Karnataka High Court
Sri T P Bheemaiah vs Sri. T.P. Lokappa on 17 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.487/2021 (DEC/INJ)
BETWEEN:
SRI. T.P.BHEEMAIAH,
S/O LATE T.M.PONNAPPA,
AGED ABOUT 61 YEARS,
RESIDENT OF MEGHATALU VILLAGE,
MAKKANDUR POST,
MADIKERI TALUK,
KODAGU DISTRICT. ... APPELLANT
(BY SRI. K.S.BHEEMAIAH, ADVOCATE)
AND:
1. SRI. T.P. LOKAPPA,
AGED ABOUT 63 YEARS,
S/O LATE T.M.PONNAPPA.
2. SRI. T.P. KUSHALAPPA,
AGED ABOUT 62 YEARS,
S/O LATE T.M.PONNAPPA.
BOTH ARE RESIDENT OF
MEGHATALU VILLAGE,
MAKKANDUR POST,
MADIKERI TALUK,
KODAGU DISTRICT.
2
3. SRI. T.P. MANDANNA,
AGED ABOUT 68 YEARS,
S/O LATE T.M. PONNAPPA.
4. SRI T.P. THAMMAIAH,
AGED ABOUT 66 YEARS,
S/O LATE T.M. PONNAPPA.
5. SRI. T.T. POOVANNA,
AGED ABOUT 41 YEARS,
S/O T.P. THAMMAIAH.
6. SMT. T.K. KAMAVVA,
AGED ABOUT 71 YEARS,
W/O LATE T.P. KALAPPA.
7. SRI. T.K. NANAIAH,
AGED ABOUT 42 YEARS,
S/O LATE T.P. KALAPPA.
8. SRI. T.K. JOYAPPA,
AGED ABOUT 42 YEARS,
S/O LATE T.P. KALAPPA.
9. SRI. T.M. MOHAN KUMAR,
AGED ABOUT 42 YEARS,
S/O T.P. MANDANNA.
RESPONDENTS NO.3 TO 9 ARE
RESIDENTS OF MEGHATALU VILLAGE,
MAKKANDUR POST,
MADIKERI TALUK,
KODAGU DISTRICT. ... RESPONDENTS
(BY SRI. NAGAIAH, ADVOCATE FOR R1 & R2;
R3, R4, R5, R6, R7, R8 & R9 ARE SERVED)
3
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 08.03.2021
PASSED IN R.A.No.17/2019 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MADIKERI, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 06.08.2019 PASSED IN
O.S.No.18/2015 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE, MADIKERI.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.10.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for respondent Nos.1 and 2.
2. This second appeal is filed challenging the judgment
and decree dated 06.08.2019 passed in O.S.No.18/2015
decreeing the suit in favour of the plaintiffs that they are the
owners in possession of the suit schedule property and granting
the relief of permanent injunction and confirmation of the same
by the First Appellate Court in R.A.No.17/2019 dated
08.03.2021.
3. The factual matrix of the case of the
plaintiffs/respondent Nos.1 and 2 before this Court while seeking
the relief of declaration and permanent injunction is that the suit
schedule property originally belongs to their mother
Smt.Thangavva and the same was purchased in the year 1974
i.e., on 31.10.1974 and the mother of the plaintiffs was in
peaceful possession and enjoyment of the same without
interference from anyone during her lifetime. The mother of the
plaintiffs bequeathed the suit schedule property to the plaintiffs
under a registered Will dated 31.10.2012. On 22.01.2015, the
defendants along with eight persons forcibly entered into the suit
schedule property and tried to encroach the same and the same
was resisted by the plaintiffs and hence they filed the suit
seeking the relief of declaration based on the Will as well as that
they are in possession of the suit schedule property.
4. The defendant Nos.2 to 7 appeared before the Court
through their respective counsel. The defendant No.3 filed the
written statement and others adopted the same. However,
defendant Nos.1 and 8 were placed exparte. The defendant
No.3 contended in the written statement that Smt.Thangavva
has not purchased the suit schedule property and the same was
not the exclusive property of Smt. Thangavva and the same was
purchased by their father in the name of Thangavva and hence
Thangavva cannot execute the Will in favour of the plaintiffs and
she was not having any absolute right. It is contented that
earlier there was a partition and in terms of the partition
mahazar, this property was kept to meet the marriage expenses
of the daughters and thereafter it should fall on all the other
male members of the family and hence there cannot be any
declaration and injunction in favour of the plaintiffs.
5. The plaintiffs in order to prove their case, examined
plaintiff No.1 as P.W.1 and also examined one witness as P.W.2
and got marked the documents at Exs.P.1 to 6 and Ex.P.1(a) to
(e). On the other hand, defendant No.3 examined himself as
D.W.1 and also examined the scribe of the document of Ex.P.1
Will as D.W.2 and got marked the documents at Exs.D.1 to 8.
