Karnataka High Court
Basavanneppa S/O Tirakawwa Talawar vs Smt. Anasavva W/O Hanamanthappa … on 3 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA, R
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
RSA NO.100389 OF 2016 (DEC/INJ)
C/W. RSA NO.100548 OF 2024 (DEC/INJ)
& RSA CROB. NO.100009 OF 2016 (DEC/INJ)
RSA.NO.100389/2016:
BETWEEN:
1. BASAVANNEPPA S/O. TIRAKAWWA TALAWAR,
SINCE DECEASED BY HIS LRS.
1A. PARVATEVVA W/O. BASAVANNEPPA TALAVAR,
AGED: 70, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1B. HANUMAVVA W/O. CHANDRAPPA RATTEHALLI,
AGED: 46, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
Digitally signed by
SAROJA 1C. GANGAVVA W/O. PUTTAPPA LAKAMAPUR,
HANGARAKI
Location: High AGED: 44, OCC: HOUSE WIFE,
Court of Karnataka,
Dharwad Bench, R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
Dharwad
1D. MAHADEVAKKA W/O. YALLAPPA BASAPUR,
AGED: 40, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1E. MALLAVVA W/O.TIPPANNA TALAWAR,
AGED: 39, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1F. SHANTAVVA W/O. ASHOK SHIGEHALLI,
AGED: 38, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
1G. LAXMI W/O. MOHAN BALAMMANAVAR,
AGED: 35, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
1H. ANAND S/O. BASAVANNEPPA TALAVAR,
AGED: 32, OCC: AGRICULTURE,
R/O: IJARILKAMAPUR, TQ: HAVERI, DIST: HAVERI.
...APPELLANTS
(BY SRI. SOURABH S. SONDUR, ADVOCATE FOR
SRI. K.L.PATIL A/W SRI. VISHWANTH HEGDE, ADVOCATE)
AND:
1. SMT. ANASAVVA W/O. HANAMANTHAPPA ALADAKATTI,
AGE: 50 YEARS OCC: HOUSEHOLD WORK,
R/O: TIPALAPUR, TAL: BYADGI, DIST: HAVERI.
2. SMT. RENAVVA @ RENUKA W/O. YALLAPPA ALADAKATTI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: TIPPALAPUR, TAL: BYADGI,
NOW AT MANJUNATH NAGAR, HAVERI.
3. SMT. BASAVVA @ BASAMMA W/O. HEMANNA SOMANNAVAR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUTTAL, NEAR FLLOR MILL, GUTTAL,
TAL AND DISTRICT: HAVERI.
4. SMT. MANJULA W/O. MALATESH ALADAKATTI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: TIPLAPUR, TAL: BYADGI,
NOW RESIDING AT IJARILAKAMAPUR,
HAVERI, TAL AND DIST: HAVERI.
5. SHEKAPPA S/O. BASAVANNEPPA HAROGKOPPAD,
AGE: 68 YEARS, OCC: COOLIE,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
6. SHIVAPUTRAPPA S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 64 YEARS, OCC: SERVICE,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
7. BASAVARAJ S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAOUR, TAL & DIST: HAVERI.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
8. SMT. BANGAREVVA W/O. ADIVEPPA BUIDARAKOPPA,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAKOPPA, TAL: HANAGAL, DIST: HAVERI.
9. SMT. RATNAVVA W/O. MAILAREPPA TALLALLI,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR RAMADEVAR TEMPLE, SAVANUR
TAL: SAVANUR, DIST: HAVERI.
10. SMT. MUTTAVVA W/O. BASAVARAJ HANCHINMANI,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: POSTAL QUARTERS, STATION ROAD,
HAVERI, TAL AND DIST: HAVERI.
11. SMT. PREMA @ PREMAVVA W/O. BASAVARAJ GUNIJAL,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: BASAPPA GUNIJAL, RATION SHOP,
GOUDAGERI, TAL: KUNDAGOL, DIST: DHARWAD.
12. SMT. BASAVANNEVVA W/O. SIDDAPPA TALAWAR @
SOMANAHAL, AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMANHALLI, TAL: HIREKERUR, DIST: HAVERI.
13. KUMARI SHEKAVVA @ REKHA
D/O. SHEKAPPA TALAWAR,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: MANJUNATH NAGAR, TAL & DIST: HAVERI.
14. SMT. SUJATHA W/O BASAVARAJ TALAWAR,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: SMT. RATNAWWA
W/O. SHEKAPPA RODDAPPANAVAR,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
15. RAMAPPA @ ANJANEYA S/O. BASAVARAJ TALAWAR,
AGE: 18 YEARS, OCC: STUDENT,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
...RESPONDENTS
(BY SRI. D. NAGARAJ AND
SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATE FOR
C/R1, R2, R4, R5, AND R12;
R3, R6 TO R11 AND R13 ARE SERVED)
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 C. P. CODE
PRAYING TO CALL FOR RECORDS IN O.S.NO.5/2000 ON THE FILE
OF ADDITIONAL CIVIL JUDGE (SR.DN) AND JMFC AT HAVERI AND
THE RECORDS IN R.A.NO.13/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI. SET ASIDE THE
JUDGMENT AND DECREE UNDER APPEAL DATED 28.03.2016
PASSED IN R.A.NO.13/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI AND JUDGMENT AND
DECREE DATED 05.01.2010 PASSED IN O.S.NO.5/2000 DATED
05.01.2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC AT HAVERI BE CONFIRMED TO EXTENT OF FIRST 2 SUIT
SCHEDULE PROPERTIES BY ALLOWING THIS APPEAL AND ETC.,
RSA.NO.100548/2024:
BETWEEN:
BASAVANNEPPA S/O. TIRAKAWWA TALAWAR,
SINCE DECEASED BY HIS LRS.
1. PARVATEVVA W/O. BASAVANNEPPA TALAVAR,
AGED: 73, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI.
2. HANUMAVVA W/O. CHANDRAPPA RATTEHALLI,
AGED: 49, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
3. GANGAVVA W/O. PUTTAPPA LAKAMAPUR,
AGED: 47, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
4. MAHADEVAKKA W/O. YALLAPPA BASAPUR,
AGED: 43, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
5. MALLAVVA W/O.TIPPANNA TALAWAR,
AGED: 42, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
6. SHANTAVVA W/O. ASHOK SHIGEHALLI,
AGED: 41, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
7. LAXMI W/O. MOHAN BALAMMANAVAR,
AGED: 38, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
8. ANAND S/O. BASAVANNEPPA TALAVAR,
AGED: 35, OCC: AGRICULTURE,
R/O: IJARILKAMAPUR, TQ: HAVERI,
DIST: HAVERI - 581 110.
...APPELLANTS
(BY SRI. SOURABH S. SONDUR, ADVOCATE FOR
SRI. K.L.PATIL A/W SRI. VISHWANTH HEGDE, ADVOCATE)
AND:
1. KUMARI SHEKAVVA @ REKHA
D/O. SHEKAPPA TALAWAR,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: MANJUNATH NAGAR,
TAL AND DIST: HAVERI - 581 110.
2. SMT. SUJATHA W/O. BASAVARAJ TALAWAR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: SMT. RATNAWWA
W/O. SHEKAPPA RODDAPPANAVAR,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE - 583 131.
3. RAMAPPA @ ANJANEYA S/O. BASAVARAJ TALAWAR,
AGE: 24 YEARS, OCC: STUDENT,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
4. SMT. ANASAVVA W/O. HANAMANTHAPPA ALADAKATTI,
AGE: 58 YEARS OCC: HOUSEHOLD WORK,
R/O: TIPALAPUR, TAL: BYADGI,
DIST: HAVERI - 581 106.
5. SMT. RENAVVA @ RENUKA W/O. YALLAPPA ALADAKATTI,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
R/O: TIPPALAPUR, TAL: BYADGI,
NOW AT MANJUNATH NAGAR,
HAVERI - 581 106.
6. SMT. BASAVVA @ BASAMMA
W/O. HEMANNA SOMANNAVAR,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUTTAL, NEAR FLLOR MILL, GUTTAL,
TAL AND DISTRICT: HAVERI - 581 108.
7. SMT. MANJULA W/O. MALATESH ALADAKATTI,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: TIPLAPUR, TAL: BYADGI,
NOW RESIDING AT IJARILAKAMAPUR, HAVERI
TAL AND DIST: HAVERI - 581 110.
8. SHEKAPPA S/O. BASAVANNEPPA HAROGKOPPAD,
AGE: 76 YEARS, OCC: COOLIE,
R/O: IJARILAKAMAPUR,
TAL & DIST: HAVERI - 581 110.
