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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 422 OF 2013 (PAR)
BETWEEN:
11. SMT. NETRAVATI, W/O. G.R.VIRUPAKSHAPPA, AGED ABOTU 62 YEARS, OCC:AGRICULTURIST, 2. ARUNA, S/O. G.R.VIRUPAKSHAPPA, AGED ABOUT 42 YEARS, OCC:AGRICULTURIST, 3. G.R.VIRUPAKSHAPPA, Digitally S/O. H.M.RUDRAPPA, signed by AGED ABOUT 61 YEARS, PRAMILA G V AGRICULTURIST, Location:
ALL ARE R/O GONDICHATNAHALLI, HIGH COURT SHIMOGA TALUK AND DISTRICT.
OF …APPELLANTS KARNATAKA (BY SRI. S.P. KULKARNI, SENIOR COUNSEL FOR SRI. PRUTHVI WODEYAR, ADVOCATE)
AND:
1. G.R. SHEKHARAPPA, SINCE DEAD BY HIS LRS SMT. SUSHEELAMMA, W/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 74 YEARS, R/O. GONDICHATNAHALLI, SHIMOGA TALUK.
2. RAVI PRAKASH H.S., S/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 54 YEARS, AGRICULTURIST & SALES REPRESENTATIVES, R/O. BASAVESHWARA NAGARA, SHIMOGA TALUK.
3. H.S.SHIVAKUMAR, S/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 44 YEARS, AGRICULTURIST, R/O. GONDICHATNAHALLI, SHIMOGA TALUK.
4. H.S.SHASHIKALA, W/O. G.B.NAGARAJ, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 51 YEARS, R/O. MIG 53, 2ND STAGE, B BLOCK, KALLAHALLI, VINOBHANAGAR, SHIMOGA CITY.
5. H.S.SUJATHA, W/O. SHANKARAIAH, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 49 YEARS, R/O. SHARADHAMMA STORES, 14TH CROSS, KTJ NAGAR, DAVANGERE.
6. SMT. G.S.SUMA, W/O. K.B.MANJUNATH, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 47 YEARS, R/O. HOSURMATTI VILLAGE, MANDAGHATTA POST, SHIMOGA TALUK.
7. SMT. K.S.SUVARNA, W/O. RAVI, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 42 YEARS, R/O. GANESHA NILAYA, 1ST FLOOR, RAMA MANDIRA ROAD, 2ND CROSS, JAYNAGAR, SHIMOGA CITY.
8. G.R.MANJAPPA, S/O. H.M.RUDRAPPA, AGED ABOUT 67 YEARS, AGRICULTURIST, R/O. GONDICHATNAHALLI, SHIMOGA TALUK.
9. SMT. PARVATHAMMA @ GOWRAMMA, W/O. K.G.LOKESHAPPA, R/O. KALLAHALLI, BHADRAVATHI TALUK.
10. SMT. NEELAMMA, SINCE DEAD BY HIS LRS
10(A). S.UMAPATHIYAPPA, S/O. ESHWARAPPA, AGED ABOUT 80 YEARS, R/O SUGUR, SHIMOGA TALUK.
10(B). G.PALAKSHAPPA, S/O. G.UMAPATHIYAPPA, AGED ABOUT 52 YEARS R/O. SUGUR VILLAGE, SHIMOGA TALUK.
10(C). NAGARAJA, S/O. G.UMAPATHIYAPPA, AGED ABOUT 41 YEARS, R/O. ADARSHA VIDYA SAMSTHE, K.T.J. NAGAR, DAVANAGERE.
10(D). SMT. GEETHA @ GEETHAMMA, W/O. GURURAJA, AGED ABOUT 38 YEARS, R/O KUNDUR, HONNALI TALUK, DAVANAGERE DISTRICT.
10(E). SMT. SAVITHA, W/O. M.JAYAPPA, AGED ABOUT 36 YEARS, SIRSI TRADERS, CAUVERY LODGE COMPOUND, P.B. ROAD, HAVERI DISTRICT.
11. SMT. LALITHA, W/O. S.M.MEENAKSHAPPA, AGED ABOUT 71 YEARS, HOUSEHOLD WORK, R/O. HOSAMANE EXTENSION, SHIMOGA CITY.
12. SMT. SAROJAMMA, W/O. K.C.PARAMESHWARAPPA, AGED ABOUT 74 YEARS, R/O. KADADAKATTE, BHADRAVATHI TALUK.
13. SMT. LEELA, W/O. NEELAKANTAPPA, AGED ABOUT 69 YEARS, R/O. CHETANA PRABHA NILAYA, VIDYANAGAR, SHIMOGA.
14. SMT. UMA, W/O. SHIVAMURTHY, AGED ABOUT 64 YEARS, R/O CIRCUIT HOUSE ROAD, (KUVEMPU ROAD), SHIMOGA.
15. SMT. ANASUY, W/O. MAHESWARAPPA, AGED ABOUT 59 YEARS, HOUSEHOLD WORK, R/O. HUTHA COLONY, BHADRAVATHI.
16. K.G.RENUKAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 70 YEARS, 17. K.G.KUMARAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 68 YEARS, 18. K.G.SHEKARAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 67 YEARS, 19. K.G.SIDDAPPA GOWDA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 65 YEARS, 20. K.G.MAHESWARAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 61 YEARS, 21. K.G.PRAKASH, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 57 YEARS, 22. K.G.SUDHA, W/O. G.PATHESHAPPA, AGED ABOUT 55 YEARS, RESPONDENT NOS.16 TO 22 ARE R/AT ARADOTHLU, DASARAKALAHALLI POST, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT.
