Second appeal by defendants against concurrent trial and appellate court decrees granting plaintiff No.2 half share in partition suit. The court found the defendants failed to prove the alleged 1986 Will by not examining attesting witnesses as required under Section 68 of the Indian Evidence Act, and dismissed the appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO.1435 OF 2021 (PAR)
BETWEEN:
Digitally signed by MAMATHA R Location: High Court of Karnataka
BOTH ARE R/O GUNJEVU SOMANAHALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT - 573 201
(BY SRI. GIRISH B BALADARE, ADVOCATE)
AND:
…APPELLANTS
2. MANJULA
W/O KRISHNEGOWDA AGED ABOUT 52 YEARS, TULASI VILLAGE, KIKKERI HOBLI, K.R. PETE TALUK, MANDYA DISTRICT - 571 401
3. JAYANTHI
W/O SRIDHARA AGED ABOUT 54 YEARS, CHIKKAGANNI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK HASSAN DISTRICT - 573 201
4. DEVAMMA
W/O SWAMYGOWDA, AGED ABOUT 57 YEARS, GUNJEVU SOMANAHALLI VILLAGE, KASABA HOBLI, HOLE NARASIPURA TALUK, HASSAN DISTRICT - 573 201
…RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.09.2020 PASSED IN RA.NO.42/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HOLENARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.07.2016 PASSED IN OS.NO.239/2013 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HOLENARASIPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
NC: 2024:KHC:42101 RSA No. 1435 of 2021
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed challenging the judgment and decree dated 24.9.2020 passed in R.A.No.42/2016 by the learned Senior Civil Judge and JMFC, Holenarasipura and judgment and decree dated 05.7.2016 passed in O.S.No.239/2013 by the learned Civil Judge and JMFC, Holenarasipura.
Plaintiffs filed a suit against the defendants for partition and separate possession in respect of suit schedule properties. It is the case of plaintiffs that one Swamigowda was the father of defendant Nos.1 to 4 and
NC: 2024:KHC:42101 RSA No. 1435 of 2021
husband of defendant No.5. Plaintiff No.1 is wife and plaintiff No.2 is daughter of one Patel Bommegowda. It is contended that plaintiff No.2 and Swamigowda born to Bommegowda. The Bommegowda died in the year 1998 and Swamigowda died in the year 2012. The suit schedule properties were owned and possessed by late Bommegowda. The plaintiffs and the defendants being the sole heirs of late Bommegowda, have succeeded the suit schedule properties. The plaintiffs have got share in the suit schedule properties. It is contended that there was litigation of O.S.No.5478/2007, which was dismissed. Defendant Nos.1 and 2 filed an appeal in R.A.No.4/2011 challenging the judgment and decree passed in O.S.No.5478/2007. The said appeal was dismissed vide judgment dated 05.02.2011. The Survey No.54 measuring 02 acres 16 guntas was resumed by the Government for non-payment of revenue. The matter for restoration of land is still pending. The suit properties are ancestral properties of late Bommegowda. The plaintiffs and defendants are members of Hindu Undivided Family and
there is no partition affected between plaintiffs and defendants. Hence, the plaintiffs requested the defendants to effect the partition but defendants refused. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.
Swamigowda. It is contended that late Bommegowda bequeathed the suit properties in favour of defendant Nos.1 and 2 in the year 1986 and died on 12.12.1993. It is contended that defendant Nos.1 and 2 became absolute owners by virtue of Will executed by Patel Bommegowda, and prays to dismiss the suit.
by the trial Court in O.S.No.239/2013, preferred an appeal in R.A.No.42/2016 on the file of learned Senior Civil Judge and JMFC, Holenarasipura. The Appellate Court on re-assessment of oral and documentary evidence placed on record, dismissed the appeal with cost vide judgment dated 24.9.2020 and confirmed the judgment and decree
passed by the trial Court. The defendant Nos.1 and 2 aggrieved by the impugned judgments, filed this Regular Second Appeal.
Nos.1 and 2.
submit that the suit schedule properties were owned and possessed by one late Bommegowda. He had executed a Will in the year 1986 bequeathing the suit schedule properties in favour of defendant Nos.1 and 2 and by virtue of said Will, they became absolute owners of suit schedule properties. The plaintiffs have no right to claim share in the suit schedule properties. He submits that the
trial Court has not framed issue regarding execution of Will by late Bommegowda in favour of defendant Nos.1 and 2. Hence, on these grounds, he prays to allow the appeal.
submission of the learned counsel for defendant Nos.1 and 2.
defendant Nos.1 and 2 and they became absolute owners by virtue of said Will, the same is produced and marked as Exs.D7 and D8. Ex.D7 is original Will and Ex.D8 is certified copy of registered Will. The plaintiffs have denied execution of alleged Will as Exs.D7 and D8. The defendants have not examined attesting witnesses as required under Section 68 of the Indian Evidence Act, 1872. Defendant Nos.1 and 2 have failed to prove execution of Will at Ex.D7 by not examining attesting witnesses, which is mandatory. Both the Courts below have concurrently held a finding of fact that defendant Nos.1 and 2 failed to prove the execution of alleged Will by Bommegowda in favour of defendant Nos.1 and 2. The defence of defendants is based on the Will and as observed above, defendant Nos.1 and 2 have failed to prove the execution of Will. The plaintiffs and defendants have succeeded to the suit schedule properties and admittedly there is no partition in the family. Plaintiff No.2 being the coparcener, is entitled to her share in the suit schedule properties.
I proceed to pass the following:
ORDER
Sd/(ASHOK S.KINAGI) JUDGE
SMJ List No.: 1 Sl No.: 18
2 issues framed by the court
Whether the defendants proved execution of Bommegowda's Will without examining attesting witnesses under Section 68 Evidence Act.
Whether any substantial question of law arises in the second appeal against concurrent decrees granting plaintiff No.2 a half share.
2 provisions across 2 enactments
Ravi
Thammanna
Rajamma @ Deveeramma
Manjula
Jayanthi
Devamma
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
