Sunil S/O Mahadev Dolekar Vs Smt Bhagirathi Ganapat Dolekar

2A. JYOTI @ VAISHALI W/O. TANAJI DALAVI, AGE: 47 YEARS, OCC: HOUSEHOLD, R/O: HOUSE NO.299, BHARAT NAGAR, 5^TH CROSS SHAHAPUR, TAL AND DIST: BELAGAVI – 590 003.

¶15

Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

¶16

2B. KAVERI @ JANHVI W/O. SHIRISH BETGEKAR, AGE: 42 YEARS, OCC: HOUSEHOLD, R/O: 303/13, PATIL MALA, BELAGAVI – 590 001.

¶17

2C. SANGEETA @ ANKITA W/O. RUPESH NAIK, AGE: 41 YEARS, OCC: HOSEHOLD WORK, R/O: 345, JANATA PLOT, TAL: JOIDA(SUPA), JAGALBET, DIST: UTTARA KANNADA – 581 129.

¶18

2D. REKHA W/O. BALU KHODKE, AGE: 36 YEARS, OCC: HOUSE HOLD, R/O: H.NO.299, BHARAT NAGAR, SHAHPUR, BELAGAVI – 590 003.

¶19

2 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶20

HC-KAR

¶21

2E. SANGEETA W/O. PARASHURAM DOLEKAR, AGE: 35 YEARS, OCC: HOUSEHOLD.

¶22

2F. KUMARI PALLAVI D/O. PARASHURAM DOLEKAR, AGE: 12 YEARS, OCC: STUDENT.

¶23

2G. KUMAR SAMARTH S/O. PARASHURAM DOLEKAR, AGE: 10 YEARS, OCC: STUDENT.

¶24

2H. KUMARI NARAYANI D/O. PARASHURAM DOLEKAR, AGE: 9 YEARS, OCC: STUDENT.

¶25

A2(F) TO 2(H) ARE MINORS REP. BY THEIR MOTHER AND NATURAL GUARDIAN A2(E) ALL ARE R/O: HOUSE NO.299, BHARAT NAGAR, 5^TH CROSS, SHAHAPUR, TAL AND DIST: BELAGAVI – 590 003. …APPELLANTS

¶26

[BY SMT. SURABHI KULKARNI, ADVOCATE FOR A1(A); SRI. CHETAN MUNNOLI, ADVOCATE FOR A2( A TO H)]

¶27

AND:

¶28

SMT. BHAGIRATHI GANAPAT DOLEKAR, AGE: MAJOR, OCC: NIL, R/AT: ASTE, TAL AND DIST: BELAGAVI.

¶29

SAMBHAJI S/O. GANAPAT DOLEKAR, AGE: MAJOR, OCC: STUDENT, R/AT: ASTE, TAL AND DIST: BELAGAVI,

¶30

GANAPAT S/O. BALU GOLEKAR, R1 & R2 are SINCE DECEASED BY HIS LRS. treated as LRs of deceased R3.

¶31

CHANDA W/O. MARUTI SURYAVANSHI, AGE: MAJOR, OCC: HOUSEHOLD WORD, R/O: CTS NO.1036, FORT ROAD, BELAGAVI.

¶32

SUNANDA W/O. NARAYAN PATIL, AGE: MAJOR, OCC: HOUSEHOLD WOKR, R/O: INAMCHAWAL KURUBAR GALLI, MADHAVAPUR VADAGAON, BELAGAVI.

¶33

YALLUBAI W/O. NARAYAN SURATKAR, AGE: MAJOR, OCC: HOUSEHOLD WORK,

¶34

3 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶35

HC-KAR

¶36

R/O: H.NO.7, BHADURGALLI, BELAGAVI.

¶37

LEELA W/O. PRAMOD POTE, AGE: MAJOR, OCC:HOSUEHOLD WORK, R/O: NAVIGALLI, MADHAVAPUR VADAGAON, BELAGAVI.

¶38

KAMALA W/O. BABURAO CHOUGALEKAR, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: DANDELI – CHAVARALAKAR, DIST: NORTH CANARA.

¶39

SMT. GOURI W/O. SUNIL DOLEKAR, AGE: 41 YEARS, OCC: HOUSEHOLD WORK.

¶40

GAYATRI D/O. SUNIL DOLEKAR, AGE: 13 YEARS, OC: STUDENT.

