Premavva Prema W/O Basanagouda Harthi Vs Dyamavva W/O Yallappagouda Hanamanathagoudra

SMT. SANKAMMA W/O SHEKHARGOUDA TIPPANGOUDAR, AGE: 40 YEARS, OCC: HOUSEHOLD, R/O: SURKOD-582 207, TQ: NARGUND, NOW AT DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SMT. BASAVANNEWWA W/O YALLAPPAGOUDA KENCHANAGOUDAR, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: CHIKKAMANNUR-582 209, TQ: RON, DIST: GADAG.

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SMT. DRAKSHAYINI W/O YALLAPPAGOUDA KASHIGOUDAR, AGE: 44 YEARS, OCC: HOUSEHOLD, R/O: BALAGANUR, NOW AT PANCHAKSHARINAGAR, GADAG-582 101.

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HC-KAR

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SMT. SAROJINI W/O. GADIYAPPAGOUDA KENCHANAGOUDAR @ PATIL, AGE: 33 YEARS, OCC: HOUSEHOLD, R/O: CHIKKAMANNUR-582 209, TQ: RON, DIST: GADAG.

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SHRI KALLANAGOUDA GANGANGOUDA SANKANGOUDAR, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SMT. PREMAVVA W/O. BASANGOUDA HARTI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SMT. SHANKRAMMA W/O. HANAMANTGOUDA TIPPANAGOUDAR, AGE: 47 YEARS, OCC: HOUSEHOLD, R/O: SURKOD-582 207, TQ: NARGUND, NOW AT DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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… RESPONDENTS. (BY SRI MRUTYUNJAY S. HALLIKERI, ADVOCATE FOR R6 AND R7; R1 TO R5 – NOTICE SERVED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DECREEING THE SUIT AND SET ASIDE THE JUDGMENT AND DECREE DATED 30.08.2011 PASSED IN O.S. NO.275/2003 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, GADAG AND ETC.,.

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IN RFA NO. 100390 OF 2022:

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BETWEEN:

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SMT. GANGAWA W/O. GANGANGOUDA SANKANGOUAR,

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HC-KAR

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AGE: 61 YEARS, OCC: AGRICULTURE AND HOUSEHOLD, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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… APPELLANT

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(BY SRI C.S. SHETTAR, ADVOCATE.)

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AND:

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SMT. PREMAWA W/O BASANGOUDA HARTI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SMT. SHANKARMMA W/O HANAMANTGOUDA TIPPANGOUDAR, AGE: 47 YEARS, OCC: HOUSEHOLD, R/O: SURKOD-582 207, TQ: NARGUND, NOW AT DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SMT. DYAMAWA W/O YALLAPPAGOUDA HANUMANTAGOUDAR, AGE: 44 YEARS, OCC: SERVICE, R/O: KOUJAGERI-582 202, PRESENTLY RESIDING AT TIBETIAN COLONY, VIVEKANANDANAGAR, GADAG-582 101.

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SMT. LALITA W/O GURUNGOUDA PATIL, AGE: 40 YEARS, OCC: HOUSEHOLD, R/O: GADAGOLI-582 203, TQ: RON, DIST: GADAG.

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SMT. SAVITRI W/O BASANGOUDA PATIL, AGE: 38 YEARS, OCC: HOUSEHOLD, R/O: GOVANKOPPA-580 023, TQ: HUBLI, DIST: DHARWAD.

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GANGANGOUDA A/F SANNABASANGOUDA SANKANGOUDAR, DIED ON 14-03-2011 HIS WIFE SMT. GANGAWA SANKANGOUDAR IS ALREADY ON RECORD AS APPELLANT.

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HC-KAR

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SMT. BASAVANNEWA W/O YALLAPPAGOUDA KENCHANAGOUDAR, AGE: 41 YEARS, OCC: HOUSEHOLD, R/O: CHIKKAMANNUR-582 209, TQ: RON, DIST: GADAG.

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SMT. DRAKSHAYINI W/O YALLAPPAGOUDA KASHIGOUDAR, AGE: 38 YEARS, OCC: HOUSEHOLD, PANCHAKSHARINAGAR, GADAG-582 101.

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SMT. SANKAWA W/O SHEKHARAGOUDA TIPPANAGOUDAR, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SHRI KALLANAGOUDA GANGANAGOUDA SANKANAGOUDAR, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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SMT. SAROJINI W/O GADIYAPPAGOUDA KENCHANAGOUDAR @ PATIL, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O: CHIKKAMANNUR-582 209, TQ: RON, DIST: GADAG.

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SHRI RAVI VEERAPPA YALAVATTI, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: DONI-582 121, TQ: MUNDARGI, DIST: GADAG.

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… RESPONDENTS

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(BY SRI MRUTYUNJAY S. HALLIKERI, ADVOCATE FOR R1 AND R2; SRI HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R3 TO R5; SRI SANGRAM S. KULKARNI, ADVOCATE FOR R12; R6 – DEAD, R/BY APPELLANT; R7, R8, R9, R10 AND R11 – NOTICE SERVED.)

