Shri. Rajashekhar Vs Shri. Basappa

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NC: 2025:KHC-D:2062-DB RFA No. 100038 of 2020

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28^TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100038 OF 2020 (PAR/POS)

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BETWEEN:

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SHRI. RAJASHEKHAR S/O. LINGANGOUDA @ LINGAPPA HAVALDAR @ SARDESAI AGE: 80 YEARS, OCC: GOVT. SERVANT, R/O: INAMAHONGAL, TQ: SAUNDATTI, DIST: BELAGAVI-591126.

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…APPELLANT

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(BY SRI. R.K. KULKARNI, ADV)

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AND:

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2025.02.21 12:39:14 +0530

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SHRI. BANAPPA S/O. LINGANGOUDA @ LINGAPPA HAVALDAR @ SARDESAI AGE: 79 YEARS, OCC: AGRICULTURE, R/O: INAMAHONGAL, TQ: SAUNDATTI, DIST BELAGAVI- 591126.

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SHRI SANJU S/O. BANAPPA HAVALDAR @ SARDESAI AGE: 34 YEARS, OCC: AGRICULTURE, R/O: INAMAHONGAL, TQ: SAUNDATTI, DIST: BELAGAVI- 591126.

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SHRI BASAVARAJ S/O. BANAPPA HAVALDAR @ SARDESAI AGE: 36 YEARS, OCC: AGRICULTURE, R/O: INAMAHONGAL, TQ: SAUNDATTI, DIST: BELAGAVI- 591126.

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SMT. SHANTABAI W/O. SIDDAPPA KILLEDA AGE: 84 YEARS, OCC: HOUSE HOLD WORK, C/O: DODDAPPA SIDDAPPA KILLEDA

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NC: 2025:KHC-D:2062-DB RFA No. 100038 of 2020

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R/O: VIDAYA NAGAR, NEAR EX-MLA SRANAPPANAVAR HOUSE, KUSTAGI,

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TQ: KUSTAGI, DIST KOPPAL- 583277.

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SMT. KAMALABAI W/O. LINGAPPA ROOGI AGE: 83 YEARS, OCC: HOUSE HOLD WORK, C/O: L.G. ROOGI, R/O: BYAHATTI, TQ: HUBBALLI, DIST: DHARWAD- 580023.

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SMT. KUSUMABAI W/O. LINGAPPA ROOGI AGE: 83 YEARS, OCC: HOUSEHOLD WORK, C/O: C. B. SIGLI, R/O: HOOLIKATTI, TQ: SAUNDATTI, DIST: BELAGAVI- 591126.

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SMT. SAGAMMA W/O. SHAMBHUNATH PATIL AGE: 75 YEARS, OCC: HOUSE HOLD WORK, C/O: MAHADEVA PATIL, R/O: CHINTRAPALLI, TQ: HAGARIBONAHALLI, DIST: BALLARI-583101.

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SMT. BHAGIRATHI W/O. SHIVAPPA BYAKOD AGE: 68 YEARS, OCC: HOUSE HOLD WORK, C/O: S.T. BYAKOD, RET. B.E.O., R/O: NEAR GOVT. PRIMARY SCHOOL, SIDDALINGA NAGAR, GADAGI-582102.

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…RESPONDENTS

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(BY SRIYUTHS. RANJITA ALAGAWADI AND B.B. RAYARADDI, ADVS FOR R1 TO R3, V/O. DATED 29.05.2023, NOTICE TO R4 TO R8 ARE DISPENSED WITH)

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RFA FILED UNDER ORDER 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD.16.11.2019 PASSED IN O.S.NO.120/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI CORAM: AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This regular first appeal is filed by the appellant, challenging the judgment and decree dated 16.11.2019, passed in O.S.No.120/2015 by the learned senior Civil Judge, Saundatti.

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For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession. Lingangowda @ Lingappa Banappa Havaldar @ Sardesai was the original propositus. He died on 22.05.1994, leaving behind the plaintiff and defendant Nos.1 and 4 to 8 as his legal heirs. He had a wife Smt.Shankarewwa, who died on

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30.12.1992. Lingangowda was elected as a chairman of the village panchayath and as a chairman of the Cooperative society established by his father. He was also acquainted with the political leaders of Saundatti taluk. During his lifetime, he effected a partition in the family agricultural lands and retained the suit properties to his share. He was in possession and enjoyment of the suit lands till his death in 1994. In 1994, the plaintiff was in Government service and was away from the Inamhongal village due to his employment. The defendant No.1 was living in Inamhongal and looking after his family properties including the suit lands. The relationship between the plaintiff and the defendants was cordial during the lifetime of Lingangowda. The plaintiff used to go to Inamhongal to manage the lands allotted to his share. During the said period, he stayed in the house along with his father, defendant No.1, and his family members. The plaintiff knew about the health condition of Lingangowda. Lingangowda, after attaining the age of 80 years, had become very old, and he was unable to remember the

