Karnataka High Court

Sri. Ramakrishna S/O Shankar Taribagil vs Sri Prabhakar S/O Dattatreya Taribagil ... on 28 October, 2025

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                                                             NC: 2025:KHC-D:14460
                                                          RSA No. 100576 of 2024


                          HC-KAR




                         IN THE HIGH COURT OF KARNATAKA,AT DHARWAD

                           DATED THIS THE 28TH DAY OF OCTOBER, 2025

                                             BEFORE

                                THE HON'BLE MR. JUSTICE C M JOSHI

                        REGULAR SECOND APPEAL NO. 100576 OF 2024 (INJ)

                         BETWEEN:

                         SRI. RAMAKRISHNA S/O. SHANKAR TARIBAGIL,
                         AGED ABOUT 71 YEARS,
                         OCC. AGRICULTURIST AND RETIRED,
                         R/O. AT TULASINAGAR ROAD, HONNAVARA,
                         HONNAVARA KASABA,
                         DIST. UTTTAR KANNADA-581334.
                                                                      ...APPELLANT
                         (BY SRI. MAHESH WODEYAR, ADVOCATE)

                         AND:

                              SRI. PRABHAKAR S/O. DATTATREYA TARIBAGIL,
                              SINCE DECEASED BY HIS LEGAL HEIRS,

                         1.   SRI. SURAJ S/O. PRABHAKAR TARIBAGIL,
           Digitally


YASHAVANT
           signed by
           YASHAVANT
           NARAYANKAR
                              AGED ABOUT 28 YEARS, OCC. AGRICULTURIST,
NARAYANKAR Date:
           2025.10.30
           11:09:44
           +0530
                              R/O. H.NO. 247/A, TULASINAGAR ROAD,
                              HONNAVARA, DIST. UTTARA KANNADA-581334.

                         2.   SRI. PANDHURANG S/O. DATTATREYA TARIBAGIL,
                              AGED ABOUT 74 YEARS,
                              R/O. TULASINAGAR ROAD, HONNAVARA,
                              DIST. UTTAR KANNADA-581334.

                         3.   SRI. UDAY S/O. DATTATREYA TARIBAGIL,
                              AGED ABOUT 72 YEARS, OCC. RETIRED SERVANT,
                              R/O. KODIBAG, KARWAR-581303.
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                                         NC: 2025:KHC-D:14460
                                      RSA No. 100576 of 2024


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4.   SMT. ASHA NARAYAN TARIBAGIL
     AGED ABOUT 52 YEARS,
     R/O. TULASINAGAR ROAD, HONNAVARA,
     DIST. UTTARA KANNADA-581334.

5.   SRI. VINAYAK S/O. NARAYAN TARIBAGIL,
     AGED ABOUT 33 YEARS,
     R/O. TULASINAGAR ROAD, HONNAVARA,
     DIST. UTTARA KANNADA-581334.

6.   SRI. VENKATESH S/O. NARAYAN TARIBAGIL,
     AGED ABOUT 33 YEARS,
     R/O. TULASINAGAR ROAD, HONNAVARA,
     DIST. UTTARA KANNADA-581334.
                                          ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING

TO I) CALL FOR RECORDS II) TO SET-ASIDE THE         JUDGMENT

AND DECREE DATED 27.03.2024           PASSED BY THE LEARNED

SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,

HONNAVAR IN R.A.NO.02/2020 AND ALSO SET ASIDE THE

JUDGMENT AND DECREE DATED 19.10.2019 PASSED BY THE

LEARNED ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE

FIRST    CLASS,   HONNAVAR       IN    O.S.NO.114/2008,   AND

CONSEQUENTLY DECREE THE SUIT IN ITS ENTIRETY IN THE

INTEREST OF JUSTICE AND EQUITY AND ETC.


      THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                           NC: 2025:KHC-D:14460
                                        RSA No. 100576 of 2024


HC-KAR




                        ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel appearing for the appellant.

2. A short point involved in the present appeal is

"whether the Trial Court as well as the First Appellate Court are

justified in holding that the Will relied by the plaintiff as per

Ex.P12 has been proved?"

3. The case of the plaintiff, who is the appellant herein,

is that he has exclusive right over the 1st floor of the suit

schedule property on the basis of a Will at Ex.P12 dated

02.02.1949. On an earlier occasion, the original of the said Will

was not produced and therefore, the Trial Court had rejected the

said Will, against which an appeal was filed in R.A.No.10/2010

and the matter was remanded to give another opportunity to the

plaintiff to prove the said Will. The appellant/plaintiff produced

the original Will before the Trial Court and then the impugned

judgment dated 19.10.2019 was rendered by the Trial Court. The

Trial Court in paragraphs 20, 21 and 22 of its judgment observed

as below:

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"20. In this case plaintiff claims his right over st 1 floor of suit schedule house on the basis of will.

No doubt will is admitted and the same is 30 years old document. But as per the above decisions plaintiff ought to have prove the will as per the provision of law. Further to claim presumption to will under section 90 of evidence act, there shall be pleadings as to will having been acted upon after death of testator, that testator was in sound condition of mind at the time of execution, that will was duly attested and it was last will in the plaint. In the absence of such pleadings unfortunately plaintiffs claim for execution of section 90 of evidence act is not available as per the above referred decision in AIR 1992 Kar 282.