¶41

KANCHANA D/O. SUNIL DOLEKAR, AGE: 13 YEARS, OCC: STUDENT.

¶42

SHALINI D/O. SUNIL DOLEKAR, AGE: 14 YEARS, OCC: STUDENT.

¶43

LRs of deceased Appellant No.1 are brought on record as appellant No.A1A and Respondent Nos.9 to 12

¶44

R9 TO R12 ARE R/O: TIGADOLLI, TQ: BAILHONGAL, DIST: BELAGAVI.

¶45

…RESPONDENTS

¶46

(BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1 AND R2; R5, R9, R10M TO R12 ARE SERVED; NOTICE TO R4, R6 TO R8 ARE HELD SUFFICIENT; V/O DATED: 19.10.2022 APPEAL STANDS ABATED AGAINST R5 AND R6)

¶47

THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.06.2007 IN R.A.NO.33/99 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT I AND ADDITIONAL DISTRICT JUDGE, BELAGAVI DATED 21.06.2007 CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.1999N IN O.S.NO.130/92 ON FILE OF THE PRL. CIVIL JUDGE SENIOR DIVISION, BELAGAVI, THE SAID SUIT BE DISMISSED THIS APPEAL BE ALLOWED WITH COSTS THROUGHOUT AND ETC.,

¶48

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

¶49

4 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶50

HC-KAR

¶51

ORAL JUDGMENT

¶52

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

¶53

This appeal is by defendants No.3 and 4 being

¶54

aggrieved by the judgment and decree dated 23.07.1999 passed in O.S.No.130/1992, on the file of Principal Senior Civil Judge, Belagavi by which the Trial Court decreed the suit of the plaintiffs declaring them to be entitled for partition and separate possession of their 25/216^th share each in all the suit properties described in schedule ‘B’ of the plaint, which is confirmed by the judgment and decree dated 21.06.2007 passed in Regular Appeal No.33/1999, on the file of the Presiding Officer, Fast Track Court I and Additional District Judge, Belagavi.

¶55

Brief facts of the case are that one Balu Dolekar

¶56

was common propositus of the plaintiffs and defendants, who had two wives by name Smt.Krishnabai the first wife (defendant No.2) and Smt.Bhagirathibai, the second wife. Smt.Bhagirathibai had predeceased him on 17.01.1989 The said Balu Dolekar passed away on 27.01.1989, leaving

¶57

5 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶58

HC-KAR

¶59

him behind his first wife Krishnabai and a son by name Ganapat (defendant No.1) and 3 daughters namely Chanda (defendant No.5), Sunanda (defendant No.6), Yallubai (defendant No.7) from his first wife and another son by name Mahadev (defendant No.4) and 3 daughters Leela (defendant No.8), Kamala (defendant No.9) and Prema, from his second wife. The plaintiffs are the wife and son of defendant No.1 Ganapat. Defendant No.3 – Sunil is the son of defendant No.4 Mahadev. That plaintiff No.1 was married to defendant No.1 in the year 1974. Plaintiff No.2 was born to plaintiff No.1 and defendant No.1. That there was a marital discord between plaintiff No.1 and defendant No.1 constraining the plaintiff to initiate proceedings for maintenance under the provisions of Criminal Procedure Code which were allowed granting maintenance. Defendants No.1 to 4 with an intention to deny the legitimate entitlement of the plaintiffs were making attempts to alienate the suit schedule properties left behind by the original propositus constraining the plaintiffs to file the suit for partition.

¶60

6 -

¶61

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶62

HC-KAR

¶63

It is further contended that there is no partition of suit schedule properties at any point of time. That propositus Balu Dolekar during his lifetime held, possessed and enjoyed the suit schedule properties as joint family properties. That Balu Dolekar prior to his death in the year 1989 was bedridden, unable to understand the worldly affairs and was mentally unsound. Taking advantage of his weakness, Defendant No.4 - Mahadev had created false document styled as Will deed, allegedly executed by the said Balu Dolekar on 22.02.1989, purporting to bequeath the land bearing R.S.No.542/2 and property bearing CTS Nos.2496 and 2497 in favour of defendant No.3, his son. That the said Balu Dolekar had not affixed his thumb impression to the said document as he was not present at the time of presentation of the said document for registration. The said Will is concocted and created for the purpose of harassing the plaintiffs. Hence, the suit seeking declaration of their entitlement of the share and possession and separate possession.

