- 1 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100457 OF 2018 (PAR) BETWEEN: M. VEERAIAH S/O LATE MOOLEMANI RUDRAIAH AGED 62 YEARS, KIRANI MERCHANT, MAIN ROAD, R/O. KOTTUR-583134, POST. KOTTUR, TQ. KUDLIGI, DIST. BALLARI. …APPELLANT (BY SRI. V.M SHEELAVANT, ADV) AND: 1. M. SUMANGALA W/O R.S. RUDRAMURTHY AGED: 54 YEARS, OCC: HOUSE WIFE, DOOR NO.1697/59, 5TH CROSS, PRO. SRI. GURU THIPPERUDRA SWAMY NILAYA, SIDDAVEERAPPA BADAVANE, DAVANAGERE-577001. 2. KOTRAMMA @ MAHADEVI W/O S.G. HIREMATH, AGED: 58 YEARS, OCC: HOUSE WIFE, R/O: OPPOSITE TO RENUKA TALKIES, KOTTUR TOWN-583134, KUDLIGI TALUK, BALLARI DISTRICT. 3. 3a. SUJATA W/O GURUSIDDAIAH SINCE DECEASED BY HER LR’S., RAVI S/O GURUSIDDAIAH MATHAD AGED: 36 YEARS, OCC: PRIVATE SERVICE, Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 10:23:39 +0530 - 2 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 R/O: 24, 2ND FLOOR, 15TH CROSS, 3RD BLOCK, VISHAPRIYA LAYOUT, BEGUR KOPPA ROAD, BENGALURU-560068. 3b. BHAGYASHREE W/O PRASANNA K.M AGED: 30 YEARS, OCC: NIL, R/O: “PAWAMANA”, %46, 3RD ROAD, RAGHAVA KALYANI COLONY, VIDYANAGAR, BALLARI-583104. 4. A. THIPPESWAMY S/O LATE CHANDRASHEKHARAIAH ADD TO BE FURNISHED BY PARTY AGED: 53 YEARS, II REVENUE INSPECTOR, TOWN MUNICIPAL COUNCIL, KAMPLI TOWN-583132, HOSAPETE TALUK, BALLARI DISTRICT. 5. 5a. BASAVANNEMMA W/O KALLAPRALA THIPPESWAMY, SINCE DECEASED BY HER LR., K. MANJUNATHA S/O KALLAPRA THIPPESWAMY AGED: MAJOR, OCC: AGRICULTURE, R/O: HELLO MATA ROAD, NAYAKANAHATTY POST, TQ. CHALLAKERE, DIST. CHITRADURGA. 5b. K. SIVA PRAKASH SW. KALLAPRA CHIPPESWAMY, AGED: MAJOR, OCC: AGRICULTURE, R/O: HOLA MATA ROAD, NAYAKANAHATTY POST, TQ. CHALLAKERE, DIST. CHITRADURGA. - 3 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 5c. LATHA C.B.M., W/O LATE K. RAJASEKAR AGED: MAJOR, OCC: TEACHER, R/O: SRS HERITAGE SCHOOL, BENGALURU ROAD, TQ. CHALLAKERE, DIST. CHITRADURGA. 5d. YASHWANTH K.R. AGED: 22 YEARS, OCC: TEACHER, R/O: SRS HERITAGE SCHOOL, BENGALURU ROAD, TQ. CHALLAKERE, DIST. CHITRADURGA. 6. THIPPAKAK @ NIRMALA W/O DAROJI REVENASIDDAIAH, AGED: 70 YEARS, OCC: HOUSE WIFE, R/O: NEAR CHINAMAYA HOSPITAL, AMARESHWAR TALKIES, GANGAVATHI-583227, KOPPAL DISTRICT. 7. ROOPA W/O LATE GANGADHAR AGED: 40 YEARS, OCC: AGRICULTURIST, R/O: NEAR OLD DAILY MARKET, MADDIKATTE, 16TH WARD, KAMPLI-583132, HOSPETE TALUK, BALLARI DISTRICT. 8. MAHANTESH S/O LATE VEERABHADRAIAH AGED: 41 YEARS, AGRICULTURIST, R/O: NEAR OLD DAILY MARKET, MADDIKATTE, 16TH WARD, KAMPLI-583132, HOSPETE TALUK, BALLARI DISTRICT. 9. SUSHMA W/O SHIVAPRAKASH AGED: 39 YEARS, HOUSE WIFE, C/O. KALLAPRALA RUDRAMUNI, R/O: HOLA MATA ROAD, NAYAKANAHATTI VILLAGE-577536, TQ. CHALLAKERE, DIST. CHITRADURGA. - 4 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 10. K.THIPPESWAMY S/O KALLAPRALA RUDRAMUNI, AGED: 36 YEARS, ADVOCATE, R/O: HOLA MATA ROAD, NAYAKANAHATTI VILLAGE-577536, TQ. CHALLAKERE, DIST. CHITRADURGA. 11. KALLAPRALA RUDRAMUNI S/O THIPPERUDRAIAH, AGED: 65 YEARS, AGRICULTURIST, R/O: HOLA MATA ROAD, NAYAKANAHATTI VILLAGE-577536, TQ. CHALLAKERE, DIST. CHITRADURGA. …RESPONDENTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADV FOR R1, V/O DATED R2 IS DECEASED, R3 IS DECEASED, SRI. GIRISH S HIREMATH, ADV FOR R3(A) NOTICE TO R3(B), R4, R5(A TO D), R6 TO R11 ARE SERVED) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:31.08.2018 PASSED IN O.S.NO.92/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KUDLIGI, DECREEING THE SUIT FILED FOR PARTITION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 5 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and decree dated 31.08.2018 passed in O.S. No.92/2013 by the learned Senior Civil Judge and JMFC, Kudligi. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was defendant No.1, respondent No.1 was the plaintiff, and respondent Nos.2 to 11 were the other defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants seeking partition and separate possession of 1/3rd share in the suit properties. It is the case of the plaintiff that, one Moolemani Rudraiah was the original propositus. He had a wife by the name Channabasamma. Moolemani Rudraiah and Channabasamma had 7 children i.e. the plaintiff, - 6 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 defendant No.1, defendant Nos.5 and 6, Lokamatha, Shantha, Yashoda and Sumangala. It is submitted that the original propositus Rudraiah and Channabasamma died intestate leaving behind the plaintiff, defendant Nos.1, 5 and Lokamatha as their legal representatives. It is contended that, suit ‘A’ schedule properties