- 1 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.6 OF 2020 (PAR) BETWEEN: 1. D.V.RAMESH AGED ABOUT 50 YEARS S/O LATE VEERASANGE GOWDA DODDAMETIKURKE, KANKATTE HOBLI, ARSIKERE TALUK HASSAN DISTRICT - 573201 2. D V VISHALAKSHAMMA AGED ABOUT 47 YEARS D/O LATE VEERASANGE GOWDA PANCHANAHALLI KADUR TALUK CHIKKAMAGALUR DISTRICT - 577101 …APPELLANTS (BY SRI. VINAYA KEERTHY M, ADVOCATE) AND: 1. ANNADHANA MALLEGOWDA AGED ABOUT 57 YEARS S/O NANJUNDEGOWDA SHASHIWALA VILLAGE, KANKATTE HOBLI, ARSIKERE TALUK HASSAN DISTRICT - 573201 Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 2. D V CHANDRASHEKAR AGED ABOUT 45 YEARS S/OLATE VEERASANGE GOWDA DODDAMETIKURKE KANKATTE HOBLI, ARSIKERE TALUK HASSAN DISRICT - 573201 …RESPONDENTS (BY SRI K.G.SADASHIVAIAH, ADVOCATE FOR R1; SRI N.KUMARASWAMY, ADVOCATE FOR R2) THIS RSA IS FILED UNDER SECTION 100 R/W ORDER XLII OF THE CIVIL PROCEDURE CODE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 04.09.2019 PASSED IN RA No.111/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AT ARSIKERE ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.10.2017 PASSED IN O.S.NO.127/2010 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, AT ARISIKERE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 ORAL JUDGMENT Heard Sri. Vinaya Keerthy M., learned counsel for appellants, Sri K.G. Sadashivaiah, learned counsel for respondent No.1, who appeared through Video Conferencing and Sri N. Kumaraswamy, learned counsel for respondent No.2, who has filed power for respondent No.2 today. 2. Appeal came to be admitted on the following substantial question of law: “Whether the First Appellate Court could have reversed the decree of partition in the light of the finding that the suit properties were joint family properties and without considering whether Veerasange Gowda could have executed the will in respect of the entire suit schedule property?” 3. Facts which are utmost necessary for disposal of the present appeal are asunder. 4. A suit for partition came to be filed by the appellants herein against mother, brother and nephew of the mother. Properties involved in the suit are culled out hereunder and hereinafter referred to as suit schedule property. "J. C£ÀĸÀÆa ¸ÀévÀÄÛ - 4 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 CgÀ¹ÃPÉgÉ vÁ®ÆèPÀÄ, PÀtPÀmÉÖ ºÉÆç½, ±À²ªÁ¼À UÁæªÀÄzÀ ¸ÀªÉð £ÀA.136/2 gÀ°è EgÀĪÀ 19 JPÀgÉ 26 UÀÄAmÉ «¹ÛÃtð d«ÄäUÉ ZÉPÀÄ̧A¢ ¥ÀǪÀðPÉÌ : ªÀÄ°èPÁdÄð£À gÀªÀgÀ d«ÄãÀÄ, ¥À²ÑªÀÄPÉÌ : ªÀÄ®è¥Àà£ÀªÀgÀ d«ÄãÀÄ, zÀQëtPÉÌ : ¸ÀPÁðj zÁj, GvÀÛgÀPÉÌ : gÁªÀÄtÚ£ÀªÀgÀ d«ÄãÀÄ ©. C£ÀĸÀÆa ¸ÀévÀÄÛ. l¥sÉ mÁæåPÀÖgï ªÀÄvÀÄÛ mÉæöÊ®gï mÁæåPÀÖgï £ÀABPÉ.J.13-nJ-121, mÉæöÊ®gï £ÀAB PÉ.J.13-nJ-1122." 5. Suit on contest came to be decreed and operative portion of the judgment reads as under: “The suit of the plaintiffs is hereby Partly decreed with cost. It is ordered and decreed that, plaintiffs and defendant 2 are entitled for 1/3rd share each over the suit schedule properties. Prayer in respect of mesne profit is hereby rejected. Draw Preliminary decree accordingly.” 6. Being agreed by decreeing of the suit, defendant No.3 who is nephew of defendant No.1, filed an appeal in R.A.No.111/2017 before the First Appellate Court at Arasikere. 7. Learned Judge in the First Appellate Court noted that there was a Will executed by Veerasange Gowda in respect - 5 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 of the suit schedule properties and noted that the defendant No.3 was able to establish the Will executed by Veerasange Gowda is proved and also recorded a finding that the property was the exclusive property of Veerasange Gowda and allowed the appeal and set aside the judgment and decree passed by the Trial Court and granted decree only with regard to the ‘B’ schedule property by granting 5/16th share to the plaintiffs in ‘B’ schedule property. 8. Being further aggrieved by the same, the plaintiffs being the appellants herein, have filed the present appeal on the following grounds.  The Appellants submit that the Trial Court rightly passed the judgment & decree after considering the documents & clear admission on the part of the first Respondent that the Suit Schedule-A Property is the joint family property and that the same was purchased from the income derived from the other joint family properties.  