¶64

7 -

¶65

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶66

HC-KAR

¶67

On service of summons, except defendant Nos.3 and 4 rest of the defendants were placed exparte. Defendants No.3 and 4 filed written statement denying the plaint averments and also denied the genealogy furnished by the plaintiffs. It is however admitted that Balu Dolekar was the original propositus and he had two wives namely Krishnabai and Bhagirathibai. It is also not disputed that the said Balu Dolekar had defendants No.1, 5, 6 and 7 being the children from his first wife and defendants No.3, 8 and 9 being the children from the second wife.

¶68

It is contended that there was one more daughter by name Prema from his second wife, whom the plaintiff has not made as party to the suit. The allegation of fabrication of Will by defendant No.3 allegedly executed by Balu Dolekar purporting to bequeath the properties bearing Land in R.S.No.542/2 measuring 1 acre 3 guntas and property bearing CTS Nos.2496 and 2497 as mentioned in the plaint are denied. It is further alleged that the property subject matter of the Will is the self-

¶69

8 -

¶70

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶71

HC-KAR

¶72

acquired property of Balu Dolekar. It is contended that the Will was executed when the Balu Dolekar was in sound mind of disposition and the same has also been acted upon. Defendant No.3 has been in actual possession, cultivation and enjoyment of the property subject matter of the said Will. Hence, sought for dismissal of the suit.

¶73

The Trial Court framed the following issues for its

¶74

consideration:

¶75

“ISSUES

¶76

1. Whether the plaintiffs prove that the suit properties are joint family properties of themselves and the defendants being left by original propositus late Balu as alleged?

¶77

2. Whether the defendants No.3 and 4 prove that late Balu was in sound disposing state of mind in February 1989 as contended?

¶78

3. Whether the defendant No.3 and 4 further prove that suit R.S.542/2 and CTS No.2496 and 2497 are the self acquired properties of late Balu as alleged?

¶79

4. Whether they further prove that late Balu with his free will has bequeathed these 3 properties under registered will dt: 22.02.1989 in favour of deft No.3 as contended?

¶80

5. Whether the defendant Nos.3 and 4 prove that late Balu during his life time has sold away suit Rs No.264/2 and 264/4 in favour of one Yallappa Kedari Dolekar as contended?

¶81

9 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶82

HC-KAR

¶83

6. Whether the suit is bad for non – joinder of necessary parties as contended?

¶84

7. Whether the court fee paid is proper and correct?

¶85

8. Whether the plaintiff prove that they got 2/3^rd share out of 1^st defendant’s share as alleged?

¶86

9. Are the plaintiffs entitled for partition and separate possession as sought for?

¶87

10. To what order or decree?”

¶88

Plaintiff No.1 examined herself as PW.1 and

¶89

exhibited 14 documents marked as ExP.1 to P.14. Defendant No.4 examined himself as DW.1, DW2 as the attesting witness to the Will and DW.3 as the scribe to the Will and exhibited 10 documents marked as Ex.D.1 to D.10. On appreciation of evidence, the Trial Court answered Issue No.1 and 7 in the affirmative and Issue Nos.2 to 6 in the negative, consequently held that defendants No.3 and 4 had failed to prove the due execution of the Will by Balu Dolekar and accordingly decreed the suit as prayed for. Being aggrieved, defendant Nos.3 and 4 filed regular appeal in R.A.No.33/1999 before the First Appellate Court. The First Appellate Court framed the following points for its consideration:

¶90

10 -

¶91

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶92

HC-KAR

¶93

“POINTS:

¶94

1. Whether there are sufficient grounds to condone the delay of 2 days in preferring this appeal?

¶95

2. Whether the trial court has committed any error in holding that Item No.1, 2 and 7 of the schedule B properties are joint family properties and Balu Dolekar has no right to bequeath those properties in favour of minor defendant No.3, under a will?

¶96

3. Whether the trial court has committed any error or illegality in holding that, the execution of will dated 22.02.1989 has not been proved before the court and the said will came into existence under suspicious circumstances and hence not acted upon?

¶97

4. For what order?”

¶98

On re-appreciation of the matter, the First

¶99

Appellate Court answered point No.1 in the affirmative and point No.2 and 3 in the negative, consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved, defendants No.3 and 4 are before this Court.