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THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96(1) OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.08.2011 PASSED IN O.S.NO.65/2005 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,

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HC-KAR

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GADAG, INSOFOR AS GRANTING DECREE FOR PARTITION IN FAVOUR OF RESPONDENTS 1 TO 5 IS CONCERNED BY ALLOWING THE APPEAL WITH COSTS THROUGHOUT AND ETC.,.

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IN RSA NO. 100333 OF 2021:

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BETWEEN:

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PREMAVVA @ PREMA W/O BASANAGOUDA HARTHI, AGE: 62 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: DONI, TQ: MUNDARAGI, DIST: GADAG.

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SHANKRAVVA @ SHANKRAMMA W/O HANAMANTAGOUDA @ HANAMANATHAGOUDA TIPPANAGOUDRA, AGE: 55 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: SURAKODA, NOW AT DONI, TQ: MUNDARAGI, DIST: GADAG.

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… APPELLANTS

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(BY SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE.)

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AND:

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DYAMAVVA W/O YALLAPPAGOUDA HANAMANATHGOUDRA, AGE: 53 YEARS, OCC: TEACHER, R/O: KOUJAGERI, NOW RESIDING AT IRANI COLONY, VIVEKANAND NAGAR, TQ: AND DIST: GADAG.

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LALITA W/O GURANAGOUDA PATIL, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: GADAGOLI TQ: RON, DIST: GADAG.

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SAVITRI W/O BASANAGOUDA PATIL, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: GAVISIDDESHWARA COLONY, GOPANAKOPPA, TQ: HUBBALLI,

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DIST: DHARWAD.

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GANGAVVA W/O BASANAGOUDA SANKANGOUDRA, SINCE DECEASED BY LR’S.,

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HC-KAR

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4A. SHANKRAVVA W/O SHANTVEERGOUDA HOSAMANI, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/AT: AT POST: DONI, TQ: MUNDARAGI, TQ: GADAG.

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4B. GANGANAGOUDA BASANAGOUDA SANKANAGOUDAR, AGE: 55 YEARS, OCC: AGRICULTURE, R/AT: AT POST: DONI, TQ: MUNDARAGI, TQ: GADAG.

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4C. SIDDANAGOUDA BASANAGOUDA SANKANAGOUDAR, AGE: 52 YEARS, OCC: AGRICULTURE, R/AT: AT POST: DONI, TQ: MUNDARGI, TQ: GADAG.

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4D. DHYAMAVVA SHEKHARGOUDA KUNDAGOL, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/AT: BALAGANUR, AT POST: BALAGANUR, TQ: AND DIST: GADAG.

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GANGAVVA W/O BASANAGOUDA SANKANAGOUDRA, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: DONI, TQ: MUNDARGI, DIST: GADAG.

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SIDDANAGOUDA S/O BASANAGOUDA SANKANAGOUDRA, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: DONI, TQ: MUNDARGI, DIST: GADAG.

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… RESPONDENTS

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(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1, R2 AND R3;

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R4 (A TO D), R5 AND R6 – NOTICE SERVED.)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.10.2020 PASSED IN R.A.NO.49/2019 ON THE FILE OF THE I ADDITIONAL PRINCIPAL FAMILY COURT, AT GADAG AND JUDGMENT AND DECREE DATED 31.05.2019 PASSED IN O.S.NO.123/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MUNDARGI, AND DISMISS THE SUIT, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,.

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HC-KAR

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THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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The appeal in RFA No.3131/2011 is filed by the plaintiff in O.S.No.275/2003, challenging the judgment and decree dated 30.08.2011, passed therein, by the Principal Senior Civil Judge and CJM, Gadag, thereby, the suit filed for declaration and injunction is dismissed. Whereas, the appeal in RFA No.100390/2022 is filed by defendant No.10 in O.S.No.65/2005, challenging the very same common judgment and decree dated 30.08.2011, thereby, the suit filed for partition and separate possession is decreed.

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The appeal in RSA No.100333/2021 is filed by defendants No.1 and 2 in O.S.No.123/2013, challenging the judgment and decree dated 31.05.2019, passed therein, by the Senior Civil Judge, Mundargi, and the judgment and decree dated 19.10.2020, passed by the I Additional Principal Family Court, Gadag, in R.A.No.49/2019, thereby, the suit filed for partition is decreed and confirmed by the First Appellate Court. Hence, the second appeal is filed.

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HC-KAR

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For the sake of convenience and easy reference, the parties are stated with reference to the names shown in the genealogy as it is stated in the plaint, which is not disputed by both the parties in respective cases.

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The suit in O.S.No.275/2003 was filed by Gangavva for declaration and injunction to declare the property bequeathed to Basanagouda are inherited by Gangavva as per Section 8 of the Hindu Succession Act, 1956 (for short ‘the Act, 1956’) being Class-I legal heir, as she is mother of Basanagouda.

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The suit in O.S.No.65/2005 is filed by Premavva and Shankravva for partition.

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The suit in O.S.No.123/2013 is filed by Dyamavva, Lalita and Savitri for partition and for separate possession, which is challenged in R.A.No.49/2019 by Premavva and Shankravva but the First Appellate Court has dismissed the regular appeal by confirming the judgment and decree passed in O.S.No.123/2013.

