[Cites 3, Cited by 0]
Karnataka High Court
Sri Basavanna vs Smt Devamma on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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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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RSA No. 1971 of 2023
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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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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
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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
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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
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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
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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
