- 1 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100014 OF 2017 (PAR) BETWEEN: SRI.COL. S.M. SREEKHANTHA S/O VEERABHADRAIAH, AGED ABOUT 80 YEARS, RESIDENT OF D.N.50 (208SFS), KHB COLONY, OPP: TO MOTHER DAIRY, YELHANKA NEW TOWN, BENGALURU.-560064 …APPELLANT (BY SRIYUTHS. K RAGHAVENDRA RAO AND V. VIDYA, ADVOCATES) AND: 1. SRI.S.M. SUNDARESH SINCE DEAD BY HIS LRS., S.M. PRATIBHA W/O. LATE S. M. SUNDARESH, AGED ABOUT 53 YEARS, 2. S.M. BHARATHI, D/O. LATE S. M. SUNDARESH, AGED ABOUT 35 YEARS, 3. S.M. MAHESH S/O. LATE S. M. SUNDARESH, AGED ABOUT 32 YEARS, 4. S.M. BHAVYA D/O. LATE S. M. SUNDARESH, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.09 12:03:09 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 AGED ABOUT 32 YEARS, ALL ARE R/O: HOUSE NO.29-B, GOPALSWAMY ROAD, NEAR VALMIKI HOSTEL, NEAR SURYANARAYANA REDDY OFFICE, GANDHINAGAR, BALLARI-583103. 5. S.M. SATISH S/O S. M. SULAPANI, AGED ABOUT 58 YEARS, CARE OF S.M. SUNDARESH, AGED ABOUT 61 YEARS, R/O: HOUSE NO.29-B, GOPALSWAMY ROAD, NEAR VALMIKI HOSTEL, GANDHINAGAR, BALLARI-583103. 6. S.M. JAGADEESH S/O. DR.S.M. SULAPANI, AGED ABOUT 55 YEARS, R/AT: D.NO.220 MIG-B, SHIKRE APARTMENTS, 14TH BLOCK, 5TH PHASE, NEW TOWN YELHANKA-560064. 7. S.M. UMAKANTH SARMA SINCE DEAD BY HIS LRS., S.M. DAKSHAYANI, W/O. LATE S.M. UMAKANTH SARMA, AGED ABOUT 77 YEARS, R/O: HOUSE NO.36, OPP: H.NO.32, ADYAPAK NAGAR, NEAR VISHWANATH KALYAN MANTAP, HUBBALLI-580020. 8. S.M. SOMESH S/O. LATE SRI.S.M. UMAKANTH SARMA, AGED ABOUT 54 YEARS, R/O: C/O. S.M. DAKSHAYANI, W/O. LATE S.M. UMAKANTH SARMA, H.NO.36, OPP: H.NO.32, ADYAPAK NAGAR, NEAR VISHWANATH KALYAN MANTAP, - 3 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 HUBBALLI-580020. 9. S.M. NATESH S/O. LATE SRI.S.M. UMAKANTH SARMA, AGED ABOUT 56 YEARS, R/O: NO.56 SLV GRAND, 10TH MAIN, YELLAHANKA NEW TOWN, BENGALURU-560064. 10. S.M. NAGESH SIDDAPUR MATADA S/O. LATE S.M. UMAKANTH SARMA, AGED ABUT 51 YEARS, R/O: NO.F-6, DECDAN SHELTERS, 14TH MAIN, 27 CROSS, JUDICIAL LAYOUT, YELLAHANKA NEW TOWN, BENGALURU-560064. …RESPONDENTS (BY SRIYUTHS. R.R. GUNJALLI, ADVOCATE FOR R1; V.M. SHEELVANT, S.H. MITTALKOD, M.L. VANTI, V.S.KOUJALAGI, ADVOCATE FOR R6; R2, R7, R9-NOTICE SERVED; NOTICE TO R8 AND R10 IS DISPENSED WITH ) THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DTD:29.09.2016 PASSED IN O.S.NO.15/2011 ON THE FILE OF THE FIRST ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, DISMISSING THE SUIT FILED FOR PARTITION AND POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 4 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant, challenging the judgment and preliminary decree dated 29.09.2016 passed in O.S.No.15/2011 by the learned I Addl. Senior Civil Judge, Bellary. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this Regular First Appeal, are as follows: 4. The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one M.S. Veerabhadraiah was the original propositus, and K. Parvatamma was his wife. Veerabhadraiah and K. Parvatamma had six children viz., S.M. Vishwamurthy, Dr.S.M. Mrutyunjay, Dr. S.M. Sulapani, - 5 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 Umakakanth Sarma, S.M. Shrikant and a daughter - Sarvani. S.M. Vishwamurthy died in 1995, S.M. Mrutyunjay died in 1989, Sulapani died in 1997, Umakanth Sarma who is defendant No.4 and Shrikant is the plaintiff. Defendants No.1 to 3 are the children of S.M. Sulapani. Defendant No.1 died leaving behind defendants No.1(a) to 1(d) and defendant No.4 died leaving behind defendants No.4(a) to 4(d). The suit schedule properties viz., house property and the agricultural property bearing Sy.No.387 measuring 2.38 acres, are the absolute properties of the original propositus and he retained the said properties in the joint family. Till the death of his father and mother, they were in possession and enjoyment of the suit schedule properties, and after their demise, their children succeeded to the said properties. On account of respective avocations, the children of the original propositus including the plaintiff, for better prospects, were away from family. There was no occasion seeking for partition of suit schedule properties till