[Cites 2, Cited by 0]
Karnataka High Court
Bommegowda vs Jayamma on 17 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 231 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.231 OF 2025 (PAR)
BETWEEN:
1. BOMMEGOWDA
SON OF (LATE) NINGEGOWDA,
AGED ABOUT 70 YEARS
RESIDING AT GANANGURU VILLAGE,
K.SHETTAHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571438
...APPELLANT
(BY SRI. BYRE GOWDA N., ADVOCATE)
AND:
1. JAYAMMA
Digitally signed WIFE OF BASAVARAJU,
by DEVIKA M AGED ABOUT 65 YEARS,
Location: HIGH RESIDING AT NEELANAKOPPALU,
COURT OF
KARNATAKA K.SHETTAHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571438.
2. PUTTEGOWDA,
SON OF (LATE) NINGEGOWDA,
AGED ABOUT 72 YEARS.
3. BASAVARAJU,
SON OF (LATE) NINGEGOWDA,
AGED ABOUT 67 YEARS.
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RSA No. 231 of 2025
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4. LAKSHMI,
WIFE OF (LATE) SHIVANNA,
AGED ABOUT 56 YEARS.
5. MAHADEVA,
SON OF (LATE) NINGEGOWDA,
AGED ABOUT 61 YEARS.
RESPONDENTS NO.2 TO 5 ARE
RESIDING AT GANANGURU VILLAGE,
T.M.HOSURU POST,
K.SHETTAHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571438.
6. MAHATMA GANDHI VIDYAPEETHA TRUST,
BENGALURU,
DAYANANDA SAGAR COLLEGE OF PHARMACY,
SHAVIGE MALLESWARAM HILLS,
KUMARASWAMY LAYOUT,
BENGALURU-560078.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.08.2024
PASSED IN R.A.NO.5043/2017 ON THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT
SRIRANGAPATNA), DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
16.03.2017 PASSED IN O.S.NO.31/2009 ON THE FILE OF PRL.
SENIOR CIVIL JUDGE AND JMFC, SRIRANGAPATNA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 231 of 2025
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard The
learned counsel for appellant.
2. This second appeal is filed against the
concurrent finding. The factual matrix of case of plaintiff
before the Trial Court that suit schedule properties are the
ancestral and joint family properties of the plaintiff and
defendant Nos.1, to 3 and 5 and hence, claimed that she
is entitled for partition and separate possession of 1/6th
share as claimed in her claim in all the suit schedule
properties. The defendant appeared and filed written
statement contending that there was already a partition
had taken place between the father of the plaintiff late
Ningegowda and his sons defendant Nos.1, 2, 3 and 5
under a palupanchayat parikathi dated 08.04.2001 and the
properties mentioned in paragraph No.4 of the written
statement fell into the share of the parties respectively
and so also took the contention that a Will was executed
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by the father in respect of the property which was allotted
in his favour on 03.06.2002 and also contended that at the
time of marriage, they have given Rs.3,00,000/-. The
defendant No.6 taken specific defense in the written
statement that in the family partition, Item No.1 of the
suit schedule property was allotted to the share of
defendant No.2. The defendant No.6 also contended that
he is the bonafide purchaser of Item No.1 of the suit
schedule property under registered sale date dated
08.02.2008. Further contended that suit is filed for partial
partition without excluding all the family properties and
suit is also barred by limitation. The Trial Court having
considered both oral and documentary evidence, comes to
the conclusion that already there was a partition and also
comes to the conclusion that plaintiff is entitled for a share
in the property belongs to the father and Additional Issue
No.1 and 2 also answered that already there was a
partition and properties are allotted to the 2nd defendant
and 2nd defendant inturn sold the property in favour of the
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6th defendant and hence, the Trial Court partly decreed the
suit by granting the relief of 1/6th share only in respect of
particular survey number of 3 items of the suit schedule
property i.e., Sy.No.167/P4 measuring 11 guntas,
Sy.No.168/2 measuring 23 guntas situated at M.Shettihalli
village and Sy.No.105 measuring 16 guntas situated at
Ganangoor Village and in one Ankana of residential house
situated at Ganangoor village left behind by deceased
Ningegowda son of Puttegowda in respect of other
property is concerned, dismissed the same. The plaintiffs
have not filed any appeal. But, the defendant
No.2/appellant filed an appeal before the First Appellate
Court in R.A.No.5043/2017. The Appellate Court even
allowed the appellant to lead evidence with regard to the
Will is concerned. The D.W.1 to D.W.3 are also examined
before the First Appellate Court.
3. The First Appellate Court having considered
both oral and documentary evidence, comes to the
conclusion that though the appellant/defendant No.2
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propounded the Will and the same has not been proved
and with regard to the proving of the Will is concerned,
detailed reasons are given in paragraph No.47, 48 and 49
considering the evidence of D.W.2 and Will has not been
proved and comes to the conclusion that Ex.D4 was got
executed by Bommegowda when his father was not in a
sound state of mind and when the document Ex.D4 was
not established, defendant has failed to prove that he is an
absolute owner of these particular three survey numbers
and hence, confirmed the judgment of the Trial Court.
4. Being aggrieved by the same, the present
second appeal is filed before this Court. The main
contention of the counsel appearing for the appellant that
inspite of D.W.2 and D.W.3 have been examined to prove
the document of Ex.D4, First Appellate Court committed
an error in not accepting the case of the appellant and
hence, this Court has to admit and frame substantive
question of law.
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5. Having heard the learned counsel for appellant
and also considering the material available on record, the
Trial Court granted the relief only in respect of the
property which was left by the father and already comes to
the conclusion that there was a division between the
father and sons before filing the suit itself and though
appellant pleaded that there was a Will in his favour, but
he did not produce the Will in favour of him which was
executed by the father. But, an attempt is made before
the First Appellate Court and produced the same and
examined two witnesses D.W.2 and D.W.3. The First
Appellate Court having perused both oral and
documentary evidence, comes to the conclusion that the
evidence of D.W.2 and D.W.3 is not credible and not
inspires the confidence of the Court to prove the Will. The
very execution of document Ex.D4 was got executed by
appellant when his father was not in a sound state of mind
and the said conclusion is given based on the evidence of
D.W.2 and D.W.3 and not accepted the case of the
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appellant. When such being case, when the First Appellate
Court considered both oral and documentary evidence,
particularly the evidence of D.W.2 and D.W.3 and his
evidence not inspires the confidence of the Court with
regard to the very sound state of mind of the deceased.
Hence, I do not find any ground to admit and frame
substantive question of law and hence, not a case to
invoke Section 100 of CPC.
6. In view of the discussions made above, I pass
the following:
ORDER
i) Second appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same
stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
List No.: 1 Sl No.: 56