are the ancestral properties of their father Moolemani Rudraiah, and suit ‘B’ schedule properties are the absolute properties of their mother Channabasamma. After the death of Moolemani Rudraiah and Channabasamma, the plaintiff and the defendants have succeeded to ‘A’ and ‘B’ schedule properties, and the suit schedule properties are the ancestral joint family properties of the plaintiff and the defendants, and they are in joint possession of the suit schedule properties. It is contended that the mother of defendant Nos.2 and 4, defendant No.5, 6, and mother of defendant Nos.7 and 8 were born before 1956, as such, they are not entitled to any share in the suit schedule properties. They are only formal parties. Defendant No.1 being a male member of the family, has illegally got the - 7 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 mutation of the suit properties in his name alone, without the knowledge and consent of the plaintiff. The said mutations are illegal, and not binding on the plaintiff. The plaintiff demanded a partition and separate possession, but the defendants refused to effect a partition. The plaintiff issued a legal notice to defendant No.1 on 10.04.2013 calling upon defendant No.1 to effect a partition of the suit schedule properties. Defendant No.1 received the said notice, and gave an evasive reply refusing to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.1 filed a written statement denying the averments made in the plaint. It is contended that, the father of defendant No.1 died in 1972. After his demise, he looked after the welfare of the plaintiff, and he spent a huge money, and performed the marriage of the plaintiff in 1986, and she ceased to be a member of - 8 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 the joint family. The plaintiff is not at all in joint constructive possession of the suit properties along with the defendants. She is out of possession. It is contended that, item Nos.1 to 4 in item No.5, item No.6, item No.9 to 86, 88 to 90 of suit ‘A’ schedule properties are the self acquired properties of the father of defendant No.1, who died on 07.05.1972 and the mother got mutated item Nos.1 to 4 of plaint schedule ‘A’ schedule properties in her favour. Defendant No.1 was doing kirana business, and he is having number of agencies. From the earnings of kirana business and from a number of agencies, he has purchased plaint ‘B’ schedule properties out of his own earnings in the name of his mother Channabasamma on 02.09.1995. Chanabasamma executed a relinquishment deed regarding item Nos.1 to 4 of plaint ‘A’ schedule and ‘B’ schedule properties in his favour. The contents of the relinquishment deed are in the form of a Will, and item No.5 of suit ‘A’ schedule properties are the self-acquired properties of defendant No.1, and he has purchased the said properties out of his own earnings with his hard - 9 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 labour. After the demise of his father, he got mutated item No.5 of ‘B’ schedule properties , item Nos.6, 9 to 86 and 88 to 90 of the plaint schedule properties in his name. Previously item Nos.9 to 82 of plaint ‘A’ schedule properties were landed properties. Defendant No.1 converted the agricultural land into non-agriculture land, formed layouts, and spent a huge amount for forming a layout. Defendants’ father executed a Will in his favour and the said Will was traced out on 20.11.1971. As per the said Will, he is the absolute owner of the suit schedule properties. Therefore, the plaintiff has no right to claim a share in the plaint schedule properties. The suit of the plaintiff is bad for the non-joinder of necessary and proper parties. Hence, prays to dismiss the suit. 5. Defendant No.1 filed an additional written statement stating that plaint item Nos.92 to 94 of ‘A’ schedule properties are the self acquired properties of defendant No.1 and he is doing kirana business, and he is having a number of agencies. It is contended that, Item - 10 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 Nos.92 to 94 of ‘A’ schedule properties are the exclusive properties of defendant No.1. 6. The plaintiff filed a re-joinder to the additional written statement denying the averments made in the additional written statement filed by defendant No.1. 