Karnataka High Court
Smt. Sumathi Shedti vs Smt. Vinutha on 14 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1470 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1470 OF 2024 (PAR)
BETWEEN:
1. SMT. SUMATHI SHEDTI
AGED ABOUT 73 YEARS
W/O SRI. SHANKARA SHETTY
D/O LATE SRI. JAGANNATHA HEGDE
R/O BELANJE HONDADE MANE
BELANJE VILLAGE
KARKALA TALUK
UDUPI DISTRICT-574104.
...APPELLANT
(BY SRI. MOHAN S., ADVOCATE)
AND:
1. SMT. VINUTHA
Digitally signed AGED ABOUT 35 YEARS
by DEVIKA M
D/O LATE SUDHAKAR HEGDE,
Location: HIGH
COURT OF
KARNATAKA 2. SMT. SHANTHA S. HEGDE
AGED ABOUT 72 YEARS
W/O LATE SRI. SUDHAKAR HEGDE
3. SRI. SANDEEP HEGDE
AGED ABOUT 43 YEARS
S/O LATE SRI. SUDHAKAR HEGDE
4. SRI. SWAROOP HEGDE
AGED ABOUT 41 YEARS
S/O LATE SRI. SUDHAKAR HEGDE
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RSA No. 1470 of 2024
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5. SMT. MAMATHA
AGED ABOUT 45 YEARS
W/O SRI. DEVIPRASAD
D/O LATE SRI. SUDHAKAR HEGDE
6. SMT. SAVITHA
AGED ABOUT 37 YEARS
D/O LATE SRI. SUDHAKAR HEGDE
7. SMT. NEETHA
AGED ABOUT 33 YEARS
D/O LATE SRI. SUDHAKAR HEGDE
8. SMT. KEERTHI
AGED ABOUT 27 YEARS
D/O LATE SRI. SUDHAKAR HEGDE
ALL ARE
R/AT BANTAKALA SUBHAS NAGAR
MOODIGERE TALUK,
CHIKMAGALORE DISTRICT-574105.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.06.2024
PASSED IN R.A.NO.32/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
21.09.2017 PASSED IN O.S.NO.150/2011 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, KARKALA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1470 of 2024
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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 the appellant. This second appeal is
filed against the concurrent finding of the Trial Court and
also the Appellate Court.
2. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of equal share in
respect of the suit schedule properties. It is contended
that 'A' schedule properties were absolutely belongs to the
husband of defendant No.1, father of the plaintiff and
defendant Nos.2 to 7 i.e., Sudhakar Hegde and the same
was allotted to him as per the registered partition deed
dated 31.07.1990, the said Sudhakar Hegde was in
exclusive possession and enjoyment of the said property
till his death. He died intestate three years back leaving
behind the plaintiff and defendant Nos.1 to 7 only as his
legal heirs and hence entitled for 1/8th share in the 'A'
schedule properties. It is contended that the defendant
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No.8 who is the sister of deceased Sudhakar Hegde having
no right, title or possession over the suit schedule property
has been acting detrimental to the interest of the plaintiff
and rest of the defendants and she has concocted some
documents in collusion with rest of the defendants to
knock of the suit properties exclusively for herself and to
affect the right of the plaintiff adversely. She has got
mutated suit schedule properties in her name on the
strength of illegal and concocted documents and also
threatened the plaintiff that she is having already the
documents. Immediately, after the service of notice,
defendant Nos.1 to 8 appeared through their counsel.
Defendant No.8 has filed specific written statement
contending that first Item of the written statement
schedule properties devolves upon her as per the partition
deed dated 31.07.1990, the second Item of the said
properties as per the Rectification Deed dated 01.10.1992
and the third Item of the said property as per the
registered Will dated 01.10.1992 registered at the office of
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Brahmavara and the same is executed by Sudhakar
Hegde.
3. It is contended that originally the above said
properties were held and possessed by her father
Jagannatha Hegde and having leasehold right. He died
prior to the advent of Karnataka Land Reforms Act, 1974
and her mother Muthakka Shedthi submitted declaration
before the Land Tribunal in Form No.7 and after the
enquiry, the Tribunal granted occupancy right on behalf of
all the legal heirs of Jagannatha Hegde vide order dated
01.08.1977 and the said order has become final and Form
No.10 was also issued by the Tahasildar. Thus, the said
Muthakka Shedthi, her children and her grandchildren
(children of deceased daughter Bhavani Shedthi) entered
into a registered partition deed dated 31.07.1990,
whereunder by mistake the land comprised in Sy.No.6/6A
portion, Nanja, measuring 1.31 acres was mentioned
instead of 3.31 acres under 'B' schedule. In fact this 8th
defendant has been in actual, lawful possession and
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enjoyment of 3.31 acres in Sy.No.6/6A. The said Sudhakar
Hegde executed deed of rectification and demanded
Rs.1,00,000/- from the defendant No.8 and he along with
defendant No.8 and others entered into a Rectification
Deed dated 01.10.1992 which is valid and binding. The
legal heirs of Sudhakar Hegde i.e., plaintiff and defendant
Nos.1 to 7 are estopped from questioning the Rectification
Deed that too after lapse of 19 years. The suit is filed
without seeking the relief of cancellation of Rectification
Deed and the same is not maintainable and the same is
barred by limitation.
