Karnataka High Court
Thimmegowda vs Subbegowda on 27 June, 2025
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RSA No. 608 of 2011
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 608 OF 2011 (DEC/INJ)
BETWEEN:
1. THIMMEGOWDA
SINCE DEAD BY HIS LRS
1(a) SMT. SHIVAMMA
W/O LATE THIMMEGOWDA
AGED ABOUT 72 YEARS
1(b). SRI. JAYARAMA @ JAYARAMEGOWDA
S/O LATE THIMMEGOWDA
AGED ABOUT 49 YEARS
Digitally signed
by BELUR 1(c). SRI. SWAMYGOWDA
RANGADHAMA S/O LATE THIMMEGOWDA
NANDINI AGED ABOUT 45 YEARS
Location: HIGH
COURT OF ALL ARE R/AT HOSALAKKEGOWDANA KOPPALU
KARNATAKA KYATHANAHALLI DHAKALE
HALLI MYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT - 573 210.
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2. DASEGOWDA
S/O LATE THIMMEGOWDA
@ KESTHURU THIMMA
AGED ABOUT 56 YEARS
BOTH ARE R/AT HOSALAKKEGOWDANA KOPPALU
HALLI MYSURU HOBLI,
HOLENARASIPURA TALUK.
3. THIMMAJAMMA
SINCE DEAD BY HER LRS
3(a) SRI. LAKKEGOWDA
S/O KEMPEGOWDA
AGED ABOUT 75 YEARS
3(b) SRI. SWAMY GOWDA
S/O LAKKEGOWDA
AGED ABOUT 45 YEARS
3(c) SRI. SURESH H.L.,
S/O LAKKEGOWDA
AGED ABOUT 42 YEARS
3(d) SRI. H.L. KUMARA
S/O LAKKEGOWDA
AGED ABOUT 40 YEARS
ALL THE LRS ARE
R/AT HOSALAKKEGOWDANA KOPPALU
HALLI MYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT.
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4. PUTTAMMA
W/O SANNEGOWDA
D/O LATE THIMMEGOWDA@
KESTHURU THIMMA
KALAMMANAKOPPALU GRAMA
SALIGRAMA HOBLI
N.R. NAGAR TALUK.
5. CHIKKAMMA
W/O ANNEGOWDA
D/O LATE THIMMEGOWDA@
KESTHURU THIMMA
HOSALAKKEGOWDANA KOPPALU
HALLI MYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT.
...APPELLANTS
(BY SRI. R.S. RAVI SENIOR COUNSEL FOR
SRI. AKARSH KUMAR GOWDA., ADV., FOR A2, A4, A5 &
PROPOSED LR'S OF DECEASED A3, A1(P/H; V/C/O DATED
04.04.2019 APPEAL AGAINST A3 IS DISMISSED AS
ABATED)
AND:
1. SUBBEGOWDA
S/O LATE JAVAREGOWDA
AGED ABOUT 58 YEARS
2. RANGEGOWDA
S/O LATE JAVAREGOWD
AAGED ABOUT 56 YEARS
3. KRISHNEGOWDA
S/O LATE JAVAREGOWDA
AGED MAJOR
ALL ARE R/AT KYATHANAHALLI
KOPPAL VILLAGE
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HOLENARASIPURA TALUK - 571 018.
...RESPONDENTS
(BY SRI. SYED AKBAR PASHA., ADVOCATE
FOR SRI MAHANTESH S. HOSMATH., ADVOCATE FOR R1
TO R3(P/H))
THIS RSA FILED UNDER SEC. 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 16.12.2010 PASSED IN
R.A.NO.31/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, K.R.NAGAR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 10.06.2008 PASSED IN
O.S.NO.75/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN)
AND JMFC, K.R.NAGAR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
Heard Sri. R.S. Ravi, learned Senior counsel appearing
for the appellants and Sri. Syed Akbar Pasha, learned
counsel appearing for the respondents.
2. This appeal is against the concurrent finding in a
suit for declaration of title and injunction. The plaintiffs
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sought a declaration that they are the absolute owners of the
suit property and also sought for injunction.
3. The defendants took a stand that defendants are
the owners of the property on the basis of a Will allegedly
executed by three persons, namely, Huchhegowda,
Honnegowda and Kesturu Thimma. The said Will is dated
25.04.1936 and same is marked as Ex.D1. Attesting
witnesses are not available. Scribe was not available. Hence,
son of one of attesting witnesses and the son of the scribe
were examined to prove the execution of Will.
4. The Trial Court accepted the contention of the
defendants and held that the Will is proved. The Trial Court
has also concluded that the plaintiffs did not establish that
they are the grandsons of the testators.