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HC-KAR

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It is the case of the parties in all the suits with

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reference to the genealogy and the genealogy is stated as below:

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Basanagouda (Died)

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Basangouda Sannabasangouda
=Kallawwa (Dead)
Lingangouda Gangangouda
(Died on 28-05-1982)
=Gangawwa (P)
Basavannewwa Sankawwa Basangouda Sarojini
(D-2) (D-1) (Died) (D-4)
Drakshayini (D-3) Kallangouda (D-5)
=Basavannewwa
Premawwa (R6) Shankramma (R7) Dyamawwa Lalita Savitri

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As per the genealogy, one Basanagouda is the original propositus, who has two sons namely Basanagouda and Sannabasanagouda. Kallavva is the wife of Basanagouda (son) and Basavva is the wife of Sannabasnagouda. Basanagouda (junior) and Kallavva were having 2 sons namely Linganagouda

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HC-KAR

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and Gangangouda. Linganagouda has 5 daughters namely Premavva, Shankramma, Dyamavva, Lalita and Savitri. Gangawwa (plaintiff in O.S.No.275/2003) is the wife of Gangangouda, who has 4 daughters and 2 sons namely Basavannewwa, Shankawwa, Sarojini, Drakshayini,

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Basangouda and Kallanagouda.

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It is not in dispute that Gangangouda had gone in adoption to the family of Sannabasangouda and Basawwa. This adoption is not disputed. It is stated that there was partition between Linganagouda and his mother Kallawwa in the year 1976. Also there was partition between Gangangouda and adopted mother Basawwa in the year 1972.

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The disputed facts regarding execution of 2 Wills stated to have been executed by Kallawwa and Lingangouda. It is stated that Linganagouda had executed the Will bequeathing the property in favour of Dyamavva, Lalita and Savithri (properties bearing Sy.No.330/1+/2B+4C, Sy.No.15/2 and Sy.No.8/1 respectively) and bequeathed properties in favour of Basangouda, who is the son of Gangangouda and Gangawwa

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HC-KAR

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(properties bearing Sy.No.307/2, 308/5 and house properties bearing VPC Nos.502 and 959 on 08.03.1982.

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It is stated that Kallawwa had executed the Will in favour of her granddaughters namely Premawwa and Shankramma (properties bearing Sy.Nos.21, 312/1A, 330/5, 296/3B and 29/2). It is stated that Lingangouda had sold the properties bearing Sy.No.9/2 in favour of Gangangouda and in turn the daughter of Gangangouda had sold the said land bearing Sy.No.9/2 in favour of purchaser Ravi S/o Veerappa Yelavatti (defendant No.11 in O.S.No.65/2005). Therefore, the suit in O.S.No.275/2003 is filed for declaration by Gangawwa to declare that she is owner of the property as her son Basangouda died intestate and issueless. Hence, being Class-I legal heir, she is entitled to inherit the property as per Section 8 of the Act, 1956, upon death of Basangouda (son of Gangangouda and Gangawwa).

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The suit in O.S.No.65/2005 is filed by Premavva and Shankramma for partition and separate possession claiming equal partition of 1/5^th share in all the suit properties held by Linganagouda and Kallavva.

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HC-KAR

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The suit in O.S.No.123/2013 is filed by Dyamavva,

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Lalita and Savitri for partition and separate possession for claiming share in the properties of Lingangouda and Kallavva.

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The parties in the suits have filed their respective

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written statements by taking pleadings in the written statement opposing the suits respectively.

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Upon the pleadings in the respective suits, the Trial Court has framed the following issues:

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ISSUES IN O.S.NO.65/2005

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1) Whether plaintiffs prove that suit properties had fallen to the share of late Linganagouda in partition?

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2) Whether the plaintiffs prove themselves and defendants No.1 to 3 are in joint possession and enjoyment of the suit properties?

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3) Whether the plaintiffs prove that the sale deed in respect of properties at Sl.No.2 and 3 of schedule A and properties at SlNo.1 and 2 of Linganagouda in favour of 4^th defendant are forged, fabricated and not binding on them for the reasons shown in paragraph11 of the plaint?

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4) Whether the plaintiff prove that the Will dated 08.03.1982 is a created document and the signature of late Linganagouda is forged as pleaded in para-14 of the plaint?

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5) Whether the plaintiffs prove that the Will dt.01.09.2001 as pleaded in para-14 of the plaint is created?

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6) Whether the plaintiffs prove that cause of action?

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HC-KAR

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7) Whether the divorced wife of late Linganagouda is not a nearest heir?

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8) Whether the 4^th defendant proves that the Will of Master hola and Telgar tota Girani mani and VPC No.501 were sold by Linganagouda to meet out his family and legal necessity?

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9) Whether the Will dt.03.08.1982 was duly and validly executed by late Linganagouda?

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10) Whether the suit is not maintainable for want of relief of cancellation of the sale deed and also for want of prayer of declaration?

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11) Whether the suit is barred by time under Art.58 of the Limitation Act?

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12) Whether 7^th defendant proves that she is entitled for share in the property of the 4^th defendant?

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13) What order/decree?

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ADDITIONAL ISSUES

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1) Whether plaintiff prove that the alleged sale deed and Will Deed executed by Linganagouda are not binding upon the rights of plaintiffs and defendant No.1 to 3?

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2) Whether the defendant No.11 proves that he is bonafide purchaser?