recently. The plaintiff served in the Indian Army and he - 6 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 retired from the service. Defendants No.1 to 3 were in the management of the suit properties on their behalf and on behalf of their joint family members. But to his surprise, defendants No.1 to 3 had changed the mutation of the suit schedule properties in their names by creating some documents styled as ‘relinquishment deed’. The plaintiff after coming to know about the relinquishment deed, applied for the certified copy, obtained the same and came to know that on 11.09.1961, Item No.1 of the plaint schedule, the plaintiff allegedly released rights in favour of S.M. S. Pani known as S.M. Sulapani who is the father of defendants No.1 to 3. It is contended that except Dr.Sulapani, nobody has signed the document. The said document is a unilateral document. The said document is null and void. The plaintiff demanded for partition but the defendants refused to effect partition. Hence, the plaintiff was issued a legal notice to the defendants on 22.10.2010. In spite of service of a legal notice, the defendants failed to - 7 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 effect partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. 5. Defendants No.1 to 3 appeared through the counsel. Defendant No.4, despite the service of summons remained unrepresented and he was placed ex parte. 6. During the pendency of the suit, defendants No.1 and 4 were passed away and their legal representatives were brought on record. 7. Defendants No.2 and 3 filed a written statement denying the plaint averments and they have admitted the relationship between the parties and suit schedule properties were owned and possessed by the propositus. It is contended that their grandfather i.e., M.S. Veerabhadrayya i.e., original propositus died in 1971 leaving behind his wife, 5 sons and a daughter as his legal representatives. It is contended that 3 sons viz., S.M. Vishwamurthy, S.M. Mrutyunjaya and S.M.S.Pani had separated from their family before the death of the original - 8 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 propositus and were living separately. The plaintiff and his elder brother S.M. Umakanth Sarma and their parents living jointly. It is contended that too to the knowledge of the plaintiff, M.S. Veerabhadraiah, the father of the plaintiff, executed a registered Will dated 17.04.1968 bequeathing and dividing the properties to the plaintiff and his brother S.M. Umakanth Sarma. After the demise of M.S. Veerabhadraiah, the plaintiff and defendant no.4 have derived the respective shares as per the recitals of the Will of 1968 and necessary changes were carried out in the revenue records. It is contended that the plaintiff got 8.25 acres of fertile land in Sy.No.309, 310 and 311 which are situated at Siddapura village in Molakalmuru Taluk, Chitradurga District. S.M. Umakanth Sarma got 9.75 acres in the same survey numbers and they have been enjoying the said properties since the date of death of their father. In addition to 9.75 acres, the land allotted to the elder brother of the plaintiff, the house fell to his share. The brothers have equally partitioned the house property. The - 9 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 father of defendants No.1 to 3 had sold 2.38 acres land in S.Y.No.387 which fell to his share to one Smt. Marekka wife of Sanna Marenna under the registered sale deed dated 29.04.1994 for Rs.30,000/- and delivered the possession of item no. 2 of the suit schedule property in her favour. It is further contended that S.M. Sulapani also donated a 16X30 feet site to the Government for the purpose of a playground for a primary school. Item No.2 is not available for partition. Defendants No.2 and 3 constructed a building in item No.1 in 1967 and their mother died in the very same house. Further, it is contested that their father executed a registered release deed in favour of defendant No.2, regarding site No.3 measuring 30X40 feet to establish and start the silk rolling industry. It is contended that there was a partition in the family of the plaintiff and the defendants as per the recital of the Will dated 17/04/1968. The suit schedule properties were not the joint family properties of the plaintiff and the defendants as on the date of the filing of the suit. Hence, prays to dismiss the suit. - 10 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 8. The trial Court based on the pleadings of the parties, framed the following issues: ”1. Whether the plaintiff proves the suit schedule properties are joint family properties? 