Karnataka High Court
Sri Basavanna vs Smt Devamma on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:50477
RSA No. 1971 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1971 OF 2023 (PAR/POS)
BETWEEN:
1. SRI. BASAVANNA
S/O PUTTAPPA @ KADAPPA
AGED ABOUT 49 YEARS,
RESIDING AT KAREPURA VILLAGE
HADYA POST, KAVALANDE HOBLI
NANJANGUD TALUK-571315.
...APPELLANT
(BY SRI. P. MAHESHA, ADVOCATE)
AND:
1. SMT. DEVAMMA
W/O MAHADEVAPPA
AGED ABOUT 82 YEARS
Digitally signed RESIDING AT BADANAGUPPE VILLAGE,
by DEVIKA M MUTT ROAD, HARAVE HOBLI
Location: HIGH CHAMARAJANAGAR TALUK
COURT OF
KARNATAKA AND DISTRICT-571313.
LATE MAHADEVAPPA S/O PUTTAPPA
(DEAD AS A BACHELOR AND HAS NO LRS)
2. SRI MALLAPPA
S/O PTTAPPA
AGED ABOUT 66 YEARS,
R/O DODDAPURA VILLAGE,
CHIDARAVALLI POST
SOSLE HOBLI,
T. NARASIPURA TALUK-571120.
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NC: 2025:KHC:50477
RSA No. 1971 of 2023
HC-KAR
3. SMT. RAJAMMA
D/O SIDDURAPPA
AGED ABOUT 46 YEARS,
R/O BADANAGUPPE VILLAGE,
MUTT ROAD, HARAVE HOBLI
CHAMARAJANAGAR TALUK
AND DISTRICT-571313.
4. SMT. RAJAMMA
D/O LATE MAHADEVAMMA
AGED ABOUT 53 YEARS
5. SMT. MAHADEVAMMA
D/O LATE MAHADEVAMMA
AGED ABOUT 56 YEARS
6. SMT. BORAMMA
D/O LATE MAHADEVAMMA
AGED ABOUT 62 YEARS
RESPONDENTS 4 TO 6 ARE
R/AT KAREPURA VILLAGE
NANJANGUD TALUK-571 315.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2023.
PASSED IN R.A.NO.41/2021 AND 6/2019 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, NANJANGUD DISMISSING
THE APPEAL AND CONFIRMING, AND PARTLY ALLOWING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED
17.12.2018 PASSED IN O.S.NO.387/2007 ON THE FILE OF C/C.
PRINCIPAL CIVIL JUDGE AND JMFC, NANJANGUD.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC:50477
RSA No. 1971 of 2023
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the learned counsel for the appellant.
2. This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff is that suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants. They are in joint possession of the same and they are entitled for 1/3rd share. The defendant took the specific contention that father of the defendant No.1 and plaintiff has executed a Will in favour of defendant No.1 dated 31.01.1974 and also executed subsequent Will dated 12.08.1999 by the defendant No.1 and additional issue was also framed that whether defendant No.2 proves that the defendant No.1 has executed a Will dated 12.08.1999 in favour of him. The Trial Court having considered the material available on record, comes to the conclusion that property belongs to the family and plaintiffs are entitled -4- NC: 2025:KHC:50477 RSA No. 1971 of 2023 HC-KAR for the share over the property, but, passed an order as entitled for 12/72th share in Item No.1 to 3 of the suit schedule properties and dismissed the suit in respect of Item No.4 and did not accept the case of the defendant with regard to the proving of the Will is concerned, the same is not proved since the children of attesting witness and scribe though tendered their chief evidence, but not subjected for cross-examination and hence, comes to the conclusion that mandatory provisions of Evidence Act and Indian Succession Act has not been complied and the same has been discussed.
3. Being aggrieved by the said judgment and decree, the plaintiff in respect of rejection of claim in respect of Item No.4 is concerned, filed an appeal in R.A.No.6/2019 before the First Appellate Court. The Appellate Court having re-assessed the material on record, confirmed the judgment and only modified to the extent that 1/3rd share in view of the judgment of Vineetha -5- NC: 2025:KHC:50477 RSA No. 1971 of 2023 HC-KAR Sharma's case, earlier Trial Court taking into note of Phulavathi's case notional partition share was allotted.
4. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant that both the Courts have committed an error in granting the relief and also contend that suit for partition, whether it is maintainable or not excluding the joint family property which was excluded 30 years back and the same is hit by Section 110 of Limitation Act and ought to have considered and two Wills dated 31.01.1974 and 12.08.1999 were not considered and ought to have considered the same and hence, matter requires admission.
5. Having heard the learned counsel for the appellant and also considering the pleadings of the parties, it is the specific case of the plaintiff that suit schedule properties Item No.1 to 4 are joint family properties, but Trial Court granted the relief only in respect of item No.1 -6- NC: 2025:KHC:50477 RSA No. 1971 of 2023 HC-KAR to 3 and the same is confirmed by the First Appellate Court. The main contention of the appellant herein is that there were two Wills and earlier Will was executed in favour of defendant No.1 on 31.01.1974 and subsequently, inturn executed another Will on 12.08.1999 in favour of defendant No.2 by the defendant No.1. The Trial Court having considered the material on record in respect of the earlier Will is concerned, comes to the conclusion that the same has not been proved and the witnesses who have been examined as P.W.2 and P.W.3 were not subjected to cross-examination and the same has not been proved. When such being the case, I do not find any error on the part of Trial Court and First Appellate Court in coming to the conclusion that Will of the year 1974 was not proved and when that Will was not proved, question of executing the 2nd Will by the defendant No.1 in favour of defendant No.2 will not create any right. When such finding is given, both the Trial Court as well as First Appellate Court considered the material on record with -7- NC: 2025:KHC:50477 RSA No. 1971 of 2023 HC-KAR regard to both question of law and question of fact and also the appellant not questioned the finding of the Trial Court in challenging the same before the First Appellate Court and without questioning the same, in second appeal cannot question the same. Hence, I do not find any perversity in finding of the Trial Court and First Appellate Court and no ground is made out to invoke Section 100 of CPC.
6. In view of the discussions made above, I pass the following:
ORDER Second Appeal is dismissed.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 26