23. K.G.LATHA, W/O. K.H.JAGADISH, AGED ABOUT 53 YEARS, R/AT ARALAHALLI, CHANNAGIRI ROAD, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT.
24. K.G.KAVITHA, W/O. LATE MANJUNATH, AGED ABOUT 52 YEARS, ARALAHALLI (DIDAGURU), ARALAHALLI POST, HONNALLI TALUK, DAVANAGERE DISTRICT.
(AMENDED CAUSE TITLE AS PER THE COURT ORDER DATED 23.07.2024)
…RESPONDENTS (BY SRI. S.V. PRAKASH,ADVOCATE FOR R1 TO R3;
SRI. SUMANTH KUMAR S. PATIL, ADVOCATE FOR R4;
R5, R6, R7, R9 ARE SERVED AND UNREPRESENTED;
SRI. C.M.DESAI, ADVOCATE FOR R8;
SRI. K.P. SHRAVAN MADHAV, ADVOCATE FOR R10(A-E), R11 TO R13 AND R15;
SRI. NITHISH K.N., ADVOCATE FOR SRI. K.V. NARSIMHA, ADVOCATE FOR R14;
SRI. S.B. TOTAD, ADVOCATGE FOR R16 TO R24)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 06.12.2012 PASSED IN R.A.NO.404/2009 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 05.10.2009 PASSED IN OS.NO.148/2002 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (SR.DN.), SHIMOGA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal arises from a divergent finding in a suit for partition and separate possession.
2. The plaint discloses three distinct schedules of properties namely Schedule 'A', comprising survey No.100/2, measuring 3 acres, schedule 'B' comprising two properties namely 1) survey No.107/p, measuring 4 acres, 20 guntas and 2) survey No.60/1 measuring 20 guntas and schedule 'C' the movable properties namely a Tractor Trailer, cash of Rs.2,00,000/- and jewellery and silver articles. Existence of suit 'C' schedule properties is not established.
3. The suit is dismissed holding that the registered Will dated 23.06.1998 executed by Rudrappa, the propositus, in favour of defendant No.2, defendant No.10, the wife of defendant No.2 and defendant No.11, the son of defendants No.2 and 10 is established.
4. The plaintiff filed appeal before First Appellate Court. The plaintiff died during the pendency of the First Appeal and legal representatives of the plaintiff are brought on record.
5. The appeal is allowed, consequently, judgment and decree passed by the Trial Court are set-aside and the suit is decreed for partition and separate possession disbelieving the Will set up by defendants No.2, 10 and 11. Hence, the present second appeal by defendants No.2, 10 and 11.
6. This appeal was admitted on 06.09.2013 to answer the following substantial question of law.
"When the trial Court held the Will Ex.D2 having been proved on the basis of the evidence of a scribe and identity of the signature of a attesting witness through his son, when the attesting witnesses were dead, whether the First Appellate Court was justified in reversing the finding and holding that the Will Ex.D2 is not proved and in doing so, did not assign consistent and cogent reasons to overcome the said finding and thereby committed an error in reversing the judgment and decree of the trial Court?"
7. The certain admitted facts are as under:-
7.1 The relationship of the parties is admitted. One Mahadevappa was the propositus. The propositus had two sons, H.M. Rudrappa, and H.M. Karibasappa
7.2 The present dispute is confined to the branch of H.R. Rudrappa who died on 28.09.2001.
7.3 H.M. Rudrappa when died on 28.09.2001 and was survived by three sons, and seven daughters.
7.4 The suit is filed by eldest son G.R.Shekharappa. Rest of the children have been arrayed as defendants No.1 to 9. The defendant No.10 is the wife of defendant No.2 and defendant No.11 is the son of defendant No.2.
7.5 There is no dispute that 'B' schedule property was the subject matter of registered partition dated 25.12.1974 and said partition deed is marked at Ex.P1. However, 'A' schedule property was not specifically made the subject matter of the partition deed dated 25.12.1974.
7.6 The plaintiff claims that the suit schedule properties are ancestral properties and claimed 11/40th share in all the suit schedule properties. The defendant No.2, 10 and 11 raised the contention that father of defendant No.2 and father in law of defendant No.10 and grand father of defendant No.11 H.M. Rudrappa who died on 28.09.2001 had executed a registered Will dated 23.06.1998 bequeathing the suit 'A' and 'B' schedule properties in favour of defendants No.2, 10 and 11.
8. Before the Trial Court the defendant No.11 was examined. In addition to prove the attestation and execution of the Will, the son of one of the attesting witnesses was examined and the scribe was also examined.
9. The defendants No.2, 10 and 11 contended that the attesting witnesses were not alive and this fact is not disputed by the plaintiff.
10. The Trial Court accepted the plea of defendants No.2, 10 and 11 and came to the conclusion that the Will is duly established and dismissed the suit. On appeal by the plaintiff, First Appellate Court reversed the judgment and decree passed by the Trial Court and consequently decreed the suit granting 1/10thshare.
11. Learned senior counsel appearing for the appellants would contend that the Will is duly registered
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