Karnataka High Court
Shankar Laxmanrao Shindhe vs Durgabai W/O Hanumantrao Mane on 27 February, 2025
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NC: 2025:KHC-D:3939
RSA No. 100476 of 2015
C/W RSA No. 100475 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100476 OF 2015
C/W
REGULAR SECOND APPEAL NO. 100475 OF 2015
IN RSA 100476 OF 2015
BETWEEN:
SRI. SHANKAR LAXMANRAO SHINDHE
AGED ABOUT 64 YEARS, OCC. NIL,
R/O. TADAKOD ONI (MANGALWARPET)
DHARWAD, R/BY ITS PA HOLDER
VIJAY S/O. SHANKAR SHINDHE
AGE ABOUT 36 YEARS, OCC: PRIVATE SERVICE,
R/O. TADAKOD ONI (MANGALWARPET)
DHARWAD-580001.
SINCE DEAD BY HIS LERS
Digitally
signed by 1A) SMT. ARATI W/O. SHANKAR SHINDHE
VN
BADIGER AGE. 57 YEARS, OCC: HOUSEHOLD,
Location:
High 1B) VIJAY S/O. SHANKAR SHINDHE,
Court of
Karnataka, AGE: 36 YEARS, OCC: PRIVATE SERVICE,
Dharwad
Bench
1C) VIKAS S/O. SHANKAR SHINDHE,
AGE: 37 YEARS, OCC: NIL,
1D) NANDA W/O. NARAYAN JADHAV,
AGE: 35 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O. TADAKOD ONI (MANGALWARPET),
DHARWAD-580001.
...APPELLANTS
(BY SRI. MAHESH WODEYAR, ADVOCATE)
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RSA No. 100476 of 2015
C/W RSA No. 100475 of 2015
AND:
1. DURGABAI W/O. HANUMANTHRAO MANE
AGE: 55 YEARS, OCC: NIL,
R/O TADAKOD ONI (MANGALWARPET)
DHARWAD-580001.
KAMALABAI W/O. VIJAYRAO GAYAKWAD
2. RADHA W/O. ARAVIND MANE,
AGE: MAJOR, OCC: HOUSEHOLD,
3. RAJASHREE W/O. ASHOK KARADE,
AGE: MAJOR, OCC: HOUSEHOLD.
4. LAXMIBAI W/O. LAXMAN JADHAV
AGE: MAJOR, OCC: HOUSEHOLD,
5. ANAND S/O. VIJAYRAO GAYAKWAD
AGE: MAJOR, OCC: NIL,
6. BHARATI D/O. VIJAYRAO GAYAKWAD,
AGE: MAJOR, OCC: HOUSEHOLD,
7. ARATI D/O. VIJAYRAO GAYAKWAD,
AGE: MAJOR, OCC: HOUSEHOLD,
ALL ARE R/O TADAKOD ONI,
(MANGALWARPET)
DHARWAD-580001.
8. SONUBAI W/O. BABURAO PAWAR,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O JADHAV CHAWL, BENGERI,
HUBBALI, DHARWAD DISTRICT.
9. PADMA W/O ARJUNRAO BHOSALE,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O NAVALUR, DHARWAD DISTRICT.
10. RUKMINI W/O. NETAJIRAO CHAVAN
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O TADAKOD ONI, DHARWAD.
11. LALITABAI W/O. LAXMANRAO BILLE
AGE: MAJOR, OCC: HOUSEHOLD,
R/O KURAPALIES COMPOUND,
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RSA No. 100476 of 2015
C/W RSA No. 100475 of 2015
NEAR KCD, DHARWAD DISTRICT.
12. SHARADA W/O. ANANDAPPA SHINDHE,
AGED ABOUT: 44 YEARS,
OCC: HOUSEHOLD,
13. LAXMIBAI W/O. ANANDAPPA SHINDHE,
AGED ABOUT: 35 YEARS,
OCC: HOUSEHOLD,
BOTH ARE R/O. TADAKOD ONI,
(MANGALWAR PET), DHARWAD
...RESPONDENTS
(BY SRI S.B.MALLIGAWAD, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.02.2015
PASSED BY THE LEARNED III ADDITIONAL SENIOR CIVIL JUDGE,
DHARWAD IN R.A.NO.61/2015 AND CONSEQUENTLY RESTORE THE
JUDGMENT AND DECREE DATED 22.06.2012 PASSED BY THE
LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, DHARWAD IN OS
NO.552/2008.