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ISSUES IN O.S.NO.275/2003

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1. Whether the plaintiff proves the description of the suit properties?

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2. Whether the plaintiff proves the genealogy?

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3. Whether the plaintiff proves that Ganganagouda was adopted by Sannabasanavanagouda and his wife Basavva?

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4. Whether the plaintiff proves that the suit properties 1(a) to (c) and (f) had fallen to the share of Basavva in the partition between Basavva and Ganganagouda?

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HC-KAR

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5. Whether the plaintiff proves that Basavva gave 1(a) to (c) and (f) to Basanagouda?

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6. Whether the plaintiff proves that Linganagouda has executed a Will on 08.03.2002 in favour of Basanagouda bequeathing 1(d), (e) and (g) properties?

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7. Whether the 1^st defendant proves that she is also a coparcener as pleaded in para 12 of the Will Deed?

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8. Whether Court Fee paid is proper?

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9. Whether the plaintiff is in lawful possession of the suit property?

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10.Whether the 5^th defendant proves that Basanagouda has bequeathed the suit properties in his favour and thus he is in possession of the suit properties?

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11.What order or decree?

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ADDITIONAL ISSUE

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1. Whether the defendants No.6 and 7 prove that the suit is barred for non-joinder of necessary parties?

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ISSUES IN O.S.NO.123/2013

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1. Whether the plaintiffs prove that, suit schedule properties are joint ancestral family properties of themselves and defendants and are available for partition?

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2. Whether the plaintiffs further prove that, she is entitled to get 1/5^th share in the suit schedule properties?

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3. Whether the plaintiffs further proves that, the Will alleged to have been executed by Smt. Kallavva is illegal, bogus and created document by defendants No.1 and 2 as pleaded in the plaint?

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4. Whether the defendants No.1 and 2 prove that, the due execution of Will deed dtd. 11.03.1977 by Smt. Kallavva in their favour as pleaded in the written statement?

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HC-KAR

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5. Whether the defendants further prove that, the suit is barred by limitation?

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6. Whether the plaintiffs are entitled to the relief as sought for?

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7. What order or decree?

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The suits in O.S.Nos.275/2003 and 65/2005 are clubbed and the Trial Court has received common evidence. Premavva is examined as PW-1 and two other witnesses as PW2 and PW-3 and got marked documentary evidence as Exs.P-1 to P-47. On behalf of the defendants, one Savitri is examined

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as DW-1 and Ganganagouda as DW-2 and four other witnesses examined as DW-3 to DW-6 and got marked documentary evidence as Exs.D-1 to D-30.

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The Trial Court has dismissed the suit in O.S.No.275/2003 filed by the Gangawwa for declaration and injunction. The suit in O.S.No.65/2005 filed for partition by Premavva and Shankramma is decreed.

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The reason assigned by the Trial Court that the Will stated to have been executed by Lingangouda at Ex.D-3 dated 08.03.1982 is under suspicious circumstance as the natural legal heirs namely Premavva and Shankramma were excluded

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HC-KAR

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but have given 4 properties to Basanagouda, who is son of Gangangouda and Gangawwa. At that time, this Basanagouda was minor. Therefore, formed opinion that Will executed Ex.D-3 is proved to be under suspicious circumstance therefore, dismissed the suit in O.S.No.275/2003 filed for declaration and injunction.

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The suit in O.S.No.65/2005 is decreed granting 1/5^th share each in Linganagouda’s property. Therefore, against the judgment and decree passed in common in O.S.No.275/2003 and in O.S.No.65/2005, the two Regular First Appeals are filed as above stated.

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The suit filed in O.S.No.123/2013 by Dyamavva, Lalita and Savitri for partition and separate possession is decreed granting 1/5^th share each in the properties of Lingangouda. Against which, Premavva and Shankravva have filed R.A.No.49/2019 before the First Appellate Court, which is also dismissed by confirming the judgment and decree passed by the Trial Court in O.S.No.123/2013. Against which, the appeal in RSA No.100333/2021 is filed.

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HC-KAR

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The reasons assigned by the Trial Court and the First Appellate Court that the defence taken by Gangawwa and Gangangouda regarding the Will stated to have been executed by Lingangouda dated 08.03.1982-Ex.D-3, is not accepted. The Will is not proved as there is no attesting witness examined by Gangawwa and Gangangouda. Therefore, rejecting the contention that the Will-Ex.D-3 is executed thus decreed the suit in O.S.No.123/2013, which is confirmed by the First Appellate Court in R.A.No.49/2019.

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Heard the arguments from both the learned counsel, Sri. C.S.Shettar, Sri. Mrutyunjauya S. Hallikeri, Sri. Hanumanthreddy Sahukar and Sri. Sangram S. Kulkarni appearing for the respective parties.

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Learned counsel Sri. C.S.Shettar, who is appearing for Gangawwa submitted that Lingangouda had executed the Will-Ex.D-3 dated 08.03.1982 and Lingangouda was suffering from cancer and his wife deserted Lingangouda therefore, for the care and custody of Lingangouda; Ganganagouda and Gangawwa out of love and affection and he has gratitude to Gangangouda and Gangawwa had executed the Will in favour

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HC-KAR

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of their son Basangouda. Also submitted that Dyamavva, Lalita and Savitri were unmarried at the time of execution of Will. Therefore, some properties were also bequeathed in favour of Dyamavva. Therefore, there is no natural circumstance in executing the Will. Hence, the Will is proved, but the Trial Court has wrongly held that the Will is not proved resulting into erroneous judgment and decree.

