- 1 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 101404 OF 2022 (DEC/PAR-) BETWEEN: SMT. SEETABAI W/O. VENKAPPA MANEMI, AGE: 65 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O. HALKI, TAL: MUDHOL, NOW AT JAMKHANDI, DIST: BAGALKOT-587101. …APPELLANT (BY SRI. A.P. MURARI, ADVOCATE) AND: 1. SMT. YALLAVVA W/O. APPANNA HUCHAGOUDAR, AGE: 68 YEARS, R/O. BALIGERI, TALUK: ATHANI, DISTRICT: BELAGAVI-591304. SMT. RUKMAVVA W/O. ANNAPPA BIRADAR-PATIL, (SINCE DEAD AND HER LRS ARE ALREADY ON RECORD AS APPELLANT AND RESPONDENT NO.1.) SHRI MALAGOUDA HONNAPPA PATIL (DEAD) SMT. LAKKAVVA W/O. MALAGOUDA PATIL (DEAD) SRI PARAGOUDA MALAGOUDA PATIL (DEAD) (BY LR’S R2-R6 BELOW) ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 2. SMT.SHANTAWWA W/O. PARAGOUDA PATIL, AGE: 61 YEARS, OCC: HOUSEHOLD, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. 3. BASAVARAJ S/O. PARAGOUDA PATIL, AGE: 24 YEARS, OCC: NIL, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. 4. SHIVANAND S/O. PARAGOUDA PATIL, AGE: 23 YEARS, OCC: NIL, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. 5. SMT.MAHADEVI W/O. MURIGEPPA BHAVI, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O RADDERATTI-591304 TQ: ATHANI, DIST: BELAGAVI. 6. SMT.ANASUYA W/O. Y. YALLAPPA KARLANNAVAR, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O MALLAMMA NAGAR, SBI COLONY,MUDHOL, DIST: BAGALKOT-587101. 7. SRI. HONNAPPA MALAGOUDA PATIL, AGE: ABOUT 55 YEARS, OCC: AGRICULTURE & ADVOCATE, R/O ATHANI-591304 TQ: ATHANI, DIST: BELAGAVI. 8. SRI. SHANKAR MALAGOUDA PATIL, AGE: ABOUT 48 YEARS, - 3 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 OCC: AGRICULTURE, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. 9. SRI. RANGOUDA MALAGOUDA PATIL, AGE: ABOUT 46 YEARS, OCC: AGRICULTURE, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. 10. SRI. PANDAPPA MALAGOUDA PATIL, AGE: ABOUT 45 YEARS, OCC: AGRICULTURE, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. SMT. LAXMIBAI W/O. SHANTAPPA BIDARI, (DEAD) BY LRS 11. SHANTAPPA S/O. RAMAPPA BIDARI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. SARAWAD-586101, TQ: & DIST: BIJAPUR. 12. SHIVANAND S/O. SHANTAPPA BIDARI, AGE: 35 YEARS, OCC: AGRICULTURE, R/O. SARAWAD-586101, TQ: & DIST: BIJAPUR. 13. SUDHIR S/O. SHANTAPPA BIDARI, AGE: 33 YEARS, OCC: AGRICULTURE, R/O. SARAWAD, TQ: & DIST: BIJAPUR-586101. SMT. PARVATEVVA W/O. LAXMAN AVARADI (DEAD) BY LRS. - 4 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 14. MALLIKARJUN S/O. LAXMAN AVARADI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. CHIKKUD-591304, TQ: ATHANI, DIST: BELAGAVI. 15. REVANNA S/O. LAXMAN AVARADI, AGE: 32 YEARS, OCC: AGRICULTURE, R/O. CHIKKUD-591304, TQ: ATHANI, DIST: BELAGAVI. 16. SMT. MAHADEVI W/O. MALLAPPA KULLOLLI, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O MALABADI-591304, TQ: ATHANI, DIST: BELAGAVI. 17. SMT. KASTURI W/O. SADASHIV B. PATIL, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O. SHANKARATTI-591304, TQ: ATHANI, DIST: BELGAVI. 18. SMT. SHANTA W/O. VITHAL PADASALAGI, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O. PARTHANALLI-591304, TQ: ATHANI, DIST: BELAGAVI. 19. SMT. LAXMI W/O. SHIVANAND KHOT, AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O MALABADI-591304, TQ: ATHANI, DIST: BELAGAVI. SHRI. MALLAPPA BASAPPA BIRADAR, (DEAD) BY LR’S. - 5 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 20. SRI. BASAPPA MALLAPPA BIRADAR, AGE: 35 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. 21. SRI. PARAMESHWAR MALLAPPA BIRADAR, AGE: 33 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. SMT. TANGEVVA W/O. MALLAPPA BIRADAR, (DEAD AND HER LRS ARE ON RECORD AS R20 & R21) 22. SMT. YALLAVVA W/O. PANDAPPA MALEDAR, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. HOSAYARAGUDRI-591218, TQ: GOKAK, DIST: BELGAVI. 23. SMT. LAXMIBAI W/O. MALLAPPA METI, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. VARCHAGAL-587313, TQ: MUDHOL, DIST: BAGALKOT. 