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events correctly. It is stated that the mother of the plaintiff, Shankarewwa, died in December 1992. Defendant No.1 exploited the dependency of his father - Lingangowda, on him and his sons and created a document purported to be the Will of Lingangowda with the help of his friends. Lingangowda had never thought of executing any Will. Lingangowda was literate and used to sign the document. He has not executed any document by affixing his thumb impression during his lifetime. The plaintiff came to know that defendant No.1 got entered the names of his two sons, i.e., defendant Nos.2 and 3, in the revenue records in respect of suit lands based on the alleged Will. The said alleged will is forged and fabricated and defendant Nos.2 and 3 have not acquired any title over the suit schedule properties based on the alleged Will. It is stated that the alleged Will executed by Linganagouda is contemplated that the Sub-Registrar was brought to the residence of Linganagouda in order to get the Will registered. The plaintiff demanded partition and separate possession, but the defendants refused to effect

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a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement. Defendant Nos.2 and 3 filed a memo adopting the written statement filed by defendant No.1. Defendant No.1, admitting the relationship between the plaintiff and the defendants. It is contended that during the lifetime of the father of the plaintiff and defendant No.1, he effected a mutual partition in respect of the joint family properties which came to be effected vide M.E. No.4932 dated 5.12.1972. He admits that Lingangowda had retained the suit lands to his share. It is also admitted that the plaintiff was a Government servant and was away from Inamhongal. It is contended that Lingappa expired in 1994, leaving behind the plaintiff, defendant No.1 and defendant Nos.4 to 8 as his legal heirs.

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During Lingangowda @ Lingappa's lifetime, he

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was a kartha of the joint family and managed all the

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affairs of the joint family. He effected a partition between himself, plaintiff and defendant No.1 in the joint family properties. In the family settlement between Lingappa, plaintiff and defendant No.1, as per the mutual partition, he has submitted an application before the revenue officers to effect the mutual partition in the concerned revenue records. The revenue authorities had mutated the same as per M.E.No.4932 dated 05.12.1972. As per the family settlement, suit properties fell to the share of deceased Lingappa; the plaintiff and defendant No.1 have taken separate properties as their share. Lingappa bequeathed the suit schedule properties in favour of defendant Nos.2 and 3 by a registered will on 05.09.1992. As on the date of execution of the Will, defendant Nos.2 and 3 were minors. After the demise of Lingappa, defendant Nos.2 and 3 became the absolute owners of the suit schedule properties. It is stated that under the said will, the plaintiff and defendant No.1 are the beneficiaries and the plaintiff and defendant No.1 got a residential house bearing GPC Nos.315 and 364 and an open site

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bearing No.341 equally. Based on the will, the name of defendant Nos.2 and 3 were entered in the revenue records through M.E. No.6557 dated 28.10.1994. Hence, parties have acted upon the will executed by Lingappa. The plaintiff has no right to seek partition in the suit properties. The suit filed by the plaintiff is not maintainable. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following:

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1) Whether the plaintiff proves that the defendant No.1 has illegally concocted the Will dated 05.09.1992, when Linganagouda was not at free State of mind and against his free consent and knowledge?

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2) Whether the plaintiff proves that he is entitled to equal share in the suit schedule properties?

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3) The defendant No.1 proves that the defendant No.2 and 3 have been in possession of the suit schedule properties?

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4) The defendant No.1 proves that the suit of the plaintiff is barred by law of Limitation?

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5) Whether the suit of the plaintiff is maintainable for the relief sought without sought efficacious remedy?

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6) Whether the plaintiff is entitled to the relief sought?

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7) What order or decree ?

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To substantiate his case, the plaintiff examined

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himself as PW.1 and marked 6 documents as Exs.P1 to 6. On the other hand, defendant No.3 was examined as DW.1 and marked 21 documents as Exs.D1 to 21. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issue Nos.1, 2, 5 and 6 in the negative, issue Nos.3 and 4 in the affirmative and issue No.7 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 16.11.2019. The plaintiff, aggrieved by the impugned judgment filed this regular first appeal.

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Heard the learned counsel for the plaintiff and the learned counsel for the defendants.

