Smt.Bharathi Vs Smt.Janakamma

SMT. RATHNAMMA, AGED ABOUT 55 YEARS, D/O. LATE MUNISWAMAPPA, R/A. NEAR MUNESHWARASWAMY TEMPLE, JAKKUR POST, YELAHANKA HOBLI, SRIRAMPURA, BENGALURU - 560 064

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SMT. CHUDAMANI B.H., MAJOR, W/O. S.K. SHIVALINGAIAH, . R/A. NO. 18, ANNAIAPPA LAYOUT, GEDDLAHALLI, RAJMAHALA VILAS, 2^ND STAGE, BENGALURU - 560 094

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…RESPONDENTS

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(BY SRI. B. RAMESH, ADVOCATE FOR R1 AND R2 NOTICE TO R3 IS DIESPENSED WITH

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VIDE ORDER DATED 16.10.2025)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.06.2025 PASSED IN OS.NO.3506/2015 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELI VERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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NC: 2025:KHC:46894 RFA No. 1940 of 2025

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HC-KAR

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ORAL JUDGMENT

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This appeal by the defendants 1 to 3 is directed against the impugned judgment and decree dated 28.06.2025 passed in O.S. No. 3506/2015 by the XV Additional City Civil and Sessions Judge, Bangalore, whereby the said suit filed by respondents No.1 and 2 - plaintiffs against the appellants - defendants No.1 to 3 and respondent No.3 - defendant No.5 and deceased Lakshmamma defendant No.4 was decreed by the trial Court in favour of the respondent - plaintiff against the appellants - defendants.

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Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record. Though the matter is posted for admission, since Trial Court Records are received and with the consent of both sides, the matter is taken up for final disposal.

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The respondent No.3 - defendant No.5 having been placed ex-parte before the trial Court, at the risk of the appellant,

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4 - NC: 2025:KHC:46894 RFA No. 1940 of 2025

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HC-KAR

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notice to respondent No.3 has already been dispensed with vide order dated 16.10.2025 passed by this Court.

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A perusal of the material on record will indicate that the propositus was one late Muniswamappa. The plaintiffs are the daughters of the said Muniswamappa. The defendant No.4 is the widow of the said Muniswamappa. The said Muniswamappa had a son Ramachandra who expired leaving behind his wife and children i.e. defendants No.1 to 3 to succeed to his estate including the suit schedule properties. The defendant No.5 is said to be a purchaser of the suit schedule property.

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The respondents No.1 and 2 have filed the instant suit for partition and separate possession of their alleged share in the suit schedule properties and for other reliefs. The defendant No.4 - Lakshmamma having been expired during the pendency of the suit, the plaintiffs and defendants 1 to 3 were treated as her only heirs and legal representatives. As stated supra, the defendant No.5, purchaser remained ex-parte and did not contest the suit while the appellants - defendant Nos.1 to 3

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5 - NC: 2025:KHC:46894 RFA No. 1940 of 2025

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HC-KAR

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specifically contended that the suit schedule properties were the separate and self-acquired properties of late Muniswamappa and late Ramachandra and that by virtue of a will dated 18.08.2004, the said Muniswamappa had bequeathed the suit scheduled properties in favour of the plaintiffs as well as defendants and consequently the suit was not maintainable and barred by limitation. The appellants - plaintiffs also put forth other contentions by way of defence.

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After completion of pleadings, the trial Court framed the following issues.

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" (i) Whether the plaintiffs prove that the suit schedule properties are the Joint Family Properties of themselves and Defendant No.1 to 4?

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(ii) Whether the plaintiffs prove that the sale deed dated 31.10.1994 executed by the husband of defendant No.4 in favour of Defendant No.5 is not binding on their shares?

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iii) Whether the plaintiffs are entitled for the partition and separate possession of 1/4^th share each in the suit schedule properties?

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iv) What Order or Decree?"

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NC: 2025:KHC:46894 RFA No. 1940 of 2025

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HC-KAR

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The plaintiff No.1 examined herself as PW.1 and

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documentary evidence at EXs.P1 to P15 were marked while defendant No.1 examined herself as DW.1 and documentary evidence at EXs.D1 to D13 were marked by the defendants.

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After hearing the parties, the trial Court came to the conclusion that the appellants - defendants have not proved the due execution, attestation and validity of the will propounded by the defendant and consequently proceeded to decree the suit in favour of the plaintiffs against the defendants who are before this Court by way of the present appeal.

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A perusal of the impugned judgment and decree will indicate that though the appellants - defendants had specifically taken up a contention and propounded the alleged will dated 18.08.2004 alleged to have been executed by Muniswamappa in favour of the parties, the trial Court did not frame any issues in this regard. Further, the appellants also did not examine any attesting witnesses in support of their defence as regards the will. In this context, learned counsel for the appellants submits that if the impugned judgment and decree is set aside and the

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HC-KAR

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matter remitted back to the trial Court for reconsideration afresh by framing an additional issue as regards the will and also providing an opportunity to the appellant to lead further evidence, the appellants would be in a position to prove the will and the matter may be directed to be decided by the trial Court afresh in accordance with law.

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Per contra, learned counsel for the respondent Nos.1 and 2 - plaintiffs submits on instructions that he has no objection for the impugned judgment and decree to be set aside and the matter remitted back to the trial Court for reconsideration afresh in accordance with law by providing an opportunity to the plaintiffs also to adduce additional oral and documentary evidence in support of their claim.

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As rightly contented by both sides, though the trial Court did not frame any issue as regards the will and consequently in the light of the joint submissions made by both sides, I deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law within a

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NC: 2025:KHC:46894 RFA No. 1940 of 2025

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HC-KAR

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stipulated time frame and by issuing certain directions. Hence, the following -

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ORDER

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(i) The appeal is hereby allowed.

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(ii) The impugned judgment and decree dated 28.06.2025 passed in O.S. No.3506/2015 by the XV Additional City Civil and Sessions Judge at Bengaluru, is hereby set aside.

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(iii) The matter is remitted back to the trial Court for reconsideration afresh in accordance with law.

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(iv) The trial Court is directed to frame additional issue(s) including issue regarding the alleged will dated 18.08.2004 alleged to have been executed by Muniswamappa and to proceed further in accordance with law.

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(v) Liberty is reserved in favour of both parties to adduce oral and documentary evidence in support of their respective claims.

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(vi) The parties are directed to appear before the trial Court on 08.12.2025 without awaiting further notice from the trial Court.

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