9. SHIVAPUTRAPPA S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 72 YEARS, OCC: SERVICE,
R/O: IJARILAKAMAPUR,
TAL & DIST: HAVERI - 581 110.
10. BASAVARAJ S/O. BASAVANNEPPA HAROGOPPAD,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAOUR,
TAL & DIST: HAVERI - 581 110.
11. SMT. BANGAREVVA W/O. ADIVEPPA BUIDARAKOPPA,
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAKOPPA, TAL: HANAGAL,
DIST: HAVERI - 581 110.
12. SMT. RATNAVVA W/O. MAILAREPPA TALLALLI,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR RAMADEVAR TEMPLE, SAVANUR
TAL: SAVANUR, DIST: HAVERI - 581 118.
13. SMT. MUTTAVVA W/O. BASAVARAJ HANCHINMANI,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: POSTAL QUARTERS, STATION ROAD,
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NC: 2025:KHC-D:8350
RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
HAVERI, TAL AND DIST: HAVERI - 581 110.
14. SMT. PREMA @ PREMAVVA W/O. BASAVARAJ GUNIJAL,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: BASAPPA GUNIJAL,
RATION SHOP, GOUDAGERI,
TAL: KUNDAGOL, DIST: DHARWAD - 581 113.
15. SMT. BASAVANNEVVA W/O. SIDDAPPA TALAWAR @
SOMANAHAL, AGE: 69 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SOMANHALLI, TAL: HIREKERUR,
DIST: HAVERI - 581 111.
...RESPONDENTS
(BY SRI. D. NAGARAJ AND
SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATE FOR
C/R1 TO R14)
THIS RSA IS FILED UNDER SECTION 100 C. P. CODE
PRAYING TO CALL FOR RECORDS IN O.S.NO.5/2000 ON THE FILE
OF ADDITIONAL CIVIL JUDGE (SR.DN) AND JMFC AT HAVERI AND
THE RECORDS IN R.A.NO.10/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI. SET ASIDE THE
JUDGMENT AND DECREE UNDER APPEAL DATED 28.03.2016
PASSED IN R.A.NO.10/2010 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT HAVERI AND JUDGMENT AND
DECREE DATED 05.01.2010 PASSED IN O.S.NO.5/2000 DATED
05.01.2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC AT HAVERI BE MODIFIED TO THE EXTENT OF ½ SHARE
IN SY.NO.29/1B/1 OF DEVAGIRI YELLAPUR VILLAGE MEASURING 4
ACRES 35 GUNTAS BY ALLOWING THIS APPEAL AND ETC.,
RSA.CROB.NO.100009/2016:
BETWEEN:
1. SMT. ANASAVVA
W/O. SRI. HANAMANTHAPPA ALADAKATTI,
AGE: 44 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O: TIPPALAPUR, TAL: BYADGI, DIST: HAVERI.
2. SMT. RENUKA W/O. YALLAPPA ALADAKATTI,
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE,
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RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
R/O: HAVERI.
3. SMT. BASAMMA @ PUSPA
W/O. SRI. HEMANNA SOMANNAVAR,
AGE: 34 YEARS, OCC: AGRICULTURE &HOUSEHOLD,
R/O: HAVERI.
4. SMT. MANJULA
W/O. SRI. MALATESH ALADAKATTI,
AGE: 34 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
5. SRI. SHEKAPPA
S/O. SRI BASAVANNEPPA HAROGKOPPAD,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAPUR, TAL & DIST: HAVERI.
6. SRI. SHIVAPUTRAPPA
S/O. SRI. BASAVANNEPPA HAROGOPPAD,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAPUR, TAL AND DIST: HAVERI.
7. SRI. BASAVARAJ S/O. SRI. BASAVANNEPPA HAROGOPPAD,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: IJARILAKAMAOUR, TAL & DIST: HAVERI.
8. SMT. BANGAREVVA W/O. ADIVEPPA BUIDARAKOPPA,
AGE: 58 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: MAKOPPA, TAL: HANAGAL, DIST: HAVERI.
9. SMT. RATNAVVA W/O. SRI. MAILAREPPA TALLALLI,
AGE: 52 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: SAVANUR, DIST: HAVERI.
10. SMT. MUTTAVVA W/O. SRI. BASAVARAJ HANCHINMANI,
AGE: 48 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: HAVERI.
11. SMT. PREMA W/O. BASAVARAJ GUNIJAL,
AGE: 44 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: GOUDAGERI, TAL: KUNDAGOL.
12. SMT. BASAVANNEVVA W/O. SRI SIDDAPPA TALAWAR,
R/O: SOMANHALLI, TAL: HIREKERUR.
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RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
13. KUMARI REKHA D/O. SRI SHEKAPPA TALAWAR,
AGE: 19 YEARS, OCC: STUDENT,
R/O: IJARILAKAMPUR, TAL: HAVERI.
14. SMT. SUJATHA W/O SRI BASAVARAJ TALAWAR,
AGE: 32 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
15. SRI. KUMAR ANJANEYA S/O. SRI. BASAVARAJ TALAWAR,
AGE: 18 YEARS, OCC: STUDENT,
R/O: HALAVAGAL, TAL: HARAPANAHALLI,
DIST: DAVANGERE.
SINCE MINOR REPRESENTED BY HIS
MINOR GUARDIAN I.E.CROSS OBJECTOR NO.14.
...CROSS OBJECTORS
(BY SRI. D. NAGARAJ AND
SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATES)
AND:
1. BASAVANNEPPA S/O. TIRAKAWWA TALAWAR,
SINCE DECEASED BY HIS LRS.
1A. PARVATEVVA W/O. BASAVANNEPPA TALAVAR,
AGED: 70, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1B. HANUMAVVA W/O. CHANDRAPPA RATTEHALLI,
AGED: 46, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1C. GANGAVVA W/O. PUTTAPPA LAKAMAPUR,
AGED: 44, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1D. MAHADEVAKKA W/O. YALLAPPA BASAPUR,
AGED: 40, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
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RSA No. 100389 of 2016
C/W RSA No. 100548 of 2024
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HC-KAR
1E. MALLAVVA W/O.TIPPANNA TALAWAR,
AGED: 39, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1F. SHANTAVVA W/O. ASHOK SHIGEHALLI,
AGED: 38, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1G. LAXMI W/O. MOHAN BALAMMANAVAR,
AGED: 35, OCC: HOUSE WIFE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1H. ANAND S/O. BASAVANNEPPA TALAVAR,
AGED: 32, OCC: AGRICULTURE,
R/O: IJARILKAMAPUR,
TQ: HAVERI, DIST: HAVERI.
1I. SHARAN S/O. MANJUNATH TALAVAR,
AGED: MINOR, SINCE MINOR,
R/IBY HIS GRAND MOTHER SMT. HANUMAVVA 1(B)
W/O. CHANDRAPPA RATTEHALLI.
...RESPONDENTS
(BY SRI. SOURABH S. SONDUR, ADVOCATE FOR
SRI. VISHWANTH HEGDE, ADVOCATE FOR R1(A- TO I);
R1(i) IS MINOR R/BY R1(B))
THIS RSA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CODE OF CIVIL PROCEDURE PRAYING TO CALL FOR RECORDS IN
O.S.NO.5/2000 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC AT HAVERI AND THE RECORDS IN R.A.NO.13/2010 ON
THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
HAVERI. SET ASIDE THE JUDGMENT AND DECREE DATED
05.01.2010 PASSED BY THE FILE OF ADDITIONAL CIVIL JUDGE
(SR.DN) AND JMFC AT HAVERI IN O.S.NO.5/2000 INSOFAR AS IT
RELATES TO SUIT SCHEDULE PROPERTY AT ITEM NO.1 AND
JUDGMENT AND DECREE DATED 28.03.2016 PASSED BY THE FILE
OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HAVERI IN
R.A.NO.13/2010 AND ORIGINAL SUIT FILED IN O.S.NO.5/2000 BY
THE RESPONDENT HEREIN MAY BE DISMISSED WITH COST
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUTIY & ETC.,
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C/W RSA No. 100548 of 2024
RSA.CROB No. 100009 of 2016
HC-KAR
THESE APPEALS AND RSA CROB, COMING ON FOR FINAL
HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
ORAL JUDGMENT
(PER: THE HON’BLE MR. JUSTICE M.G.S. KAMAL)
1. These appeals and the cross-objection are filed
by the both the plaintiff and the defendants in O.S.