The Appellants submit that both the Trial & Appellate Courts had upheld the contention that the Suit Schedule Properties are joint family properties, and in this background, it is very much evident that Veerasange Gowda did not have any absolute or exclusive right to execute Will. Considering this fact, the Trial Court rightly decreed the suit. However, the Appellate Court even - 6 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 though upheld the contention that Suit Schedule Properties are joint family properties, allowed the appeal filed by the first Respondent.  The Appellants submit that all along Veerasange Gowda has been residing with the Appellants and the second Respondent herein and at no point of time was he residing with the first Respondent and at no point of time the first Respondent ever took care of Veerasange Gowda. Further, the first Respondent in his evidence has clearly admitted the fact that at no point of time Veerasange Gowda resided with them and that the Will was prepared by his father and that he alone had taken Veerasange Gowda to the Sub- Registrar's office. The attesting witnesses to the Will deposed that they had not seen Veerasange Gowda or him signing the said Will. These aspects clearly create suspicious circumstances around the execution of the Will. The Trial Court rightly upheld this contention and decreed the suit. However, the Appellate Court without giving credence to this aspect and only on the ground that the Appellants in their rejoinder had not disputed the Will, passed the impugned order, which is arbitrary, bad in law and liable to be set aside.  The Appellants submit that the Appellate Court failed to appreciate the fact that once the first Respondent claims right on the basis of the Will, he has to prove execution of the Will and clear the suspicions surrounding the Will. However, his evidence clearly demonstrates that he had completely failed to prove the same. The Appellate Court only on the basis that there was no specific denial by the Appellants regarding 1988 execution of the Will, passed the - 7 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 impugned order allowing the appeal, which is arbitrary, bad in law and liable to be set aside.  The Appellants submit that the Appellate Court failed to appreciate the fact that in the Will there is no averment as to why Veerasange Gowda had excluded his children from the Will even though he was residing with the Appellants and the second Respondent herein and when there was no occasion for executing the Will in favour of the first Respondent. The first Respondent too has admitted this aspect. Without giving credence to this aspect, the Appellate Court passed the impugned order, which is arbitrary, bad in law and liable to be set aside.  The Appellants submit that the Appellate Court failed to appreciate the fact that the first Respondent had all along tried to knock off the Schedule Properties. On the one hand he contended that Veerasange Gowda had not taken possession and that the first Respondent is in possession of the Suit Schedule Property and on the other hand, he contends that Veerasange Gowda had purchased the Suit Schedule-A Property out of his own funds and that he is the owner of the said property. The Trial Court rightly appreciating these aspects & admissions decreed the suit. The Appellate Court even though appreciated these aspects, only on the ground of technicality, allowed the appeal and passed the impugned order, which is arbitrary, bad in law and liable to be set aside.” - 8 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 9. As already pointed out, the appeal came to be admitted on the substantial question of law as referred to supra. 10. Learned counsel for the appellants contended that Veerasange Gowda held the suit property as kartha of the joint family property and it was not self acquired property. 11. He further contended that the defendant No.3 who is the beneficiary under the Will executed by Veerasange Gowda marked as Ex.D6 dated 28.01.2005, there is no recital as to how Veerasange Gowda acquired the property and to establish that it is his self acquisition property, there is no material on record placed by defendant No.3, except the Will. 12. He further contended that exclusion of the children and preferring the nephew of his wife by Veerasange Gowda is unnatural and therefore, there is a suspicion with regard to the proof of Will and even though there is no specific substantial question of law raised in the appeal, this Court has got ample power under Section 103 CPC to raise any additional substantial question of law and answer the same by holding that Will is not proved on account of the fact that Ex.D6 Will is - 9 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 surrounded by suspicious circumstances and sought for allowing the appeal in toto. 13. Defendant No.3 being the contesting respondent who is first respondent in this appeal did not choose to address the arguments though he has engaged a counsel. 