2. Whether the defendant No.3 proves that prior to the death of his grandfather viz., Veerabhadraiah, three sons of his grandfather got separated from the joint family by taking their shares? 3. Whether the defendant No.3 proves the due execution of Will dated 17.4.1968 as projected at para 22 of the written statement? 4. Whether he further proves that plaintiff being one of the beneficiaries under the Will dated 17.4.1968 enjoying the properties fell to his share through Will dated 17.4.1968? 5. Whether defendant No.3 proves Will dated 26.5.1995 as projected at para 28 of the written statement? 6. Whether defendant No.3 proves that item No.2 is not liable to be partitioned? 7. Whether defendant No.3 proves that suit is bad for non-joinder of necessary parties? 8. Whether the defendant No.3 further proves that Court fee paid by the plaintiff is insufficient and on that score itself suit is liable to be dismissed? 9. Whether the plaintiff is entitle for the reliefs sought in the suit? - 11 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 10. What order or decree?” 9. The plaintiff, to substantiate his case, examined himself as PW-1 and marked 43 documents and closed his side. In rebuttal, defendant No.2 was examined as DW-1, examined two witnesses as DW-2 and DW-3 and marked 46 documents as Exs.D-1 to D-46. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence held that the plaintiff has failed to prove that the suit schedule properties are the joint family properties, defendant No.3 has proved that prior to the death of his grandfather Veerabhadrayya, 3 sons of his grandfather got separated from the joint family by taking their shares, defendant No.3 has proved the due execution of Will dated 17.04.1968 as projected at paragraph 22 of the written statement, the plaintiff has proved that he is also one of the beneficiaries under the Will dated 17.04.1968 enjoying the properties fallen to his share under the Will dated 17.04.1968, defendant No.3 has - 12 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 proved the execution of the Will dated 26.05.1995 and consequently, dismissed the suit of the plaintiff vide judgment dated 29.09.2016. 10. The plaintiff, aggrieved by the dismissal of the suit in O.S.No.15/2011, filed this Regular First Appeal. 11. Heard the arguments of the learned counsel for the plaintiff and the defendants. 12. Learned counsel for the plaintiff submits that the trial Court has committed an error in dismissing the suit of the plaintiff. He submits that the trial Court has not considered the pleadings and material evidence on record in adjudicating the matter. Non-consideration of the same has resulted in miscarriage of justice. She submits that the defendants did not dispute the nature of the properties. She submits that the trial Court without application of mind has proceeded to pass the impugned judgment. The impugned judgment passed by the trial Court is illegal. She submits that the trial Court has committed an error in - 13 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 answering issue No.7 in the affirmative and she also submits that the trial Court has not framed any issue with regard to the limitation. She submits that Ex.D-5 is an unregistered document and it is inadmissible in evidence. The trial Court has committed an error in relying upon Ex.D- 5. She submits that Ex.D-5 is surrounded by suspicious circumstances and Ex.D-5 has not seen the light of the day for 50 long years. Hence, she prays to allow the appeal. 