¶100

9. Learned counsel for the appellants reiterating the

¶101

grounds urged in the memorandum of appeal submits that the Trial Court and the First Appellate Court failed to appreciate that the propositus Balu Dolekar and his wife

¶102

11 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶103

HC-KAR

¶104

Smt.Bhagirathibai out of their self-earning purchased property bearing CTS Nos.2496 and 2497 and constructed residential house thereon. That they also have purchased land in RS No.542/2 which is their self acquired property. That the said Balu Dolekar had thus executed registered Will dated 22.02.1989 bequeathing the said properties in favour of defendant No.3 who is the son of defendant No.4. She submits that in proof of execution of Will, DW2 one of the attesting witness and DW3 the scribe of the Will were examined, which were in compliance to the requirement of the law namely Sections 68 and 69 of the Evidence Act. Thus, she submits that the Trial Court and the First Appellate Court erred in not appreciating these aspects of the matter. She submits that the plaintiff had failed to prove that the propositus Balu Dolekar was having sufficient nucleus to acquire the other properties. In the absence of the same, the Trial Court and the First Appellate Court ought not to have held that all the suit properties to be the joint family properties. The reasons assigned by the Trial Court and the First Appellate Court to

¶105

12 -

¶106

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶107

HC-KAR

¶108

disbelieve the execution of Will are not justifiable in the light of the evidence adduced by the defendant Nos.3 and 4 by examining DW2 the attestor of the Will and DW3 the scribe of the Will. Hence, the aforesaid aspects of the matter gives rise to a substantial question of law requiring consideration in the hands of this Court.

¶109

Per contra, learned counsel appearing for respondent Nos.1 and 2/plaintiffs, taking this Court through the records, submits that the properties, namely Item Nos.1, 2 and 7 are all the suit schedule properties and were not the self-acquired properties of the deceased propositus Balu. It is submitted that the said properties were acquired from and out of the income generated from Item Nos. 4, 5, and 6 of the suit schedule properties, which are landed properties. It is further submitted that admittedly Balu Dolekar had only one source of income, i.e., from his agricultural activities, and that the plaintiffs have demonstrated availability of sufficient nucleus for the acquisition of Item Nos. 1, 2 and 7 of the suit properties.

¶110

13 -

¶111

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶112

HC-KAR

¶113

He submits that since Item Nos. 1, 2 and 7 were also acquired from out of joint family property, the deceased propositus Balu Dolekar could not have executed the Will bequeathing Item Nos. 1, 2 and 7 in their entirety in favour of Defendant No. 3.

¶114

It is further submitted that the Trial Court and the First Appellate Court, after having gone through the contents of the Will, have opined that the said document could not have been prepared upon the instructions allegedly given by the deceased propositus Balu Dolekar inasmuch as the same contains wrong description of his wives and children. He submits that such suspicion is corroborated by the evidence of DW.1, who himself has admitted that the deceased Balu Dolekar had suffered paralytic attack and was being treated by one Dr. Kale. Non-examination of the said doctor with regard to the time and period/duration of suffering of the deceased due to the paralytic attack also gives rise to suspicious circumstances about his soundness of mind to execute the

¶115

14 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶116

HC-KAR

¶117

document. He further submits that even the deposition of DW.2, who is the attesting witness is not evincing credibility, inasmuch as the said witness has pleaded ignorance about the personal life of Balu Dolekar including his relationships and dependents.

¶118

He further submits that one Sri.A.S. Ingle, who is alleged to have identified the signature of deceased Balu Dolekar has not been examined. DW.2, who had accompanied Balu Dolekar, has pleaded ignorance about the presence of said Sri.A.S.Ingle.

¶119

As regards the deposition of the scribe/DW3, he submits that admittedly DW3 did not accompany the testator to the Office of the Sub-Registrar for the purpose of registration of the Will. Looking into the contents of the Will and the incorrect description of Balu’s wives, there is every possibility that the said scribe was not instructed personally by the deceased Balu. Thus, he submits that the Trial Court and the First Appellate Court have committed no error in disbelieving the Will and in granting

¶120

15 -

¶121

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶122

HC-KAR

¶123

the relief as sought for by the plaintiffs. Hence, he submits

¶124

that no sustainable question of law would arise for consideration.

