- 1 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 07TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO.101394/2022 (PAR/POS) BETWEEN: VENKATESH S/O. FAKIRAPPA DEVARADDI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. HOSAYARGUDRI, TQ. GOKAK. …APPELLANT (BY SRI S.B.HEBBALLI AND SMT. CHITRA M. GOUNDALKAR, ADVOCATES.) AND: 1. KASHAVVA D/O. SADASHIV SANTI @ RANJANAGI, AGE: 52 YEARS, OCC: AGRICULTURE & HOUSEHOLD, R/O. METAGUD, TQ. MUDHOL, NOW AT MUDALAGI, TQ. MUDALAGI, DIST. BELAGAVI-590001. 2. LAXMIBAI W/O. FAKIRAPPA DEVARADDI, AGE: 72 YEARS, OCC: AGRICULTURE & HOUSEHOLD, R/O. HOSAYARGUDRI, TQ. GOKAK, DIST. BELAGAVI-590001. 3. SRI RUDRAPPA S/O. RAMAPPA SANTI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. METGUD, TQ. MUDHOL, DIST. BAGALKOT-587101. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 4. SRI SHANKREPPA S/O. RAMAPPA SANTI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O. METGUD, TQ. MUDHOL, DIST. BAGALKOT-587101. 5. SMT. PADDAVVA W/O. RANGAPPA GANGARADDI, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O. KAMALADINNI, TQ. MUDHOL, DIST. BAGALKOT-590001. …RESPONDENTS (BY SRI SHRIHARSH A. NEELOPANT, ADVOCATE FOR R1; NOTICE TO R2 SERVED; NOTICE TO R3 TO R5 DISPENSED WITH.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.09.2020 PASSED IN R.A.NO.1/2019, ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, MODIFYING THE JUDGMENT AND DECREE DATED 15.12.2018 PASSED BY THE COURT OF CIVIL JUDGE AND JMFC, MUDALAGI, IN O.S.NO.90/2014 (OLD O.S.NO.503/2009) AND RESTORE THAT OF THE TRIAL COURT IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by defendant No.7 challenging the judgment and decree dated 05.09.2020, passed in R.A.No.01/2019, on the file of Principal Senior Civil Judge, Gokak (for short, ‘First Appellate Court’), which set aside and modified the judgment and decree dated 15.12.2018, - 3 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 passed in O.S.No.90/2014 (old No.503/2009), on the file of Civil Judge and JMFC, Mudalagi (for short, ‘Trial Court’). 2. The Trial Court has decreed the suit to the effect that the plaintiff is entitled for half share in the suit schedule item Nos.1 to 3 properties and 1/3rd share in the suit schedule item Nos.4 and 5 properties. 3. The above said decree is modified by the First Appellate Court holding that the plaintiff is entitled for half share in suit item Nos.1 to 5 properties and defendant No.3 is entitled for remaining half share in the suit schedule item Nos.1 to 5 properties. 4. The Trial Court has held execution of Will by defendant No.1 bequeathing the properties in favour of defendant No.7 (appellant herein) is proved, but the First Appellate Court has reversed this finding of execution of Will and thus no share is given to defendant No.7. Therefore, defendant No.7 has preferred the present appeal. - 4 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 5. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 6. The plaintiff has filed suit for partition and separate possession for claiming half share in the suit schedule properties and for declaration that the decree passed in O.S.No.260/1996 dated 16.06.2001, by the Court of Additional Civil Judge, Mudhol, is not binding on the share of the plaintiff. 7. The following are the suit schedule properties. “1. Description of suit properties: The suit properties are the agricultural lands situate within the village limits of Yargudri village Tal. Gokak and Mallapur, P.J. Tal. Mudhol, as detailed below: Sl. No. R.S.No. Area A-G Asst. Rs.Ps. Village Market Value Rs. 1. 123/A 6-01 11-22 Yaragudri 4,00,000 2. 123/2 0-07 00-31 Yaragudri 20,000 3. 136/A/2 3-07 5-92 Yaragudri 2,00,000 4. 66/3 3-26 0-01 PK 3-25 2-51 Mallapur PJ 1,00,000 - 5 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 (Out of 1Ac. 32½ Gs.) 5. 66/4 1-21 1-06 Mallapur PJ 80,000 Total 8,00,000 8. The plaintiff has produced the genealogy as follows: Mallappa (Dead) Lakkavva (Dead) Laxmibai (Plaintiff) Sadashiv (D1) Gangavva(D2) Kashavva (D3) 9. In the suit, it is the case of the plaintiff that the suit schedule item Nos.1 to 3 were granted to Lakkawwa wife of Mallappa, by the Land Tribunal in the year 1981 and thus Lakkawwa is the exclusive owner of the suit schedule item Nos.1 to 3 properties. The suit schedule item Nos.4 and 5 are the ancestral properties. The defendant s have filed written statement admitting the relationship and nature of the properties. - 6 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 10. Learned counsel for appellant submitted that defendant No.1 during his lifetime had executed a Will in favour of son of plaintiff who is defendant No.7 bequeathing the properties in his favour and Trial Court upon considering the evidence on record has held that the Will is proved. The Will is executed on 15.01.2009. But the First Appellate Court has reversed the finding on the Will and has held that defendant No.7 has not proved execution of Will as the Will is surrounded with suspicious circumstances. 11. It is submitted that Ex.D.30 is the original Will and on the basis of evidence of DW.3 and DW.4, execution of Will is proved. The First Appellate Court has reversed the finding disbelieving the evidence of DW.3 and DW.4. Therefore, submitted that the First appellate Court has taken recourse of hyper technical reasons while appreciating the evidence of witnesses in proving the execution of Will. Therefore, the Will is proved and when the Will is proved, defendant No.7 is entitled for share in the properties of defendant No.1. Therefore, prays for - 7 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 interference with the judgment and decree passed by the First Appellate Court. 