7. In the additional written statement filed by defendant No.1, it is stated that item Nos.8 to 90 of ‘A’ schedule properties and ‘B’ schedule properties, the plaintiff has not mentioned the boundaries, and the suit is liable to be dismissed with cost. 8. Defendant No.7 filed a written statement denying the averments made in the plaint. It is denied that the elder daughter, Lokamatha, Basavanamma and Thippaka @ Nirmala and Shantha were born before 1956 and they are not entitled to a share in the suit properties. It is contended that her husband is the son and she is the daughter-in-law of Shantha and defendant No.8 is the grand son of Shantha. Shantha is the daughter of Moolemani Rudraiah, and Channabasamma. Her husband - 11 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 died in 2013, and after the demise of her husband, defendant No.1 is looking after the affairs and welfare of the defendants. Hence, prays to dismiss the suit. 9. Defendant Nos.4 and 8 filed a written statement reiterating the averments of the written statement filed by defendant No.7. 10. Defendant No.10 filed a written statement admitting the contents of the plaint, and sought for a counter claim to decree the suit, and allot a share to defendant No.10. 11. Defendant No.9 filed a memo adopting the written statement filed by defendant No.10. 12. Defendant Nos.2 to 4 filed a written statement reiterating the averments of the written statement filed by defendant No.8. 13. The trial Court, based on the pleadings, framed the following issues: - 12 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 ISSUES 1. Whether plaintiff proves that the suit "A" schedule properties are the ancestral joint family ancestral properties and that she is entitled to a share in the same? 2. Whether the plaintiff proves that, the suit B schedule properties are the self acquired properties of her mother Smt. Channabasamma and that after the death of the said Channabasamma she and the defendants have jointly succeeded to the suit schedule properties? 3. Whether first defendant proves that he purchased the suit 'B" schedule properties in the name of his mother out of his own earnings ? 4. Whether the first defendant proves that the suit "A" schedule item No. 1 to 4, door No. 4/154 in the item No. 5 property, item No. 6, item No. 9 to 86 and item No. 88 to 90 properties are the self acquired properties of his father? 5. Whether the first defendant proves that his mother Channabasamma relinquished her rights in respect of the suit "A' schedule item No. 1 to 4 properties and suit "B" schedule properties in his favour through the relinquishment deed dated 2-9-1995? - 13 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 6. Whether the first defendant proves that the suit A schedule item No. 6 to 8, 87, 92 to 94 and house property bearing No. 4/153 are his self acquired properties? 7. Whether the first defendant proves that, his father during his life time executed a Will and bequeathed all the properties in his favour? 8. Whether the first defendant proves that, the suit 'A' schedule item No. 83 and 91 properties are one and the same? 9. Whether the plaintiff is entitled to any share in the suit A and B schedule properties? 10. What Order or Decree? 14. The plaintiff to substantiate her case, examined herself as PW.1, and marked 131 documents as Exs.P-1 to P-131. In rebuttal, defendant No.1 was examined as DW.1, examined 8 witnesses as DWs.2 to 9, and marked 143 documents as Exs.D-1 to D-143. 15. After recording the evidence, hearing on both sides, and on assessment of the oral, and documentary evidence, the trial Court answered issue No.1, 3, 5 to 8 in - 14 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 the negative, and issue Nos.2, 4 and 9 in the affirmative and issue No.10 as per the final order. The suit of the plaintiff was partly decreed vide judgment dated 31.08.2018. It is declared that, the plaintiff is entitled to a 1/7th share in the suit ‘A’ and ‘B’ schedule properties. 16. Defendant No.1, aggrieved by the judgment and preliminary decree dated 31.08.2018 passed in O.S. No.92/2013, filed this regular first appeal. 