24. SMT. GANGAVVA W/O. MAHADEV MALEDAR, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. HOSAYARAGUDRI-591218, TQ: GOKAK, DIST: BELGAVI. 25. SMT. GOURAVVA W/O. SHRISHAIL HUCHAREDDI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. SRI. MALLAPPA GOVINDAPPA BIRADAR, (DEAD) BY LR’S. 26. SRI. PARAPPA MALLAPPA BIRADAR, AGE: 50 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. - 6 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 27. SRI. GOVIND MALLAPPA BIRADAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. 28. SMT. SANGAVVA W/O. SANGAPPA CHOLAPPAGOL, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. LINGADUTTI-586101. TQ: & DIST: BIJAPUR. 29. SMT. BOURAVVA W/O. BHIMAPPA NIJJAR, AGE: 40 YEARS, OCC:HOUSEHOLD WORK, R/O. DADANATTI-587313, TQ: MUDHOL, DIST: BAGALKOT. SMT. AMAJAVVA W/O. MALLAPPA BIRADAR, (DEAD HER LR’S ARE ON RECORD AS R-26 TO R-29) LAXMAN RAMAPPA BIRADAR, (DEAD) BY LR’S. 30. MALLAPPA S/O. LAXMAN BIRADAR, AGE: 54 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. 31. GURUPAD S/O. LAXMAN BIRADAR, AGE: 51 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. 32. SRI. HANAMANT RAMAPPA BIRADAR, AGE: 65 YEARS, OCC:AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. 33. SRI. BHIMAPPA RAMAPPA BIRADAR, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. SANKRATTI-591304, TQ: ATHANI, DIST: BELGAVI. - 7 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 34. SMT. NEELAVVA W/O. PARAPPA MAGADUM, AGE: 60 YEARS, OCC:HOUSEHOLD WORK, R/O. SHEGUNASHI-591304, TQ: ATHANI, DIST: BELAGAVI. 35. SMT. GIREVVA @ LAXMIBAI W/O. MALLANAGOUDA BIRADAR, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. YAKKUNDI, NOW R/O. HUDCO COLONY, H.NO.47, BASAVANA BAGEWADI ROAD-586101, BIJAPUR, TQ: & DIST: BIJAPUR. …RESPONDENTS (BY SMT. GAYATRI S.R., ADVOCATE FOR SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R20; R1, R25, R29, R30, R31 & R35-HELD SUFFICIENT; R2-R19, R21-R24, R26-R28 AND R32-R34 ARE SERVED UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO ALLOW THIS APPEAL, SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE IN R.A.NO.142/2013 DATED 08.07.2022 PASSED BY THE LEARNED VII ADDITIONAL DISTRICT JUDGE, BELAGAVI SITTING AT CHIKKODI, CONFIRMING THE JUDGMENT AND DECREE IN O.S. NO.25/1990 DATED 27.04.2013, PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE ATHANI, DECREEING THE SUIT PARTLY AND ETC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 8 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 08.07.2022 passed in RA No.142 of 2013 on the file of the VII Additional District Judge, Belagavi sitting at Chikkodi, (for short, ‘First Appellate Court’) dismissing the appeal and confirming the judgment and decree dated 27.04.2013 passed in OS No.25 of 1990 on the file of the Principal Senior Civil Judge, Athani, (for short, ‘Trial Court’), decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. The plaint averments are that, the plaintiff and defendant No.1 are the children of Annappa Biradar Patil and defendant No.2. It is the case of the plaintiff that, suit properties are the joint family properties of - 9 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 the plaintiff and defendant Nos.1 and 2 and therefore, the plaintiff has filed suit seeking declaration, partition and separate possession in respect of suit schedule property in OS No.25 of 1990 stating that, the suit properties belonging to her father-Annappa Biradar Patil. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant No.1 that, the plaintiff is the sister of defendant No.1 and they the daughters of defendant No.2 and Annappa Biradar Patil. It is stated that father of the plaintiff and defendant No.1-Annappa Biradar Patil died on 22.10.1989. It is the case of the defendant No.1 that, Will dated 04.01.1989, said to have been executed by Annappa Biradar Patil in favour of plaintiff in respect of some of the items in the suit schedule property - 10 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 cannot be accepted, in view of the judgment and decree in OS No.59 of 2000 and therefore, the defendant No.1 sought for dismissal of the appeal. 