12 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 consideration of Rs.1,50,000/- to clear the family debts and defendant Nos.2 and 3 have failed to prove the existence of debt of Rs.6,00,000/- and the plaintiffs are liable to pay the debt. It is also held that defendant Nos.2 and 3 have failed to prove that the suit schedule-E property is the self-acquired property of defendant No.5 and consequently, decreed the suit of the plaintiff vide Judgment dated 18.02.2012. It is ordered and declared that the plaintiff No.1 is entitled to a 3/9th share in the suit schedule-A and B properties and plaintiff No.3 is entitled to a 1/9th share in the suit schedule-A and B properties. Defendant Nos.1 to 3 and 6 to 10 aggrieved by the Judgment and Preliminary Decree passed in O.S.35/2009 dated 18.02.2012, filed this Regular First Appeal. 9. Heard the arguments of the learned counsel for defendant Nos. 1 to 3 and 6 to 10 and the learned counsel for the plaintiffs. 10. Learned counsel for defendant Nos. 1 to 3 and 6 to 10 contends that the initial burden lies upon the - 13 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 plaintiffs to establish that the family possessed a sufficient nucleus. He submits that defendant No.1 left the house of Fakkirappa in 1983 and was residing separately from Fakkirappa, cultivating the lands, and earning money. Out of the said income, he purchased the said properties. The said properties are the self-acquired properties of defendant Nos.3, 4 and 5. He also submits that the plaintiffs have failed to establish that the family possessed a sufficient nucleus. The plaintiff did not discharge the burden cast on them. The Trial Court committed an error in recording the finding that suit schedule B-5 and B-6 and schedule-E are not self-acquired properties of defendant Nos.2, 4 and 5. He also submits that during the pendency of this appeal, the plaintiffs filed an application, on the ground that plaintiff No.1 executed the registered Will bequeathing her undivided share in favour of plaintiff No.3. He submits that the Will is surrounded by suspicious circumstances. He submits that plaintiff No.1 executed the alleged Will, and she passed away in 2015. He submits - 14 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 that plaintiff No.3 has produced the Will, and the same has not seen the light of day. He also submits that the Will was produced during the pendency of the appeal, and an application in I.A.No.1/2025 is filed after a lapse of 10 years. He also submits that plaintiff No.3 has not explained why plaintiff No.1 did not allot any share to the other natural legal heirs. He also submits that this exclusion of other natural legal heirs also amounts to suspicious circumstances. To buttress his arguments, he placed reliance on 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. He submits that the other siblings have supported the defence of defendant No.1, contended that the suit properties were purchased out of his self-earnings, and the said properties are self-acquired properties of defendant No.1. It is also submitted that plaintiff No.3 has failed to examine the person who was in possession of the - 15 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 original Will. Hence, on these grounds, he prays to allow the appeal. 11. Per contra, the learned counsel for the plaintiffs submits that the plaintiffs have discharged the initial burden casts upon them, by producing the records to show that the family previously possessed ancestral properties. It is contended that the suit properties were purchased in the names of family members out of the income derived from the ancestral properties. He also submits that Fakkirappa, during his lifetime, was doing the vegetable business and also cultivating the lands of the others, and he had some source of income to purchase the suit schedule properties. Hence, suit schedule B-5, B-6, and schedule-E properties are the joint family properties of plaintiffs and the defendants, as the same have been purchased out of the joint family nucleus. Hence, he submits that the Trial Court was justified in decreeing the suit of the plaintiffs. He also submits that during the pendency of this appeal, plaintiff No.3 came to know about - 16 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 the execution of the registered Will by plaintiff No.1 in favour of plaintiff No.3. Immediately, after coming to know about the execution of the registered Will bequeathing the undivided share of plaintiff No.1, plaintiff No.3 submitted an application before this Court. This Court vide its order dated 27.01.2025, directed the Trial Court to record the evidence on the application and submit findings on the Will. Pursuant to the order passed by this Court, the Trial Court recorded the evidence of the parties, and recorded the finding that plaintiff No.1 executed a registered Will in favour of plaintiff No.3, bequeathing her undivided share. Hence, on these grounds, he prays to dismiss the appeal. 