¶125

14. Heard and perused the records.

¶126

The relationship between the parties as mentioned

¶127

in the plaint is not in dispute. The properties described, which are the subject matter of the present suit are as under:

¶128

“Description of the suit properties Schedule 'B'

¶129

1. Out of RS. No. 210 measuring 0.02 gunthas situate at Bharat Nagar Belgaum, now numbered as CTS No.2496 measuring 219.4/9 eq.ynrde bounded on towards;

¶130

Fact : Service lane of width of 15’ WeSt : Public road. South : Remaining area of RS No.210 North : Road.

¶131

2. Part of RS. No. 210 mensuring 1/2 guntha situate in Bharat nagar, Belgaum, now numbered no CTS No.2497 measuring 86.5/9 sq. yards bounded on towards;

¶132

East and West : Road.

¶133

South : Remaining part of RS. No.210.

¶134

16 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶135

HC-KAR

¶136

North Plot owned by deceaned Balu Apponna Dolekar.

¶137

3. H. No. 182/B esituste at Bhendiwad galli, Hosur, Belgaum.

¶138

4. RS No.217/1 measuring 31 gunthas situate at Peeranwadi taluka: Belgaum.

¶139

5. RS No.264/2 measuring 0 - 07 gunthas situate at Peeranwadi village, taluka Belgaum.

¶140

6. RS No.264/11 measuring 0 - 15 gunthas, situate at Peeranwadi, taluka: Belgaum.

¶141

7. RS No.542/2 measuring 1 acre 3 gunthas, situate at Belgaum.”

¶142

The dispute is only with regard to Item Nos. 1, 2

¶143

and 7 of the suit schedule properties, which, according to

¶144

the plaintiffs, were acquired from and out of the joint family income as such they form the part of the joint family assets, which the deceased Balu Dolekar could not have made the subject matter of a testamentary disposition.

¶145

On the contrary, the case of Defendants No. 3 and 4 is that Item Nos. 1, 2 and 7 were acquired by the deceased Balu Dolekar and his second wife Bhagirathi in terms of registered sale deeds dated 07.12.1959 (Ex.D3)

¶146

17 -

¶147

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶148

HC-KAR

¶149

and 14.06.1954 (Ex.D9) respectively from the income earned by the said Balu Dolekar and his wife Bhagirathi from pickle and papad business.

¶150

It is necessary to note that the plaintiffs in the plaint have categorically pleaded that the deceased Balu Dolekar was earning his income from agricultural activities carried on in the lands bearing RS. No.217/1, measuring 31 guntas (Item No. 4), RS. No.264/2, measuring 7 guntas (Item No. 5), and RS. No.264/11, measuring 15 guntas (Item No. 6).

¶151

It is a settled proposition of law that while there can be a presumption of existence of a joint family, there cannot be a presumption of existence of a joint family property unless it is specifically pleaded, proved and established that the joint family possessed sufficient income/nucleus for the acquisition of the property, and once the initial burden is discharged the onus shift on the party who asserts the properties to be self acquired properties.

¶152

18 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶153

HC-KAR

¶154

Viewed in that angle, admittedly Item Nos. 4, 5, and 6, noted above were the joint family ancestral properties. The total extent of the said lands comes upto 1 acre and 14 guntas. Ex.P4, P5, and P6 indicate that paddy was being cultivated in the said lands. Counsel for the respondents/appellants refers to these documents and submits that the plaintiffs have rightly discharged the burden of proving availability of sufficient nucleus from and out of joint family properties for the purpose of acquiring Item Nos. 1, 2 and 7 of the suit schedule properties.

¶155

There is considerable force in the submission made by learned counsel for the respondents/plaintiffs. A perusal of Item Nos. 1, 2 and 7 in the suit schedule indicates that Item No.1, 2 comprises small plots measuring 2 guntas and 1/2 guntas respectively carved out of land in RS.No.210, while Item No. 7 is a piece of land measuring 1 acres 3 guntas purchased under the sale deed dated 14.06.1954. Defendants 3 and 4 have claimed

¶156

19 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶157

HC-KAR

¶158

that Item Nos. 1, 2 and 7 were acquired by the deceased Balu Dolekar and his wife Bhagirathi from their earnings through pickle and papad business. However, no substantive evidence to support this claim has been produced.