17. Learned counsel for the defendant No.1 submits that the judgment and decree passed in Prakash and Others – vs – Phulavati (AIR 2016 SC 769) is per incuriam and that the property rights of the daughters are prospective. He submits that, though the trial Court has answered issue no.1 in the negative, could have dismissed the suit but on the contrary, granted a share to the plaintiff. He further submits that, the suit schedule properties is the self-acquired property is of Mulimani Rudraiah, the father of the plaintiff and defendants. Therefore, he was the absolute owner of the said property - 15 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 is and he bequeathed the said property under a will dated 20.11.1971. He submits that, the reasonings assigned by the trial Court in describing the Will i.e. it is an unregistered Will the same is not sustainable and liable to be set aside. He submits that, the trial Court has failed to appreciate the contention of the plaintiff that 10 acres of land was given by her mother’s parents whereas, the plaintiff has not at all adduced any evidence either oral or documentary evidence to prove the contention. He submits that, the plaintiff has not examined any witnesses to establish that her father was doing business, and she continued the same and he further submits that, the registration of the Will is optional. He submits that the Will has to be proved by examining one of the attesting witnesses as required under Section 68 of the Indian Evidence Act, 1872. He submits that the trial Court has committed an error in disbelieving the Will on the ground that the details of the property are not mentioned in the Will. Hence, on these grounds, he submits that the impugned judgment passed by the trial Court is arbitrary - 16 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 and erroneous. Hence, on these grounds, he prays to allow the appeal. 18. Per contra, the learned counsel for the plaintiff submits that admittedly the suit schedule property was possessed by the propositus i.e., Mulimani Rudrayya. He died leaving behind the plaintiffs and defendants as his legal heirs. He submits that, the suit ‘A’ schedule properties are the ancestral properties of late Mulimani Rudrayya while the suit ‘B’ schedule properties are the ancestral properties of Chennabasamma. After the death of the father and mother, the plaintiffs and the defendants succeeded to the suit schedule properties. The said suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants. They are the members of the Hindu Undivided Family, and no partition is effected. He submits that the defendants have not examined any attesting witnesses which is a pre-requisite as per Section 68 of the Indian Evidence Act, and he further submits that, Rudraiah had no exclusive right to - 17 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 relinquish his right regarding the properties in favour of defendant no.1. He submits that, the trial Court was justified in passing the impugned judgment and therefore, submits that there is no error in the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal. 19. Perused the records, and considered the submissions of the learned counsel for the parties. 20. The points that arise for our consideration are : 1) Whether the plaintiff prove that the suit ‘A’ schedule properties are the ancestral joint family properties? 2) Whether the plaintiff prove that the suit ‘B’ schedule properties are the self-acquired properties of her mother Smt.Channabasamma and after her demise, the plaintiffs and defendants have jointly succeeded to the suit schedule property? 3) Whether defendant no.1 proves that the suit ‘A’ schedule item nos.1 to 4, door no.4/154 in item no.5 property, item no.6, item no.9 to 86 - 18 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 and item nos.88 to 90 properties are the self acquired properties of his father? 4) Whether defendant N0.1 prove that his father bequeathed the suit schedule properties by executing a will? 5) Whether defendant prove that the judgment and decree passed by the trial Court is perverse and arbitrary? 6) What order or decree? Re.Point Nos.1 to 3. 21. Point Nos.1 to 3 are interlinked, and they are taken up together for common discussion, to avoid repetition of facts. 22. The plaintiff to substantiate her case, examined herself as PW.1. She reiterated the plaint averments in the examination-in-chief, and marked 131 documents exhibits P.1 to P.131. In the course of cross-examination, except suggesting that the father bequeathed the suit schedule properties, nothing is elicited from the mouth of PW.1. - 19 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 23. On the other hand, defendant no.1 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief, and produced the registered sale deeds marked as Exs.D.1 to D.8 respectively, and the order of the A.C is marked as Ex.D.9. Further, the defendant has produced the registered sale deeds marked as Ex.D.10 to D.14. Ex.D.15 is the mutation register M.R.No.34/95-96. A reply notice, postal receipt, and acknowledgement are marked as Exhibits D.16 to D.18, respectively. Ex.D.19 is the unregistered will dated 20.11.1971. From the perusal of the unregistered will marked as Ex.D.19, it does not disclose the particulars of the properties bequeathed in favour of defendant No.1. The contents of the will at Ex.D.19 are vague. 