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Further submitted that Kallavva, who is mother of Lingangouda has also executed the Will in favour of Premawwa and Shankravva. Therefore, this is mentioned in Ex.D-3-Will. Hence, in order to make equal partition among 5 daughters Lingangouda executed the Will bequeathing 3 properties to his 3 daughters namely Dyamavva, Lalita and Savitri as Premavva and Shankravva, who were married at that time and more so, Kallavva had executed the Will in favour of Premavva and Shankravva. Therefore, there is no any natural circumstance in bequeathing the properties.

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Further, since Lingangouda was suffering from cancer for his care and custody was accepted by Gangangouda and Gangawwa since his wife deserted him. Therefore, quite

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naturally, Lingangouda had bequeathed some properties through the Will in favour of Basangouda, who is son of Gangangouda and Gangawwa is also stated in the Will. Hence, the Will is validly proved. However, in this regard, the Trial Court findings are perverse. Hence, prays to allow the above said two Regular First Appeals.

¶192

On the other hand, Sri. Mrutyunjaya S. Hallikeri,

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Advocate submitted that the Will is not proved as it is surrounded by suspicious circumstances. Lingangouda had sold the properties bearing Sy.No.9/2 to Gangangouda for valuable consideration for his necessity when he was suffering from cancer. Therefore, when this being the transaction between Lingangouda and Gangangouda; Lingangouda bequeathing the properties through the Will to Basangaouda S/o Gangangouda and Gangawwa is highly improbable and suspicious. Further, the attesting witness examined as PW-3 and DW-3 respectively have not supported the execution of Will and this is rightly considered by the Trial Court after appreciating the evidence on record. Therefore, submitted that the Will is not proved hence, the children of Lingangouda namely Premavva, Dyamavva,

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Shankravva, Lalita and Savitri are entitled to equal share. Therefore, prays to dismiss the Regular First Appeals.

¶197

Further, Sri. Mrutyunjaya S. Hallikeri submitted that Kallavva had executed the Will in the year 1976 in favour of Premavva and Shankravva.

¶198

Learned counsel Sri. Hanumathreddy Sahukar supported the judgment and decree passed by the Trial Court.

¶199

Sri. Sangram S. Kulkarni submitted that defendant No.11 in O.S.No.65/2005 had purchased the land bearing Sy.No.9/2 through the daughter of Lingangouda in the year 2011 for valuable consideration and hence he is a bonafide purchaser and this property is not subject matter in the Will. Therefore, submitted that this land bearing Sy.No.9/2 is not amenable for partition as it was sold by Lingangouda to Gangangouda for his legal and family necessity as he was suffering from cancer. Therefore, sale made by the Lingangouda to Gangangouda is valid one and in turn sale made by daughter of Gangangouda to purchaser/defendant No.11, who is bonafide purchaser. Hence, defendant No.11 is a bonafide purchaser. Therefore, prays to save this property

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bearing Sy.No.9/2 as it is proved to be a genuine transaction without affecting the rights of daughters of Lingangouda.

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Upon considering the pleadings, appreciating

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evidence and hearing the arguments, the following points would arise for my consideration:

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i) Whether, under the facts and circumstances involved in the case, Gangavva proves the fact that Linganagouda has executed the Will dated 8.3.1982 as per Ex.D3 bequeathing the properties to Basanagouda, Dyamavva, Lalita & Savitri?

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ii) Whether, under the facts and circumstances involved in the case, Premavva & Shankravva prove the fact that Kallavva has executed the Will dated 11.03.1977 in their favour?

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iii) Whether, under the facts and circumstances involved in the case, Gangavva is entitled to inherit the properties bearing Sy.No.307/2, 308/5 and the house properties bearing VPC No.502 and 559 situated at Doni village, Mundargi Taluk?

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iv) Whether, under the facts and circumstances involved in the case, the judgment and decree passed in OS No.65/2005 and 275/2003 by the Prl. Senior Civil Judge & CJM, Gadag; and the judgment and decree dated 31.05.2019 passed in OS No.123/2013 by the Senior Civil Judge, Mundargi and confirmed in RA No.49/2010 by the learned I Addl. Principal Judge, Family Court, Gadag, require interference by this Court?

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v) Whether defendant No.11 in OS No.65/2005 namely Ravi S/o Veerappa Yalavatti is proved to be a bonafide purchaser of the property bearing RS No.9/2?

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This Court while admitting RSA No.100333/2021

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framed the following substantial questions of law:

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“Whether both Courts have committed error in holding that Section 90 of Evidence Act is not applicable?

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Whether suit is not maintainable in the eye of law as per Order II Rule 2 of C.P.C.?

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Whether both Courts have committed error in not appreciating attending circumstances while appreciating proof of ‘Will’?”

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All the points are interrelated with each other and therefore, they are taken up together for common consideration in order to avoid repetition of the facts. As the entire crux of the matter is revolved around the Will stated to have been executed by the testator Linganagouda. Therefore, it is just and necessary to discuss the necessary facts.