¶159

Since the plaintiffs have discharged the initial burden of proving the availability of sufficient nucleus, the burden shifted to Defendants 3 and 4 to prove, by leading substantial evidence, that the said properties were selfacquired. In the absence of any material brought on record to disbelieve the version of the plaintiffs, the Trial Court and the First Appellate Court were justified in holding that Item Nos. 1, 2 and 7 were acquired from and out of income generated from the joint family properties, and such finding cannot be faulted.

¶160

As regards the suspicious circumstances encapsulated by the Trial Court and the First Appellate Court to disbelieve the execution of the will, a perusal of contents of Ex.D3 indicates that although Smt. Krishna

¶161

20 -

¶162

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶163

HC-KAR

¶164

Bai/ defendant No.2 was the first wife of Balu Dolekar, she

¶165

has been wrongly described in the Will as his second wife, while Smt. Bhagirathi, admittedly the second wife has been described as the first wife. The Trial Court and the First Appellate Court have rightly taken note of this aspect of the matter and opined that if at all Balu Dolekar had given instructions, such an error would not have occurred.

¶166

Another circumstance which has led to suspicion is, admittedly Defendants No. 3 and 4, who are the sons of Balu Dolekar from his second wife, allegedly discovered the Will four months after his death in an almirah. They had not accompanied him either to the scribe or to the Sub-Registrar. The scribe/DW3 has also did not accompany the deceased Balu to the Sub-Registrar. Therefore, the only witness who was purportedly present at the time of drafting and registration of the Will was DW.2. However, DW2, in his cross-examination, admitted to all the aspect of personal life of the deceased Balu Dolekar, howerver he has pleaded ignorance about his

¶167

21 -

¶168

NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶169

HC-KAR

¶170

personal life, his wives, children and properties. He also stated that he witnessed only one signature being affixed before the Sub-Registrar. Moreover, DW.1 though has deposed that the deceased had suffered a first paralytic attack about 15 days prior to his death and a second paralytic attack which led to his demise, Doctor Kale, who was allegedly treating the deceased was not examined.

¶171

These circumstances, as rightly noted by both the Courts below, raised serious doubts regarding the sound disposition of mind and the voluntary execution of the Will by the deceased. The concurrent findings of the Trial Court and the First Appellate Court on these issues are based on a proper appreciation of the evidence on record and do not warrant interference.

¶172

In view of the above, more particularly with respect to item Nos. 1, 2 and 7 being held to be properties acquired from and out of the joint family income, and in light of the suspicious circumstances surrounding the execution of the Will not having been dispelled, this Court

¶173

22 - NC: 2025:KHC-D:8690 RSA No. 2473 of 2007

¶174

HC-KAR

¶175

finds no justification to interfere with the concurrent findings of facts recorded by the Trial Court and the First Appellate Court.

¶176

It is submitted that Defendant No. 1-Ganapat, son of Balu Dolekar (husband and father of the plaintiffs) is stated to have passed away during the pendency of the suit. As such, the plaintiffs would be entitled to receive his share as well.

¶177

Except this, this Court does not see any reason to interfere with the pattern of shares allotted by the Trial Court, and the same shall remain undisturbed.

¶178

The appeal lacks merits and accordingly

¶179

dismissed .

¶180

Sd/(M.G.S. KAMAL) JUDGE

¶181

SH-para 1 to 8 SMM – para 9 VB-para 10 to till end CT-ASC List No.: 1 Sl No.: 1

Sunil S/O Mahadev Dolekar v. Smt Bhagirathi Ganapat Dolekar

Case brief

What is this about?

What did the court decide?

Sunil S/O Mahadev Dolekar v. Smt Bhagirathi Ganapat Dolekar

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Sudha Vs Manjunath

Vishala Alias Pushpa W/O Basavaraju Vs Basavaraju M Y S/O Yallappa Kengonda

Parshappa Vs Jayappa S/O Nagappa Omakkanavar

Laxmavva W/O. Hanamanthappa Kittur Vs Siddavva W/O. Basappa Mayannavar

Madiwalappa S/O Dyamappa Annigeri Vs Madiwalappa S/O Yallappa Hattikatagi

Shri Gururaj S/O Ashok Hollennavar Vs Smt Padma W/O Gururaj Hollennavar