5. On appeal filed by the plaintiffs, First Appellate
Court concurred with the finding of the Trial Court.
6. Aggrieved by the aforementioned judgment and
decree, the plaintiffs are before this Court.
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7. Learned Senior counsel appearing for the
plaintiffs/appellants would submit that the Trial Court as well
as First Appellate Court committed a serious error in holding
that the Will is proved by applying presumption under
Section 90 of the Indian Evidence Act. Section 90 of the
Indian Evidence Act does not enable the Court to draw the
presumption relating to proof of a Will. In addition, it is also
submitted that there was no change of mutation pursuant to
the alleged Will dated 25.04.1936 and mutation was changed
only in the year 1989-90 that too without reference to
alleged Will and the respondents have not explained the
inordinate delay in not making a claim based on the alleged
Will, though alleged testators died 50 years ago.
8. It is also his further submission that signatures of
the testator and the attesting witnesses are not established
by examining the persons who are acquainted with the
signatures of the attesting witnesses. Thus, he would
contend that the finding relating to the proof of Will is wholly
erroneous.
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9. In addition, it is urged that the relationship of the
plaintiffs with the testators was admitted by the respondents
before the Assistant Commissioner when the appellants filed
an appeal challenging the mutation. This being the position,
the Trial Court as well as First Appellate Court could not have
held that the appellants are not the lineal descendants of the
testators.
10. Learned counsel appearing for the respondents
would submit that the original Will dated 25.04.1936 is
produced. Attesting witnesses were dead. The scribe was
also dead. The son of the scribe is examined to prove the
signature of the scribe. Son of one of the attesting witnesses
is also examined and the Will is proved in the manner known
to law.
11. It is also submitted that the Will is said to have
been proved based on the evidence led before the Trial Court
and the Will is not held to be proved only on the basis of
presumption under Section 90 of the Indian Evidence Act.
Assuming that presumption under Section 90 of the Indian
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Evidence Act is not available to uphold the execution of the
Will, the evidence on record is more than sufficient to uphold
the execution of the Will.
12. Learned counsel for the respondents would
further submit that the observations made in the orders
passed by the Assistant Commissioner, wherein the plaintiffs'
relationship with the testators is alleged to have been
admitted is not substantiated by producing the records other
than the observation. The said observation is incorrect and
same can be challenged in any other proceedings or
collateral proceedings and evidence on record would indicate
that the plaintiffs are not the lineal descendants of testators.
13. In the alternative, it is urged that assuming that
the plaintiffs are the lineal descendants of the testators, once
the Will is proved, the plaintiffs do not inherit any right over
the property.
14. In addition, it is also urged that the entry based
on the Will was certified in the year 1989 and 1990 and that
was within the knowledge of the plaintiffs and this aspect is
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admitted in the cross-examination, wherein the witness PW.1
says that he was aware of the mutation entry in the name of
the defendants 16 years prior to the evidence which was
recorded in the year 2006. Thus, he would contend that the
suit filed in the year 2003 is time barred.
15. This Court has considered the contention of the
parties and perused the records.
16. As can be seen, the original Will dated
25.04.1936 is marked as Ex.D1. There is no dispute that the
attesting witnesses to the alleged Will are no more when the
evidence was recorded, so also the scribe.
17. The son of one of the attesting witnesses has
identified his father's signature. The son of the scribe has
identified his father's signature. Nothing is pointed out in the
cross-examination of those two witnesses to disbelieve that
their evidence is not credible. Based on the evidence led by
two witnesses referred to above, the Trial Court and the First
Appellate Court have concurrently held that the execution of
the Will is proved. No glaring infirmity is pointed out in
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appreciating the evidence of said witnesses so as to interfere
in exercise of jurisdiction under Section 100 of the Code of
Civil Procedure.
18. Now the question is whether the delay on the part
of the defendants in not producing the Will immediately after
the death of three testators would be fatal to the case of the
defendants.
19. The defendants to substantiate their contention
that they are in possession of the property even before the
entries certified based on the Will have produced tax paid
receipts at Ex.D3 and D5, which are the tax paid receipts for
the year 1976 and 1982. Those tax paid receipts do not
reveal the survey number. However, said documents reveal
the name of one of the testators and it also reveals the name
of tax payer who is said to be one of the beneficiaries under
the Will.
20. The Trial Court has considered this aspect of the
matter and came to the conclusion that the beneficiaries
were in possession of the property even before the
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certification of the mutation entries. It is not the case of the
plaintiffs/appellants that the tax paid receipts are pertaining
to some other lands if any held by the respondents.