No.5/2000 against the judgment and decree dated
05.01.2010, passed by the Addl. Civil Judge (Sr.Dn.) Haveri
(for short “the trial Court”). By the said judgment, the trial
Court partly decreed the suit of the plaintiff, declaring him
to be the owner and possessor of the Sl.No.1 suit schedule
properties namely, land bearing R.S. No.43 measuring 2
acres 4 guntas and R.S. No.82 measuring 7 acres 3 guntas,
both situated at Ijari Lakmapur Village and the defendants
were permanently restrained from illegally interfering with
or obstructing the plaintiff’s lawful possession of these
properties. However, the suit of the plaintiff in respect of
the Sl. No. 2 of the suit schedule properties namely, land
bearing R.S. No.29/1B/1 was dismissed.
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HC-KAR
2. Aggrieved by the rejection of the relief regarding
suit schedule Sl.No.2 property, the plaintiff filed an appeal
in R.A. No.10/2010, while the defendants aggrieved by the
decree in favour of the plaintiff in respect of suit schedule
Sl.No.1 properties, preferred an appeal in R.A. No.30/2010
before the I-Addl. District and Sessions Judge, Haveri (for
short “the First Appellate Court”). The First Appellate Court,
by separate judgments passed on the same day i.e., on
28.03.2016, dismissed the appeal filed by the plaintiff in
R.A. No.10/2010 and partly allowed the appeal filed by the
defendants in R.A. No.30/2010, granting equal share in the
suit schedule Sl.No.1 properties to the Plaintiff and
Defendant Nos.1 to 6.
3. Aggrieved by the aforesaid judgments and
decrees passed by the trial Court and the First Appellate
Court, the plaintiff has filed RSA Nos.100389/2016 and
100548/2024 before this Court, while the defendants have
filed RSA Cr.Ob. No.100009/2016.
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4. The subject matter of the suit are the properties
described as follows:
1) zÁªÁ D¹ÛAiÀÄ ªÀtð£É:-
ºÁªÉÃj f¯Áè ºÁªÉÃj vÁ®ÆPÀÄ EeÁj®PÁä¥ÀÄgÀ UÁæªÀÄzÀ
d«ÄãÀÄUÀ¼ÀÄ CªÀÅUÀ¼À «ªÀgÀ F PɼÀV£ÀAwzÉ.
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C) 43 2-04 5-67
§) 82 7-03 25-76
2) ºÁªÉÃj f¯Áè ºÁªÉÃj vÁ®ÆPÀÄ zÉêÀVjÀ AiÀįÁè¥ÀÄgÀ UÁæªÀÄzÀ
d«ÄãÀÄ CzÀgÀ «ªÀgÀ.
j¸À£ÀA J.UÀÄA: vÀgÀA. gÀÆ.
C) 29:1© 4-35 2-50
EzÀgÀ ¥ÉÊQ 1/2 »¸Éì ªÀiÁvÀæ zÁªÉÃzÀ D¹Û EgÀÄvÀÛzÉ. ªÉÄîÌAqÀ
AiÀiÁªÀvÀÆÛ D¹ÛUÀ¼ÀÄ zÁªÉÃzÀ D¹ÛUÀ½gÀÄvÀÛªÉ.
5. The original plaintiff, Basavanneppa son of
Tirakavva Talawar, filed the suit in O.S. No.5/2000 seeking
a declaration that he is the absolute owner of the suit
schedule properties with a consequential relief of
permanent injunction, contending inter alia;
(a) That one Basavva, also known as Tirakavva, had
two sons and two daughters namely Ramappa,
Basavanneppa (plaintiff), Gouramma (defendant
No.7) and Basavannevva (defendant No.8). The
suit properties originally belonged to the said
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Tirakavva, who acquired them through a grant
order dated 20.04.1975 under the provisions of
Section 48-A(4) of the Karnataka Land Reforms
Act. That, suit schedule Sl.No.2 property namely
land bearing R.S.No.29/1B/1 measuring 4 acres
35 guntas was granted jointly in the name of
Tirakavva and Honnappa Talawar. As such,
Tirakavva had only half share right, title and
interest in suit schedule Sl. No.2 property.
(b) That on 20.12.1974, Tirakavva executed a
registered Will bequeathing the suit properties
equally between her two sons. That her eldest
son, Ramappa, had been living separately with
his family for over 45 years. However, on
account of the differences between her first son
Ramappa and herself to avoid any future
complications said Tirakavva revoked her earlier
Will dated 20.12.1974 and executed a another
Will dated 27.02.1989, bequeathing the
properties exclusively in favour of her second son
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Basavanneppa (the plaintiff). Thus in terms of
the aforesaid last Will and testament executed by
Tirakavva dated 27.02.1989, the plaintiff claims
to have become the absolute owner and has
been in enjoyment of the properties accordingly.
(c) That Tirakavva passed away on 30.12.1997.
During her life time, it was the plaintiff who was
looking after the affairs of the suit schedule
properties and his name was also mutated in the
revenue records even during the life time of
Tirakavva. The first son of Tirakavva, Ramappa
later passed away, leaving behind defendant
Nos.1 to 6 as his legal heirs.
(d) That defendant Nos.1 to 6, in collusion with
defendant Nos.7 and 8 filed a suit in O.S.
No.72/1997. Both the plaintiff as well as the
deceased Tirakavva engaged the services of a
counsel and contested the matter. That
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subsequent to the death of said Tirakavva, the
defendants challenged the mutation entries that
were made in the name of the plaintiff by filing
the proceedings in RTS: AP: 42/1999-2000,
which was disposed of by the Assistant
Commissioner in RTS: AP: No.107 / 1998-99 and
RTS: AP: No.108 / 1998-99 directing the parties
to have the genuineness of the Will adjudicated
by a Civil Court of competent jurisdiction. It is
under these circumstances, the plaintiff was
constrained to file the present suit for seeking a
declaration and a permanent injunction.
6. Defendant No.1 filed a written statement. While
admitting the relationship between the parties and
admitting that the suit properties belonged to Tirakavva and
that she passed away leaving behind the plaintiff and the
defendants as her legal representatives, denied the
averments in the paragraph No.5 of the plaint, that
Tirakavva executed a Will dated 20.12.1974 bequeathing
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the suit properties equally to Ramappa and the plaintiff is
denied for want of information. The Further claim of
Tirakavva executing a subsequent Will dated 27.02.1989 by
revoking her earlier will and bequeathing the entire
property in favour of the plaintiff is also denied. It is alleged
that the said Will dated 27.02.1989 appears to be created
and fabricated with a malafide intention of usurping the suit
properties. It is also contended that Tirakavva had no
exclusive right to execute a Will in respect of the suit
properties, as the grant made in her name was for the
benefit of all the family members, including the defendants.
The claim that the plaintiff managed the affairs of the suit
properties during the lifetime of Tirakavva, and as such his
name was entered in the revenue records, is also disputed.
The claim made by the plaintiff of he having exclusive right
over the suit properties based on the Will dated 27.02.1989
is also denied.
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7. Defendant Nos.2 to 6 adopted the written
statement filed by defendant No.1 by filing a memo dated
13.07.2004.
8. Based on the pleadings, the trial Court framed
the following issues:
1. Whether plaintiff proves that, on the basis of
registered will executed by Tirakavva dated
27.02.1989, he alone has become absolute
owner of suit properties?
2. Whether plaintiff proves that, he is entitled for
relief of declaration as prayed?
3. Whether plaintiff proves that, he is entitled for
relief of permanent injunction as prayed?
4. Whether Court fee paid is proper?
5. What order or decree?
9. The plaintiff examined himself as PW1 and
produced three more witnesses as PW2, PW3 and PW4. He
also exhibited 68 documents, which were marked as
Exhibits P1 to P68. On behalf of the defendants, four
witnesses were examined as DW1 to DW4, and 17
documents were exhibited, marked as Exhibits D1 to D17.
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10. On appreciation of evidence, the trial Court
answered issue Nos.1 to 3 partly in the affirmative and
issue No.4 in the affirmative declaring the plaintiff to be
absolute owner of the suit properties on the basis of
registered will executed by Tirakavva dated 27.02.1989,
and consequently, partly decreed the suit as noted above.
However dismissed the suit in respect of suit schedule
Sl.No.2 property for want better description.
11. The plaintiff being aggrieved by the said
judgment and decree to the extent rejecting his suit in
respect of suit schedule Sl.No.2 property preferred an
appeal in R.A. No.10 of 2010. The defendants also preferred
an appeal in R.A. No.13 of 2010 to the extent declaring the
Plaintiff to be the owner of the remaining suit properties.