21. In this case plaintiff is given an opportunity to prove the will, but he has failed to prove the will in accordance with law. He might have approached the persons who might have well acquainted with the hand writing of the attesting witnesses. He might have made proper attempt to prove at least to prove that the will was executed in the presence of attesting witnesses as required under law. But plaintiff simply filed application and list of witnesses and stated that the witnesses to the will are not alive. The attempt made by the plaintiff is not sufficient to hold that the will is duly executed in the presence of witnesses. More over it is admitted fact that the will is not acted upon. When

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he is able to get death certificate of Ganapathi Manjunath Shet who was one of the witness to the will, he might have made an attempt to examine any person acquainted with his hand writing to prove that the will is executed in the presence of witnesses.

22. On the other hand PW.1 in his evidence stated that the scribe of the will that is Venkatesh Ramachandra Naik was from Harohalli village. When the plaintiff is able to tell about the village to which scribe belongs to, then he could be able to approach any one who is well acquainted with the handwriting of said Venkatesh Ramachandra Naik. Plaintiff in this case produced will as a formal procedure and filed witness list. But he did not made genuine effort to prove the will. As such the will remained with same status as before. Plaintiff failed to prove execution of will as per the well established principles of law. Therefore, the prior opinion of my predecessor in the judgment dated 02-01-2010 holds good to the present circumstances also. Therefore, I am of the clear opinion that plaintiff and defendant are entitle for ½ share each in the suit schedule property. As the plaintiff failed to prove execution of will as per law, he is not entitle to get entire portion in the 1st floor on the basis of will. This court has rightly held in its previous judgment on 02-01-2010 that plaintiff and defendant as successors entitle for ½ share each in

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the suit schedule property by metes and bounds and not by virtue of will. Therefore, Issue No.1 & 4 again answered partly in the affirmative as previously answered in judgment dated 02-01- 2010."

4. The First Appellate Court in the impugned judgment,

in paragraphs 34 and 35 observes as below:

"34. The Hon'ble courts have laid down the evidence required for proof of the execution of the Wills. Section 63 and Indian Succession Act, 1925 and section 68 and 69 of Indian Evidence Act, 1982 lays down the procedure for proof of execution of document required by law to be attested. Will is a document required by law to be attested. Therefore in order to read the Will in evidence, at least one of the attesting witnesses has to be examined. If the attesting witnesses are dead or not available, then the profounder of the Will shall examined the persons who acquainted with the signatures or writing of the attesting witnesses. This is the mandate of section 68 and 69 of the Evidence Act and remains the same even if the opposite party does not deny the execution of the Will. So also registration of Will as per the provisions of Registration Act, 1908 will not dispense with the proof of execution of Will as per section 68 and 69 of Evidence Act. In the present case on hand the plaintiff not proved the Will in terms of section 68

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and 69 of Evidence Act, 1871 and therefore he had not acquired and he cannot claim right or title over the first floor of ancestral house.

35. Be that as it may, it could be seen from the plaint averments that the plaintiff is claiming exclusive right and title over the first floor of ancestral house. But he has not sought any specific prayer relating to declaration of his right or title over the same. Similarly though the defendants are claiming right and title over the first floor of ancestral house, they also not sought any specific prayer relating to declaration of their right or title over the first floor of the ancestral house. On this ground alone the claim of the plaintiff over the first floor of ancestral house is not sustainable. That apart it is also pertinent to state here that the grandmother or other ancestors of the parties to the suit were in possession of the suit land as tenants and after coming into force of the Land Reforms Act in the year 1961, the plaintiff and defendant No.2 have jointly filed Form No.7 for grant of occupancy rights over the suit land and the Land Tribunal, Honnavara has granted the occupancy rights for and on behalf of joint family. So it can said that till grant of occupancy rights over the suit land, the ancestors of the parties to the suit have not acquired the absolute right and they were having limited rights as tenants. When such being the case the ancestors of the parties to the suit including Smt Amarabayi have

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no absolute right to bequeath the suit land or house property in anybody's favour. The limited right of ancestors of the parties to the suit stands extinguished in pursuance of grant of occupancy rights in the joint names of plaintiff and defendant No.2 by the Land Tribunal, Honnavara and therefore the plaintiff or defendants have not acquired any right or title over the suit properties by virtue of Will alleged to have been executed by Smt Amarabayi. But the plaintiff and defendants became the joint owners of the suit properties by virtue of grand and they being the joint owners entitle for shares as per their representation."

5. There is a concurrent finding by the Trial Court as

well as the First Appellate Court in saying that the plaintiff had

not made efforts to secure the witnesses or the witnesses, who

could identify the signature of the testator of the witnesses to

prove the said Will as required under Section 69 of the Indian

Evidence Act, 1872. The said finding that there was no sufficient

effort by the plaintiff in proving the Will, being a question of fact

based on the evidence and the Trial Court as well as the First

Appellate Court having come to the conclusion that such effort

was not made diligently, this Court is unable to interfere into

such facts determined by both the Courts. In that view of the

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