¶222

It is the case of Gangavva that Linganagouda had executed the Will as per Ex.D3 dated 8.3.1982 bequeathing the properties in favour of Dyamavva, Lalita, Savitri and Basanagouda. As it is the case of Gangavva, as per Ex.D3-Will, the property bearing Sy.No.330/1+/2B+4C is bequeathed to Dyamavva; property bearing Sy.No.15/2 is bequeathed to Lalita, property bearing RS No.8/1 is bequeathed to Savitri and property bearing Sy.No.307/2 and 308/5 and house properties bearing VPC No.502 and 559 has been bequeathed in favour of Basanagouda S/o Gangavva & Ganganagouda. Thereafter, Basanagouda died issueless and intestate. Therefore, Gangavva filed suit for declaration to declare that she being mother of

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said Basanagouda and being principal legal heir is entitled to inherit the said property, which was bequeathed to Basanagouda as per Section 8 of the Hindu Succession Act. Therefore, it is the case of Gangavva that Linganagouda had executed the Will Ex.D3 and attesting witnesses were also examined. There was partition in the year 1976 between Linganagouda and Kallawwa (mother of Lingangouda). Kallawwa during her life time had executed the Will dated 11.03.1977 bequeathing the properties bearing Sy.No.21, Sy.No.312/1A, Sy.No.330/5, Sy.No.296/3B and Sy.No.29/2. Lingangouda has one more property bearing RS No.9/2, which was sold by Linganagouda to his brother Ganganagouda through registered sale deed in the year 1980. In turn, this property was sold by the daughter of Ganganagouda to defendant No.11, purchaser namely Ravi s/o Veerappa (Hereinafter referred to as ‘Purchaser’).

¶227

Ex.D3 is the Will dated 8.3.1982 stated to have been executed by the testator Linganagouda. Ex.D7 is the Will dated 11.3.1977 stated to have been executed by Kallawwa in favour of Premavva and Shankravva.

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There are principles laid down by the Hon’ble Apex

¶231

Court as well as by this Court regarding proof of execution of the Will. The Hon’ble Supreme Court in the judgment of H.

¶232

VENKATACHALA IYENGAR APPELLANT Vs. B. N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443

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at Para Nos.18, 19, 20 and 21 stipulates as under:

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18.“ The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provision. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, As in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

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19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

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20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is

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true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

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21. Apart from the suspicious circumstances above referre to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

¶245

Further, the Hon’ble Supreme Court in the case of

¶246

JAGADISH CHAND SHARMA Vs. NARIAN SINGH SAINI (DEAD) THROUGH LEGAL REPRESENTATIVES AND

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OTHERS reported in (2015) 8 SCC 612 at Para Nos.21 and 22 held as under:

¶248

“21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the

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testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.

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22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.

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22.1 . In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.

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22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if

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alive, and subject to the process of the court concerned and is capable of giving evidence.”

¶259

Further, the Hon’ble Apex Court in the case of N.

¶260

KAMALAM (DEAD) AND ANOTHER Vs. AYYASAMY AND ANOTHER reported in (2001) 7 SCC 503 at Para Nos.1 and 3

¶261

has held as under:

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“ 1. The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest: to put it differently and in common parlance, it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills, 12th Edn., p. 129). This Court in the case of Girja Datt Singh v. Gangotri Datt Singh [AIR 1955 SC 346] held that two persons who had identified the testator at the time of registration of the will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put animo attestandi. In an earlier decision of the Calcutta High Court in Abinash Chandra Bidyanidhi Bhattacharya v. Dasarath Malo [ILR (1929) 56 Cal 598 : AIR 1929 Cal 123] it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In a similar vein, the Privy Council in Shiam Sundar Singh v. Jagannath Singh [54 MLJ 43 : AIR 1927 PC 248] held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision of this Court in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons [(1969) 1 SCC 573 : (1969) 3 SCR 513] wherein this Court upon reference to Section 3 of the Transfer of Property Act has the following to state: (AIR p. 1151, para 8)

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“It is to be noticed that the word ‘attested’, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.”

¶267

3. Turning on to the former expression onus probandi, it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court's conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of the will shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.”

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Further, this Court in the case of SRI.J.T.SURAPPA AND ANOTHER Vs. SRI

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SATCHIDHANANDENDRA SARASWATHI SWAMIJI PUBLIC

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CHARITABLE TRUST AND OTHERS reported in ILR 2008

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KAR 2115 at Para Nos.23 and 24 has held as under:

¶275

”23. There is one important feature which distinguishes wills from other documents. It is one of the most solemn document known to law. Through it, a dead man entrusts to the living, the carrying out of his wishes. As it is impossible, that he can be called either to deny his signature or to explain the circumstances in which it was made, it is essential that trust worthy and effectual evidence should be given to establish the Will. Therefore, unlike other documents, the Will speaks from the death of the testator. It is ambulatory and it becomes effective and irrevocable on the death of the testator. It is a declaration in the prescribed manner of the intention of the person making it, with regard to the matters which he wishes to take effect upon or after his death. Therefore, when it is propounded or produced before a Court, the testator who has already departed the world, cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of wills, the Court will start on the same enquiry as in the case of the proof of documents. However, in the case of Wills, apart from proof of the documents, additional factors have to be satisfied, before the court could declare a document styled as “Will” is proved.