12. Perused the records, and considered the submissions of the learned counsel for the parties. The points, that would arise for my consideration are as follows: (i) Whether the plaintiffs have proved that the plaintiffs and the defendants are members of a Hindu undivided joint family? - 17 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 (ii) Whether the plaintiffs have proved that the suit schedule properties A-2, B-5, B-6 and E are joint family properties, purchased out of the joint family nucleus? (iii) Whether defendant No.1 has proved that the suit schedule property B-5 is the self-acquired property of defendant Nos.2 and 4 and the suit schedule property B-6 and schedule-E properties are the self-acquired properties of defendant No.5? (iv) Whether defendant Nos.1 to 3 and 6 to 10 (appellants) have proved that the Judgment and decree passed by the Trial Court are perverse, arbitrary and erroneous? (v) Whether plaintiff No.3 has proved that plaintiff No.1 executed a Will bequeathing his share in favour of plaintiff No.3? - 18 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 (vi) Whether the appellant proves that in view of death of plaintiff No.1 the quantum of share to be modified? (vii) What order or decree? 13. Point No.(i):- It is not in dispute that Fakkirappa was the original propositus of the family. He had nine sons. It is the case of the plaintiffs that the suit schedule properties are ancestral and Hindu undivided joint family properties of both the plaintiffs and the defendants. To substantiate the case of the plaintiffs, plaintiff No.1 was examined as PW-1 and reiterated the averments made in the plaint during her examination-in-chief. To prove that the suit schedule properties are the ancestral and Hindu undivided joint family properties, the plaintiffs produced the documents marked as Ex.P1 to P31. - 19 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 14. The plaintiffs also contended that they are members of a Hindu undivided joint family and no partition has been effected between the plaintiffs and the defendants. There is no dispute regarding the relationship between the parties to the suit. It is the defence of the defendant that there was a prior partition. Insofar as partition is concerned, the said issue will be considered later on. In view of the admission by the defendants regarding the family relationship between the parties to the suit and considering the evidence placed on record, point no.(i) is answered in the affirmative. 15. Point No.(ii):- The plaintiffs, to prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs, examined one witness as PW-1 and contented that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. 16. The plaintiffs, to substantiate their case, examined plaintiff No.1 as PW-1. She reiterated the plaint - 20 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 averments in the examination-in-chief, and deposed that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. The plaintiffs and defendants constitute a Hindu undivided joint family. Fakkirappa was the propsositus of the family of the plaintiffs and defendants. He died on 10.02.1989, leaving behind the plaintiffs and defendant Nos.1 to 5 as his legal heirs. After the demise of Fakkirappa, defendant No.1 was managing the affairs of the family, and Schedule-A, Item No.4 and Item No.1 properties were acquired out of the joint family nucleus, and R.S.No.161/2 and R.S.No.185/3 were granted to the deceased Fakkirappa, as they were inam lands. The suit Schedule-A and B properties are the joint family properties of the plaintiffs and defendants, and item No.6 of the suit schedule properties was purchased in the name of defendant No.5 from out of the joint family nucleus. To prove that the suit schedule properties are the joint family properties of the plaintiffs and defendant Nos.1 to 5, the plaintiffs have produced the revenue - 21 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 records of rights marked as Ex.P1 which is the RTC extract of land bearing Sy.No.97/2 standing in the name of defendant Nos.1 and 5. Ex.P2 is a copy of the RTC extract of the land bearing Sy.No 161/2 standing in the name of defendant Nos.1, 5 and plaintiff Nos.2 and 3. Ex.P3 is the RTC extract of land bearing Sy.No.161/2. Ex.P4 is the RTC extract of the land bearing Sy.No.161/3 standing in the name of defendant No.1. Ex.P5 is the RTC extract of the land bearing No.Sy.No.161/5 standing in the name of defendant Nos.7 to 9. Ex.P6 is the Khata extract of the property bearing No.55/A standing in the name of plaintiff Nos.2,3 and defendant No.5. Ex.P7 is the Khata extract of the property bearing Sy.No.55/C standing in the name of defendant No.1 to 5 and plaintiff Nos.1 to 3. Ex.P8 is the copy of the application submitted to the Gram Panchayat, wherein the plaintiffs have submitted an application through their counsel to the Secretary, Gram