12. On the other hand, learned counsel for defendant No.3 submitted that defendant No.3 is daughter of defendant No.1, but defendant No.1 had executed a Will in favour of son of plaintiff excluding his own daughter, which creates suspiciousness in executing the Will. Therefore, the First Appellate Court has rightly held that the Will is not proved. Hence, prays to dismiss the appeal. 13. Having heard the arguments of learned counsels appearing for both the sides, the following substantial question of law would arise for consideration. Whether, under the facts and circumstances involved in the case, the First Appellate Court is justified in holding Ex.D.30-Will is not proved and thus the appellant/defendant No.7 is not entitled for share in the share of defendant No.1? 14. The suit is filed for partition and separate possession for claiming half share in the suit schedule - 8 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 properties. Admittedly the suit schedule item Nos.1 to 3 properties were granted by the Land Tribunal in favour of Lakkawwa, who is mother of plaintiff and defendant No.1. This fact is not disputed. Therefore, Lakkawwa had become exclusive owner of the suit schedule item Nos.1 to 3 properties. Therefore, the plaintiff being daughter has filed suit for partition and the Trial Court has granted half share in suit schedule item Nos.1 to 3 properties, as Lakkavva died intestate, as per Section 15 of the Hindu Succession Act, the plaintiff who is daughter and defendant No.1 who is son are entitled for equal share in the suit schedule item Nos.1 to 3 properties. 15. It is not disputed that suit schedule item Nos.4 and 5 properties are the ancestral properties. Defendant No.3 is daughter of defendant s No.1 and 2. It is the case of defendant No.1 that during lifetime of defendant No.1, defendant No.1 had executed a Will dated 15.01.2009 bequeathing his share of properties in favour of defendant No.7 who is son of the plaintiff. It is borne out from the - 9 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 evidence that defendant s No.2 and 3 who are wife and daughter of defendant No.1 are residing separately from defendant No.1. Therefore, during last years of defendant No.1, defendant s No.2 and 3 had not accompanied defendant No.1. Therefore, defendant No.1 was constrained to reside in his sister’s house with plaintiff and therefore, it is the case of defendant No.7 that defendant No.1 had executed a Will in favour of defendant No.7. The Trial Court appreciated the evidence on record regarding execution of Will that it is proved that defendant No.1 had executed the Will dated 15.01.2009. 16. The First Appellate Court, while considering the proof of execution of the Will, assigned reasons that defendant No.1 had performed the marriage of defendant No.3 (his daughter) by spending a huge amount and that she is now residing in her matrimonial home. The First Appellate Court observed that defendant No.1 had not assigned any reason for excluding defendant No.3 from the Will, which, according to it, created suspicion. Further, the - 10 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 Court commented on the depositions of DWs.3 and 4, stating that they did not know the family affairs of defendant No.1, thereby creating suspicion regarding execution of the Will. 17. While analysing the appreciation of evidence made by DWs.3 and 4, the Trial Court had straightaway appreciated the Will and held that the execution of the Will was proved and that defendant No.1 intended to execute the Will, as defendant Nos.2 and 3, being his wife and daughter, had deserted defendant No.1 and started living separately. Consequently, defendant No.1 started residing in his sister’s house and therefore executed the Will in favour of defendant No.7. These facts were not disputed by defendant No.3. 18. When such being the case, merely because defendant No.1 did not explain why he executed the Will in favour of defendant No.7 and excluded defendant No.3, it cannot be said that the Will is surrounded by suspicious - 11 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 circumstances. Further, the First Appellate Court adopted a hyper-technical approach in holding that since DWs.3 and 4 did not know much about the family affairs of defendant No.1, their evidence was unreliable. Merely because DWs.3 and 4 were not fully aware of the internal family affairs of defendant No.1, it does not render them suspicious witnesses. Naturally, outsiders to the family may not be aware of internal family matters, and that by itself does not make DWs.3 and 4 false witnesses. 