The Trial Court having considered both oral and documentary
evidence placed on record, answered all the issues in the
affirmative in coming to the conclusion that Thangavva had
executed a Will dated 31.10.2012 and that plaintiffs are in
possession of the suit schedule property as on the date of filing
of the suit and also there is an interference by the defendants in
respect of the suit schedule property and hence granted the
relief in favour of the plaintiffs.
6. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.17/2019 and the First
Appellate Court on appreciation of both oral and documentary
evidence placed on record, vide judgment dated 08.03.2021
confirmed the judgment of the Trial Court having considered the
principles of panchapadi for proving of the Will and did not find
any error on the part of the Trial Court in granting the relief as
sought.
7. Being aggrieved by the judgment and decree of the
Trial Court as well as the First Appellate Court, the present
second appeal is filed before this Court. This Court having
considered the material available on record, particularly when
the ground was urged that earlier there was a partition deed
dated 22.04.1976 entered between the mother of the appellant
and the respondents and further mother of the appellant and the
respondents has specifically and categorically stated in a suit
filed by her in O.S.No.17/1986 that after the marriage of the
daughters, the property shall be divided between all the six sons
and this Court while admitting this second appeal, framed the
substantial question of law, which is extracted hereinbelow:
"Whether defendant No.3 and the plaintiff were
joint owners of the suit schedule property by virtue
of the mahazar dated 22.04.1976? If yes, whether
the suit for declaration and injunction was
maintainable?
8. The learned counsel for the appellant would
vehemently contend that there was an oral partition between the
mother and children and mahazar also came into effect in the
year 1976. When such being the case, both the Courts ought
not to have granted the relief in favour of the plaintiffs. The
mother was not having any right to execute a Will. The learned
counsel would contend that in the earlier judgment and decree
passed in O.S.No.17/1986 also recognised the said mahazar and
the said Will is marked as Ex.P.1 before the Trial Court dated
31.10.2012. In the earlier judgment also in detail discussed the
same with regard to the mahazar is concerned and when such
mahazar is available before the Court and the same is admitted,
there cannot be any judgment and decree and hence it requires
interference of this Court.
9. Per contra, the learned counsel for respondent Nos.1
and 2/plaintiffs would contend that it is not in dispute that the
property was purchased by Thangavva on 31.10.1974 and also
there is no dispute with regard to the partition among the
mother and children. The learned counsel would contend that as
against the recitals of the mahazar, defendant No.3/appellant
started plucking the coffee in the said land and he was not given
any exclusive right and also he made an attempt to get the
records transferred in his favour in the revenue records of
jamabandi and when the same came to the notice of the mother,
the mother and sisters have filed the suit referred above and the
same is decreed. The Trial Court and the First Appellate Court
taken note of the earlier judgment as well as the material
available before the Trial Court and the First Appellate Court and
reasoned order was passed and hence it does not require any
interference of this Court that too in a second appeal. The
learned counsel contend that though earlier there was a
mahazar, the same is not acted in terms of earlier provision and
hence Will was executed and the appellant has also not filed any
suit claiming any share in respect of the property and the earlier
judgment has attained its finality. The learned counsel would
contend that the mother becomes absolute owner of the
property under Section 14 of the Hindu Succession Act. The
learned counsel contend that the house was constructed prior to
the sale deed and the contention of the appellant cannot be
accepted that he only constructed the house. D.W.1 in the
cross-examination admitted that there was a partition, but not
produced the same before the Court and now without placing the
said mahazar before the Court, cannot seek any relief in the
second appeal in the absence of any document. The learned
counsel contend that in the earlier suit not declared all the male
children as the owners of the property and admittedly, the
property belongs to Thangavva and she had executed a Will and
the same is proved and question of interference does not arise.
Hence, prayed the Court to dismiss the second appeal.
10. Keeping in view the contentions urged by the
respective learned counsel and also considering the material
available on record, this Court has to analyze the material
available on record whether it is a fit case to reverse the finding
considering the substantial question of law framed by this Court.
11. Having considered the material available on record
and also the substantial question of law framed by this Court,
the main contention of appellant is that himself and plaintiffs
were joint owners of the suit schedule property by virtue of
mahazar dated 22.04.1976. Hence, the suit for declaration and
injunction was not maintainable. It is not in dispute that earlier,
the mother and male children of Thangavva have got partitioned
the property by virtue of mahazar dated 22.04.1976 and the
same is not the part of records and not marked by either of the
parties before the Trial Court in O.S.No.18/2015 as well as the
First Appellate Court in regular appeal as additional documents,
except the discussion made in the proceedings. However, the
plaintiffs relied upon the certified copy of the judgment and
decree passed in O.S.No.17/1986, wherein the said mahazar
was marked and detailed discussion was made by the Trial Court
which is marked as Ex.P6.
