- 1 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200036 OF 2025 (PAR/POS) BETWEEN: SHAMSHADBEGUM W/O BABUSAB KOTTAMBARI, AGE: 51 YEARS, OCC: HOUSEHOLD WORK R/O: SINDAGI, TQ: SINDAGI, DIST: VIJAYAPURA – 586 128. …APPELLANT (BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE) AND: 1. SMT. RAJAKABI W/O MOTISAB BEPARI AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: DEVAR HIPPARAGI, TQ: DEVAR HIPPARAGI DIST: VIJAYAPURA - 586 115. 2. IMAMSAB S/O HUSENSAB KASAB @ BEPARI AGE: 69 YEARS, OCC: AGRICULTURE, R/O: SINDAGI, TQ: SINDAGI, DIST: VIJAYAPURA – 586 128. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 3. SHABERA W/O ABBASALI BEPARI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: SINDAGI, TQ: SINDAGI, DIST: VIJAYAPURA – 586 128. 4. ASHAMA W/O ABDULSAB KALAL AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: SINDAGI, TQ: SINDAGI, DIST: VIJAYAPURA – 586 128. 5. KULASUMA W/O ALISAB BEPARI AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: DEVAR HIPPARAGI, TQ: DEVAR HIPPARAGI, DIST: VIJAYAPURA - 586 115. 6. RAFEEK S/O LALASAB BEPARI AGE: 53 YEARS, OCC: GOVERNMENT SERVICE, R/O: DEVAR HIPPARAGI, TQ: DEVAR HIPPARAGI, DIST: VIJAYAPURA - 586 115. 7. MABANNI W/O LATIF MASHYALKAR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK R/O: NAVIJINDAGI, SOLAPUR, TQ AND DIST: SOLAPUR 413 224. (MAHARASHTRA STATE) 8. BASHEER S/O LALASAB BEPARI - 3 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 AGE: 48 YEARS, OCC: GOVERNMENT SERVICE, R/O: DEVAR HIPPARAGI, TQ: DEVAR HIPPARAGI, DIST: VIJAYAPURA - 586 115. 9. RASOOL S/O LALASAB BEPARI AGE: 43 YEARS, OCC: GOVERNMENT SERVICE, R/O: DEVAR HIPPARAGI, TQ: DEVAR HIPPARAGI, DIST: VIJAYAPURA - 586 115. …RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 20.12.2024 PASSED IN R.A.NO.54/2021 ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND J.M.F.C., SINDAGI AT SINDAGI AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 02.09.2021 PASSED IN O.S.NO.63/2013 ON THE FILE OF THE COURT OF ADDITIONAL CIVIL JUDGE AND J.M.F.C., SINDAGI AT SINDAGI AND ETC. THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 4 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is filed against the judgment and decree in O.S.No.63/2013 on the file of Additional Civil Judge Sindagi and also the judgment and decree passed in R.A. No.54/2021 on the file of the Senior Civil Judge, Sindagi. 2. The pleadings would reveal that, one Husseinsab S/o Imamsab Kasba @ Bepari was the propositus and he died in the year 2008. He had two sons and four daughters. One of the daughters filed the suit against the surviving son of the propositus Husseinsab and children of deceased son Abbas Ali and also three daughters of propositus. The daughter from the surviving son Imamsab is arrayed as defendant No.6 and she is before the court as appellant. 3. The trial court held that the plaintiff is entitled to share in the property and also awarded share in favour of all the defendants except the defendant No.6. - 5 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 4. Defendant No.6 made a claim for property bearing Sy.No.937/2 measuring 5 acres which is one of the suit properties on the premise that her grandfather Husseinsab executed a registered Will dated 13.07.2007 bequeathing the said property in favour of the present appellant who was defendant No.6 before the trial court. The rest of the parties disputed the execution of the Will. Even the father of defendant No.6 disputed the execution of the Will. 5. The trial court has concluded that the Will is not proved holding that even one of the attesting witnesses to Will examined as D.W.2 has not tendered himself for cross-examination. It further held evidence led the scribe of Will does not help the case of defendant No.6 and the trial court declined to consider the Will. 6. Learned counsel would contend that both the courts erred in not considering the Will and urged that in the year 2008 an entry was made based on the Will in the property record in favour of present appellant and the suit - 6 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 is not filed within three years from the date of said entry. The suit is barred by limitation. When the suit is barred by limitation, there was no need for the appellant to examine the attesting witness. 7. This Court considered the contentions. The following points arise for consideration: (a) Whether the appellant establishes the execution of the Will? (b) Whether the suit is time barred? 8. The admitted factual position is both attesting witnesses to the said Will are alive. However, one of the attesting witnesses is examined. Said witness has not tendered himself for cross-examination. Thus, in effect there is no evidence of attesting witness to the alleged Will. 9. Further, the evidence led by the scribe of the Will does not come to the aid in proving execution of the Will as the appellant has not established that another - 7 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 attesting witness is unable to depose before the Court. Hence, this Court is of the view that the alleged Will is not established. 10. The second contention that the suit is time barred has no merit. The suit is one for partition and separate possession. The contention that because of an entry in the record of right based on the Will, the suit is time barred has to be rejected as there is no defence of ouster. Assuming that the suit has to be held within three years from the date of mutation there is no evidence to hold that mutation based on the Will is certified after due notice to all the parties to the suit. 11. Defendant No.6 has set up a defence based on the Will. If the Will is established then the suit would be dismissed in respect of the property covered under the Will. The burden of proving Will was on defendant No.6. The plaintiff need not question the mutation based on the Will. Hence, the trial court and the first appellate court were justified in holding that the Will is not proved. - 8 - NC: 2025:KHC-K:1433 RSA No. 200036 of 2025 Under these circumstances, no substantial question of law would arise. 12. Accordingly, the appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE BL List No.: 1 Sl No.: 41