12. The First Appellate Court, while considering the
grounds urged in the appeal memorandum in R.A. No.10 of
2010, framed the following points for its consideration:
1. Whether the judgment and decree passed in
O.S.No.5/2000, dated 05.01.2010 by the trial
court in respect of suit schedule Sl.No.2
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property bearing R.S.No.29/1B/1 is justifiable
or not?
2. If so, whether the interference of this court is
required in the trial court’s judgment and
decree?
3. If so, what order?
13. As regards the appeal in R.A. No.13 of 2010, the
First Appellate Court framed the following points for its
consideration:
1. Whether the judgment and decree passed in
O.S.No.5/2000, dated 05.01.2010 by the trial
court is justifiable or not?
2. If so, whether the interference of this court is
required in the trial court’s judgment and
decree?
3. If so, what order?
14. First Appellate Court set aside the Judgment and
Decree of the trial Court to the extent of declaring the
plaintiff to be the absolute owner of the suit properties on
the premise that Tirakavva could not have executed the Will
bequeathing the entire property in favour of the plaintiff by
opining that the Land Tribunal in its order dated 29.05.1981
while granting occupancy rights in favour of Tirakavva had
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imposed a condition restraining her from handing over the
possession of the tenanted property to anybody till
completion of 15 years and that execution of the said Will
dated 27.02.1989 by Tirukavva was in contravention and in
violation of the said condition imposed by the Land Tribunal.
That the said Will has come into existence only within 7
years, 8 months, 26 days in violation to the conditions
imposed and that she could have executed only to the
extent of her share but not the entire extent of the
properties as done in the present case. The First Appellate
Court also declined to grant any share to the daughters,
citing the provision under subsection (12) of Section 2 of
the Karnataka Land Reforms Act. Accordingly, held that the
sons of deceased Tirakavva, namely Basavanneppa and the
deceased Ramappa are each entitled to 1½ share in the suit
properties thereby allowed the appeal filed in RA
No.13/2010 filed by the defendants. It however confirmed
the decree dismissing the suit in respect of Sl.No. 2 of the
suit Schedule Properties and dismissed the appeal filed by
Plaintiff in RA No.10 of 2010.
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15. Aggrieved by the same, the plaintiff is in in RSA
No.100389/2016 and RSA No.100548/2024. While the
defendants are RSA Cr. Ob. No.100009/2016 before this
court;
16. This Court, by order dated 20.10.2016, admitted
the appeal in RSA No.100389/2016 to consider the
following substantial question of law:
“Whether the judgment and decree of the First
Appellate Court is perverse in misreading Section 61
of the Karnataka Land Reforms Act and consequently,
hold that the Will is void?”
17. By order dated 26.06.2025, this Court admitted
the RSA Cr. Ob. No.100009/2016 to consider the following
substantial question of law:
“Whether the trial Court is justified in accepting
the Will dated 27.02.1989 as per Exhibit P1 as
proved on the premise of compliance of Sections 68
and 69 of the Evidence Act merely on the basis of the
examination of legal representatives of the attesting
witnesses to the said Will, without adverting to the
second part of Section 69 of the Evidence Act
requiring proof of execution of the said Will by the
testator?
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18. The appeal in RSA No. 100548/2024 is admitted
to consider the following substantial question of law:
“Whether the trial Court and the First Appellate
Court are justified in rejecting the suit of the plaintiff
in respect of Item No.2 of the suit schedule
properties merely on the premise of same did not
depict the boundaries and description to establish its
identity?
19. Learned counsel appearing for the appellant /
plaintiff in RSA No.100389/2016 and RSA No.100548/2024
took this Court through the records and the reasoning
assigned by both the trial Court and the First Appellate
Court and submitted;
(a) That neither the trial Court nor the First
Appellate Court discredited the authenticity of
the Will. That though the trial Court accepted the
case of the plaintiff of being the absolute owner
of the suit schedule properties by virtue of the
Will dated 27.02.1989, it erred in dismissing the
suit in respect of the suit schedule Sl.No.2
property merely because the same did not
contain detail description of its boundaries. That
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the said finding and the conclusion arrived at by
the trial Court is contrary to the provisions of
Order 7 Rule 3 of the CPC, which only requires
that the properties be described sufficiently
enough to be identified and understood by the
parties.
(b) That the survey number, extent and location of
the properties were explicitly mentioned in the
plaint, which has not been taken note of by the
trial Court. He relied on the judgment of the
Coordinate Bench of this Court in the case of
SHANTAMMA W/O. GOUDAPPAGOUDA PATIL
VS. SOMASHEKHARGOUDA @ SHANKARGOUDA
PATIL AND OTHERS1, wherein it was held that
strict compliance with Order 7 Rule 3 of the CPC
is not mandatory if the properties are otherwise
identifiable. Therefore, he contended that the
trial Court erred in dismissing the suit in respect
1
RFA No.200066 of 2020, DD: 26.09.2024
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of suit schedule Sl.No.2 property based on this
erroneous factual and legal premise.
(c) With regard to the Judgment and Order passed
by the First Appellate Court in R.A. No.13 of
2010, whereby the First Appellate Court set aside
the Judgment and Decree of the trial Court and
granted equal shares to the plaintiff and the legal
heir of other son of Tirakavva on the premise in
contravention of the condition of grant, Learned
counsel submits that the finding and the
conclusion arrived at by the First Appellate Court
are contrary to the settled position of law. He
submits that the execution of a Will does not
amount to alienation, as understood by the First
Appellate Court. He further submits that the said
issue is no more res intigra in the light of the
judgments passed by the Apex Court in the case
of SANGAPPA KALYANAPPA BHANGI VS. LAND
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2
TRIBUNAL, JAMAKANDI & OTHERS and in the
case of JAYAMMA VS. MARIYA BAI (DECEASED
3
BY L.RS.) AND ANOTHER . Thus he submitted
that the First Appellate Court ought not to have
held that Tirakavva had no right to execute the
Will.
(d) That the First Appellate Court failed to comply
with the requirement of Rule 30 of Order 41 of
the CPC while disposing of the matter. In support
of this contention, he relied on the judgment of
the Apex Court in the case of UNITED
ENGINEERS AND CONTRACTORS VS. SECURITY
TO GOVT., A.P. & ORS.4.
(e) With regard to the cross objection filed by the
defendants challenging the proof of Will, learned
counsel relied on the judgment of the High Court
of Kerala in the case of C.G. RAVEENDRAN AND
2
AIR 1998 SC 3229
3
AIR 2004 SC 3957
4
AIR 2013 SC 2239
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5
OTHERS VERSUS C.G. GOPI AND OTHERS . He
submitted that judicial precedents have always
been in favour of proof of the Will and not to find
out missing links in the proof of Will. In the
present case, he submits that the Will is
registered. Though the attesting witnesses of the
Will not being available on account of their
demise, their representatives were examined as
PW2 and PW3, and they identified the signatures
of the attesting witnesses. In addition, PW4 who
had accompanied deceased Tirakavva and the
attesting witnesses to the office of Sub-Registrar,
who deposed that he witnessed the execution of
the Will. Thus, he submitted that there is a
substantial compliance with the requirements of
Sections 68 and 69 of the Evidence Act. In any
event, he emphasized that the trial Court had
already upheld the validity of the Will and though
the First Appellate Court did not gone into this
5
AIR 2015 KERALA 250
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aspect of the matter, the proof of Will is required
to be taken as having proved in the manner
known to law.
(f) That in view of the appeal that was filed by the
defendants in R.A. No.13 of 2010, the defendant
themselves filed an application in I.A. No.III
under Order XIII Rule 10 read with Section 151
of CPC before the First Appellate Court seeking to
summon the vakalath of the deceased Tirakavva
filed in O.S. No.72/1997 which had been filed by
the defendants and the said vakalath was indeed
called for by the First Appellate Court.
Subsequently the plaintiff filed another
application in another application in IV under
Order XXVI Rule 10A of the PC read with Section
45 of the Indian Evidence Act, seeking reference
of the vakalath and the Will in question for
signature verification. However, by order dated
07.06.2013, the First Appellate Court rejected
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the application filed by the plaintiff seeking
reference of the signature verification, though
I.A. No.III had been allowed, he submitted that
the reason assigned by the First Appellate Court
was that the burden of proving the signature was
on the defendants. Therefore, the plaintiff did not
find it appropriate or necessary to proceed
further in the matter. That under these
circumstances, he insists, that it is just and
proper that the Will should be held having
proved.