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Learned counsel for the plaintiff submits that

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the trial Court has committed an error in dismissing the suit of the plaintiff. He submits that the suit schedule

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properties are available for partition and separate possession. He submits that defendant Nos.2 and 3 got created the will alleged to have been executed by Lingappa @ Ningappa bequeathing the suit schedule properties in favour of the plaintiff and defendant Nos.1 to 3. He submits that the trial Court has not correctly appreciated the material on record. Hence, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for the defendants submits that there was a partition between the plaintiff, defendant No.1 and deceased Lingangowda, and the suit schedule properties fell to the share of Lingangowda. Lingangowda, during his lifetime, bequeathed the suit schedule properties in favour of the plaintiff and defendant Nos.1 to 3 under a registered will. Based on the registered Will, the names of the respective parties came to be entered in the revenue records. The parties have acted upon the registered will. He submits that the plaintiff, being a beneficiary under the registered

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will, cannot maintain the suit for partition and separate possession. The suit filed by the plaintiff is not maintainable. The trial Court was justified in dismissing the suit. Hence, on these grounds, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The points that arise for our consideration are:

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1. Whether the plaintiff proves that suit schedule properties are the ancestral properties of the plaintiff and defendants?

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1. Whether the plaintiff proves that defendant No.1 concocted the Will dated 05.09.1992 executed by Lingangowda bequeathing the suit schedule property in favour of the plaintiff and defendant Nos.2 and 3?

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1. Whether the plaintiff proves that the judgment and decree passed by the trial Court is perverse and arbitrary?

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1. What order or decree?

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Re-Point No.1: The plaintiff, to substantiate

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his case, examined himself as PW.1. He deposed that during the lifetime of Lingangowda @ Ningappa @ Lingappa, he effected a partition in the joint family agricultural lands and the suit properties were retained by him. He was in possession and enjoyment of the suit lands till his death. He died in 1994, leaving behind the plaintiffs, defendant Nos.1, 4 to 8, as his legal heirs. The plaintiff was a Government servant, and he was out of Inamhongal village, and defendant No.1 was looking after the properties. There is no partition effected between the plaintiff and defendants regarding the suit schedule properties, and to prove that the suit schedule properties were the ancestral and joint family properties, the plaintiff produced the documents. Ex.P1 is the death certificate of Lingappa, who died on 22.05.1994. Ex.P2 is the RTC extract of land bearing Sy.No.219, which stands in the name of Lingangowda @ Lingappa @ Ningappa. Ex.P3 is the mutation extract, which discloses that the partition

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was effected between Lingappa, defendant No.1 and the plaintiff and in the said partition suit schedule, properties were fallen to the share of Lingappa. Ex.P4 is the certified copy of the Will executed by Lingappa bequeathing the suit schedule properties in favour of the plaintiff, defendant Nos.1 to 3. Ex.P5 is the copy of the legal notice issued to the defendants, Ex.P6 is the certified copy of the appeal memo filed by the plaintiff against the defendants, Ex.P7 is the copy of the notice issued by the Tahsildar calling upon the plaintiff to furnish the documents.

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During the course of cross-examination, he

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admits that he was a government employee working in an agricultural department. He was appointed in 1961 and he was retired from the service. It is elicited that his family was residing along with him wherever he was posted, and he admits that his father and his brother were residing at Inamhongal and during the lifetime of his father, his father resided with defendant No.1. It was elicited that during the lifetime of his father he could not take care of him, but

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witness voluntaries that he has provided treatment to him. His father went into adoption. His adopted father's name is Banappa Basappa Havaldar. The suit schedule properties were acquired from the adopted father. He admits that during the lifetime of his father, a partition was effected between him, his father and defendant No.1. He also admits that the partition was reduced into writing and accordingly, records were changed in the name of respective parties and in the said partition, the suit schedule properties were fallen to the share of his father and also admits that during the lifetime of his father, he was in possession of the suit schedule properties. He admits that in 1992, his father bequeathed the suit schedule properties in favour of defendant Nos.2 and 3 by executing the registered will dated 05.09.1992.

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In rebuttal, defendant No.3 was examined as DW.1, and he has deposed that his grandfather Lingappa @ Lingangowda expired in 1994, leaving behind him, the plaintiff and the defendants as his legal heirs. There was a

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partition effected between the plaintiff, defendant No.1 and Lingappa and in the family partition, the suit schedule properties were fallen to the share of deceased Lingappa. The deceased Lingappa, during his lifetime, executed the Will bequeathing the suit schedule properties in favour of the plaintiff, defendant Nos.1 to 3, and the said will was registered on 08.09.1992, and the plaintiff was well aware of the execution of the will by his father in favour of the plaintiff and other defendants. The plaintiff has not challenged the will executed by Lingappa in favour of the plaintiff and defendant Nos.1 to 3. The plaintiff cannot seek the relief of partition. He deposed that after the demise of Lingappa, the mother of the plaintiff submitted an application before the revenue authorities to enter their names based on the said Will. On the applications submitted by the plaintiff’s mother, the properties were transferred in the name of the beneficiaries.