IN RSA 100475 OF 2015
BETWEEN:
SRI. SHANKAR LAXMANRAO SHINDHE
AGED ABOUT 64 YEARS, OCC. NIL,
R/O. TADAKOD ONI (MANGALWARPET)
DHARWAD, R/BY ITS PA HOLDER
VIJAY S/O. SHANKAR SHINDHE
AGE ABOUT 36 YEARS, OCC: PRIVATE SERVICE,
R/O. TADAKOD ONI (MANGALWARPET)
DHARWAD-580001.
SINCE DEAD BY HIS LERS
1A) SMT. ARATI W/O. SHANKAR SHINDHE
AGE. 57 YEARS, OCC: HOUSEHOLD,
1B) VIJAY S/O. SHANKAR SHINDHE,
AGE: 36 YEARS, OCC: PRIVATE SERVICE,
1C) VIKAS S/O. SHANKAR SHINDHE,
AGE: 37 YEARS, OCC: NIL,
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RSA No. 100476 of 2015
C/W RSA No. 100475 of 2015
1D) NANDA W/O. NARAYAN JADHAV,
AGE: 35 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O. TADAKOD ONI (MANGALWARPET),
DHARWAD-580001.
...APPELLANTS
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
KAMALABI W/O. VIJAYRAO GAYAKWAD
SINCE DECEASED BY HER LRS.
1. RADHA W/O. ARAVIND MANE
AGE: MAJOR, OCC: HOUSEHOLD,
2. RAJASHREE W/O. ASHOK KARADE,
AGE: MAJOR, OCC: HOUSEHOLD.
3. LAXMIBAI W/O. LAXMAN JADHAV
AGE: MAJOR, OCC: HOUSEHOLD,
4. ANAND S/O. VIJAYRAO GAYAKWAD
AGE: MAJOR, OCC: NIL,
5. RAJU S/O. VIJAYRAO GAYAKWAD,
AGE: MAJOR, OCC: NIL,
6. JAYASHRI W/O. VIJAYRAO GAYAKWAD,
AGE: MAJOR, OCC: HOUSEHOLD,
7. SHARADA W/O. ANANDAPPA SHINDHE,
AGED ABOUT: 44 YEARS,
OCC: HOUSEHOLD,
8. LAXMIBAI W/O. ANANDAPPA SHINDHE,
AGED ABOUT: 35 YEARS,
OCC: HOUSEHOLD,
ALL ARE R/O. TADAKOD ONI,
(MANGALWAR PET), DHARWAD
...RESPONDENTS
(BY SRI S.B.MALLIGAWAD, ADVOCATE)
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RSA No. 100476 of 2015
C/W RSA No. 100475 of 2015
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.02.2015
PASSED BY THE LEARNED III ADDITIONAL SENIOR CIVIL JUDGE,
DHARWAD IN R.A.NO.100/2010 CONFIRMING THE JUDGMENT AND
DECREE DATED 15.09.2010 PASSED BY THE LEARNED III
ADDITIONAL CIVIL JUDGE, DHARWAD IN O.S.NO.345/1996 AND
CONSEQUENTLY DECREE THE SUIT AS PRAYED FOR.
IN THESE APPEALS ARGUMENTS BEING HEARD, RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
1. These appeals are preferred by Sri.Shankar
Laxmanrao Shindhe, wherein in RSA No.100475/2015,
Appellant is challenging the judgment and decree dated
26.02.2015 passed in R.A.No.100/2010 on the file of the
III Additional Senior Civil Judge, Dharwad dismissing the
appeal and confirming the judgment and decree dated
15.09.2010 passed in O.S.No.345/1996 on the file of the
III Additional Civil Judge, Dharwad, dismissing the suit of
the plaintiff.