(g) Alternatively, he prayed that since the
documents are already on record, in the ends of
justice, the same may be referred for signature
verification, which would assist in the effective
adjudication of the matter. He relied on the
judgment of the Apex Court in the case of
SANJAY KUMAR SINGH VS. STATE OF
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6
JHARKHAND in support of this submission.
Hence, he seeks for allowing of the appeal.
(h) That even in terms of Section 105 of the CPC
read with Order 43 Rule 1A, the order rejecting
the application filed by the plaintiff before the
First Appellate Court seeking verification of
thumb impression of the deceased Tirakavva,
can be considered along with the appeal. Hence,
seeks for allowing of the appeal.
20. Per contra, Sri.D.Nagaraj along with
Sri.Rajashekhar R Gunjalli, learned counsel appearing for
the defendants submits;
(a) That even by the very averment made in the
plaint by the plaintiff deceased Tirakavva had in
the year 1974 executed a Will bequeathing the
suit properties equally between her two sons
which allegedly was revoked by the Will dated
27.02.1989. That the plaintiff who had
6
Civil Appeal No.1760 of 2022, DD: 10.03.2022
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propounded the Will has not discharged the
statutory obligation of proving the same in the
manner known to law.
(b) Referring to Sections 68 and 69 of the Evidence
Act particularly, the counsel vehemently submits
that admittedly the attesting witnesses were not
available as they having passed on. Though the
plaintiff had examined PW.2 and PW.3 being the
legal representatives of the attesting witnesses,
the said examination would only satisfy the
requirement of first part of Section 69 of
Evidence Act, whereas the second part of Section
69 of Evidence Act requiring proof of handwriting
of the testator had not been complied with. That
the plaintiff who is statutorily obligated to have
discharge this requirement, has failed besides he
having had opportunity at every level and has
not utilised the same.
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(c) It is his submission that though the plaintiff
ought to have discharged this burden, he had
made an attempt to summon the vakalaths
purportedly filed by Tirakavva in O.S.No.72/1997
which was objected to by the defendants on the
premise of the said thumb impression found on
the vakalath not having been identified by the
advocate who represented the said Tirakavva in
the said suit. As such, it was not safe to rely
upon the said thumb impression. He submits
objections were also raised on the premise that if
such a course was adopted that would amount to
leading fresh evidence which was not
permissible. That though the First Appellate
Court had accepted the contention raised by the
defendants in declining to send the said thumb
impression for signature verification, the reason
assigned there was inappropriate. That the First
Appellate Court had erroneously held the burden
of proving the signature was on the defendants
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as they have disputed the signature which was
contrary to the requirement of Section 69 of the
Evidence Act. That as the law propounded by the
Apex Court even if the defendant had remained
silent without raising any objection whatsoever
with regard to the authenticity or otherwise of
the Will, the liability/burden of the plaintiff to
discharge the proof of execution the Will does
not get diluted. That the plaintiff not having
availed the opportunity even before the First
Appellate Court, cannot be permitted to raise
that issue in this appeal.
(d) That the present appeal filed by the plaintiff in
RSA No.100389/2016 is restricted only to the
rejection of the Will by the First Appellate Court
in view of the condition that was imposed
regarding non-alienation and not with regard to
the requirement of proof of the Will. That the Will
not having been proved, the Trial Court erred in
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accepting the same in declaring that the right,
title and entitlement of the plaintiff in respect of
Sl.No.1 of the suit property even though it
rejected the claim of the plaintiff in respect of
Sl.No.2 of the suit property.
(e) Remand of the matter at this juncture according
to the counsel is not only unwarranted but also
would be an exercise in futility. Both the Trial
Court and the First Appellate Court not having
adverted to the requirement of law with regard
to proof of Will and the Will admittedly not
having been put in a manner known to law, no
purpose would be served if the matter is
remanded.
(f) He submits in the fitness of things, the
judgement and decree passed by the First
Appellate Court awarding half share to the
original plaintiff Ramappa needs to be modified.
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In that, share to the daughters is also required
to be given equally as that of a son.
(g) That the First Appellate Court declined to grant
share to the daughters only in the light of
provision contained in Sub-section (12) to
Section 2 of the Karnataka Land Reforms Act and
the law with respect to said provision as it stood
then. He submits the said position of law has
now changed. In that, even the married
daughters are entitled for share in the land
granted under the Land Reforms Act. In view of
the settled position of law, the decree passed by
the First Appellate Court requires to be modified
and ends of justice would thereby be met with.
(h) As regards the submission made by the counsel
for the appellant seeking reference of the
documents available on record for the purpose of
verification of the thumb impression, he re-
iterates the submission that was made before the
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First Appellate Court and further adds that the
suit as such originally filed in the year 2000 and
the present appeal is pending consideration since
2016 and the plaintiff at this juncture seeking to
fill up the lacuna by leading further evidence
cannot be permitted.
(i) He relies upon the following judgements in
support of his submission:
i) H.Venkatachala Iyengar Vs. B.N.Thimmajamma and
Others7 (para 19)
ii) Om Prakash (dead) through his legal representatives
vs. Shanti Devi and Others8 (para 7)
iii) Babu Singh and Others Vs. Ram Sahai alias Ram
Singh9 (para 16, 17, 18)
v) Rukmini Bai and Another Vs. Umabai Shankar Jadhav
and Others11 (para 15).
7
AIR 1959 SC 443
8
(2015) 4 SCC 601
9
(2008) 14 SCC 754
10
(2009) 1 SCC 354
11
2008 (1) AIR KAR R 594
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vi) Gaiv Dinshaw Irani and Others Vs. Tehmtan Irani and
Others12 (para 14, 48 and 55)
vii) Rangappa Vs.Jayamma13 (para 2, 5, 8.2, 8.3, 8.5,
8.6, 8.7 and 9)
viii) Ramesh Verma (dead) through legal representatives
vs. Lajesh Saxena (dead) by legal representatives
and Another14 (para 13 and 14)
ix) The Municipal Corporation of Greater Bombay Vs.
Lala Pancham and Others15 (para 9 marked portion)
x) S.Rajagopal vs. C.M.Armugam and Others16 (para 7)
xi) Smt.Pramod Kumari Bhatia Vs. Om Prakash Bhatia
and Others17 (para 8)
xii) N. Kamalam (dead) and Another Vs. Ayyaswamy and
Another18 (para 19)
xiii) Neelawwa Vs. Shivawwa19 (para 11)
21. Hence, he seeks for answering the substantial
question of law framed in the cross-objection in the
affirmative and allow the appeal.
12
(2014) 8 SCC 294
13
ILR 1987 Karnataka 2889
14
(2017) 1 SCC 257
15
AIR 1965 SC 1008
16
AIR 1969 SC 101
17
AIR 1980 SC 446
18
AIR 2001 SC 2802
19
ILR 1988 KAR 2761
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22. Heard and perused the records.
23. Necessary at the outset to note that Tirakavva
was admittedly a devadasi. The land bearing R.S. No.43
measuring 2 acres 4 guntas and R.S. No.82 measuring 7
acres 3 guntas, both situated at Ijari Lakmapur Village
having been granted exclusively in favour of said Tirakavva,
and land R.S.No.29/1B/1 measuring 4 acres 35 guntas
having been granted jointly in the name of Tirakavva and
Honnappa Talawar is also not in dispute. The said Tirakavva
having had two sons by name Ramappa (father of
defendants No.1 to 6) and Basavanneppa (plaintiff) and two
daughters namely Gouravva and Basavannevva (defendants
Nos.7 and 8 respectively) is also not in dispute.
24. Even according to the plaintiff the said Tirakavva
had executed Will dated 20.12.1974 bequeathing her
properties equally between her first son Ramappa and the
plaintiff Basavanneppa. According to the plaintiff, due to
certain differences, the first son Ramappa had parted ways
and was staying separately along with his family and in
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furtherance to the said differences the said Tirakavva had
executed the Will subject dated 27.02.1989 matter of the
present suit revoking her earlier Will and bequeathing the
entire suit properties in favour of the plaintiff alone. Thus,
the basis of suit for declaration and injunction being filed by
the plaintiff is the aforesaid Will dated 27.02.1989.
25. Sections 68 and 69 of the Evidence Act provide
the manner in which Will is required to be proved which are
extracted hereunder for immediate reference:
“68. Proof of execution of document required
by law to be attested.–If a document is required by law
to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and capable
of giving evidence:
[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by the person
by whom it purports to have been executed is specifically
denied.]