13. Per contra, the learned counsel for the defendants submits that there was a partition in the family of the plaintiff and the defendants in 1961 and the plaintiff and his elder brother S.M. Umakanth Sarma and their parents lived jointly and to the knowledge of the plaintiff, his father had executed a registered Will dated 17.04.1968 bequeathing and dividing the properties to the plaintiff and his brother S.M. Umakanth Sarma i.e., Defendant no.4 and also submits that there is a recital in the Will regarding the partition between the family members and the execution of a relinquishment deed on 11.09.1961. It is contended that - 14 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 the plaintiff did not challenge the relinquishment deed within time. He submits that the trial Court was justified in recording the finding that three sons of M.S. Veerabhadraiah got separated from the joint family by taking their shares and M.S. Veerabhadraiah had executed a Will dated 17.04.1968 and the plaintiff is also a beneficiary under the said Will. The trial Court was justified in dismissing the suit of the plaintiff. Hence, prays to dismiss the appeal. 14. Perused the records and considered the submissions of the learned counsel for parties. 15. The points that arise for consideration are: i. Whether the plaintiff proves that the suit schedule properties are the joint family properties? ii. Whether defendants prove that prior to the death of M.S. Veerabhadraiah i.e., original propositus, 3 sons got separated from the joint family by taking their shares? - 15 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 iii. Whether the defendants prove due execution of the Will dated 17.04.1968? iv. Whether the plaintiff proves that the judgment decree passed by the trial Court is perverse, arbitrary, and erroneous? v. What order or decree? REG. Point No.1 and 2: 16. Points for consideration no. 1 and 2 are interlinked and are taken together for common discussion, to avoid the repetition of facts. 17. The plaintiff to substantiate his case, examined himself as PW1. PW1 reiterated the plaint averments in the examination in chief. He deposed that Veerabhadraiah was the original propositus, who died during August 1971. His first son was S.M. Vishwamurthy, second son was Dr.S.M. Mrutyunjaya, third son was Dr.S.M. Sulapani, 4th son was Umakanth Sarma i.e., defendant no.4 and the plaintiff was the 5th son and Smt. Sarvani was his daughter. S.M. Vishwamurthy died during 1995, Dr. S.M. Mrutyunjaya died - 16 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 in 1989 and Dr. S.M. Sulapani died in 1997. The daughter married long ago prior to 1940. The suit schedule properties were the absolute properties of the Late Veerabhadraiah. During his lifetime, he retained the properties as the joint family properties and did not effect the partition. His wife Parvatamma died in February 1978. He further deposed that Item No.1 of the suit schedule property was illegally mutated in the name of Dr. S.M.S. Pani known as S.M. Sulapani, who died in 1997 and defendants no. 1 to 3 are none other than the sons of S.M. Sulapani. S.M. Sulapani transferred the property in his name based on the document styled as ‘relinquishment deed’. The plaintiff and the defendants are the members of the Hindu Undivided Family and the suit schedule properties are the joint family properties and no partition is effected between them. To prove that the suit schedule properties are the joint family properties of the plaintiff and the defendants, the plaintiff has produced documents. Ex.P-1 certified copy of the Will dated 17.04.1968 executed by the - 17 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 original propositus, bequeathing the suit schedule properties in favor of the plaintiff and Defendant No.4, where, it discloses that other sons of Sanna Veerabhadraiah, i.e., S.M. Vishwamurthi, S.M. Mrutyunjaya and S.M. Sulapani, had relinquished their rights in the other joint family proprties. Ex.P-2 is the relinquishment deed dated 11/09/1961, executed by S M Sulapani, in favour of original propositus. Exs.P-3 to P-5 are the record of rights. Ex.P-6 is the requisition dated 11/03/1994, issued by ADLR, Bellari. Ex.P7 is the receipt dated 13/11/2009. Ex.P-8 is the cancellation of Khata, Exs.P-9-10 