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The defendants have produced a registered Will

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marked as Ex.D1. Ex.D2 is the order dated 31.12.1996

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passed by the Assistant Commissioner wherein the plaintiff has challenged the entries in the name of the defendants based on the Will. Ex.D3 is the envelope cover, Ex.D4 is the letter of the Deputy Commissioner issued to defendant No.6, Ex.D5 is the form No.8, which discloses the name of defendant Nos.2 and 3 regarding the land bearing Sy.No.219-350/A, Ex.D6 is death certificate of Lingappa, who died on 22.05.1994, Ex.D7 is the mutation extract, which discloses that based on the Will, names of respective parties were mutated in the revenue records, Exs.D8 and 9 are the record of rights of land bearing Sy.No.350/A and Sy. No.219 respectively Ex.D-10 to 21 are the tax paid receipts.

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From the perusal of the evidence placed on

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record by the parties, it is not in dispute that originally the suit schedule properties were the ancestral and joint family properties. It is not in dispute that Lingappa @ Ningappa was the original propositus. He had a wife

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named Shankarawwa. The original propositus had

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children, i.e., plaintiff and defendant Nos.1, 4 to 8. Defendant Nos.2 and 3 are the sons of defendant No.1. During the lifetime of Lingangowda @ Lingappa, the partition was effected between the plaintiff, Linganagouda @ Lingappa and defendant No.1 and in the said partition, suit schedule properties were fallen to the share of Lingangowda. Lingangowda, during his lifetime, had bequeathed the suit schedule properties in favour of the plaintiff, defendant Nos.1 to 3. Lingangowda died on 22.05.1994, and his wife Shankarawwa predeceased him. After the demise of Lingangowda, the parties submitted an application before the revenue authorities based on the Will executed by Lingappa. The revenue authorities, after following due inquiry, entered the names of the beneficiaries under the Will- Ex.D1. The plaintiff did not challenge the revenue entries. Further, PW.1 has admitted, in the course of cross-examination regarding the partition effected between him, defendant No.1 and Lingangowda. The suit schedule properties fell to the share of Lingangowda, who also admitted that

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Lingangowda executed the registered will bequeathing the suit schedule properties in favour of the plaintiff, defendant Nos.2 and 3. The plaintiff and defendant Nos.1 to 3 acquired the title based on the Will. As on the date of filing the suit for partition and separate possession, the suit properties were not ajoint family properties of the plaintiff and defendants. The plaintiff has failed to establish that the suit schedule properties were the joint family properties of the plaintiff and defendants. In view of the above discussion, we answer point No.1 in the negative.

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Re-Point No.2: It is the defense of the defendants that Lingangowda, during his lifetime, bequeathed the suit schedule properties in favour of the plaintiff, defendants Nos.1 to 3, by executing the registered Will. The said Will is produced by the defendants marked as Ex.D1. Ex.D1 discloses that Lingangowda @ Lingappa bequeathed the suit schedule properties in favour of the plaintiff, defendant Nos.1, 2

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and 3. As per the Will, the plaintiff and defendants got a residential properties bearing GPC Nos.315 and 364 and open site bearing No.341 equally and similarly, defendant Nos.2 and 3 have got the suit properties.

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Based on Ex.D1, the names of the parties are entered in the revenue records as per M.E.No.655/9 dated 28.09.1984. The plaintiff has not challenged the entries in the revenue records. The plaintiff, being a beneficiary under the said will, the plaintiff has suppressed the execution of the registered will by Lingappa @ Lingangowda in favour of the plaintiff and defendant Nos.1 to 3. The plaintiff has not approached the Court with clean hands. The plaintiff is guilty of suppressing the material facts. The plaintiff, having taken an advantage under the will, has no right to seek partition and separate possession, and the plaintiff has failed to prove that defendant No.1 concocted the registered will dated 09.05.1992. The plaintiff in his cross-examination, admitted regarding the execution of the Will. The said

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admission is sufficient to hold that the Lingappa executed the Will and the said Will is genuine. In view of the above discussion, we answer point No.2 in the negative.

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Re-Point No.3: The plaintiff admitted that the

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execution of the Will by Lingangowda @ Lingappa @ Ninagappa and also based on the Will, names of the respective parties came to be entered in the revenue records. The plaintiff, defendant Nos.1 to 3 became the owners of the properties bequeathed in their favour. The suit properties were not available for partition as of the date of filing the suit. The trial Court, considering Ex.D1 and revenue records, has rightly dismissed the suit. We do not find any error in the impugned judgment. We concur with the impugned judgment passed by the trial Court. Accordingly, we answer point No.3 in the negative.

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