69. Proof where no attesting witness found.–
If no such attesting witness can be found, or if the
document purports to have been executed in the United
Kingdom, it must be proved that the attestation of one
attesting witness at least is in his handwriting, and that
the signature of the person executing the document
is in the hand writing of that person.”
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26. Admittedly, evidence of attesting witnesses the
Will could not be completed as they had passed on. This
constrained the plaintiff to examine PW.2 and PW.3 who are
stated to be the sons of the respective attesting witnesses.
The said witnesses appear to have identified and
acknowledged the signatures of the attesting witnesses
found on the Will. To this extent, there appears to be
compliance with regard to the first part of Section 69 of
Evidence Act.
27. The dispute which is lingering in this matter is
with regard to the last part of Section 69 of the Evidence
Act which reads as under:
“and that the signature of the person
executing the document is in the handwriting of
that person”
28. The Apex Court in the case of BABU SINGH
supra adverting to requirement of Section 69 of the
Evidence Act at paragraph Nos.16, 17 and 18 has held as
under:
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“69. Proof where no attesting witness found.–If no such
attesting witness can be found, or if the document
purports to have been executed in the United Kingdom, it
must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the
signature of the person executing the document is in the
handwriting of that person.”
17. It would apply, inter alia, in a case where the
attesting witness is either dead or out of the jurisdiction of
the court or kept out of the way by the adverse party or
cannot be traced despite diligent search. Only in that
event, the will may be proved in the manner indicated in
Section 69 i.e. by examining witnesses who were able to
prove the handwriting of the testator or executant. The
burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be
proved keeping in view the provisions of Section 63 of the
Succession Act and Section 68 of the Act, in the event the
ingredients thereof, as noticed hereinbefore, are brought
on record, strict proof of execution and attestation stands
relaxed. However, signature and handwriting, as
contemplated in Section 69, must be proved.”
29. Similarly, the Apex Court in the case of OM
PRAKASH supra at paragraph No.7 has held as under:
“7. …………… It is at once apparent that this provision
anticipates a reasonable anxiety emerging out of the
peremptoriness of Section 68, in that it addresses, inter
alia, a situation where none of the attesting witnesses to
a document (a gift deed, in this case) are alive at the time
of the curial investigation thereof. Not leaving litigants
forlorn for proof under Section 68, Section 69 of the
Evidence Act places emphasis on handwriting(s) of the
putative deceased or the “not found” attestator(s), along
with the signatures of the executant. We must be quick to
elucidate that the position is akin to the reception of
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the rigours of Section 68 can be met contingent upon the
proved non-availability of the attesting witnesses to a
document. The litigants are, therefore, not faced with an
evidentiary cul-de-sac. They can discharge their burden
by proving, in the alternate mode and manners conceived
by the Evidence Act, the signatures of the putative
attestators along with the handwriting of the executant.
The appellant herein palpably failed in proving the
signatures of the attestators to the gift deed, and,
therefore, has pursued his case by evoking Section 90 of
the Evidence Act as the cornerstone of his pleadings.”
30. Similarly, the Apex Court in the case of RAMESH
VERMA supra at paragraph No.13 and 14 has held as
under:
“13. A Will like any other document is to be proved in
terms of the provisions of Section 68 of the Indian
Succession Act and the Evidence Act. The propounder of
the Will is called upon to show by satisfactory evidence
that the Will was signed by the testator, that the testator
at the relevant time was in a sound and disposing state
of mind, that he understood the nature and effect of the
disposition and put his signature to the document on his
own free will and the document shall not be used as
evidence until one attesting witness at least has been
called for the purpose of proving its execution. This is
the mandate of Section 68 of the Evidence Act and
the position remains the same even in a case
where the opposite party does not specifically deny
the execution of the document in the written
statement.
14. In Savithri v. Karthyayani Amma this Court has
held as under SCC page 629 para 17),:-
“17. A Will like any other document is to be proved in
terms of the provisions of the Succession Act and the
Evidence Act. The onus of proving the Will is on the
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must also be established. Execution of the Will by the
testator has to be proved. At least one attesting witness
is required to be examined for the purpose of proving the
execution of the Will. It is required to be shown that the
Will has been signed by the testator with his free will and
that at the relevant time he was in sound disposing state
of mind and understood the nature and effect of the
disposition. It is also required to be established that he
has signed the Will in the presence of two witnesses who
attested his signature in his presence or in the presence
of each other. Only when there exists suspicious
circumstances, the onus would be on the propounder to
explain them to the satisfaction of the Court before it can
be accepted as genuine.”
31. Suffice it to state in the light of the aforesaid
provisions of the Evidence Act and the enunciation of law by
the Apex Court, the burden is on the plaintiff to prove the
Will strictly in terms of Section 68 of the Evidence Act and
in the absence of circumstances contemplated therein as
per Section 69 of the Evidence Act. Necessary therefore to
analyse if the plaintiff has discharged this statutory
obligation of proving the Will in the instant case.
32. PW.2 is one Kumaraswamy Rudrayya Matada
stated to be the son of Rudrayya Matada and PW.3 is
Kumar also known as Kumaraswami son of Kotrayya
Sandimath. The aforesaid Rudrayya Matada and Kotrayya
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Sandimath are stated to be the attesting witnesses of the
Will. The said witnesses have indeed identified the
signatures of the said attesting witnesses. Plaintiff has
examined PW.4 one Sri. Nandeppagouda who in his
deposition has stated that he was present when the Will
was read over to the deceased Tirakavva and when the
same was being registered. It is only these three witnesses
who have been examined by the plaintiff in proof of the
execution of the Will.
33. The plaint is conspicuously silent with regard to
the source of knowledge of the plaintiff with regard to
existence of Will. It is not the case of the plaintiff that he
either accompanied Tirakavva for execution and registration
of the Will or that the Tirakavva had handed over the Will to
him. Though in the plaint it is averred that even during the
lifetime of the Tirakavva he had managed the affairs of the
property, nowhere is there any mention in the plaint that he
was either having knowledge or was in possession of the
Will. In the deposition of PW.1 recorded on 03.12.2009 at
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page 11, the PW.1 has admitted that he was not present at
the time of making of Will of 1989 and he is not even aware
of the place where the said Will was prepared and that he is
also not even aware as to who had accompanied Tirakavva
at the time of execution of the Will. Thus, the circumstance
of the Will coming into the hands of the plaintiff has
remained a secret.
34. Even if the evidence of PW.2 and PW.3 is
accepted, evidence of PW.4 and the purpose of his
examination have remained unclear. That PW.4 is neither a
witness nor a signatory in any capacity whatsoever to the
Will in question. It is also not clear as to the circumstances
under which the plaintiff learnt about the presence of PW.4
at the time of purported execution of the Will by the
deceased Tirakavva. The said witness do not fall in any
other categories of the witnesses required to be examined
under Sections 68 or 69 of the Evidence Act. Though the
said witness has deposed that he has seen Tirakavva
executing the Will and registering the same, the least that
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could have been done by the plaintiff while he was in the
witness box was to confront the signature/thumb
impression of Tirakavva found on the said Will. Not even a
suggestion is made to the said witness of he recognising or
identifying the signature/thumb impression of Tirakavva.
35. Reliance placed by the counsel for the appellant
on to the judgement of the Kerala High Court in the case of
C.G. RAVEENDRAN AND OTHERS VS. C.G. GOPI AND
OTHERS in RFA No.315/2013 to impress upon this Court to
consider the examination of witness-PW.4 as substantial
compliance of Section 69 of Evidence Act cannot be
countenanced. For, even as seen at para No.20 of the said
judgment of the Kerala High Court, DW.2 therein who was
examined to prove the ingredients of Section 69 of the
Evidence Act was a person who had identified the signature
of the testator as well as his own signature on the Will
which is the distinguishable factor between the said
judgement of the Kerala High Court and the one at hand.
Evidence of PW.4 could have come to the aid of the plaintiff
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had he been the person who had identified the signature of
the testator Tirakavva which is not the case at hand.
Therefore, though there cannot be any dispute with regard
to the principle of law laid down in the said judgement of
the Kerala High Court, on the facts, the same cannot be
made applicable to the instant case.