21. This being the position, the Court can conclude
that the said Will is acted upon. Thus, merely because there
is delay on the part of the respondents to move an
application to enter their names in the property records
based on the Will of the year 1936 by itself cannot be a
ground to disbelieve the claim based on the Will. It is an
admitted factual position that the predecessors of the
respondents were agricultural coolies. Thus, the delay in
filing in producing the Will for changing the property records
by itself is not a ground to disbelieve the Will. Moreso, in a
situation where the evidence indicates that the respondents
were in possession of the property even before certifying
their names in the property records. However, the delay in
producing the Will or making a claim based on the Will is one
of the suspicious circumstances and same has to be properly
explained by the legatee.
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22. In the cross-examination the plaintiff No.1 has
admitted that he came to know about the entry in the
property records 16 years prior to the date on which
evidence was led. Admittedly the evidence was led in the
year 2006. In other words, the plaintiff No.1 has admitted
that he came to know about the entry in the property
records in the year 1990. It is relevant to note that the
mutation is certified in the year 1989 and 1990.
23. Though it is stated in the cross-examination that
defendants have got their names entered in the property
records 16 years prior to the cross-examination, the said
entry is not based on the Will. It appears that the Will was
projected for first time before the Assistant Commissioner
when the appeal was filed challenging the change of katha in
the names of defendants. The Assistant Commissioner has
dismissed the appeal and directed the parties to approach
the Civil Court.
24. Though the katha was changed in the year 1989
not based on the Will, but the plaintiffs were aware that the
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katha was changed in the year 1989 itself. Challenging the
katha, the appeal is filed in the year 2000. Before the
Appellate Forum, the respondents have taken a contention
that the Will is executed in their favour. The Appeal is
dismissed directing the plaintiffs to approach the Civil Court.
25. Despite the defendants taking a contention before
the Assistant Commissioner that their right is based on the
alleged Will dated 25.04.1936, there is no challenge to the
Will when the suit was filed. The plaintiffs have sought a
declaration of title over the suit property. As already noticed,
the defendants have raised a contention based on the Will.
Though this Court is not holding that not challenging the Will
in the suit itself is a proof of execution of the Will,
considering the over all circumstances and the evidence
brought on record, the conduct of the plaintiffs in not
challenging the entry for 16 years and not raising a plea in
the plaint relating to the Will set up by the defendants who
had raised the contention based on the Will before the
Assistant Commissioner, would suggest that the plaintiffs
were also aware of the execution of the Will.
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26. On considering the evidence relating to proof of
Will, this Court has concurred with the concurrent finding
recorded by the Trial Court as well as First Appellate Court.
In the backdrop of aforementioned circumstances, the claim
that the defendants are in possession of the property
appears more probable.
27. Going through the evidence as well as the
reasoning assigned by the Trial Court, this Court is of the
view that the Trial Court has come to the conclusion that the
defendants are in possession of the property much prior to
the mutation entry being certified in the year 1989. The
findings recorded by the Trial Court and First Appellate Court
cannot be said to be findings without any basis or evidence.
And the finding relating to possession in favour of
respondents also leads to the conclusion that the Will might
have been executed in favour of the defendants by the three
testators in the year 1936.
28. The appellants have not produced any records to
disbelieve the execution of Will. The main contention appears
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to be that the Will is produced many years after the death of
the testators and not immediately after the death of the
testators. The delay in not producing the Will immediately
after the death of the testators in the facts and
circumstances of the present case does not appear to be
fatal to the case of the respondents.
29. This being the position, this Court is of the view
that the findings recorded by the Trial Court which are
confirmed by First Appellate Court cannot be interfered in
exercise of jurisdiction under Section 100 of Code of Civil
Procedure.
30. The observation made by the Trial Court that the
presumption under Section 90 of the Indian Evidence Act is
available to prove the execution of a 30 years old Will is
erroneous.
31. On reconsideration of the judgments and decrees
passed by the Trial Court and First Appellate Court, this
Court is of the view that the reasons assigned based on
presumption under Section 90 of the Indian Evidence Act,
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are not the only reason assigned to uphold the execution of
Will. In addition to the aforementioned reason which of
course is erroneous, the Trial Court and First Appellate Court
have held that execution of Will is proved based on evidence.
32. Though it is urged by the learned Senior counsel
appearing for the appellants that the finding relating to the
relationship recorded by the Trial Court and First Appellate
Court is contrary to admission by the respondents before the
Assistant Commissioner, this Court is of the view that even if
the relationship is held to be established that would not
change the course of succession based on the Will at Ex.D1.
33. No substantial question of law would arise for
consideration.
34. For the aforementioned reasons, the appeal is
dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RU