Panchayat. Ex.P9 is the death certificate of Fakkirappa, who passed away on 10.02.1989. Ex.P10 is the Form No.6, wherein - 22 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 the Tahasildar granted the plot No.58 in favour of Fakkirappa. Ex.P11 is a copy of the unregistered sale deed executed in 1974. Ex.P12 is the agreement of sale dated 28.07.1978. Ex.P13 to 15 are registered sale deeds. Ex.P16 is the memory letter. Ex.P17 is a copy of the notice issued by the Gram Panchayat. Ex.P18 is the receipt for having paid the consideration amount. Ex.P19 and 20 are the Kore lavani patras. Ex.P21 and 22 are the Kaigada patra. Ex.P23 is the Kore lavani patra. Ex.P24 is the wedding card. Ex.P25 is the sale deed. Ex.P26 is the cancellation of the sale agreement dated 18.12.2003. Ex.P27 is the copy of the sale deed dated 18.12.2003. Ex.P28 and 29 are the mutation extracts. Ex.P30 death certificate of Ramanna, who passed away on 01.01.2010. Ex.P31 is the partition deed dated 04.06.2009 regarding R.S.No.97/2. 17. In the cross-examination, it was elicited that she does not know the survey numbers of the suit properties and that her husband died about 25 years ago. - 23 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 She is residing in the house of plaintiff No.3. It was further elicited that the house of defendant No.2 is situated on the plot, and the distance between the house of defendant No.1 and plaintiff No.3 is approximately 10 to 20 feet. There are no other houses situated in the surrounding of plaintiff No.3’s house. She also denied the suggestion that defendant Nos.1 to 5 have been residing separately for 15 years and the suit schedule A-1 property was purchased by defendant Nos.1 to 5 by availing a loan. It was also suggested that there is a loan to the tune of Rs.6,00,000/- on the suit properties, and the said suggestion was denied by PW-1. She further denied the suggestion that the suit schedule of B-5 property was purchased by defendant No.5 out of his own income. She denied the suggestion that the suit schedule A-3 property is the self acquired property of defendant No.1, and the suggestion that defendant Nos.1 to 5 effected a division among themselves regarding the suit schedule A-1 property was also denied. It was suggested that, the suit schedule A-4 - 24 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 property was purchased by defendant No.6 in the name of defendant Nos.7 to 9 with financial assistance from her maternal side. The said suggestion regarding financial assistance from the maternal side was denied. She also denies the suggestion that defendant No.1 has entered into a sale agreement regarding the suit schedule A-3 properties with one Giriyappa to clear his loan. 18. The plaintiff also examined one Siddappa Talwar, as PW-2. He deposed that he knows the parties to the suit, and he was adopted by Durgappa in 1981, and originally, he is the son of Yallavva W/o Fakkirappa. He deposed on the same lines of PW-1 and deposed that the suit schedule A-1 property was acquired out of the joint family nucleus. The suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants, and no partition has been effected between them. The plaintiffs and defendants are members of a Hindu undivided joint family. - 25 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 19. In the cross-examination of PW-2, it was elicited that he has gone in adoption in 1981, and his genetic father and mother are residing jointly. He could not say the survey numbers of the suit properties. The suit properties are being cultivated jointly by the parties to the suit .He denies the suggestion that Sy.No.141/5 is the self acquired property of defendant No.1. He deposed that he does not know, who purchased the suit schedule A-1 property. He denied the suggestion that the suit schedule A-1, A-3, and A-4 properties are the self acquired properties of the defendants. He denies the suggestion that the suit schedule B-6 property is purchased by defendant No.5. 20. In rebuttal, defendant No.1 was examined as DW-1. He reiterated the averments made in the written statement during his examination-in-chief, and deposed that R.S.No.161/5 was purchased in the name of defendant Nos.7 to 9 out of his own income. R.S.No.97/2 is the self-acquired property of defendant Nos.1 to 5 and - 26 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 that VPC No.57 is the self acquired property of defendant Nos.2 and 4. The suit schedule A-1, A-3, and A-4 properties are the self-acquired properties, and that there was a prior partition in the family, and in that partition, the respective parties were put in possession of their respective shares. To prove the defence of the defendants, they produced 10 documents marked as Ex.D1 to D10. Ex.D1 and D2 are the identity cards. Ex.D3 is the ration card. Ex.D4 and D5 are the record of rights. Ex.D6 and D7 are sale deeds. Ex.D8 is the Apsat vatni patra. Ex.D9 is the Kaigada patra. Ex.D10 is the sale agreement. 