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2. RSA No.100476/2015 is filed challenging the
judgment and decree dated 26.02.2015 passed in
R.A.No.61/2012 on the file of the III Additional Senior Civil
Judge, Dharwad allowing the appeal and setting aside the
judgment and decree dated 22.06.2012 passed in
O.S.No.552/2008 on the file of the Principal Civil Judge
and Principal JMFC, Dharwad, dismissing the suit of the
plaintiff.
3. For the sake of convenience, the parties in
these appeals shall be referred to in terms of their status
and ranking before the Trial Court.
4. In RSA No.100475/2015, it is the case of the
plaintiff that, the property bearing CTS No.2518/M was
originally belonged to one Smt.Renavva wife of
Shankarappa Shinde. The said Revavva had two children
namely, Anandappa and Laxmanrao. Anandappa had eight
daughters and Laxmanrao had three sons. It is pleaded in
the plaint that, Anandappa and his wife Shantabai had
never taken care of welfare of Smt.Renavva and as such,
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the said Renavva, had affection towards her grandson-
Shankar Shinde (plaintiff). Renavva had executed
registered Will dated 21.05.1963 in favour of plaintiff. It is
also stated that Anandappa (father of defendants) had
filed L.C.No.40/1965 seeking relief of declaration and
possession, based on the Gift Deed dated 15.12.1911 said
to have been executed by Smt.Renavva in favour of
Anandappa and the said Gift Deed was rejected in
L.C.No.40/1965. It is also stated in the plaint that
Anandappa died leaving behind his daughters and as such,
the defendant No.1 -Kamalabai was in a pathetic condition
and as such, the plaintiff on humanitarian consideration,
allowed the defendant No.1 to stay in a portion of the suit
property as a licensee. Thereafter, the defendant Nos.2
and 3 also stayed with their sister - defendant No.1 in the
portion of the property.
5. It is the case of the plaintiff that, the
defendants were harassing the plaintiff and his family
members and as such, plaintiff caused legal notice dated
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16.03.1995 to the defendants to hand over the vacant
possession of the suit property, however, same was not
replied by the defendants and as such, the plaintiff filed
O.S.No.345/1996 seeking relief of possession of the suit
property.
6. After service of summons, the defendants
entered appearance and filed detailed written statement
denying the averments made in the plaint. It is the case
of the defendants that Smt.Renavva was owner of the suit
property. It is stated that, health of Smt.Renavva was not
good and was not in a position to execute the Will and also
the said Renavva had executed Gift Deed in favour of
Anandappa. It is also stated in the written statement that,
in L.C.No.40/1965, the Court has no occasion to decide
the legality of the Gift Deed and thereafter, as per the Gift
Deed, Anandappa became the owner of the property in
question. It is also stated by the defendants that the
defendants also become owner by adverse possession and
accordingly, sought for dismissal of the suit.
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7. On the basis of the rival pleadings, the Trial
Court has formulated issues and additional issues for its
consideration.
8. In order to establish their case, plaintiff has
examined two witnesses as PW.1 and PW.2 and got
marked 29 documents as Exs.P.1 to P.29. On the other
hand, defendants have examined two witnesses as DW.1
and DW.2 and produced 21 documents as Exs.D.1 to D.21.
Court witness was examined as CW.1 and marked two
documents as Exs.C.1 and C.2.
9. The Trial Court, after considering the material
on record, by its judgment and decree dated 15.09.2010
dismissed the suit of the plaintiff and being aggrieved by
the same, the plaintiff has preferred Regular Appeal in
R.A.No.100/2010 on the file of First Appellate Court. The
said appeal was resisted by the defendants. The First
Appellate Court after re-appreciating the facts on record,
by its judgment and decree dated 26.02.2015 dismissed
the appeal and confirmed the judgment and decree passed
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by the Trial Court in O.S.No.345/1996. Being aggrieved by
the same, plaintiff filed RSA No.100475 of 2015.