¶276

24. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps “PANCHAPADI”. The path of enquiry and steps to be traversed are as under:—

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(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?

¶278

(2) Whether the natural heirs have been disinherited? If so,

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what is the reason?

¶280

(3) Whether the testator was in a sound state of mind at the time of executing the Will?

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(4) Whether any suspicious circumstances exist surrounding the execution of the Will?

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(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?”

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39. The word “ Will” is defined under Section 2(h) of

¶286

The Indian Succession Act , 1925, which reads as follows:

¶287

Section 2(h) in The Indian Succession Act, 1925

¶288

“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

¶289

(emphasis supplied by me)

¶290

Therefore, Will is legal declaration of the intention

¶291

of the testator to bequeath his property to the propounder to be carried into effect after his death. Therefore, it is also a burden on the propounder to prove that the testator had intention to bequeath the property by placing circumstantial evidence.

¶292

In Ex.D3, Will dated 8.3.1982 stated to have been executed by Lingangouda, there is recital that he was suffering from Cancer, therefore, he was intended to execute the Will and accordingly, the Will was executed as stated above. Here, it is pertinent to mention that, admittedly, Linganagouda on 7.8.1980 sold the property bearing RS No.9/2 and two house

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properties bearing VPC No.426 and 501 to his brother Ganganagouda. The reason stated for selling these properties are that Linganagouda was suffering from Cancer and to meet his medical expenditure and for other family necessities. It is not disputed that wife of Linganagouda has deserted him.

¶297

Though as per the contention of the learned counsel Sri. C.S. Shettar that on the last days of Linganagouda, he was residing along with his brother Ganganagouda, Gangavva with children, but there was monetary transaction took place between Linganagouda and Ganganagouda that Linganagouda has sold some properties to Ganganagouda. When this being the nature of relationship between Linganagouda and Ganganagouda, the question arises in the mind of the Court that under what necessity, Linganagouda had executed the alleged Will dated 8.3.1982 bequeathing four properties to Basanagouda, who is minor son of Ganganagouda and Gangavva. Admittedly, Basanagouda was a minor at that point of time. Linganagouda at one stretch sold four properties to his brother Ganganagouda and at another stretch, as per case of Gangavva, Linganagouda has executed the Will in favour of

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Basanagouda, is appearing to be suspicious. Linganagouda has five daughters as per the case of Gangavva, namely, Premavva, Shankravva (who were married), Dyamavva, Lalita and Savitries, who were unmarried. Therefore, it is the explanation submitted by learned counsel Sri. C.S. Shettar that since Dyamavva, Lalita and Savitri were unmarried at that time, therefore, bequeathed the properties in favour of these two daughters namely Premavva and Shankravva. Kallavva also executed the Will in the year 1977 bequeathing the properties in favour of Premavva and Shankramma. Therefore, in Ex.D3, Premavva and Shankravva were excluded. This appears to be suspicious one for the reason that excluding the natural legal heirs and bequeathing the major portion of the properties to Basanagouda is one of the strong suspicious circumstances. Therefore, considering Ex.D3 Will, the properties were not bequeathed to other two daughters Premavva and Shankravva. There is no proper explanation in the said Will Ex.D3, as to why Premavva and Shankravva are excluded. Though Premavva and Shankravva were married at that point of time is not a ground to exclude them for bequeathing the properties, since status as daughters of

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Linganagouda do not change, just because they were married or not married. Therefore, here natural legal heirs Premavva and Shankravva were excluded without any reason in Ex.D3. This is one of the strong circumstances rendering question to pose whether this Will is genuine or not.

¶305

Further upon considering the evidence of PW3, who is stated to be one of the attesting witnesses to Ex.D3 Will, he has deposed that as per case of Gangavva that Linganagouda has much love and affection towards his daughters and Linganagouda has never discussed or told regarding execution of the Will. Further deposed that there is no occasion for Linganagouda to execute the Will Ex.D3. Further, it is the specific evidence of PW3 that Linganagouda had not executed the Will at any point of time. Further, it is the evidence of PW3 that Ganganagouda had created Ex.D3 Will after the death of Linganagouda. Further, he has forged the signature of Linganagouda on the said alleged Will. During the course of cross-examination, nothing is elicited to disbelieve his evidence. Therefore, it is the specific evidence of PW3 that

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Linganagouda had not executed the alleged Will Ex.D3 and signature of PW3 is found in Ex.D3.

¶309

Further, DW3 is stated to be another attesting witness in proof of execution of Will Ex.D3. Upon considering the evidence of DW3 and upon appreciation, it is deposed by DW3 that he could not identify the signature found in Ex.D3 is as that of Linganagouda. Therefore, in examination in-chief, DW3 has deposed that he has not identified the signature of Linganagouda that is allegedly found in Ex.D3 Will. Further, in the course of cross-examination, DW3 has stated that Linganagouda had not executed any document in the presence of him and also he has not participated in any affairs of Linganagouda. But also deposed that since there is lot of age difference between Linganagouda and himself, Linganagouda has not disclosed anything before him.