14. Learned counsel for respondent No.1, who appeared through Video Conferencing, supports the judgment passed by the First Appellate Court by contending that the Will is proved and therefore, rejection of the suit claim with regard to ‘A’ schedule property is justified. 15. Second defendant has engaged the services of Sri.N.Kumaraswamy, who is sailing the plaintiffs. As such, he would support the contentions urged on behalf of the appellants. 16. In the light of the aforesaid arguments, this Court perused the material on record meticulously. 17. Sri Vinaya Keerthy M., learned counsel for the appellants justified in addressing the arguments that the suit property was not the exclusive property of Veerasange Gowda. Written statement in this regard by defendant No.3 assumes importance and so also the factual aspect that Veerasange - 10 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 Gowda did not mention anything about the suit property in Ex.D.6 itself. 18. What was the avocation that Veerasange Gowda had is not forthcoming on records. Further how he acquired the suit ‘A’ schedule property either by purchase or any other method is also not forthcoming in the written statement of defendant No.3. All that was contended in the written statement of defendant No.3 before the Trial Court is that Veerasange Gowda was the absolute owner of suit ‘A’ schedule property. Therefore, he had every right to bequeath the same in favour of the defendant No.3. It is also emphasized that Ex.D6 being the registered Will, it is to be accepted that what has been contained in Ex.D6 is the gospel truth and sought for dismissal of the suit. 19. Learned Trial Judge took into consideration the material evidence placed on record by the parties and has clearly come to the conclusion that the suit property is the ancestral property and not the self acquired property of Veerasange Gowda. - 11 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 20. In this regard, learned Trial Judge recorded the reasoning at paragraph 8 of the judgment while answering issue Nos. 1 and 2 which reads as under: “8. Issue No.1 and 2:- Both issues are interlinked with each other. Hence, I have taken both issues for my common discussion. Plaintiff filed the suit for partition and for separate possession. Their contention is that suit “A” schedule properties are joint family properties of plaintiff and defendant no.1 and 2. To prove the case of the plaintiff the plaintiff no.1 himself examined as P.W.1 and filed affidavit in lieu of examination in chief in and got marked Ex.P.1 to Ex.P.5 documents. In the affidavit, he has re-iterated the averments made in the plaint and stated that late Veera Sange Gowda, who is the father of plaintiffs and defendant no.2 is having ancestral properties and he has purchased suit “A” schedule property during the year 1960 through registered sale deed from the uncle of defendant no.3 by name Patel Mallegowda from the income derived in the joint family properties. Hence, same as become joint family property of plaintiffs and defendant no.1 and 2. Further, stated that the plaintiffs and defendant no.2 along with Veerasange Gowda have got partitioned their joint family properties except suit “A” schedule property during the year 1986. Thus suit schedule property is in joint possession and enjoyment of plaintiffs and defendant no.1 and 2. - 12 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 Learned counsel for the defendant no.3 has cross- examined the P.W.1 in length. In the cross-examination, P.W.1 has denied that suit schedule property is in possession of defendant no.3. Further, denied that suit property is self-acquired property of late Veera Sange Gowda. Further, plaintiff no.2 is examined as P.W.2 she is the daughter of late Veerasangegowda she is also re- iterated the