5. Defendant No.2 has filed detailed written statement admitting the relationship between the parties, however, taken up the contention that, her husband-Annappa had love and affection towards his daughter-plaintiff and as such, executed registered Will dated 04.01.1989 in favour of plaintiff and therefore, averred that as per the Will executed by her husband-Annappa, the plaintiff is in actual possession of item No.1 of the suit property and therefore, sought to support the view of the plaintiff. 6. The remaining defendants also contested the matter by filing the written statement, however, the remaining defendants are belonging to the other branch of Annappa Biradar Patil. - 11 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 7. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 8. In order to establish their case, the plaintiff has examined 07 witnesses as PW1 to PW7 and got marked 29 documents as Exs.P1 to E.P29. On the other hand, defendants examined two witnesses as DW1 and DW2 and produced 39 documents as Exs.D1 to D39. 9. The Trial Court, after considering the material on record, by its judgment and decree dated 27.04.2013 decreed the suit of the plaintiff in part by rejecting the prayer for declaration in respect of the land bearing Sy. No.138/1, however, held that, the plaintiff, along with defendant Nos.1 and 2 are entitled for 1/3rd share each in the aforementioned property and being aggrieved by the same, plaintiff has preferred Regular Appeal in RA No.142 of 2013 on the file of First - 12 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after re- appreciating the facts on record, by its judgment and decree dated 08.07.2022 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.25 of 1990. Being aggrieved by the same, the plaintiff/appellant has preferred this Regular Second Appeal under Section 100 of CPC. 10. I have heard Sri A.P. Murari, learned counsel for the appellants and Miss.Gayathri S.R. for Sri. Mallikarjunaswamy B. Hiremath, learned counsel appearing for the contesting respondent. 11. Sri. A.P. Murari, learned counsel for the appellant submits that, both the courts below have ignored the fact that father of the plaintiff-Annappa died leaving behind the registered Will dated 04.01.1989 bequeathing some of the properties of the suit - 13 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 schedule property in favour of plaintiff and the said aspect of the matter was not considered by both the courts below and accordingly, sought for interference of this Court. It is further argued by the learned counsel appearing for the appellant that, pursuant to the execution of registered Will dated 04.01.1989, the plaintiff is in possession of the suit schedule property and therefore, both the courts below have erred in rejecting the relief of declaration, which requires to be interfered with in this appeal. It is also contended by Sri. A.P.Murari, learned counsel appearing for the appellant that, even in the absence of the judgment that may be made in respect of legality of Will dated 04.01.1989, on account of death of defendant No.2, the plaintiff and defendant No.1 are entitled for half share each in the property of Annappa Biradar Patil. 12. Miss. Gayathri S.R., learned counsel for the contesting respondent submitted that issue relating to - 14 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 legality of the Will dated 04.01.1989 has reached finality in OS No.59 of 2000 and therefore, sought to justify the impugned judgment and decree passed by the Courts below. It is further contended by the learned counsel appearing for the respondent No.2 that the defendant No.2-Smt.Rukmavva died and therefore, plaintiff and defendant No.1 are entitled for equal share in the property belonging to Annappa Biradar Patil and accordingly, sought for dismissal of the appeal. 13. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by the both the courts below and perused the original records. It is not in dispute that the plaintiff and defendant No.1 are the children of late Annappa Biradar Patil and defendant No.2. It is forthcoming from the finding recorded by the both the courts below that, item - 15 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 Nos.2 to 6 in the suit schedule properties, have been inherited by Annappa Biradar Patil along with his siblings. It is thecontention of the learned counsel appearing for the appellant that, the land bearing Sy.No.138/1, the exclusively belong to late Annappa who died on 22.10.1989, leaving behind registered Will dated 04.01.1989, bequeathing the said property in favour of plaintiff. Insofar as said aspect of the matter, I have carefully examined the finding recorded by the Trial Court in OS No.59 of 2000, whereby, the Issue Nos.1 and 2 relates to legality of the registered Will dated 04.01.1989 and the Issues Nos.1 and 2 in the said suit reads as under: “Issues: 1. Whether the plaintiff proves that deceased Annappa executed “Will” when he was sound disposing state of mind on 04.01.1989, bequeating the suit property in her favour ? - 16 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 2. Whether the plaintiff further proves that on the basis of “Will Deed” she became absolute owner in possession of the suit property since the date of death of Annappa ?” 14. The Trial Court in the said suit, arrived at a conclusion that, the plaintiff in the said case is also plaintiff in the present case, failed to prove the Will dated 04.01.1989. The judgment and decree in the said suit came to be confirmed by First Appellate Court in RA No.144 of 2013 and by this Court in RSA No.100504 of 2021. In that view of the matter, arguments advanced by the learned counsel appearing for the appellant, claiming exclusive ownership in respect of the land bearing Sy.No.138/1 is based on the registered Will dated 04.01.1989, cannot be accepted. In that view of the matter, as the learned counsel appearing for the parties have submitted that the defendant No.2–mother of plaintiff and defendant No.1, is no more and therefore, both plaintiff and - 17 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 defendant No.1 are entitled for half share in the land bearing Sy.No.138/1, and also half share in other property of Annappa (father of the plaintiff and defendant No.1) i.e. in Item Nos.2 to 6 of the suit schedule property. With these observations, I am of the view that, the interference is called for in this appeal only with regard to modification of the shares in view of death of defendant No.2 (mother of plaintiff and defendant No.1) and in all respects the judgment and decree passed by the Courts below requires to be confirmed. 15. Though the learned counsel appearing for the appellant submitted that issue involved in OS No.59 of 2000 is with regard to seeking injunctive relief, however, considering finding recorded by the Trial Court on Issue Nos. 1 and 2 and as the parties have led evidence by understating the issues framed therein has reached finality and in view of the - 18 - NC: 2025:KHC-D:5869 RSA No. 101404 of 2022 judgment of the Hon'ble Supreme Court in the case of Jose vs. Johnson reported in (2020) 3 SCC 780, I am of the view that, submission of the learned counsel for the appellant cannot be accepted. 16. Therefore, I do not find material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. Since, the plaintiff/appellant has not made out a ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, the Regular Second Appeal is dismissed at the Admission stage itself, except modifying the shares of the parties as stated above. Sd/- (E.S.INDIRESH) JUDGE SB CT-MCK: List No.: 1 Sl No.: 22