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Therefore, upon appreciating the evidence of PW3 and DW3, who are stated to be the attesting witnesses of Ex.D3 Will, it is clear that these witnesses have not witnessed the execution of Will and signature put by Linganagouda in their presence. Therefore, upon considering cumulatively

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Ex.D3 Will and the evidence of attesting witnesses PW3 and DW3, the Will Ex.D3 is not duly proved. In this regard, the trial Court in the judgment in OS No.275/2003 and OS No.65/2005 is correct in holding that the Will dated 8.3.1982 is not duly proved to have been executed. Hence, there is no need to make interference in the finding arrived at by the Trial Court.

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Further, so far as considering the subject matter of Will in OS No.123/2013 and RA No.49/2019, Premavva and Shankravva though have stated that Kallavva had executed the Will dated 11.03.1977, but none of the witnesses have been examined. Therefore, there is no legal compliance of proving the Will (Ex.D7) as per Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925. Therefore, the trial Court under impugned judgment in OS No.123/2013 is correct in holding that the Will dated 11.03.1977 stated to have been executed by Kallavva is not proved.

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Therefore, when Ex.D3 Will dated 08.03.1982 in OS No.65/2005 is not proved, but also the Will Ex.D7 dated 11.03.1977 is not proved, as they have not been duly

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executed, all the daughters of Linganagouda namely, Premavva, Shankravva, Dyamavva, Lalita and Savitri are entitled to equal share of 1/5^th each in all the properties of Linganagouda. To this extent, the judgment and decree passed in OS No.123/2013 and confirmed in RA No.49/2019 is purported to be justified and correct.

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Further, since valid execution of Ex.D3 is not proved, therefore, Gangavva is not entitled for relief of declaration. To this extent, dismissal of the suit in OS No.275/2003 is found to be justified and correct. Consequently, the judgment and decree passed in OS No.65/2005 of partition is proved to be justified and correct. Therefore, there is no need to make interference in the judgments and decree passed in all the suits stated above. Accordingly, I answer point Nos.1 to 4 in the “negative”.

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Insofar as point No.5 as to whether defendant No.11 in OS No.65/2005 namely Ravi V Yalavatti is proved to be a bonafide purchaser of the property bearing RS No.9/2, is concerned, Linganagouda during his lifetime has sold the properties bearing RS No.13/5+6 and 9/2 and house properties

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bearing VPC No.426 and 501 of Doni village, Mundargi Taluk, to his brother Ganganagouda. The Will Ex.D3 is stated to have been executed on 08.03.1982. Therefore, on all its preponderance of probabilities, it is proved that Linganagouda was suffering from Cancer and in order to meet out the medical expenditure and also family and legal necessity as he was having five daughters among them two were married and three daughters were unmarried, he was constrained to sell the aforesaid properties to his brother Ganganagouda. Therefore, it is proved that for family and legal necessity as discussed above, Linganagouda has sold the properties to his brother Ganganagouda for valuable consideration. This transaction of sale is proved to be genuine and valid and binding on the daughters of Linganagouda. In turn, daughter of Ganganagouda has sold the property to defendant No.1 Ravi Yalavatti in the year 2011. Therefore, defendant No.11 is proved to be a bonafide purchaser of property bearing RS No.9/2. Accordingly, I answer point No.5 in the “affirmative”.

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Ex.D7 Will in OS No.123/2013 is stated to be the Will of the dated 11.03.1977. It is 30 years of old document.

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Therefore, both the trial Court and first appellate Court have held that Section 90 of the Evidence Act is not applicable so far as considering the said Will is concerned. So far as proving the execution of Will is concerned, though the Will is of 30 years old, Section 90 of the Evidence Act is not applicable as discussed above. As per principles of law laid down by the Hon’ble Apex Court and this Court regarding proof of execution of Will, the Will has to be tested as per Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925. Just because the document of Will is 30 years old, then no presumption could be drawn in case of proving Will. In other words, regarding proof of Will is concerned, it is immune from Section 90 of the Indian Evidence Act. Therefore, substantial question of law No.1 is answered in the negative.

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Insofar as 2^nd substantial question of law is concerned, Premavva and Shankrava, defendants in OS No.123/2013, have taken contention in the written statement that Dyamavva, Lalita & Savitri ought to have taken contention to add the properties, which are in OS No.123/2013. But considering this aspect, there is no omission on the part of

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Premavva and Shankravva. Therefore, there is no merit in the contention taken that Order II Rule 2 of CPC is applicable. Accordingly, 2^nd substantial question of law is answered in the “negative”. The substantial question of law No.3 is answered accordingly as discussed above.

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For the aforementioned reasons and discussion, I proceed to pass the following:

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ORDER

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a) All the above appeals are dismissed being

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devoid of merit.

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b) The judgment and decree dated 30.08.2011 passed in O.S.Nos.65/2005 and 275/2003 by the Principal Senior Civil Judge & CJM, Gadag; and judgment and decree dated 31.05.2019 passed in O.S.No.123/2013 by

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the Senior Civil Judge, Mundargi and confirmed in R.A.No.49/2019 by the learned I Additional Principal Judge, Family Court, Gadag, are hereby confirmed.

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