12. First of all, the said mahazar is not before any of the
Courts i.e., the Trial Court, First Appellate Court or before this
Court. But, the contention is raised before this Court to frame a
substantial question of law based on the said mahazar and the
same is framed. It is to be noted that, even considering the said
mahazar also, it is not in dispute that suit schedule property is
not the subject matter of the partition between the mother and
male members. But, the same was kept reserved for the
performance of marriage of plaintiff Nos.2 to 4 in the earlier suit.
It is also important to note that the parties have not acted upon
in terms of the mahazar dated 22.04.1976 and it is also borne
out from the records, when the mother and daughters i.e.,
plaintiff Nos.2 to 4 contend that though the said property was
reserved for marriage expenses, they have filed a suit against
the present appellant arraying him as a sole defendant in
O.S.No.17/1986, wherein also they sought for declaration that
they are immediate beneficiaries of the suit schedule property by
virtue of the partition and mahazar dated 22.04.1976 and for
permanent injunction restraining the defendant, his agents and
his labourers from interfering with the possession of suit
schedule property.
13. It is also important to note that the Trial Court in the
said suit in O.S.No.17/1986 dealt with the matter in detail, since
the said mahazar was marked as Ex.P3 and the parties have
admitted the mahazar and extracted paragraph No.4 of the
written statement of the present appellant in paragraph No.9
and taken note of the recitals of the said document and the
same is extracted and the said property is preserved till the
marriage of plaintiff Nos.2 to 4 and the property can be
cultivated by either the brothers or any persons and no one can
take possession, sale or lease the said property and they are not
having any such right and it is also specifically mentioned that
the property should stand in the name of the mother and after
the marriage of three daughters, the same shall go to six male
members and these contents of the documents were taken note
of by the Trial Court in the earlier suit. The suit was filed before
the Trial Court earlier when the present appellant made an
attempt to knock off the property by got mentioning his name in
the Jamabandi and when he acted upon as against the interest
of his mother and also unmarried daughters, the suit was filed
and decreed in favour of the mother and plaintiff Nos.2 to 4, who
are the sisters of this appellant.
14. It is also important to note that in the earlier suit, an
observation is made that before performing the marriage of
three daughters i.e., plaintiff Nos.2 to 4, one daughter i.e.,
plaintiff No.2 was married and plaintiff Nos.3 and 4 were not
married and before celebrating the marriage of other two
daughters i.e., plaintiff Nos.3 and 4, an attempt was made by
the present appellant to knock off the property and in detail
discussion was made in the said judgment with regard to the
very conduct of the appellant herein and granted the relief in
favour of mother of daughters. Hence, it is very clear that, even
if there is a mention in the mahazar that all male sons have to
get share in the property, but the same was not acted upon and
it is also very clear that decree was granted in favour of mother
and three daughters and the said judgment is marked as Ex.P6
and dispute between the appellant, mother and sisters of the
appellant arose before conducting their marriage.
15. Having considered the discussion made by the Trial
Court, it is very clear that though the present appellant claims
that he has constructed the building, but nothing is placed on
record and taken note of the conduct of the appellant. Since,
recital of Ex.P3 is clear that without the consent of all the male
members of plaintiff No.1, the property cannot be alienated,
mortgaged or take exclusive possession by any of them. On the
other hand, the assertion of the defendant i.e., present appellant
throughout is that his name is entered in the sixth column of the
Jamabandi and further, the property is in his exclusive
possession cannot be asserted and the said entry is made
against the recitals of document, Ex.P3 of the earlier suit. Hence,
an observation is made that this itself is sufficient to accept the
contention of the plaintiffs that the defendant is trying to
interfere with the possession of the suit property, since he claims
possession over the property and even while considering issue
No.3, taken note of the fact the marriage of plaintiff No.2 is
over, but other two daughters i.e., plaintiff Nos.3 and 4 is yet to
be performed.
16. When such being the material available on record
and also the recitals of the document is very clear that the
property should stand in the name of plaintiff No.1 and income
thereof should be used for the maintenance and the marriage
expenses of plaintiff Nos.2 to 3 and further an observation is
also made that marriage of plaintiff Nos.2 to 4 is yet to take
place. Hence, they are entitled to the income of the suit property
both for their maintenance as well as their marriage expenses. It
is clear that dispute started in the year 1986 itself and even
though the property was preserved for maintenance and
marriage expenses, an attempt was made by the present
appellant to knock off the property. Having considered all these
material on record, the very contention of the appellant is that
the property ought to have been divided among the brothers
cannot be accepted.
17. It is also important to note that though this property
is preserved for maintenance and marriage expenses, it is not in
dispute that the said property was purchased by the mother in
the year 1974. Though it is contended by the appellant herein
that the same was purchased by the father in the name of the
mother, the same is not substantiated by the appellant herein.