36. The other submission made by the counsel for
the appellant/plaintiff is that the efforts were made before
the First Appellate Court by filing application in I.A.No.3 in
summoning the vakalath which was allowed; and the
subsequent attempt made by filing another application in
I.A.No.4 before the First Appellate Court seeking reference
of the matter for signature/handwriting verification which
was declined; would according to him, indicate that the
plaintiff indeed had taken steps to comply with the law
requiring proof of handwriting; and that the plaintiff is
entitled to urge said grounds even before this Court under
Section 105 of the CPC. This contention also cannot be
countenanced for as seen in the order passed by the First
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Appellate Court on the application in I.A.No.4, a specific
finding is given at para No.10 which reads as under:
“It is also important to note that the vakalath
sought to be sent to handwriting expert is not the part of
the record of this appeal and the same is summoned only
for the limited purpose for comparison and this Court
summoned the same for the limited purpose and
respondent is also not invoked application under Order 41
Rule 27 to treat the same as additional evidence and in
the said document is not part of the record, the same
cannot be sent to handwriting expert and there is no
material that the said signature is belongs to the
Tirakavva only and the same is disputed with appellant
that the counsel who filed the vakalath on behalf of the
Tirakavva not identified the signature and the signature
belongs to Tirakavva only and hence I do not find any
force in the contention of the first respondent counsel to
send the document to the handwriting expert and hence
the application deserves to be dismissed.”
37. Thus, one of the reasons for First Appellate Court
not to accept the request of the plaintiff to send the thumb
impression for verification by the handwriting expert was
that there was no material on record to support the
contention of the plaintiff that the signature/thumb
impression was that of Tirakavva.
38. Section 105 of CPC reads as under:
“105. Other orders .- (1)Save as otherwise
expressly provided, no appeal shall lie from any order
made by a Court in the exercise of its original or
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from, any error, defect or irregularity in any order,
affecting the decision of the case, may be set forth as a
ground of objection in the memorandum of appeal.
(2)Notwithstanding anything contained in sub-
section (1), where any party aggrieved by an order of
remand from which an appeal lies does not appeal
therefrom, he shall thereafter be precluded from
disputing its correctness.”
39. Rule 1A of Order 43 of CPC reads as under:
“1A. Right to challenge non-appealable orders
in appeal against decree.
(1) Where any order is made under this Code
against a party and thereupon any judgment is
pronounced against such party and a decree is drawn
up, such party may, in an appeal against the decree,
contend that such order should not have been made and
the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit
after recording a compromise or refusing to record a
compromise, it shall be open to the appellant to contest
the decree on the ground that the compromise should,
or should not, have been recorded.”
40. The aforesaid provisions of CPC would indicate
that once an appeal is filed, the appellant is entitled to
challenge the correctness of any interlocutory order passed
in such suit in the appeal raising a ground that such order
ought not to have been passed and would not be necessary
in such a case that he should prefer an independent appeal
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against the order dismissing an interlocutory application
even it was appealable. Perusal of the present appeal does
not indicate that the appellant/plaintiff has taken any such
ground to challenge the finding given by the Trial Court on
the said I.A.No.4 rejecting the request for referring the
matter for signature/ thumb impression verification.
41. Necessary also to note that the counsel for the
appellant/Plaintiff after arguing the matter substantially,
sought permission of this Court to file an application at the
last moment. The suit is of the year 2000. Regular Appeal
was filed in the year 2010, which was disposed of in the
year 2016 and these appeals are pending consideration
before this Court for the past over 14 years. In the light of
the requirement of proof of Will as noted above, and the
opportunity that has already been availed by the plaintiff
before the First Appellate Court, this Court do not see any
reason to allow the Appellant/plaintiff at this belated stage
to seek verification of the thumb impression of the
deceased Tirakavva. This view of this Court, apart from
being in consideration of the factual aspect of the matter, is
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also supported by the view taken by the Apex Court in the
similar circumstances in the case of N. KAMALAM supra
wherein at para No.19, it has held as under:
“19. Incidentally, the provisions of Order 41 Rule
27 has not been engrafted in the Code so as to patch up
the weak points in the case and to fill up the omission in
the Court of Appeal – It does not authorise any lacunae
or gaps in evidence to be filled up. The authority and
jurisdiction as conferred on to the Appellate Court to let
in fresh evidence is restricted to the purpose of
pronouncement of judgment in a particular way. This
Court in The Municipal Corporation of Greater Bombay v.
Lala Pancham and others (AIR 1965 SC 1008) has been
candid enough to record that the requirement of the high
Court must be limited to those cases where it found it
necessary to obtain such evidence for enabling it to
pronounce judgment. In paragraph 9 of the judgment,
this Court observed:
“……………….This provision does not entitle the High
Court to let in fresh evidence at the appellate stage
where even without such evidence it can pronounce
judgment in a case. It does not entitle the appellate
Court to let in fresh evidence only for the purpose of
pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the evidence
that the appellate court is empowered to admit additional
evidence. The High Court does not say that there is any
such lacuna in this case. On the other hand what it says
is that certain documentary evidence on record supports
in a large measure the plaintiffs contention about fraud
and mala fides. We shall deal with these documents
presently but before that we must point out that the
power under cl. (b) of sub-r.(1) of r.27 cannot be
exercised for adding to the evidence already on record
except upon one of the ground specified in the
provision.”
Further in Smt. Pramod Kumari Bhatia v. Om
Parkash Bhatia and Others (AIR 1980 SC 446) this Court
also in more or less in an identical situation laid down
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that since an application to the High Court has been
made very many years after the filing of the suit and also
quite some years after the appeal had been filed before
the High Court, question of interfering with the discretion
exercised by the High Court in refusing to receive an
additional evidence at that stage would not arise. The
time lag in the matter under consideration is also
enormous and the additional evidence sought to be
produced was as a matter of fact after a period of 10
years after the filing of the appeal. Presently, the suit
was instituted in the year 1981 and the decree therein
was passed in 1983. The first appeal was filed before the
High Court in April, 1983 but the application for
permission to adduce additional evidence came to be
made only in August, 1993. Needless to record that the
courts shall have to be cautious and must always act
with great circumspection in dealing with the claims for
letting in additional evidence particularly, in the form of
oral evidence at the appellate stage and that too, after a
long lapse of time: In our view, a plain reading of Order
41 Rule 27 would depict that the rejection of the claim
for production of additional evidence after a period of 10
years from the date of filing of the appeal, as noticed
above, cannot be termed to be erroneous or an illegal
exercise of discretion. The three limbs of Rule 27 do not
stand attracted. The learned Trial Judge while dealing
with the matter has, as a matter of fact, very strongly
commented upon the lapse and failure on the part of the
plaintiffs even to summon the attestors to the will and in
our view contextually, the justice of the situation does
not warrant any interference. The attempt, the High
Court ascribed it, to be a stage managed affair in order
somehow to defeat the claim of the respondents – and
having had the privilege of perusal of record we lend our
concurrence thereto and the finding of the High Court
can not be found fault with for rejecting the prayer of the
appellant for additional evidence made in the belated
application. In that view of the matter, the first issue is
answered in the negative and thus against the plaintiffs
being the appellant herein.”
42. The Apex Court also in the case of
SMT.PRAMOD KUMARI BHATIA supra, held as under:
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an application for reception of additional evidence. The
principal additional evidence sought to be adduced was
an alleged letter said to have been written by late
Pearey Lal Singh to the bank nominating Pramod
Kumari as the person entitled to the amount in deposit
with the Bank. The letter itself was not filed along with
the application but a request was made to summon the
letter from the Bank. The High Court rejected the
application. The application to the High Court was
made very many years after the suit had been filed,
and also quite some years after the appeal had been
filed before the High Court, and we do not think that
we will be justified in interfering with the discretion
exercised by the High Court in refusing to receive
additional evidence at that stage. The appeal is
therefore dismissed but in the circumstances with no
order as to costs.”
43. In the light of the above discussion and analysis
this court is of the considered view that the Plaintiff has
failed to prove the execution of Will dated 27.02.1989 in the
manner required under the law. Thus having held as
above, necessary to advert to consequences of the
judgement and Decree passed by the First Appellate Court
as under;
44. The appeal in RSA No.100389/2016 is filed
primarily on the premise of First Appellate Court having
dismissed the suit of the plaintiff in its entirety on the
premise of Tirakavva having violated the terms of the grant
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by executing the Will within period of 15 years of non-
alienation period. Though the said reasoning assigned by
the First Appellate Court cannot be countenanced in view of
the law laid down in the case of SANGAPPA KALYANAPPA
BHANGI supra and JAYAMMA supra, wherein the Apex
Court analysing the provisions of the Karnataka Land
Reforms Act more particularly Sections 21 and 24 of the
Karnataka Land Reforms Act imposing the restriction on
alienation has laid down the law that execution of Will in
favour of natural heir would not amount to alienation/
assignment violating the terms and conditions. However,
even if the said finding and conclusion arrived by the First
Appellate Court in the appeal in R.A.No.13/2010 filed by the
defendants is set aside, in the light of the conclusion arrived
by this Court on the question of Plaintiff failing to prove the
execution of Will, Plaintiff cannot be held to the sole owner
of the suit properties.