are Form No.21. Ex.Ps- 11-14 are the Property Tax receipts. Ex.P.15 is the Town Survey Sketch. Exs.P-16-17 are the property declaration letters dated 08/03/2013. Ex.P-18 is the legal notice dated 07/01/2013, issued on behalf of the plaintiff, to defendant no. 4. Exs.P-19-20, 25 and 32 are the postal receipts and acknowledgement. Ex.P21 is the order dated 06/09/2012, passed by DC, Bellari. Ex.P-22 is Form A. Ex.P23 is the endorsement dated 14/03/2014, issued by ADLR, Bellary. - 18 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 Ex.P24 is the RTI application dated 19/03/2014, filed by the plaintiff. Ex.P26 is the endorsement dated 31/12/2014, issued by AC, Bellary. Exs.P-27-30 and 42-43 are the Bank pass books. Ex.P31 is the endorsement dated 27/04/1989, issued by BUDA. Ex.P-33 is the share certificate. Ex.P-34 is the money order receipt. Ex.P-35 is the medical price list book. Ex.P-36 is the valuation slip. Exs.P-37-38 are the Certified copies of the mutation records in the name of S.M. Sulapani. Exs.P-39-40 are the Certified copies of the Sale deed dated 29/04/1994, executed in favour of Marekka by S.M.Sulapani. Ex.P.41 is the certified copy of Record of Rights. 18. PW1, during his cross examination, has admitted that in 1948 the three elder sons of the original propositus, had separated from the joint family, and he was unaware about the same till 1949. He further admits that in the said partition the S.M. Vishwamoorthi got the medical shop, S.M. Mrutyunjaya got a dental clinic and S.M. Sulapani got a house. It was admitted that the suit item no. 1 was also - 19 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 divided. It is further admitted that after knowing about the sale of item no. 2 of the suit properties to one Marekka, the plaintiff did not take any steps to cancel the said sale. Further, it is admitted that on 03/01/2002, defendant no. 4 and the plaintiff divided the joint family properties among themselves, as per the Will dated 17/4/1968 executed by the original propositus. 19. In rebuttal, the defendants produced documents, where Ex.D1 and Ex.D10 are the certified copies of the Partition Deed, between the plaintiff and Defendant No. 4. Ex.D2, Ex.D3 and Ex.D21 are the agreements dated 24/06/1972 and 25/10/1991. Ex.D4 and Ex.D6 are the certified copies of the sale deeds dated 22/10/1948 and 29/04/1994. Ex.D5 is the relinquishment Deed dated 11/09/1961. Ex.D7 is the original Will dated 26/05/1995, executed by S.M. Sulapani, in favour of his children. Ex.D8 is the survey sketch. Ex.D9 is the Form No. 15. Ex.D11 is the certified copy of the proceedings and the order of the ADLR dated 06/09/2012. Exs.D12 to 15 are the xerox - 20 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 copies of the ID proofs. Ex.D16 and Exs.D44 to 46 are the tax paid receipts. Exs.D17 to 19 are the death certificates. Ex.D20 is the Lease Agreement dated 01/06/1995. Exs.D22 to 36 are the self-tax paid returns and the receipts. Ex.D37 is the endorsement regarding mutation order dated 28/07/2004. Ex.D38 is the Building License. Exs.D39 to 40 are the copies of the property tax registered. Ex.D41 is the photograph. Ex.D42 to 43 are the bank pass book copies. Further, the defendants, to prove their defence, examined Defendant No.2 as DW2, who has reiterated the written statement averments in the examination in chief and it is deposed that since 1961 the father of defendants no. 1 to 3, is in lawful possession of the suit schedule properties. During the cross examination, it was admitted that his father separated from the joint family by taking his share as per Ex.D5 and the plaintiff and defendant no. 4 also got their shares as per the Will dated 17/04/1968. Further the defendants examined 2 witnesses as DW2 and DW3, who - 21 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 have deposed in the same manner of DW1 and it is deposed that the plaintiff and the defendants are living separately. 