24. D.W.1 in the cross-examination has admitted that the suit schedule properties were jointly purchased by his father M.Rudraiah and uncle Kotrabasaiah, and they were allotted their father’s share in the partition effected - 20 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 between two brothers. As the properties were allotted to the father of M.Rudraiah before the plaintiffs’ birth, and other siblings, the said properties remained characteristic of self-acquired properties in the hands of the father. They cannot be said to be the ancestral properties of the plaintiff and the defendants. 25. As far as the suit ‘A’ schedule item No.4., Item No. 6 and item No. 9 to 82 properties are concerned, defendant No.1 has placed on record the sale deeds dated 14.09.1953, 15.01.1969 and 30.10.1956 which categorically reveal that the said properties were purchased by the father M.Rudraiah. It is worth mentioning here that, the item No. 9 to 82 plots situated in Sy.No. 747A, 748, 749 and 750 were purchased by M. Rudraiah through the Ex. D8 sale deed dated 30.10.1956 and thereafter, they were converted into non-agricultural lands, and layout was also formed in the same by defendant No.1. - 21 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 26. Regarding the suit ‘A’ schedule item No. 83, 84, 85 and 86, the first defendant has placed on record the Ex.D100 property tax register extract, registered sale deed dated 10.06.1946 marked as Ex.D.11 and the registered sale deed dated 17.04.1968 marked as Ex.D.12. Regarding the suit ‘A’ schedule item No. 87, 88, 89 and 90 properties, defendant No.1 has placed on record the copy of the Registered sale deed dated 29.11.1980 marked as Ex.D139, and the Registered sale deed dated 02.06.1965 marked as Ex.D13. Regarding, suit A schedule item No.1 property, defendant No.1 has produced the Ex.D10 Registered sale deed dated 29.12.1961. All the said documents explicitly reveal that, the said properties were purchased by the father late M.Rudraiah. It is very much pertinent to note here that, defendant No.1 during his cross-examination categorically admitted that, all the said properties were purchased by the father. 27. As far as the other properties in the suit ‘A’ schedule are concerned i.e. item No. 7, 8, 87, 92 and - 22 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 house property bearing Door No.4/153, it is the specific contention of defendant No.1 that the same are his self-acquired properties, as he has purchased the same out of his own earnings. However, what is pertinent to note here that defendant No.1 has not produced any cogent, and acceptable materials before the Court to show that, he had independent income i.e. income apart from that income derived from the family Kirana business. Though, defendant No.1 has been vociferously contending that, he had agencies of various companies, he has not produced any agency certificates or dealership certificates to prove his contention. The documents relied upon by him viz., the letter of correspondence about the Jai Hanuman talkies marked as Ex.D109, the letter dated 31.10.1980 about Indian Express Private Limited marked as Ex.D.110, Ex.D.111 is the postal envelope and tax invoices marked as Ex.D.132 to D.136 do not in any manner prove that, defendant No.1 had an agency of several companies, and that he derived sufficient and independent income from the same, to purchase the suit ‘A’ schedule item No. 7, 8, - 23 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 87, 92 to 94 properties and house property bearing No.4/153. Defendant No.1, who contends that, the said properties are his self-acquired properties ought to have placed on record all the cogent materials, and documents about the said properties to show that, he indeed purchased them out of his own earnings. Defendant No.1 admittedly continued the Kirani business earlier run by his father, and it appears that, he purchased the above- mentioned properties out of the income derived from the Kirana business. It is worth mentioning here that defendant No.1 admitted in his cross-examination that, he is an income tax assesse, but he did not produce any income tax returns. Had he produced