plaint averments in chief examination and stated that suit property is joint family of plaintiffs and defendant no.1 and 2. Further, stated that suit property is in joint possession and enjoyment of them. In the cross examination, it is suggested by the learned counsel for the defendant no.3 that suit property is belongs to late Veera Sange Gowda, but same as been denied by P.W.2. Further, it is suggested that in cross-examination of P.W.1, page no.4 “zÁªÁ J C£ÀƸÀÆa ¸ÀévÀÛ£ÀÄß «ÃgÀ¸ÀAUÉÃUËqÀgÀÄ 1960£Éà PÀæAiÀÄPÉÌ PÉÆArgÀÄvÁÛgÉ. ¸ÀzÀj ¸ÀévÀÛ£ÀÄß £ÀAeÉÃUËqÀgÀ ªÀÄUÀ ªÀįÉèÃUËqÀjAzÀ PÀæAiÀÄPÉÌ PÉÆArgÀÄvÁÛgÉ. ¸ÀzÀj £ÀAeÉÃUËqÀ ªÀÄUÀ ªÀįÉèÃUËqÀ EªÀgÀÄ zÁªÁzÀ 3£Éà ¥ÀæwªÁ¢AiÀÄ vÁvÀ£ÁUÀ¨ÉÃPÀÄ. ªÀįÉèÃUËqÀgÀ ªÀÄUÀ¼ÀÄ ªÀÄgÀļÀªÀÄä EªÀjUÉ «ªÁºÀ ªÀiÁrPÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. zÁªÁzÀ 3£Éà ¥ÀæwªÁ¢ ªÀįÉèÃUËqÀ £À£Àß vÁvÀ£ÁUÀ¨ÉÃPÀÄ”. On going through the suggestion, it is clear that late Veera Sange Gowda is son-in-law of vendor of suit “A” schedule property i.e., Mallegowda. Defendant no.1 is the daughter of said Mallegowda. Hence, she is the proper person to explain regarding nature of “A” schedule property. But, she remained ex-parte. Further, she died during the pendency of the suit. Thus, heavy burden lies upon defendant no.3 to prove that suit property is self acquired property and said Veerasangegowda has executed - 13 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 will dated: 20.08.2005. Since, previous partition is admitted by the defendant no.3. Admittedly, suit property is purchased during the year 1960 by Veera Sange Gowda and further partition took place during the year 1989 between said persons. Said fact, also admitted by defendant no.3. Such being the case, it can be presumed that at the time of purchase of suit “A” schedule property, the plaintiffs and defendant no.1 and 2 are residing in joint family and further it is un-disputed fact that family of late Veera Sange Gowda is having so many other ancestral properties. Further, it is also undisputed fact that his family is having sufficient income from that properties. Thus, it is clear that being a karta of the family, he was purchased suit “A” schedule property from his father-in-law i.e., Mallegowda. However, defendant no.3 contended that the suit schedule property is self acquired property of late Veerasange Gowda, but no documents and evidence before this court to substantiate the theory of defendant no.3. Further, it is the defence of defendant no.3 that Veera Sange Gowda was doing business of coconut and from that income he has purchase suit “A” schedule property his own income. For this, I have carefully perused the evidence of defendant no.3 who is examined as D.W.1 in the chief examination he has stated that suit A schedule property is self acquired of Veera Sange Gowda. Further, I have carefully gone through the cross-examination of D.W.1 and I take relevant para for my discussion. In the cross-examination of D.W.1, page no.6 it is admitted by D.W.1 that “«ÃgÀ ¸ÀAUÉÃUËqÀgÀÄ vÀÄA¨Á ¢£À¢AzÀ ªÀåªÀ¸ÁAiÀÄ ªÀiÁrPÉÄÁAqÀÄ §gÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj . «ÃgÀ¸ÀAUÉÃUËqÀjUÉ r.JA PÀÄPÉð UÁæªÀÄzÀ°è - 14 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 ¸ÀªÉð £ÀA.50/5, 3/2, 69/3, 40/1, 41/1, 42/4, 159/2, 4/2, 202 ªÀÄvÀÄÛ 234/gÀ d«ÄãÀÄ EzÀݪÀÅ JAzÀgÉ ¸Àj. d«Ää£À°è vÉAV£À ªÀÄgÀ ¨É¼ÉAiÀÄwÛzÀÄÝ, RÄ¶Ì d«Ää£À°è zÀsªÀ¸À zsÁ£ÀåUÀ¼À£ÀÄß ¨É¼ÉAiÀÄÄwÛzÀÝgÀÄ. vÉAV£À ªÀÄgÀUÀ½AzÀ §gÀÄwÛzÀÝ vÉAV£À PÁ¬ÄAiÀÄ£ÀÄß PÉƧâj ªÀiÁr «ÃgÀ¸ÀAUÉÃUËqÀgÀÄ ªÀiÁgÁl ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj . EzÉà jÃw RÄ¶Ì d«Ää£À°è ¨É¼ÉzÀ zÀsªÀ¸À zsÁ£ÀåUÀ¼À°è vÀ£ÀUÉ ¨ÉÃPÁzÀGÀÄÖ ElÄÖPÉÄÁAqÀÄ G½¢ªÀ£ÀÄß ªÀiÁgÁl ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj”. For this, it is clear that Veera Sange Gowda was doing business with respect of said joint family products. Hence, it is clear that the said income is also joint family income. Further it is relevant to note here that in the cross of D.W.1 he has admitted in page no.1 that his birth year is 1959 and suit A schedule property is purchased by late Veera Sange Gowda during the year 1960 then how he knows about that late Veera Sange Gowda purchased suit schedule property with his own income is not explained. Further, he is not at all proper person to say about self-acquisition of Veerasangegowda. Further, in cross-examination of DW.1 of page no.11 himself admitted that