10. In RSA No.100476/2015, it is the case of the
plaintiffs that, the property bearing CTS No.2518/M was
originally belonged to one Smt.Renavva wife of
Shankarappa Shinde. The said Revavva had two children
namely, Anandappa and Laxmanrao. Anandappa had eight
daughters (plaintiffs) and Laxmanrao had three sons.
Defendant is the son of Laxmanrao. The said Renavva had
acquired the suit schedule property from her sister-in-law-
Smt.Narasavva Pawar, through Will. Parents of the
plaintiffs died leaving behind the plaintiffs to succeed to
the estate of deceased Anandappa. It is also stated in the
plaint that, Anandappa (father of plaintiffs) had filed
L.C.No.40/1965 seeking relief of declaration and
possession against Laxmanrao (father of the defendant)
based on the Gift Deed dated 15.12.1911 which came to
be dismissed. Thereafter, plaintiffs filed O.S.No.540/1993
against the defendants, which came to be dismissed by
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judgment and decree dated 28.09.1999. Thereafter,
R.A.No.189/1999 was preferred by the plaintiff which was
re-numbered as R.A.No.192/2003, which came to be
dismissed. The defendant also filed O.S.No.345/1995
against the plaintiffs seeking possession of the suit
property based on registered Will dated 21.05.1963 and
the said Will was not proved and pleaded that, same is not
binding on the plaintiffs.
11. It is the case of the plaintiffs that, the suit
property is joint family property of plaintiffs and
defendants, hence, the plaintiffs have filed
O.S.No.552/2008 seeking relief of partition and separate
possession in respect of suit schedule property.
12. After service of summons, the defendant
entered appearance and filed detailed written statement
denying the averments made in the plaint. It is the case
of the defendant that Smt.Renavva was owner of the suit
property and has executed registered Will dated
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21.05.1963 in favour of the defendant and as such, the
defendant sought for dismissal of the suit.
13. On the basis of the rival pleadings, the Trial
Court has formulated issues and additional issues for its
consideration.
14. In order to establish their case, plaintiffs have
examined one witness as PW.1 and got marked 22
documents as Exs.P.1 to P.22. On the other hand,
defendants have examined five witnesses as DW.1 to
DW.5 and produced 36 documents and same were marked
as Exs.D.1 to D.36.
15. The Trial Court, after considering the material
on record, by its judgment and decree dated 22.06.2012
dismissed the suit of the plaintiffs and being aggrieved by
the same, the plaintiffs have preferred Regular Appeal in
R.A.No.61/2012 on the file of First Appellate Court. The
said appeal was resisted by the defendant. The First
Appellate Court after re-appreciating the facts on record,
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by its judgment and decree dated 26.02.2015 allowed the
appeal and set aside the judgment and decree passed by
the trial Court in O.S.No.552/2008. Being aggrieved by the
same, defendant has filed RSA No.100476 of 2015.
16. This Court vide order dated 11.01.2023, has
framed the following substantial questions of law:
Whether the First Appellate Court is justified in
considering the suit property to be the joint
family property merely because in the will
dated 21.05.1963 executed by Smt. Renavva in
favour of the appellant resulted in exclusion of
the respondents' share in the property.
Whether the Trial court and the First Appellant
Court were justified in dismissing the suit
despite the plaintiff proving the Will in
accordance with the provisions of Sections 69
and 70 of the Evidence Act merely on the
purported ground of suspicious circumstance
surrounding the execution of Will."
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17. I have heard Sri.Mahesh Wodeyar, learned
counsel for the appellants and Sri.S.B.Malligawad, learned
counsel appearing for the respondents.
18. Sri.Mahesh Wodeyar, learned counsel for the
appellants, submits that the appellants have proved Will as
required under Sections 59 and 63 of Indian Succession
Act and further the Will in question is a registered
document and therefore the finding recorded by the Court
below that the plaintiff has not proved the due execution
of the Will is incorrect and accordingly sought for
interference of this Court.
