[Cites 4, Cited by 0]
Karnataka High Court
Smt Lakshmamma vs Smt Narayanamma on 1 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1836 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1836 OF 2024 (PAR)
BETWEEN:
1. SMT. LAKSHMAMMA
W/O MUNIVENKATASWAMY
D/O LATE VENKATAPPA
AGED ABOUT 64 YEARS
R/AT MARIYAPPANAPALYA VILLAGE
KASABA HOBLI
GOWRIBIDANUR TOWN AND TALUK
CHICKBALLAPUR DISTRICT-561 208.
...APPELLANT
(BY SRI. M.B. CHANDRACHOODA, ADVOCATE)
AND:
1. SMT. NARAYANAMMA
Digitally signed W/O G. GANGAIAH
by DEVIKA M D/O LATE VENKATAPPA
Location: HIGH AGED ABOUT 56 YEARS
COURT OF R/AT IDRAHALLI VILLAGE
KARNATAKA MAJARA CHINNAHALLI,
KASABA HOBLI, GUDIBANDE TALUK
C.B. PURA DISTRICT-561 209.
SRI. NARAYANAPPA
S/O LATE VENKATAPPA
SINCE DECEASED BY HIS LRS .
2. SMT. ESHWARAMMA
W/O LATE NARAYANAPPA
AGED ABOUT 65 YEARS
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3. SMT. ANITHA
D/O LATE NARAYANAPPA
AGED ABOUT 38 YEARS
4. SRI. MANJUNATHA
S/O LATE NARAYANAPPA
AGED ABOUT 33 YEARS
5. SMT. MAMATHA
D/O LATE NARAYANAPPA
AGED ABOUT 30 YEARS
6. SRI. PRAKASHA
S/O LATE NARAYANAPPA
AGED ABOUT 26 YEARS
RESPONDENT NOS.2 TO 6 ARE
R/AT BEHIND ST. JOSEPH
CONVENT SCHOOL,
CHICKBALLAPUR CITY,
CHICKBALLAPUR TALUK
AND DISTRICT-562 101.
7. SMT. ASHWATHAMMA,
D/O LATE VENKATAPPA,
AGED ABOUT 54 YEARS,
R/AT BESIDE VIDYA NIDHI SCHOOL
MADAVANAGARA
GOWRIBIDANUR CITY
CHIKBALLAPUR DISTRICT-561 208.
8. SMT. VENKATAMMA,
D/O LATE VENKATAPPA
W/O VENKATARAVANAPPA
AGED ABOUT 51 YEARS
R/AT GEDDALAPALYA VILLAGE
HADOHALLI POST
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT-561 203.
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SRI. ASHWATHAPPA
S/O LATE VENKATAPPA
SINCE DECEASED BY HIS LRS
9. SMT. MUNIYAMMA
W/O LATE ASHWATHAPPA
AGED ABOUT 46 YEARS
10. SMT. RADHA
D/O LATE ASHWATHAPPA
AGED ABOUT 26 YEARS
11. SMT. RENUKA
D/O LATE ASHWATHAPPA
W/O HANUMANTHAPPA
AGED ABOUT 24 YEARS
12. SRI MUNIRAJU
S/O LATE ASHWATHAPPA
AGED ABOUT 21 YEARS
13. SMT. RAJINI
D/O LATE ASHWATHAPPA
AGED ABOUT 25 YEARS
RESPONDENT NOS.9 TO 13 ARE
R/AT GEDDLAPALYA VILLAGE
THUBAGERE HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT-560 077.
14. SMT. NIRMALA
W/O NAGARAJ
AGED ABOUT 31 YEARS
R/AT IDAGURU VILLAGE
KASABA HOBLI
GOWRIBIDANUR TALUK
CHICKBALLAPUR DISTRICT-561 208.
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15. SRI. RAGHU
S/O GOPALA SWAMY
AGED ABOUT 55 YEARS
R/AT 203, VINAYAKA APARTMENTS
BOOPASANDRA
BANGALORE-94.
16. SRI. M.S. NAGARAJ
S/O M. SHIVALINGAIAH
AGED ABOUT 51 YEARS
R/AT 303
VINAYAKA APARTMENTS
BOOPASANDRA
BANGALORE-94.
17. SRI. G.P. RAJASHEKHAR
S/O PUTTACHAR
AGED ABOUT 61 YEARS
R/AT "C" DIVISION, V.V. PURAM
GOWRIBIDANUR TOWN AND TALUK
CHICKBALLAPUR DISTRICT-561 208.
SRI. DODDAPILAPPA
SINCE DECEASED BY HIS LRS
18. SMT. THYAVVA
W/O LATE DODDAPILLAPPA
AGED ABOUT 81 YEARS
19. SRI. GANGARAJU
S/O LATE DODDAPILAPPA
AGED ABOUT 66 YEARS
20. SRI. NARAYANASWAMY
S/O LATE DODDAPILLAPPA
AGED ABOUT 56 YEARS
RESPONDENT NOS.18 TO 20 ARE
R/AT KANDAVARAPETE
OLD AEO ROAD
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OPP: BHYRAWESHWARA NILAYA
CHICKBALLAPUR CITY - TALUK
AND DISTRICT-562 103.