20. The perusal of the entire evidence on record discloses that there is no dispute regarding the relationship of the parties. It is the case of the plaintiff that the suit properties were the joint family properties of the plaintiff and the defendants and there is no partition in the said suit schedule properties. However, in the cross examination PW1, has admitted that the elder sons of the late Veerabhadraiah were divided from the joint family and are living separately from 1948 by taking their shares in the joint family properties and the plaintiff and defendant No.4 also got divided the remaining joint family properties as per the 1968 Will, in 2002. Further, it was admitted that suit item No.2 was sold to one Marekka and the plaintiff did not take any steps to cancel the said sale. Further, the plaintiff has not produced any documents to establish that there exists the joint status of the family and the properties. Further the perusal of Ex.P21 discloses that the plaintiff had - 22 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 filed an appeal under Section 136(2) of the Karnataka Land Revenue Act, by challenging the Khata in the name of SM Sulapani regarding suit item No.1 on the ground that the said property was purchased by the late Veerabhadraiah. The appeal was dismissed as the plaintiff failed to prove that the late Veerabhadraiah had purchased suit item No. 1 property and said order has attained finality as the plaintiff did not challenge the same. 21. Further, to prove that the elder sons of late Veerabhadraiah, i.e., S.M. Vishwamurthi, S.M. Mrutyunjaya and S.M. Sulapani, had separated from the joint family, before the death of the original propositus, defendant No.2 was examined as DW1 and two witnesses were examined as DWs.2 and 3, where they have deposed that S.M. Vishwamurthi, S.M. Mrutyunjaya and S.M. Sulapani, separated from the joint family in 1947 and 1948 by taking their respective shares in the joint family properties. Further, PW1 also clearly admitted regarding the separation of S.M. Vishwamurthi, S.M. Mrutyunjaya and S.M. Sulapani - 23 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 in 1948, in his cross examination. To prove their defense, the defendants produced Ex.D1, the partition deed executed between the plaintiff and defendant No.4, dated 03/01/2002. The recitals of the said deed discloses that the three elder brothers of the plaintiff were divided as mentioned in the Will dated 17/04/1968. 22. Further, the perusal of Ex.P1, clearly discloses that there was a partition among the family members and the three elder sons of late Veerabhadraiah went out of the joint family by taking their respective shares in the joint family properties and started to live separately. The S. M. Veerabhadraiah died in 1971 and the plaintiff and defendant No.4 also got divided the remaining joint family properties as per the will executed by the original propositus in 2002. It is well settled principle of law that the burden of proving the nature of the property in the partition suit is always on the party who claims property as a joint family property and in the present case, the plaintiff failed to prove the joint nature of the suit schedule properties. Hence, at the time of - 24 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 filing the suit, in the matter on hand, the joint family status did not exist. Hence, from the above discussion it is clear that the defendants have proved the separation of three sons of the original propositus, and the plaintiff has failed to prove the suit properties are the joint family properties of the plaintiff and the defendants. Hence, I answer point No.1 in the negative and point No.2 in the affirmative. REG. Point No.3: 23. It is the case of the plaintiff that EX.D5 is not the registered document and is inadmissible in law. Admittedly, the original propositus, executed Ex.P1 in favour of the plaintiff and defendant No.4, excluding his three sons, i.e., S.M. Vishwamurthi, S.M. Mrutyunjaya and S.M. Sulapani, equally dividing the joint family properties among them, with the contention that his three elder sons as mentioned above, have separated from the joint family by taking their respective shares. Further, in the recitals of Ex.P1, there is - 25 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 a reference of EX.D5, the relinquishment deed dated 11/09/1961. Section 64 of the Indian Succession Act, 1925 reads as follows: "64. Incorporation of papers by reference — if a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to." 24. The Hon’ble Apex Court in the case of ANIL KAK V. KUMARI SHARADA RAJE AND ORS., reported in AIR 2008 SC 2195, by referring to Sections 64, 87 and 103 of the Indian Succession Act, held as follows: “30. The rule of incorporation by reference is well- known. One document is incorporated by reference in another when it is referred to, as if it would form an integral part thereof. 