Hence, it is clear that the same is absolute property of mother
Thangavva. It is also important to note that when the earlier suit
was filed, decree was passed on 06.02.1987 itself. When the
mother was absolute owner and the same was preserved for the
maintenance and marriage expenses and when an attempt was
made by the present appellant to knock off the property claiming
the same is in his exclusive possession, a decree was granted.
The Trial Court in the present suit also in detail discussed the
same while passing an order, particularly when the plaintiffs in
the suit have categorically contended that a Will was executed
on 31.10.2012 and the Trial Court also taken note of the fact
that mother was in exclusive possession of the property in view
of the judgment and decree passed in O.S.No.17/1986 and also
taken note of sale deed in the name of mother-Thangavva dated
31.10.1974 as per Ex.P2. It is also taken note of that CRC which
is standing in the name of late T.P. Thangavva i.e., Coffee
Registration Certificate and the Trial Court also taken note of the
recitals of the document Ex.P2-sale deed in paragraph No.15
regarding ownership of the present suit schedule property is
concerned.
18. The main contention of the defendant is that as per
the settlement between the parties, only Thangavva and her
daughters having limited interest and the same is also discussed
in paragraph No.15 and also taken note of Section 14 of Hindu
Succession Act, 1956, since the property belongs to the mother
and she became absolute owner under Section 14(1) of the
Hindu Succession Act. As per Section 14(1) of the Hindu
Succession Act, women should be in actual or physical
possession of the property and she has got the right to deal with
the property and in detail discussed the evidence available on
record.
19. It is also important to note that though there was
reference in the mahazar, but the same was not acted upon and
there was dispute between defendant No.3 i.e., the appellant
herein and mother prior to performing the marriage of sisters of
this appellant. No doubt, the elder son of Thangavva was
examined by the defendant No.3, who supported the case of the
present appellant, but the material available on record is very
clear that Will was executed by the mother and P.W.2, the
attesting witness categorically deposed before the Court that Will
was drafted by D.W.2 and all of them went to the office of Sub-
Registrar and got registered the Will. With regard to proving of
the Will also, the Trial Court taken note of the evidence of P.W.2
as well as the evidence of D.W.2.
20. Though D.W.2 has been examined on behalf of the
defendant and his evidence is very clear that Thangavva herself
gave instructions to prepare the Will and she came with a draft
Will and he got typed the same and went to the Sub-registrar
office and registered the same. The material is also very clear
that she was very hale and healthy and the same was not
discredited before the Trial Court.
21. The First Appellate Court also while re-appreciating
both oral and documentary evidence placed on record, in detail
discussed the very execution of the Will and Will is one of the
most solemn document and executant of the Will cannot be
called to deny the execution or to explain, since the Will comes
into effect after the death of the executant. The Court can only
look into any suspicious circumstances regarding execution of
the said Will and the First Appellate Court also taken note of the
principles laid down in the several judgments regarding each
step for proving the Will and all the five steps were discussed in
appeal for proving the Will Ex.P1 and also the evidence of P.W.2
being the attesting witness as well as D.W.2, who is the
advocate, who prepared the Will and both of them have deposed
about the health condition of the testator and also read over the
contents of the Will to the testator before putting her left thumb
impression.
22. When both the Courts have taken note of the very
health condition of the executant and there is no suspicious
circumstances whatsoever surrounding the execution of Will.
Admittedly, the property was bequeathed in favour of the
plaintiffs belonging to the mother-Thangavva, who had
purchased the property in the year 1974 in terms of the
document Ex.P2. The very contention of the appellant that there
is a recital in the mahazar that all major sons have to share the
property after the marriage cannot be accepted, since the
dispute has arisen between the parties, even before conducting
the marriage of plaintiff Nos.2 to 4 and all of them filed the suit.
The said mahazar also not confers any legal right in favour of
appellant. It is not the case of the appellant that he only
performed the marriage and crux of the issue is when the
dispute had arisen between the mother and sisters of the
appellant, only plaintiff No.2 was married and other plaintiff
Nos.3 and 4 were not married and there was a finding in the
earlier suit against the appellant to that effect and the same has
attained its finality.
23. When such being the case, the very contention of the
appellant cannot be accepted. Hence, I do not find any error on
the part of the Trial Court and the First Appellate Court in
decreeing the suit in O.S.No.18/2015 based on the Will which
was executed by the mother, who is the exclusive owner, that
too when she was having sound state of mind and the same was
duly registered. The fact that another eye witness A. Dharmappa
is no more and hence, complied with the provisions of Evidence
Act as well as Indian Succession Act is not in dispute, since one
of the attesting witness was examined. Therefore, there is no
merit in the second appeal and I answer the substantial question
of law accordingly.
24. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD/ST