21. SRI. NAGARAJ
S/O SUBBANNA
AGED ABOUT 43 YEARS
R/AT JAKKENAHALLI VILLAGE
IDAGUR MAZARA, KASABA HOBLI
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561 208.
...RESPONDENTS
(BY SRI. SANNAKKI UDAY KUMAR, ADVOCATE FOR C/R17)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 19.10.2024
PASSED IN R.A.NO.42/2023 ON THE FILE OF THE
III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 31.03.2023
PASSED IN OS NO.13/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, GOWRIBIDANUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. I have heard learned
counsel for the appellant and learned counsel for caveator-
respondent No.17.
2. This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court.
3. The factual matrix of case of the plaintiff while
seeking the relief of partition and separate possession is that
suit schedule properties are joint family properties of herself
and the defendants.
4. The defendants appeared and filed the written
statement contending that defendant No.1 claims that
Narayanappa has executed a registered Will in her favour on
23.02.2006. It is also the contention of defendant No.1 that he
has sold item No.1 for family benefit and legal necessity in
favour of defendant No.6 and in turn, defendant No.6 sold the
property in favour of defendant No.9. The Trial Court taking
note of pleadings of defendant No.9 also framed additional
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issue that defendant No.1 executed sale deed in favour of
defendant No.6 on 22.03.2013. Thereafter, defendant Nos.6 to
8 have sold item No.2 in his favour on 14.12.2015 and thus, he
is a bonafide purchaser of item No.2 and considering the
written statement of defendant No.9 also framed an issue that
item No.2 is the self-acquired property of Narayanappa and
Mulubagilamma.
5. The trial Court having considered the pleadings and
also the issues, allowed the parties to lead evidence. The
plaintiff, in order to prove the case, examined herself as P.W.1
and examined four witnesses as P.W.2 to P.W.5 and got
marked the documents Exs.P1 to P12 and unregistered Will
dated 31.12.2005 as Ex.P13. On the other hand, defendant
No.1, in support of her contention examined herself as D.W.1
and also examined in total 5 witnesses as D.W.2 to D.W.6 and
got marked the documents as Exs.D1 to D27 original registered
Will, mutation, RTC extracts, original SPA deed, Encumbrance
Certificates, certified copy of the registered sale deed three in
numbers as Exs.D15 to 17, mutations, hissa tippani, survey
atlas, Akar Bandh and RTC Extracts.
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6. The Trial Court considering both oral and
documentary evidence accepted the case of the defendants and
not accepted the case of the plaintiff and answered issue No.1
as 'negative' and issue No.2 as 'affirmative' that there was a
registered Will and the same is proved by examining the
witnesses and dismissed the suit.
7. Being aggrieved by the judgment and decree of the
Trial Court, the First Appellate Court also having considered the
grounds urged in the appeal memo, formulated the points
whether the Trial Court has not appreciated both oral and
documentary evidence in a proper manner and whether it
requires interference and also framed a point whether the
appellant has made out a ground to consider I.A.No.1 filed
under Order 41, Rule 27 read with Section 151 of CPC and
answered point Nos.1 and 2 as 'negative' and point No.3 as
'affirmative' in coming to the conclusion that Trial Court is
justified in dismissing the suit of the plaintiff accepting the case
of defendants i.e., original registered Will Ex.D1 and not
believed the document of Ex.P13. While doing so, particularly,
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taken note of the evidence of witnesses in paragraph Nos.28 to
31 and confirmed the judgment of the Trial Court.
8. The main contention of learned counsel appearing
for the appellant before this Court is that both the Courts have
committed an error in relying upon document of Ex.D1 and
ignored the document of Ex.P13 executed by Narayanappa at
an undisputed point of time, dividing the schedule properties
equally among the plaintiff and the defendants. The counsel
would vehemently contend that no reasons are assigned for
disinheriting the other family members and also counsel would
vehemently contend that earlier Will was dated 23.02.2006 and
the executant Narayanappa died on 26.02.2006 within a span
of 3 days. The counsel would vehemently contend that both the
Courts were not justified in dismissing the suit ignoring the fact
that Sy.No.55/3 is the joint family property of Nagappa. Hence,
this Court has to admit the second appeal and frame
substantial question of law.