the income tax returns, the same would have thrown light on whether the said properties were purchased out of his own income or not. 28. It is also pertinent to note here that, defendant No.1 during his cross-examination submitted that, his present annual income is about 70 to 80 lakhs. He further - 24 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 submitted that, his wife is the proprietor of Veerabhadreshwar General Stores, and his son is the proprietor of Sri. Vinayaka Agencies, and they too are income tax assessees. As defendant No.1, has not produced their tax returns, the possibility of them lending money to defendant No.1 for purchasing the said properties is also ruled out. In view of defendant No.1 failing to prove that, he had an independent income, and considering the non-production of income tax returns and other relevant documents, and so also all the aforementioned circumstances, we have arrived at the conclusion that, defendant No.1 has miserably failed to prove that, suit A schedule item No.7, 8, 87, 92 to 94 and the house property bearing No.4/153 are his self acquired properties. Based on the above discussion, we answer point Nos.1 and 2 in the affirmative and point No.3 in the negative. Re.Point No.4. - 25 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 29. It is the defense of defendant No.1 that his father his lifetime executed a Will dated 20.11.1971 bequeathing all the properties in his favour. The defendants has produced the Will marked as Ex.D-19. Defendant No.1 has not produced the said Will before any Authority till the said document is produced before the trial Court. The said Will has not seen the light of day till it is produced before the trial Court, and further, based on the alleged Will no Revenue Records were changed. The defendants have examined the son of the attesting witness, who identified the signature of his father on Ex.D-19. The said document is a 30-year-old document, there is a presumption under Section 90 of the Indian Evidence Act. The presumption is regarding the execution, but not regarding the contents of the Will. The Hon’ble Apex Court in the case of Bharpur singh & Ors. V. Shamsher Singh reported in AIR 2009 Supreme Court 1766 held that the following are the suspicious circumstances. 17. 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. - 26 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 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. 30. From the perusal of the judgment passed by the Hon’ble Apex Court, it is clear that if the Will has not seen the day of the light, it is surrounded by suspicious circumstances. The defendants have failed to remove the suspicious circumstances surrounding the Will. The trial Court has committed an error in disbelieving the Will on the ground that it is unregistered. The Will is not compulsorily registerable. It is the choice of the testator to register. Merely because the Will is not registered, that itself is not a ground to disbelieve the execution of the Will. Further, the Will does not disclose the particulars of the properties bequeathed. Further, defendant no.1 has not led any evidence to show that the testator was in - 27 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 a sound dispossession of mind at the time of execution of the alleged Will i.e., Ex.D-19. The parties have not acted upon the said alleged Will. As observed above, the said Will is surrounded by suspicious circumstances, and the defendants have failed to remove the suspicious circumstances. 31. In view of the above discussion, we answer Point No.4 in the negative. 32. Re point No.5: The trial Court considering the entire material on record was justified in passing the impugned judgment. We do not find any error in the impugned judgment. We concur with the impugned judgment. Accordingly we answer point No.5 in the negative. 33. Re Point No.6: as we have already answered Points 1 to 5 in favour of the plaintiff, accordingly, we proceed to pass the following: ORDER The Appeal is dismissed. - 28 - NC: 2025:KHC-D:3722-DB RFA No. 100457 of 2018 The judgment and decree dated 31.08.2018 passed in O.S. No.92/2013 by the learned Senior Civil Judge and JMFC, Kudligi, is hereby confirmed. In view of the dismissal of the appeal, I.As./2022 and 2/2023 do not survive for consideration, and the same are rejected. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE Kmv upto para 16 RS from para 17 to 23 MBS from para 24 to 28 Kmv from para 29 till end CT: BSB