45. The obvious consequences of inheritance /
succession of the suit properties by the natural heirs
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Tirakavva as per law would therefore have to ensue. Suit
will have to be consequently disposed of by moulding the
relief by holding that all the children of Tirakavva, namely,
Ramappa her first son since deceased now represented by
defendants Nos.1 to 6, Basavanneppa her second son the
original plaintiff since deceased now represented by his
legal representatives, Gouravva her daughter since
deceased now represented by her legal representatives and
Basavannevva the other daughter, each being entitled for
1/4th equal share in the suit schedule properties. This view
of this Court is fortified by the law laid down by the Apex
Court in the case of GAIV DINSHAW IRANI supra wherein
at para Nos.48 and 55, the Apex Court has held as under:
“48. Considering the aforementioned changed
circumstances, the High Court taking note of the
subsequent events moulded the relief in the appeal
under Section 96 of the Code of Civil Procedure and the
same has been challenged by the appellants before us.
In ordinary course of litigation, the rights of parties are
crystallised on the date the suit is instituted and only the
same set of facts must be considered. However, in the
interest of justice, a court including a court of appeal
under Section 96 of the Code of Civil Procedure is not
precluded from taking note of developments subsequent
to the commencement of the litigation, when such events
have a direct bearing on the relief claimed by a party or
on the entire purpose of the suit, the courts taking note
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is one of ancient vintage adopted by the Supreme Court
of America in Patterson v. Alabama [79 L Ed 1082 : 294
US 600 (1935)] followed in Lachmeshwar Prasad
Shukul v. Keshwar Lal Chaudhuri [(1941) 53 LW 373 :
AIR 1941 FC 5] . The aforementioned cases were
recognised by this Court in Pasupuleti
Venkateswarlu v. Motor and General Traders wherein he
stated that: (SCC pp. 772-73, para 4)“4. … It is basic to our processual jurisprudence
that the right to relief must be judged to exist as
on the date a suitor institutes the legal
proceeding. Equally clear is the principle that
procedure is the handmaid and not the mistress
of the judicial process. If a fact, arising after the
lis has come to court and has a fundamental
impact on the right to relief or the manner of
moulding it, is brought diligently to the notice of
the tribunal, it cannot blink at it or be blind to
events which stultify or render inept the decretal
remedy. Equity justifies bending the rules of
procedure, where no specific provision or fair
play is violated, with a view to promote
substantial justice–subject, of course, to the
absence of other disentitling factors or just
circumstances. Nor can we contemplate any
limitation on this power to take note of updated
facts to confine it to the trial court. If the
litigation pends, the power exists, absent other
special circumstances repelling resort to that
course in law or justice. Rulings on this point are
legion, even as situations for applications of this
equitable rule are myriad. We affirm the
proposition that for making the right or remedy
claimed by the party just and meaningful as also
legally and factually in accord with the current
realities, the Court can, and in many cases must,
take cautious cognizance of events and
developments subsequent to the institution of
the proceeding provided the rules of fairness to
both sides are scrupulously obeyed.”
55. In wake of the above, we are of the opinion that
the High Court taking note of the subsequent events has
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HC-KAR
correctly moulded the relief and allotted five flats to
Respondents 1 to 5 as per their share.”
As well as the judgement of the Division Bench of this Court
in the case of RANGAPPA supra wherein at para No.8.7
and 9 referring to the earlier judgment has held as under:
“8.7. In Rame Gowda v. Kuntalinge Gowda and
Others, a Division Bench following the aforesaid two
decisions in Lingappa and Ramaiah’s cases held thus :
“Though this is a suit for declaration of title
and possession only, there is nothing unusual
in giving relief to the parties by directing a
partition of the properties as has been done in
other cases of this kind in order to avoid
unnecessary litigation and waste of time of
Courts ; vide Lingappa vs. Chennabasappa
(1917) 22 Mys. C.C.R. 293) and Ramaiah vs.
Siddalingappa (1942) 48 Mys. H.C.R. 317).”
Thus, apart from the fact that the view taken by us
is quite in conformity with the provisions contained
in Order VII Rule 7 of C.P.C. which are in very wide
terms, it also receives support from the several
authorities referred to above. For the reasons stated
above, we hold that the Trial Court is not justified in
refusing to pass a preliminary decree for partition and
separate possession of the plaintiff’s half share in the
suit properties. Point No. 2 is accordingly answered in
the negative and in favour of the plaintiff-appellant.
9. For the reasons stated above, the appeal is
allowed in part. In modification of the decree of the Trial
Court, there shall be a preliminary decree for partition
and separate possession of the plaintiff’s half share in
the suit properties. The house property shall be
partitioned through a Court Commissioner and the
landed properties assessed to revenue shall be
partitioned in accordance with the preliminary decree as
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per Section 54 of the C.P. Code. There shall be an
enquiry into future mense profits under Order XX Rule
18(2) of the C.P. Code. In this appeal, there will be no
order as to costs.”
46. Similarly in the case of NEELAWWA, the
Division Bench of this Court at para No.11 it is held as
under:
“11. For the reasons stated above, this appeal is
allowed. The judgment and decree of the trial Court are
set aside. The plaintiff is declared to be the owner to the
extent of half share in the suit land more fully described
in Schedule ‘B’ to the plaint. There shall be a preliminary
decree for partition and separate possession of her half
share in the suit land which shall be effected by the
Deputy Commissioner of the District or his Gazetted
Assistant as per S. 54 of the Civil P. C. There shall also
be an enquiry into future menses profits under O. XX, R.
18(2) ntof the Civil P. C. The necessary deficit Court-fee
if any, as per the valuation made by the plaintiff be paid
by the plaintiff on the plaint as well as on the
memorandum of appeal as per S. 35(2) of the Karnataka
Court-fees and Suits Valuation Act and then the decree
be drawn.”
47. As rightly contended by the learned counsel for
the Appellant trial Court and the First Appellate Court are
not justified in rejecting the suit of the plaintiff in respect of
suit schedule Sl. No.2 property merely on the premise of
same did not depict the boundaries and description to
establish its identity, as the parties have not disputed the
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same. That apart there is sufficient information provided
enabling identification of same.
48. In view of the aforesaid factual and legal
aspects the substantial questions of law framed are
answered accordingly. Consequently, the following:
ORDER
i. Appeal in RSA No.100389/2016 filed by the
plaintiff is dismissed.
ii. RSA Cross-Objection No.100009/2016 filed
in the said appeal by the defendants is
allowed.
iii. Appeal in RSA No.100548/2024 is partly
allowed.
iv. In view of the land bearing R.S. No.43
measuring 2 acres 4 guntas and R.S. No.82
measuring 7 acres 3 guntas, both situated
at Ijari Lakmapur Village ( Sl. No.1 of the
suit schedule properties) having been
granted exclusively in favour of said
Tirakavva, and land R.S.No.29/1B/1
measuring 4 acres 35 guntas ( Sl No.2 of
the suit schedule property) being granted
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HC-KARjointly in the name of Tirakavva and
Honnappa Talawar in which Tirakavva was
entitled for her half share, children/legal
representatives of deceased Tirakavva are
held entitled for equal shares in the suit
properties as under;
(a) Defendants No.1 to 6 being children of
Ramappa together would be entitled
for 1/4th share in the suit schedule
Sl.No.1 property and for 1/8th share in
the suit schedule Sl.No.2 property.
(b) Plaintiff now being represented by his
legal representatives would be entitled
for 1/4th share in the suit schedule
Sl.No.1 property and for 1/8th share in
the suit schedule Sl.No.2 property.
(c) Defendants No.7(a) to 7(g) being the
legal representatives of Gouravva
(defendant No.7)together are entitled
for 1/4th share in the suit schedule
Sl.No.1 property and for 1/8th share in
the suit schedule Sl.No.2 property.
(d) Basavannevva – defendant No.8
would be entitled for 1/4th share in the
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suit schedule Sl.No.1 property and for
1/8th share in the suit schedule
Sl.No.2 property.
v. Draw preliminary decree accordingly.
vi. In the circumstances, cost made easy.
Sd/-
(M.G.S. KAMAL)
JUDGE
VNP & SH / CT-ASC
List No.: 1 Sl No.: 2