19. It is also contended by the learned counsel for
the appellants that the plaintiff has examined the Sub-
Registrar, who is the competent authority to give evidence
in respect of proof of execution of the Will and therefore
the burden is on the defendants to disprove the execution
of Will and the said aspect of the matter was not
considered by the Appellate Court. He also submitted that
the defendants have not proved that the suit property has
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been gifted by the Smt.Renavva in favour of the father of
the defendants and same is evident in the judgment and
decree in L.C.No.40/1965 and the said aspect has been
ignored by both the Courts below.
20. It is also contended by the learned counsel for
the appellants that the registered Will is dated 21.05.1963
and as the said document is more than 30 years old,
which shall carry the presumptive value of its contents and
accordingly sought for interference of this Court.
21. Sri.S.B.Malligawad, learned counsel for the
respondents submits that both the Courts below in RSA
No.100475/2015 appreciated the entire material on record
and arrived at a conclusion that the plaintiff has failed to
prove the due execution of the Will so also the plaintiff has
not removed the suspicious circumstances as raised by the
defendants and therefore it is argued that the appeals
deserve to be dismissed.
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22. Heard the learned counsel appearing for both
the parties and perused the original records.
23. It is forthcoming from the finding recorded by
the Courts below that parties are closely related to each
other. The genealogy of the parties is set out as under:
Shankarappa Shindhe
Smt. Renavva (Wife) (dead 25-1-1964)
Anandappa (Dead 15-7-1970) Laxman Rao (dead -1993)
Smt. Shantabai (Dead 14-9-1979) Leelabai (wife) (Dead 2014)
1. Smt. Durgavva Shankar (son) (dead 3-8-2016)
2. Smt. Kamalabai
3. Smt. Sonuba Arathi Shankar Shinde (wife)
4. Smt. Padma
5. Smt. Rukmini Vijaya (son) vikas (son) Nanda (daughter)
6. Smt. Lalita
7. Smt. Sharada
8. Smt. Laxmi
24. Perusal of the genealogy would indicate that the
original propositus Shankarappa Shinde and Renavva had
two children namely Anandappa (father of plaintiffs in
O.S.No.552/2008) and Laxmanrao (father of the plaintiff
in O.S.No.345/1996). It is the case of the parties that
Smt.Renavva acquired the suit schedule property from her
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brother's wife - Narasavva. It is the case of the plaintiff in
O.S.No.345/1996 that the said Renavva had executed
registered Will dated 21.05.1963 in favour of the plaintiff -
Shankar. It is the case of the defendants in
O.S.No.345/1996 that the suit property was gifted by
Smt.Renavva as per registered Gift dated 15.12.1911. It is
to be noted that if the plaintiff in O.S.NO.345/1996
succeeds in the appeal that the plaintiff has proved the
due execution of the registered Will dated 21.05.1963,
(Ex.P.2) in O.S.No.345/1996, the plaintiff will succeed in
the dispute. On the other hand, the plaintiffs in
O.S.No.552/2008 proves that the subject matter of the
suit was gifted to their father as per the registered Gift
Deed dated 15.12.1911, the said plaintiff will get the share
in the suit schedule property.
25. It is not in dispute that the father of the
plaintiffs in O.S.No.552/2008 i.e. Anandappa had filed
L.C.No.40/1965 against Laxmanrao (father of defendant in
O.S.No.552/2008) seeking declaration of title based on the
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Gift Deed dated 15.12.1911 and the said suit came to be
dismissed and thereafter the plaintiffs in O.S.No.552/2008
have filed O.S.No.540/1993 against the defendant in
O.S.No.552/2008 and the said suit also came to be
dismissed and same was confirmed in R.A.No.189/1999
(renumbered as R.A.No.192/2003) before the Principal
District Judge, Dharwad.
26. In that view of the matter, I have carefully
examined the finding recorded by the Courts below with
regard to ascertaining whether the plaintiff in
O.S.No.345/1995 proves that he had acquired the suit
property based on registered Will dated 21.05.1963. The
plaintiff has examined two witnesses. Plaintiff himself was
examined as PW.1 and also he is the legatee under the
Will. It is well established principle in law by the Hon'ble
Supreme Court in the case of H. Venkatachala Iyengar
vs. B. N. Thimmajamma & Others reported in AIR
1959 SC 443, wherein the Hon'ble Supreme Court laid
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down guidelines to prove the due execution of the Will by
the propounder of the Will.