21. During the cross-examination, he admitted that suit schedule A-2 property and R.S.No.185/3 property are ancestral properties. He admitted that his father, Fakkirappa, was doing agriculture and also denied that they had purchased the suit schedule A-1, property without including the plaintiffs as the purchasers. He also denied the suggestion that the suit properties are the - 27 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 ancestral and joint family properties of the plaintiffs and defendants. 22. The defendants also examined one Gundappa, as DW-2. He deposed that R.S.No.161/3 is the self-acquired property of defendant No.1, and the suit schedule A-1 property was purchased by defendant Nos.1 to 5 out of their own income. He deposed that schedule A and item Nos.1,3 and 4 are the self-acquired properties of defendant Nos.1, 6 to 9. There was a prior partition 5 years ago, in the family of the plaintiffs and defendants. In the cross-examination of DW-2, it was elicited that he does know when Fakkirappa died. He denied the suggestion that defendant No.1 managed the family affairs after the demise of Fakkiraappa. He admitted that he does not know the extent of the land in R.S.No.161/3 and R.S.No.97/2. It was elicited that, R.S.No.161/3 was purchased during 1993-1994, but he has not seen the documents pertaining to the sale. He could not say, who had purchased suit schedule A-1 property. The defendants - 28 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 examined one Fakkirappa as DW-3. He deposed in the same line as DW-2, and deposed that the suit schedule A-1,A-3, and A-4 properties are the self-acquired properties of the defendants. There was a prior partition in the family between the plaintiffs and defendants. During the cross-examination of DW-3, it was elicited that he could not say, how much of money defendant No.1 and his wife had earned out of their own income. It was also elicited that regarding R.S.No.161/3, only a sale agreement had been executed and not a sale deed. He deposed that there is a sale deed regarding Sy.No.161/5, but he has not seen it. He pleaded ignorance to the suggestion that defendant Nos.1 to 5 had created the documents to defeat the rights of the plaintiffs. 23. The defendants, examined one Basappa as DW-4, who deposed in the same line as DW-2 and DW-3 in his examination-in-chief. In the cross-examination of DW-4, he was unable to say, from whom 1 acre 7 guntas of land was purchased and he could not say the survey - 29 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 number of the land measuring 3 acres, and he does not know the consideration amount. He pleaded ignorance to the suggestion that defendant No.1 had purchased the property in the name of his children to deprive the plaintiffs of their rights. 24. The defendant also examined one Mariyappa as, DW-5, i.e. the brother of defendant No.1’s wife i.e. Defendant No.6, who deposed that he had advanced Rs.50,000/- to the wife of defendant No.1 during the family partition, and R.S.No.161/5 and R.S.No.161/3 are the self-acquired properties of the defendants. In the cross-examination of DW-5, he admitted that he does not remember that Rs.50,000/- was paid to defendant No.6 (wife of Defendant No.1). 25. Defendant No.2 was examined as DW-6. He reiterated the averments made in the written statement during his examination-in-chief and deposed that R.S.No.161/5 and R.S.No.161/3 are the self-acquired properties of defendant No.1. He further deposed that the - 30 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 suit schedule A-1 property is the self-acquired property of defendant Nos.1 to 5. He deposed that VPC No.55/A belongs to plaintiff Nos.1 and 2, VPC No.55/B belongs to defendant No.3, and VPC No.55/C belongs to plaintiff No.3. In the cross-examination of DW-6, it was elicited that he does not know the sale consideration paid by defendant No.1 while purchasing the land in R.S.No.161/3 and he does not know the sale consideration regarding the land in R.S.No.97/2 and he has stated that there are five portions in R.S.No.97/2. 26. Defendant No.3 was examined as DW-7. He reiterated the averments made in the written statement during his examination-in-chief. In the cross-examination of DW-7, he deposedthat he does not know the sale consideration paid by the defendants in purchasing R.S.No.161/5, 185/3 and R.S.No.97/2. He admitted that no partition has taken place in the family of plaintiffs and defendants. He further admitted that the properties were - 31 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 mutated in the name of the wife to get the Government benefits. 