Sister sued her brothers for partition of ancestral lands and houses; defendants relied on a Will executed by their father excluding her. The attesting witness's evidence did not prove attestation, so the Will was held unproved and the appeals against the partition decree were dismissed.
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4074 OF 2013 (PAR-) C/W REGULAR FIRST APPEAL NO. 4075 OF 2013
IN RFA NO.4074/2013
BETWEEN:
SHRI. YALLAPPA S/O. ULAVAPPA KAMATI, AGE: ABOUT 68 YEARS, OCC: AGRICULTURE, R/O: KAMATI ONI, KAMALAPUR, DHARWAD PIN CODE -580 006.
…APPELLANTS
(BY SRI. SHIVASAI M. PATIL, ADVOCATE)
AND:
ASHPAK KASHIMSA MALAGALADINNI
Location: HIGH COURT OF KARNATAKA
SINCE DECEASED BY HIS LR’S
…RESPONDENTS
(BY SRI. K L PATIL AND SRI. H. R. PATIL, ADVOCATE FOR R1; SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R2; SRI. B.G.INDI, ADVOCATE FOR R3 (A TO D)
RFA FILED UNDER SEC. 96 OF CPC, PRAYS THAT THE JUDGMENT AND DECREE PASSED BY THE I ADDL. SENIOR CIVIL JUDGE, DHARWAD IN O.S.NO.176/2010 DATED 13.03.2013 MAY PLEASE BE SET ASIDE BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA NO.4075/2013
BETWEEN:
MADIWALAPPA S/O. ULAVAPPA KAMATI, AGE: 60 YEARS, R/O. LAKAMANAHALLI, NEAR KHB, OM NAGAR,
IIND CROSS, DHARWAD, TQ: DHARWAD, DIST: DHARWAD PIN – 580004.
…APPELLANT
(BY SRI. S.G. KADADAKATTI, ADVOCATE)
AND:
AGRICULTURE PRODUCE MARKETING COMMITTEE SOUNDATTI ROAD, DHARWAD DIST: DHARWAD PIN – 580004.
…RESPONDENTS
(BY SRI. K L PATIL AND SRI. H.R. PATIL, ADVOCATE FOR R1; SRI. S.M. JATTI, ADVOCATE FOR R2; SRI. RAMESH CHIGARI, HCGP FOR R4 AND R6; SRI. G.I. GACHCHINAMATH, ADVOCATE FOR R5; SRI. A.M. GUNDAWADE, ADV FOR PROP R3 (A TO D).
RFA FILED U/S.96 R/W. ORDER XLI RULE 1 OF CPC, PRAYING TO CALL FOR RECORDS AND TO SET – ASIDE THE IMPUGNED JUDGMENT AND DECREE DATE 13.03.2013 IN R.A. NO.176/2010 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM., DHARWAD AND DISMISS THE SUIT ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
These two appeals are filed challenging the decree
for partition. The sister filed a suit for partition against her
brothers who are arrayed as defendants No.1-3.
2. The defendants No.4 to 6 are the Special Land
Acquisition Officer and APMC and State of Karnataka
against whom no relief is claimed. It is stated that some lands are acquired as such they have been made as formal parties.
residential houses.
stand that Ulavappa was executed a Will on 17.02.2005 in favour of defendants No.1 to 3 excluding the plaintiff and pray for dismissal of suit.
income of the ancestral properties the remaining ‘A’ schedule properties are purchased by his father and his brother.
it is admitted by the defendants that they are the ancestral properties. Now the question before this Court is; weather the execution of Will dated 17.02.2005 is established. The trial court held that the Will is not proved and decreed the suit.
defendants/appellants in these appeals would contend that the Will is duly registered and attesting witness is examined. Merely because the Will does not contain signature and thumb impression of the testator, the trial Court could not have disbelieved the Will. It is also his contention that there was partition to couple of days before the execution of a Will and in that partition also the father of defendants No.1 to 3 and plaintiff put his thumb impression on account of his old age. Though he used to sign earlier, he could not put the signature on the partition deed and the Will because of old age as such, the trial Court should have accepted the Will as having been proved.
plaintiff/respondent would contend that the Will is not established. The attesting witness to the Will who is examined as DW-3 has not a led evidence relating to attestation. As such, the trial Court is justified in holding that the Will is not proved. It is also his contention that no evidence is led to show that on account of physical ailment the father was not in a position to put the signature.
The point for consideration is;
“Weather the appellant established the execution of Will dated 17.02.2005.”
Property Act. The attestation as defined under Section 3 reads as under:-
”3. Interpretation clause.—
“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.”
be attesting witness does not prove the attestation at all. All that he has said is he has identified his signature on the Will and he further says he is not in a position to identify the signature of the testator. He does not even say even in the chief examination that he has signed in the presence of the testator and the testator has signed in his presence. Thus, there is no evidence relating to attestation. In the absence of any evidence relating to attestation, the trial Court is justified in holding that the Will is not proved.
Section 41 rule 27 of the CPC to establish the contention that the testator used to put his thumb impression. Learned counsel for the appellant has produced the partition deed executed among the defendants No.1 to 3 wherein they effected the partition of the properties covered under the Will to substantiate the contention that the Will is acted upon. Since this court has concluded that the execution of Will itself it not proved the said document is of hardly any consequence. Accordingly, the application is rejected.
Sd/(ANANT RAMANATH HEGDE) JUDGE
CHS/List No.: 1 Sl No.: 41
2 issues framed by the court
Whether the appellants established execution of the Will dated 17.02.2005.
Whether the suit schedule properties were ancestral or self-acquired.
4 provisions across 2 enactments
Yallappa s/o Ulavappa Kamati
Madiwalappa s/o Ulavappa Kamati
Parvatevva w/o Ningappa Shivalli
Anant Ramanath Hegde
As recorded by the court registry
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