19. Further, the First Appellate Court also approached the matter from the angle of the type of pen used—whether it was a liquid ink pen or a ballpoint pen—and found fault with the execution of the Will on that ground. Such findings, regarding the use of pen, are nothing but hyper technical reasoning. Therefore, the First Appellate Court adopted an overly hyper technical approach while considering the Will. 20. Whereas, in practice, while preparing a Will and while considering whether it was written in the natural - 12 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 course of events, minor discrepancies are bound to occur. Such discrepancies cannot be viewed through a magnifying glass so as to disbelieve the Will. While considering a Will, the necessary legal requirements must be examined along with the evidence on record. In the present case, DWs.3 and 4 have stated that they were attesting witnesses, that defendant No.1 had requested a school teacher to scribe the Will, and that after the Will was written, both witnesses put their signatures. Admittedly, the scribe was a school teacher and not an advocate or professional scribe. Merely because the school teacher who scribed the Will did not maintain formal notes, which does not render the Will invalid. The discrepancy in the evidence of DWs.3 and 4 regarding the notes is a minor discrepancy and does not go to the root of proving the Will. 21. Therefore, considering the appreciation of evidence made by the Trial Court regarding proof of the Will, the approach adopted by the Trial Court is found to be - 13 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 correct. Accordingly, it stands proved that defendant No.1 executed the Will in favour of defendant No.7. 22. It is argued that the Will is dated 15.01.2009, the suit was filed on 31.07.2009, and defendant No.1 died on 17.02.2014. During his lifetime and during the pendency of the suit, defendant No.1 did not whisper anything about execution of the Will. Therefore, production of the Will by defendant No.7 after the death of defendant No.1 is said to have created doubt regarding its genuineness. 23. Considering this submission, merely because defendant No.1 did not disclose execution of the Will during his lifetime cannot be treated as a suspicious circumstance. If the testator discloses execution of a Will during his lifetime, there are chances of disputes and quarrels among family members. Therefore, sometimes execution of Will is not disclosed during the lifetime of the testator. Hence, non-disclosure of the Will during the lifetime of the testator itself cannot be treated as a suspicious circumstance. - 14 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 Accordingly, I do not find any merit in the submission made by defendant No.3. 24. When it is proved that defendant No.1 had executed a Will in favour of defendant No.7, the findings recorded by the First Appellate Court cannot be sustained. Defendant No.7 is therefore entitled to his share in terms of the Will. 25. Defendant Nos.1 and 2 are husband and wife, respectively, and defendant No.3 is their daughter. Insofar as suit schedule item Nos.1 to 3 properties are concerned, the plaintiff and defendant No.1 each are entitled to half share. Defendant No.3 is the daughter of defendant No.1. It is stated that defendant No.2 has also died. Therefore, both defendant No.7 and defendant No.3 are entitled to equal shares in the half share of defendant No.1, which means defendant No.7 and defendant No.3 are entitled to 1/4th share each in suit schedule item Nos.1 to 3 properties. - 15 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 26. Insofar as the decree in favour of the plaintiff is concerned, the same is not disturbed and remains intact. The allotment of 1/4th share each to defendant No.7 and defendant No.3 is only in respect of the share of defendant No.1, without disturbing the plaintiff’s half share. 27. Insofar as suit schedule item Nos.4 and 5 properties are concerned, admittedly these are ancestral properties. Therefore, the plaintiff is entitled to 1/3rd share, which is not disturbed. Sadashiva, Gangavva, and their daughter were entitled to 1/3rd share each. Sadashiva and Gangavva have died. Therefore, out of the 1/3rd share allotted to Sadashiva (defendant No.1), both defendant No.7 and defendant No.3 are entitled to equal shares in the share of defendant No.1. Accordingly, each is entitled to 1/6th share in suit schedule item Nos.4 and 5 properties. 28. The above allotment to defendant No.3 and defendant No.7 is only in respect of the share of Sadashiva and does not affect the plaintiff’s share as granted by the - 16 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 Trial Court. Therefore, the judgment and decree of the first appellate Court is liable to be set aside. Therefore, accordingly, I answer substantial question of law in the negative. 29. Hence, I proceed to pass the following; ORDER i. The Regular Second Appeal is allowed in part. ii. The judgment and decree dated 05.09.2020, passed in R.A.No.01/2019, on the file of Principal Senior Civil Judge, Gokak, is set aside. iii. The judgment and decree dated 15.12.2018, passed in O.S.No.90/2014 (old No.503/2009), on the file of Civil Judge and JMFC, Mudalagi, insofar as for granting of share to the plaintiff is not disturbed and modified holding that Defendant Nos.3 and - 17 - HC-KAR NC: 2026:KHC-D:103 RSA No. 101394 of 2022 7 are entitled for 1/4th share each in suit schedule item Nos.1 to 3 properties. Defendant Nos.3 and 7 are entitled for 1/6th share each in suit schedule item Nos.4 and 5 properties. iv. The decree insofar as plaintiff is concerned granting half share in suit schedule item Nos.1 to 3 properties and 1/3rd share in suit schedule item Nos.4 and 5 properties is kept intact, not disturbed. v. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK-para 1 to 15. ASN-16 to end. CT-AN List No.: 1 Sl No.: 11