4. It is also contended that Will was executed and
the same was came into force. The entries are made
based on the partition deed in respect of second item of
the said properties mutated in her name on the basis of
Rectification Deed and third item of written statement
schedule properties mutated based on the Will. The
defendant No.8 has also effected vast and valuable
improvements in the written statement schedule property.
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Defendant No.1 filed written statement and the same was
adopted by defendant Nos.2 to 7 where alleged
Rectification Deed as well as the Will are disputed.
5. The Trial Court having considered the pleadings
of the parties, framed the issues and particularly
considered Issue No.4 with regard to whether defendant
No.8 proved that she is the absolute owner of the suit
schedule properties by virtue of the Will and Rectification
Deed executed by late Sudhakar Hegde. The Trial Court
considered Issue No.4 at the first instance. Having
considered the evidence of D.W.3 and D.W.4 who are in
support of the Will examined before the Trial Court and
comes to the conclusion that when the Sudhakar Hegde
executant of the Will having love and affection towards his
wife and children, question of executing the Will Ex.D.4 in
favour of 8th defendant in respect of the suit property is
doubtful and also the evidence of D.W.3 and D.W.4
doesn't inspire the confidence of the Court and on the very
same day, Rectification Deed as well as the Will are
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executed on different Sub-Registrar office at Udupi and
Brahmavar. There is no explanation in this regard and the
same is discussed in paragraph No.19 and also considered
the evidence of D.W.3 and D.W.4 in paragraph No.18 and
answered the Issue No.4 as negative, the same is
questioned before the Appellate court in R.A.No.32/2017.
6. The Appellate Court considering the grounds
urged in the appeal memo and also re-assessed both oral
and documentary evidence available on record, framed the
point for consideration, particularly point No.2 is
concerned with regard to the Rectification Deed and the
Will executed by Sudhakar Hegde in favour of defendant
No.8 and the same is also answered as negative and did
not accept the case of defendant No.8. In paragraph No.23
of the judgment, particularly in respect of the Will is
concerned, taken note of evidence of D.W.3 and D.W.4.
The witness D.W.3 is the sister's son of defendant No.8
and another witness to Rectification Deed was husband of
defendant No.8 who had expired during the said date of
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evidence and the D.W.3 identifies the signature of all the
parties and deposes as required in compliance of Section
68 of the Indian Evidence Act. The D.W.3 says that his
address was shown to the parties and there was no reason
for him to withdraw his address, which clearly mean that
his signature was taken at later stage.
7. The Appellate Court also in detail discussed the
evidence of D.W.4 and comes to the conclusion that
attesting witness D.W.4 clearly says that he had not been
to Sub-Registrar office. The evidence of D.W.4 with regard
to the execution of the Will cannot be believed which
creates some suspicion on the execution of the Will by
Sudhakar Hedge. The Appellate Court also having
re-assessed the material available on record, did not find
any error on the part of the Trial Court and confirmed the
order of the Trial Court.
8. The counsel appearing for the appellant would
vehemently contend that both the Courts have committed
an error in holding that document Ex.D.6 is not proved as
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per the provisions of the Indian Evidence Act. The First
Appellate Court also committed an error in confirming the
judgment of the Trial Court and hence, it requires
interference of this Court and this Court has to admit and
framed substantive question of law.
9. Having heard the learned counsel for the
appellant and also on perusal of material available on
record, it is not in dispute that the property to which the
defendant claims belongs to the property of Sudhakar
Hegde who is the husband of the plaintiff and father of
defendant Nos.1 to 7. It is also not in dispute that 8th
defendant is the sister of the said Sudhakar Hegde. When
the defendant pleads with regard to the execution of
Rectification Deed as well as the Will, the same ought to
have been supported by the credible evidence of
witnesses. The Trial Court as well as the First Appellate
Court meticulously considered the evidence available on
record particularly evidence of D.W.3 and D.W.4 and their
evidence does not inspire the confidence of the Court and
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the evidence is surrounded with suspicious circumstances
and also D.W.2 has deposed that her sister's son Shekhar
Shetty and her husband Shankara Shetty who are the
attesting witnesses to the said Will have stayed with her
upto 7.00 p.m., at Brahmavara on the day on which the
document Ex.D.6 has been executed by said Sudhakar
Hegde and also taken note of that if at all the said
attesting witnesses stayed with her at Brahmavara upto
7.00 p.m on 01.10.1992, how it is possible to the witness
Shekhar Shetty to present and put his signature on Ex.D.4
at the Sub-registrar office at Udupi and also comes to the
conclusion that there is no explanation with regard to the
timings is concerned. Hence, Trial Court did not accept the
case of defendant No.8.
10. It is not in dispute that both the documents of
Rectification Deed and the Will came into existence on the
very same day and earlier partition among the family
members dated 31.07.1990 and Rectification Deed after
long time of 2 years i.e., 01.10.1992 and what made to
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execute both the documents on the same day, nothing is
explained. Both the Courts taken note of inconsistency
particularly in the evidence of D.W.2, D.W.3 and D.W.4
who are the attesting witnesses and shrouded with
suspicious circumstances. Hence, I do not find any ground
to admit and frame substantive question of law and the
final finding of the Trial Court and also the First Appellate
Court is in consonance with the evidence available on
record. Hence, no ground is made out to admit and frame
substantial question of law.
11. In view of the discussions made above, I pass
the following:
ORDER
Second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