27. One Giriyappa was examined as DW-8. He deposed that, due to family necessity, defendant No.1 agreed to sell R.S.No.161/3, measuring 1 acre 34 guntas, for a consideration of Rs.1,60,000/- and paid Rs.1,50,000/- as earnest money. Defendant No.1 executed a sale agreement in his favour and produced the said agreement. In the cross-examination of DW-8, it was elicited that he does not know how defendant No.1 acquired R.S.No.161/3 and he has not inquired about it. He admitted the suggestion that there is a dispute between the plaintiffs and the defendants, regarding the family properties. He pleaded ignorance of the suggestion that defendant No.1 had mentioned to the elders that he would give a share to the plaintiffs. He denies the suggestion that Ex.D10 is created to deprive the plaintiffs of their share. - 32 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 28. From the perusal of the entire evidence on record, there is a dispute pertaining only to the suit schedule B-5, B-6 and E landed properties. The defendants contend that the suit schedule B-5, B-6 and E lands were purchased by defendant No.1 and the said properties are the self-acquired properties. Though, the plaintiffs have produced records to establish that, before the purchase of the suit schedule B-5, B-6 and E properties, the family owned ancestral properties and possessed a sufficient nucleus for purchasing the aforesaid properties. In a suit for partition and separate possession initially burden lies on the plaintiffs to prove that the suit schedule properties are ancestral and joint family properties. 29. Once the plaintiffs establish that the suit schedule properties in question are ancestral and joint family properties of the parties to the suit, a presumption arises that acquisition standing in the names of persons who were managing the family properties, when the joint family is found to be in possession of a nucleus sufficient - 33 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 to make a impugned acquisitions, then presumption arises that the acquisitions standing in the names of persons who were in the management of the family properties and family acquisitions. Admittedly, defendant No.1 is the elder son of Fakkirappa, and was managing the ancestral properties. The suit schedule B-5, B-6, and E properties were purchased in the names of defendants Nos.2,4 and 5. The plaintiff has established that these properties were acquired out of the joint family nucleus. In rebuttal, the defendants have not produced any record to establish that defendant No.1 had a separate source of income to purchase the aforesaid properties in the names of defendant Nos.2, 4, and 5. Further, the Hon’ble Apex Court in Baikuntha Nath Paramanik (dead) by his L.Rs and heirs Vs. Sashi Bhusan Pramanik (dead) by his L.Rs and others reported in AIR 1972 Supreme Court 2531, held as follows: 10. We next come to the question of acquisitions standing in the names of the plaintiff and Defendants 1 and 2. Admittedly the family of the plaintiff and Defendants 1 and 2 owned extensive properties. There is no dispute that - 34 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 that family owned as much as 138 standard Bighas. The 1st defendant admitted in his written statement that with the aid of the usufruct of the lands, belonging to his family several acquisitions had been made. Even on the basis of the admitted evidence the nucleus afforded by the family income was sufficient to acquire all the properties that stood in the names of the plaintiff and Defendants 1 and 2. The High Court came to the conclusion that all the three brothers were participating in the management of the family properties. In reaching that conclusion it relied on Ex. 14 series as well as other evidence. The family account-books have not been produced. The 1st defendant who says that he had his own income has also not cared to produce his own account-books. Under these circumstances the finding of the High Court that the acquisitions standing in the names of the three brothers made prior to 1351 B.S. are family acquisitions is unassailable. When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions. 30. Admittedly, it is not the defence of the defendants that defendant No.1 was not managing the family properties. He was the elder member of the family, and after the demise of Fakkirappa, defendant No.1 managed the family properties, and acquired the property out of the joint family nucleus. 31. Further, the Hon’ble Apex Court in the case of APPASAHEB PEERAPPA CHANDGADE VS DEVENDRA - 35 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 PEERAPPA CHAMDGADE AND OTHERS reported in (2007) 1 SUPREME COURT CASES 521, held as follows: “There is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.” 32. Admittedly, in the instant case, defendant No.1 has not placed any material on record to establish that he had a separate source of income to purchase the aforesaid properties in the names of defendant Nos.2, 4 and 5. 