late Veera sangegowda has not having self-acquired property. Further, admitted that “«ÃgÀ¸ÀAUÉÃUËqÀgÀÄ ªÀÄvÀÄÛ CªÀgÀ ªÀÄPÀ̼ÀÄ «¨sÁUÀ ªÀiÁrPÉÆAqÁUÀ zÁªÁ D¹ÛUÀ¼À£ÀÄß ªÀÄÄAzÉ «¨sÁUÀ ªÀiÁrPÉÆqÀĪÀÅzÁV ºÁUÉà G½¹PÉÆArzÀÝgÀÄ JAzÀgÉ ¸Àj. I have gone through the documents placed on record with these aspects. Ex.P.1 “B” extract is in the name of late Veerasangegowda, Ex.P.2 RTC in respect of suit “A” schedule property is in the name of Veerasangegowda further Ex.P.3 is the death certificate of late Veerasangegowda Ex.P.4 is the objection letter, Ex.P.5 is the genealogy tree further defendant no.3 has filed some documents to substantiate his defence which are Ex.D.1 patta book in respect of suit A schedule property, Ex.D.2 is - 15 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 tax paid receipt is also in the name of Veera Sange Gowda, Ex.D.3 is the RTC of “A” schedule property, Ex.D.4 mutation register of “A” schedule property, Ex.D.5 is the sale deed during the year 1960. Hence, on going through the said documents, it is clear that late Veerasangegowda as purchased suit “A” schedule property during the year 1960 from Mallegowda. Further, according to sale deed revenue records are changed in his name. But dispute is that whether the suit “A” schedule property is self-acquired or joint family property of late Veerasangegowda. For this, I have carefully gone through the Ex.P.2 and Ex.D.3 both documents are one and the same which is RTC pertaining to the suit A schedule property. In the column no.10 of said Ex.P.2, it is mentioned that (¦vÁæfðvÀ) Further, doubt arise that, if it is self acquired property of late Veerasangegowda, why he was not made any effort to convert that as ¸ÀéAiÀiÁfðvÀ. Further, it is admitted that late Veerasangegowda is wordly wise man and intelligent person and further businessman. Hence, if it is self- acquired property definitely he would tried to change the same. After the partition also he did not made any effort to convert the same. Further except denying, no other documents on before the court to hold that suit schedule “A” property is self-acquired property of late Veerasangegowda. On the other hand, at the time of sale deed dated 05.02.1960, the plaintiffs and defendant no.1 and 2 are residing in joint family. Hence, plaintiff’s ably proved beyond as well as documentary evidence that suit “A” schedule property is joint family property of plaintiffs and defendant no.1 and 2. Further, it is admitted fact that - 16 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 on the basis of A schedule property which is mortgaged by the Veerasangegowda, purchased the “B” schedule property thus I have no hesitation to hold that both are the joint family property of plaintiffs and defendant no.1 and 2. Hence, I answer issue no.1 in the Affirmative, issue no.2 in the Negative.” 21. Learned Trial Judge has clearly culled out the cross examination of D.W.1 (defendant No.3) wherein D.W.1 has admitted that Veerasange Gowda was cultivating the suit item No.1 for a long period and Veerasange Gowda had lands in Sy.Nos.50/5, 3/2, 69/3, 40/1, 41/1, 42/4, 159/2, 4/2, 202 and 234 in D.M.Kurke Village. 22. D.W.1 also admitted that coconut trees were grown and other crops were also grown in those lands. He has also admitted that Veerasange Gowda used to sell the surplus of the coconuts and the crops grown in those lands and used the funds to maintain his family. 23. Crowning all these aspects of the matter, in page 11 of cross examination of D.W.1, he has specifically admitted that Veerasange Gowda had no self acquired property. Therefore, even though Ex.D6 - Will stands proved, Veerasange - 17 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 Gowda could not have bequeathed the entire suit ‘A’ schedule property in favour of defendant No.3. 24. First Appellate Court in that regard though bestowed its attention, but failed to note that Veerasange Gowda had no legal capacity to bequeath the entire suit ‘A’ schedule property in favour of defendant No.3 in view of the categorical admission elicited in the cross examination of D.W.1 on behalf of the plaintiffs. 25. However, with regard to the proof of Will, even though there is no substantial question of law raised in the appeal at the time of admission, Sri Vinaya Keerti, counsel for the appellants contended that the Will is surrounded by suspicious circumstances. The main reason to substantiate said contention is exclusion of the kith and kin by Veerasange Gowda. 