31. Principle of incorporation by reference was evolved so as to avoid unnecessary repetition of - 26 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 the same documents again and again in different parts of the original document. For invoking the said principle, a document must be in existence. It cannot be brought into existence later on. The executor of a document must know what the other document which he intends to incorporate in the Will contains.” 25. Admittedly, in the present case, the original propositus, executed a Will, excluding his three sons, bequeathing his properties in favour of the plaintiff and defendant No.4, on the ground that his three sons have separated from the joint family by taking their shares as per Ex.D5. The Hon'ble Apex Court in the case of MEENA PRADHAN V. KAMLA PRADHAN, in CIVIL APPEAL NO. 3351/2014, disposed of on 21/09/2023, in para 11, held as follows: “(a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.” - 27 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 26. Admittedly, the Will dated 17/04/1968 is the registered document and was executed in 1968. However, the execution of a will must be proved beyond the suspicious circumstances. The original propositus excluded his three sons, who are the legal heirs, having equal rights over the Will schedule properties, on the ground that his three sons have separated from the joint family by taking their shares as per Ex.D5, the relinquishment deed dated 11/09/1961. Thus, in view of the proposition laid down by the Hon’ble Apex Court in the case of ANIL KAK (referred to supra), Ex.D5 is the part and parcel of Ex.P1. Further, the Will was executed in 1968 and the suit was filed in 2011. Though the plaintiff contended that he had no knowledge about Ex.D5, he has admitted his knowledge regarding the separation of his three elder brothers from joint family and the execution of the Will dated 17/04/1968. He neither took any steps against the execution of the said released deed nor against the Will dated 17/04/1968 till 2011. Hence, the suit filed by the plaintiff is not within the - 28 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 reasonable time. The original propositus died in 1971 and in 2002 the plaintiff and defendant No.4 have partitioned the joint family properties among themselves as per Ex.P1. The perusal of Ex.D1clearly discloses that Will dated 17/04/1968 has been duly executed by the parties to the suit. Admittedly the release deed is of the year 1961 thus, it is the 50 years old document. Hence, the trial court was justified in drawing a presumption under Section 90 of the Indian Evidence Act. Hence, as per the above discussion I answer point No.3 in the affirmative. REG. Point No.4: 27. In view of the above discussion, the plaintiff failed to prove the nature of the suit schedule properties as the joint family properties and the trial court was justified in passing the impugned judgment, dismissing the suit of the plaintiff. Hence, I answer point No.4 in the negative. - 29 - HC-KAR NC: 2025:KHC-D:11275 RFA No. 100014 of 2017 REG. Point No.5: 28. Accordingly, I proceed to pass the following: ORDER (i) The appeal is dismissed. (ii) The judgment and preliminary decree dated 29.09.2016 passed in O.S.No.15/2011 by the learned I Addl. Senior Civil Judge, Bellary, is hereby confirmed. (iii) No order as to the costs. In view of the dismissal of the appeal, the pending IAs, if any, do not survive for consideration, accordingly disposed of. Sd/- (ASHOK S. KINAGI) JUDGE NAA CT:PA List No.: 1 Sl No.: 3