33. From the perusal of the records, it is clear that the said properties were purchased out of the joint family nucleus. Accordingly, the said properties are the joint family properties of the plaintiffs and defendants. The plaintiffs are entitled to a share in the suit properties, as they were acquired out of the joint family nucleus. Thus the plaintiffs have proved that the suit schedule A-2, B-5, - 36 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 B-6 and schedule-E properties are joint family properties, purchased out of the joint family nucleus. In view of the above discussion, I answer point No.(ii) in the affirmative. 34. Point No.(iii):- Though, defendant No.1 has contended that the suit schedule B-5 property is the self-acquired property of the defendant Nos.2 and 4 and the suit schedule B-6 and E properties are the self-acquired properties of defendant No.5. To establish that these properties are self-acquired properties of defendant Nos.2, 4 and 5, the defendants except pleading the oral evidence, have not produced any records to establish that defendant Nos.2, 4 and 5 had a sufficient source of income to purchase the aforesaid suit schedule properties. Admittedly, the plaintiffs and defendants are members of the Hindu undivided joint family. No partition has been effected, and the said properties were acquired during the period of jointness. The burden lies on defendant Nos.2, 4 and 5 to establish that item Nos.B-5, B-6 and schedule-E properties are the self-acquired - 37 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 properties of defendant Nos.2, 4, and 5. Further, defendant No.5 has not entered the witness box, and has not proved as to how he acquired the aforesaid properties, and failed to establish that he had a separate source of income to purchase the aforesaid properties. Defendant No.1 has failed to prove that the suit schedule B-5, B-6 and Schedule-E properties are the self-acquired properties of defendant Nos. 2, 4, and 5. In view of the above discussion, I answer point No.(iii) in the negative. 35. Point No.(iv):- The Trial Court, after considering the entire evidence on record, has rightly held the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants and that no partition has been effected between them. It is further, held that, the suit schedule A-2, B-5, and B-6, and schedule-E properties are the joint family properties of the plaintiffs and defendants and not the self-acquired properties of defendant Nos.2, 4 and 5 and has rightly allotted a share in the suit schedule properties. Hence, I - 38 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 do not find any error in the impugned Judgment. Concurring with the findings recorded by the Trial Court, I accordingly answer point No.(iv) in the negative. 36. Point No.(v):- It is the case of the plaintiffs that, during the pendency of the suit, plaintiff No.1 executed a registered Will bequeathing the undivided share in favour of plaintiff No.3. During the pendency of this appeal, an application in I.A.No.1/2025 was filed seeking to continue respondent No.2 i.e. plaintiff No.3 as a legal representative/legatee/beneficiary of the deceased, plaintiff No.1 by a registered Will dated 01.09.2012 alleged to have been executed by deceased plaintiff No.1. This Court vide order dated 27.01.2025, forwarded the said application to the Trial Court for adjudication on the validity of the Will. For this limited purpose, the Will was referred to the Trial Court for adjudication on its validity. Pursuant to the said order, the Trial Court recorded the evidence of the parties on I.A.No.1/2025, and recorded its finding vide order dated 14.07.2025. - 39 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 37. To establish the execution of the Will, plaintiff No.3 has examined one attesting witness, who was examined as PW-1. He filed an affidavit in lieu of examination-in-chief, wherein, he stated that the deceased plaintiff No.1, Yellavva, was his mother, and she had given him in adoption to her brother Durgappa in 1981. He was residing with his adoptive parents from the date of adoption till 1994 at Baradi village, where they possessed 6 acres of lands. He stated that his mother had executed a Will in favour of plaintiff No.3, bequeathing her 3/9th share in the suit properties. Plaintiff No.3 also examined the scribe, Gopalrao Patil as PW-3, who deposed that he drafted the Will, read over its contents to Yallavva, and thereafter, it was typed and again read over the same to Yallavva, and thereafter she affixed her thumb impression on the said Will, in his presence, and the presence of Basavaraj Govindappanavar and Parasappa Chennur. The witnesses affixed their signatures to the Will before Yellavva, and the scribe has also affixed his signature to - 40 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 the Will. As of the date of execution of the Will, the testator was in sound dispossession of mind, and she died on 27.08.2015 due to her old age and the Will was registered on 04.09.2012. 