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2025 Supreme(Online)(Kar) 32814
KARNATAKA HIGH COURT
MR. SACHIN SHANKAR MAGADUM, MR. G BASAVARAJA, JJ
MURIGEPPA S/O. BASALINGAPPA PANTAR – Appellant
Versus
SHIVAKUMAR S/O. BASALINGAPPA PANTAR, SINCE DECEASED BY HIS LR’s – Respondent
REGULAR FIRST APPEAL NO.100304 OF 2019
For the Appellants/Petitioners: C.S.SHETTAR
For the Respondents: ANOOP G.DESHPANDE, BASAVARAJ B.KARADI
The court upheld the validity of a will based on the absence of evidence proving its invalidity, emphasizing the burden of proof and the nature of testamentary dispositions.
Headnote:This appeal is filed under Section 96 of CPC against the dismissal of the plaint for partition. Plaintiffs claimed a share in the property based on an alleged Will, which was disputed by the defendant. The Trial Court upheld the validity of the Will. The Court examined the evidence and concluded that plaintiffs did not substantiate their claim against the Will's legitimacy and found no grounds for interference. The pivotal issue was whether the Will was genuine, which the Court affirmed was duly executed. The appeal was dismissed.
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| 1. the appeal challenged the dismissal of a suit for partition based on claims about a disputed will. (Para 1 , 2 , 4) |
| 2. the defendant's argument emphasized the legitimacy of the will and prior partition. (Para 5 , 6) |
| 3. evidence reviewed included a contested will and claims of validity based on family partition. (Para 10 , 11 , 12) |
| 4. the court underscored the importance of evidence substantiating the legitimacy of the will. (Para 15 , 16) |
| 5. the appeal was dismissed, affirming the trial court's acceptance of the will's validity. (Para 17 , 18) |
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
Captioned appeal is by unsuccessful plaintiffs assailing the judgment and decree rendered in O.S. No.115/2015 on the file of Senior Civil Judge, Gangavathi. Plaintiffs’ suit seeking relief of partition is dismissed. Hence, the captioned appeal assailing the judgment and decree rendered in O.S. No.115/2015.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The family tree is as under:
4. Plaintiffs and defendant are sons of one P.Basalingappa. The present plaintiffs have filed the suit seeking relief of partition and separate possession. The suit is filed alleging that the defendant under the garb of securing loan from the bank and other financial institutions has concocted and created a Will deed alleging that his father P.Basalingappa has bequeathed the suit schedule properties. Plaintiffs claim that the Will deed is not genuine and that their father was not in a sound disposal state of mind. The plaintiffs at paragraph No.5 in the plaint though admitted the partition among their father and three sons, however, have tried to dispute the registered partition deed effected on 05.06.2002 and they have further disputed the alleged Will deed dated 22.07.2010. Plaintiffs have further pleaded that having noticed the change of entries in the revenue records based on the Will, it is alleged that the defendant tried to obstruct plaintiffs’ joint possession and enjoyment of the suit schedule properties. Therefore, the present suit is filed by both the plaintiffs seeking 1/3rd share each.
5. Defendant on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. Defendant on the contrary contended that during the life time of their father P.Basalingappa, there was a partition in terms of the registered partition deed dated 05.06.2002 and the suit schedule properties which were allotted to their father, P.Basalingappa was in his exclusive possession. The defendant contended that during his lifetime, out of love and affection, his father has bequeathed the suit schedule properties under a registered Will dated 22.07.2010. Defendant also contended that the testamentary arrangement made by their father P.Basalingappa is a genuine document and this is preceded by a proper registered partition deed, thereby their father P.Basalingappa being the absolute owner had every right to make a testamentary arrangement.
6. Plaintiffs and defendant to substantiate their respective claims have led in their oral and documentary evidence. Defendant apart from producing the registered Will which is marked at Exhibit D3 has examined the attesting witness as DW2. The Trial Court on appraisal of oral and documentary evidence, answered issue No.2 in the affirmative and proceeded to dismiss the suit filed by the plaintiffs seeking relief of partition. The said judgment is under challenge.
7. The learned counsel for the plaintiffs, reiterating the grounds urged, vehemently contends that the Will in question is enveloped in suspicious circumstances. It is argued that the Will fails to make any provision for the plaintiffs and the defendant’s mother, who was alive at the time of its alleged execution. The complete exclusion of the wife of the testator, according to the plaintiffs, casts serious doubt on the authenticity of the docum