26. It is settled principles of law and requires no emphasis that mere exclusion of kith and kin is not the sole criteria to hold that the Will is surrounded with suspicious circumstances. The best exercise any Court can do to find out what is the reason for exclusion of Kith and kin which could be - 18 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 treated as a suspicious circumstance that surrounds the Will is to advert to the contents of the Will itself. 27. When such an exercise is carried out in the case on hand, in Ex.D6 itself, there is a clear recital to the effect that it is defendant No.3 who was looking after Veerasange Gowda for all his needs. 28. Therefore, the contentions urged on behalf of the appellants, exclusion of plaintiffs and defendant No.1 being the children and wife of Veerasange Gowda in Ex.D6, is to be treated as surrounding the suspicious circumstances around the Will and therefore, Will is to be discarded, cannot be countenanced in law. 29. Furthermore, if any such injustice has occurred by Veerasange Gowda bequeathing the property, excluding plaintiffs and defendant No.2 in Ex.D6, it is for the defendant No.1 being the wife of Veerasange Gowda, who was a party to the suit contend before the Trial Court that defendant No.3 clandestinely got executed the Will vide Ex.D6 in his favour from Veerasange Gowda. - 19 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 30. It is Pertinent to note that wife of the Veerasange Gowda, being the mother of the plaintiffs and defendant No.2 did not contend so before the Trial Court. 31. If Veerasange Gowda had any adverse or hostile feeling towards the plaintiffs and defendant No.2, being the mother - defendant No. 1 would have come to the aid of the plaintiffs or defendant No.2 in denying the proper execution of the Will by Veerasange Gowda in favour of Defendant No. 1. 32. Very fact that mother has not supported the case of the plaintiffs and defendant No.2 in disputing the Will at Ex.D6 exposes the hollowness in the claim of the plaintiffs that exclusion of the kith and kin has resulted in surrounding the suspicious circumstances with regard to the proof of Will under Ex.D6. 33. Therefore, the argument put forth on behalf of the appellants that under Ex.D6 is surrounded by suspicious circumstances cannot be countenanced in law. 34. Having said so, if one minute earlier to the death of Veerasange Gowda, if the notional partition has taken place, Veerasange Gowda along with plaintiffs and defendant No.2 would have derived the share in the suit property of 1/4th each. - 20 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 35. Since Veerasange Gowda had executed the Will vide Ex.D6, his 1/4th share is to be granted to defendant No.3 in both the properties. 36. Insofar as suit ‘B’ schedule property is concerned, since Veerasange Gowda died intestate and suit ‘B’ schedule property is not part of the Will under Ex.D6, Veerasange Gowda's share of 1/4th at the notional partition is to be divided among his three children and wife, who are plaintiffs, defendant No.2 and defendant No.1 before the Trial Court. 37. During the pendency of the suit, since the mother is no more, 1/4th share of Veerasange Gowda is to be divided among plaintiffs and defendant No.2 in equal share. 38. Therefore, the order of the First Appellate Court in dismissing the suit of the plaintiffs in respect of the suit ‘A’ schedule property in toto needs to be interfered by answering the substantial question of law in favour of the appellants partly. Consequently, the following: ORDER (i) Regular Second Appeal is allowed in part. - 21 - HC-KAR NC: 2025:KHC:31680 RSA No. 6 of 2020 (ii) Suit of the plaintiffs in respect of ‘A’ schedule property is decreed by granting 1/4th share to each of the plaintiffs and 1/4th share to defendant No.2 and remaining 1/4th share in favour of defendant No.3 who is the legatee under Ex.D6 by virtue of the will executed by Veerasange Gowda in his favour. (iii) In respect of ‘B’ schedule property, plaintiffs and defendant No.2 are entitled to 1/3rd share each. (iv) Parties are at liberty to work out the equitable partition in terms of the modified judgment and decree passed in this appeal. Ordered accordingly. Sd/- (V SRISHANANDA) JUDGE MR