9. Per contra, learned counsel appearing for caveator-
respondent No.17 would vehemently contend that document
which the plaintiff relies upon i.e., Ex.P13 is an unregistered
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document and the same has not been proved. The Will which is
marked on behalf of the defendants is Ex.D1 and the same is
proved which is a registered Will. Even the Trial Court has
taken note of Section 68 of the Indian Evidence Act and also
Section 63 of Indian Succession Act in paragraph Nos.35 and
36 and reasons are assigned with regard to proving of earlier
Will and not accepted the case of the plaintiff and witness
D.W.2, who is the son of late Srirama Naik, the Scribe of
Ex.D11 identifies his father's signature as Ex.D1(a). Though, he
was cross-examined, even remotely, no suggestion was put to
him that he is not the son of late Srirama Naik and said
Srirama Naik was not the deed writer by profession. He denies
the suggestion that his father has not prepared and signed
Ex.D1. He also denies the suggestion that he is falsely deposing
before the Court to help defendant No.1 and nothing is elicited
from the mouth of D.W.2. So also in respect of D.W.3, one of
the attesters of Ex.D1, she has deposed in her examination-in-
chief that her elder paternal uncle bequeathed his properties in
her sister Narayanamma's name and the evidence of D.W.2 and
D.W.3 is accepted. The First Appellate Court also in detail
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considered both oral and documentary evidence and confirmed
the same and it does not require any interference.
10. Having heard learned counsel for the appellant and
learned counsel for the caveator-respondent No.17, it is the
specific case of the plaintiff that suit schedule properties are
joint family properties. It is the case of the defendant that
properties are the separate properties of the executant and
both the plaintiff and the defendants claim the suit schedule
properties based on Ex.P13 as well as Ex.D1 respectively. The
Trial Court in detail taken note of evidence of D.Ws.1, 2 and 3
in coming to the conclusion that the Ex.D1-Will is a registered
document and nothing is elicited from the mouth of D.Ws.2 and
3 to disbelieve the case of the defendants with regard to the
Will is concerned and nothing elicited that Will is surrounded by
doubtful circumstances. Apart from that the Trial Court also
taken note of Ex.P13 which is an unregistered Will relied upon
by the plaintiff and comes to the conclusion that the same is
not proved by placing any credible evidence before the Court
and particularly taken note of evidence of attesting witnesses'.
The First Appellate Court also while reassessing the material
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available on record, keeping in view the contentions urged in
the appeal memo taken note that defendants have marked the
document Ex.D1 dated 23.02.2006 and the same is discussed
in paragraph No.25 and also taken note of the case of the
plaintiff that marked Ex.P13 is an unregistered Will which is
relied upon by the plaintiff and also taken note of the fact that
in order to prove the document of Will Ex.P13, the plaintiff has
examined two attesting witnesses P.W.4 and P.W.5.
11. The Trial Court also taken note of the fact that
plaintiff never pleaded in her plaint about execution of Ex.P13-
Will deed by deceased Narayanappa. In the absence of
pleadings, any amount of evidence will not help the plaintiff to
claim the relief on the basis of Ex.P13-Will deed and not sought
for any declaratory relief in respect of Ex.P13 Will deed and
considering the discussion made in paragraph Nos.24 and 25
and particularly, the evidence of witnesses D.W.2 and D.W.3
which has been discussed in paragraph No.26 and considered
the material in paragraph No.27 with regard to nature of the
property is concerned and observed that D.W.3-Ashwathamma
is the sister of both plaintiff and defendant No.1, who is not an
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attesting witness to Ex.D1-Will deed. However, she has
supported the defendant No.1 by stating that her elder brother
Ashwathappa puts his LTM signature on Ex.D1-Will deed. The
First Appellate Court also considered the cross-examination on
the part of P.W.1, wherein she has admitted that her younger
brother Ashwathappa puts his LTM on the Will deed executed
by Narayanappa and suggestion was made to P.W.1 that one
Ashwathappa, son of Venkatappa has signed Will deed for
which she has answered that they have obtained the LTM
signature of her younger brother on the Will deed when he was
suffering from ill-health. This admission made by P.W.1-
Lakshmamma clearly establishes that one of the attesting
witness of Ex.D1 is her younger brother and also P.W.1 in her
cross-examination admitted that her brother Ashwathappa put
his LTM on Ex.D1-Will deed and it is her explanation that his
LTM signature was obtained on Ex.D1 when he was suffering
from ill-health. All these materials were taken note of and
particularly in paragraph Nos.29 and 31 comes to the
conclusion that Ex.D1-Will is proved by examining witnesses
D.W.2 and D.W.3 and subsequently, item No.2 of the property
was sold on 22.03.2013 by defendant No.1 and her children in
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favour of defendant No.6, then, in turn, she sold the property
in favour of defendant No.9 through Ex.D17 on 14.12.2015 and
all these factors were taken note of that subsequent to
execution of Will also, item No.2 of the property was sold which
is discussed in paragraph Nos.30 and 31 and it is also admitted
by both the parties that suit schedule properties belong to
Narayanappa and no dispute with regard to the said fact is
concerned. When such being the case, I do not find any error
on the part of Trial Court and the First Appellate Court in
appreciating both oral and documentary evidence available on
record and no perversity is found in the findings of both the
Courts. The Will-Ex.D1 is proved by examining the witnesses
and the said Will is also a registered document and the same
was executed long back and when there was no pleading on the
part of the plaintiff with regard to Ex.P13 which is also an
unregistered document, the same was not accepted by both the
Trial Court as well as the First Appellate Court. When such
being the case, I do not find any ground to admit the second
appeal and frame any substantial question of law.
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12. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