27. It is not in dispute that the Will deed dated
21.05.1963 (Ex.P.2) was signed by two witnesses namely
Ramachandra Amrutrao Gatage and Y.Dodekar. Ex.P.2
was written by one Traimbak Naik. It is the deposition of
PW.2 (mother of PW.1) that one attesting witness was
Ramachandra Gatage however they were not aware about
the second witness. It is to be noted that PW.2 was also
present at the time of execution of the registered Will as
deposed by PW.1. The PW.1 and PW.2 deposed that one of
the witnesses- Ramachandra Gatage is no more, however,
the propounder of the Will - plaintiff in O.S.No.345/1996
has not proved the Will by examining the children of the
said witness - Ramachandra Gatage, with regard to prove
the signature on the Will in question.
28. It is also to be noted that mere registration of
the Will is of no consequence unless the Will is duly proved
in accordance with Section 63 of Indian Succession Act
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and Section 68 of Indian Evidence Act. The plaintiff has
not produced any material except making oral deposition
that one of the witnesses Ramachandra Gatage died.
Taking into account the finding recorded by the Trial Court
at para nos.35 to 46, I am of the opinion that the plaintiff
in O.SNo.345/1996 has not proved due execution of the
Will said to have been propounded by the plaintiff in
O.S.No.345/1996.
29. Even though learned counsel for the appellants
argued that no reasons have been assigned in the Will
excluding the legal heir and the said argument cannot be
accepted on the sole ground that the testamentary
disposition of the property is an exception to succession of
the property by the legal heirs. In that view of the matter,
as the CW.1 - Sub-Registrar is not a competent witness to
depose about the due execution of the registration of a
Will, the Trial Court has rightly dismissed the suit in
O.S.No.345/1996 and same was confirmed by the
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Appellate Court in R.A.No.100/2010 and therefore, RSA
100475/2015 is liable to be dismissed.
30. The substantial question of law framed above
favours the plaintiffs in O.S.No.552/2008 as the suit
schedule property is belonging to the grandmother of
plaintiffs and defendants respectively and therefore both
the children of Smt.Renavva - Anandappa and Laxmanrao
are entitled for half share in the suit schedule property and
therefore the Trial Court in O.S.No.552/2008 has
committed an error in dismissing the suit and same was
rectified by the First Appellate Court in R.A.No.61/2012
holding that the plaintiffs is together entitled for half share
in the suit schedule property and remaining half share
shall be succeeded by the plaintiffs in O.S.No.345/1996.
Accordingly, the substantial question of law favours the
respondents herein.
31. Hence I pass the following:
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ORDER
i. Appeals are dismissed.
ii. Judgment and decree dated 26.02.2015 passed in
R.A.No.100/2010 on the file of the III Additional
Senior Civil Judge, Dharwad dismissing the appeal
and confirming the judgment and decree dated
15.09.2010 passed in O.S.No.345/1996 on the file
of the III Additional Civil Judge, Dharwad, is
hereby confirmed.
iii. Judgment and decree dated 26.02.2015 passed in
R.A.No.61/2012 on the file of the III Additional
Senior Civil Judge, Dharwad allowing the appeal
and setting aside the judgment and decree dated
22.06.2012 passed in O.S.No.552/2008 on the file
of the Principal Civil Judge and Principal JMFC,
Dharwad, is hereby confirmed.
iv. O.S.No.345/1996 on the file of III Additional Civil
Judge, Dharwad is hereby dismissed.
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v. O.S.No.552/2008 on the file of Principal Civil
Judge and Principal JMFC, Dharwad is hereby
decreed holding that the plaintiffs together are
entitled for half share in the suit schedule property
and defendant is entitled for remaining half share
in the suit schedule property.
Sd/-
(E.S.INDIRESH)
JUDGE
SB/sh
CT:ANB