38. The Trial Court recorded a finding that PW-1 does not know how to read and write, and was not aware of the contents of the Will. Eventhough, the Trial Court recorded the finding that plaintiff No.3 had proved the execution of the registered Will by the deceased plaintiff No.1 in favour of plaintiff No.3. 39. From the perusal of the finding recorded by the Trial Court, it is evident that the Trial Court did not examine whether the Will was surrounded by suspicious circumstances, as the Will had not seen the light of day for more than 10 years. Plaintiff No.3, to prove the execution of the will examined his brother as PW-1. Though, he is the attesting witness to the registered Will, and was well aware of its execution of the alleged registered Will, - 41 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 bequeathing her 3/9th share in favour of plaintiff No.3, PW- 1, who is the attesting witness, nowhere stated, though he was having the knowledge of the execution of the Will. PW-1, ought to have informed plaintiff No.3 about the execution of the registered Will in 2015 itself, i.e., immediately after the demise of plaintiff No.1. Though, he knew about the execution of Will, he ought to have informed the plaintiff No.3. The Will has not seen in the light of day till it was produced before the Court i.e., in 2025. Further, plaintiff No.3 has not explained, why plaintiff No.1 has not given share in the properties to the other natural legal heirs, which is also one of the suspicious circumstances surrounding the Will. The Hon’ble Apex Court, in the case of Bharpur Singh and others (supra), held in 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. - 42 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 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. 40. Admittedly, plaintiff No.3 has not explained why the other family members were excluded, and there is no explanation in the Will regarding exclusion of the other children of plaintiff No.1. Further, though the Will was executed in 2012. The testator died in 2015, and the suit was disposed of on 18.02.2012, and the present appeal was filed by the appellant in 2012, the plaintiffs have filed an application in I.A.No.1/2025 in 2025, stating that the plaintiff No.1 had executed the registered Will. The said Will has not seen light of the day for a long time, which is also one of the suspicious circumstances. Merely because a Will is registered, there is no presumption regarding its - 43 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 validity. Mere registration of a Will does not make it valid, unless its execution is proved in accordance with the Indian Evidence Act 1872. The Hon’ble Apex Court, in the case of LEELA AND OTHERS Vs. MURUGANANTHAM AND OTHERS reported in (2025) 4 SUPREME COURT CASES 289 held in para No.25, as follows: “25. The trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will.” 41. As observed above, the plaintiff No.3 has failed to remove the suspicious circumstances pointed out as referred above. Thus, considering the proposition of law, laid down by Hon’ble Apex Court in the case of Bharpur Singh (referred supra) and also the Judgment of Leela (referred supra), plaintiff No.3 has failed to prove the execution of a Will by plaintiff No.1 in favour of plaintiff No.3 bequeathing her 3/9th undivided share in the suit schedule properties. In view of the above discussion, and - 44 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 pursuant to this Court’s earlier order, referring I.A. No.1/2025 to the Trial Court for adjudication on the validity of the Will, the Trial Court has recorded the findings that the Will dated 01.09.2012 is executed in accordance with law. As plaintiff No.3 has failed to prove the due execution of the Will and to remove the suspicious circumstances surrounding it, I.A.No.1/2025 deserve to be rejected. Accordingly, I answer point No.(v) in the negative. 42. Point No.(vi):- Since, plaintiff No.1 died during the pendency of the appeal, the share allotted to her, has to be distributed among her legal heirs, i.e., plaintiff No.3 and defendant Nos.1 to 5 succeeded to her share. In view of the death of plaintiff No.1, Plaintiff No.3, and defendant Nos.1 to 5 will each be entitled to a 1/6th share. Hence, I answer point No.(vi) in the affirmative. 43. Point No.(vii):- In view of the above discussion, I proceed to pass the following: - 45 - HC-KAR NC: 2025:KHC-D:9819 RFA No. 4096 of 2012 ORDER (i) The Appeal is allowed in part. (ii) The Judgment and decree dated 18.02.2012 passed in O.S.No.35/2009 by the Additional Senior Civil Judge, Haveri, is hereby modified. (iii) It is declared that, plaintiff No.3 and defendant Nos.1 to 5 each, are entitled to a *1/6th share in suit schedule-A and B properties by metes and bounds. (iv) In view of the disposal of the appeal, the I.A.No.2/2012, does not survive for consideration, and accordingly, the same is disposed of. (v) Draw Preliminarily Decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE RHR/- CT: BSB List No.: 1 Sl No.: 1 *corrected vide order dated 23.09.2025 Sd/- (ASKJ)