- 1 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.329 OF 2024 (PAR/POS) BETWEEN: 1. SMT. VIDYA BHAT @ VAISHALI NAYAK D/O LATE GOPALAKRISHNA BHAT AGED ABOUT 61 YEARS 2. SRI. RAGHUVEER BHAT S/O LATE GOPALAKRISHNA BHAT AGED ABOUT 55 YEARS APPELLANT NO.1 AND 2 ARE PRESENTLY RESIDING AT DOOR NO.252/1 OF KUNDAPURA TOWN KUNDAPURA POST UDUPI DISTRICT–576 201. 3. SMT. KAVITHA V. BHAT W/O LATE VAMANAMURTHY BHAT AGED ABOUT 43 YEARS 4. SRI. SATHYENDRA BHAT S/O LATE VAMANAMURTHY BHAT AGED ABOUT 19 YEARS APPELLANT NO.3 AND 4 ARE PRESENTLY RESIDING AT DOOR NO.65/1, KUNDAPURA TOWN BEHIND SHRI LAKSHMIVENKATANARAYANA Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 TEMPLE, BENGAL ROAD, KUNDAPURA KASABA VILLAGE KUNDAPURA POST UDUPI DISTRICT – 576 201. …APPELLANTS (BY SRI. HARISH KUMAR M.S., ADVOCATE) AND: 1. SRI. PRABHAKAR BHAT S/O LATE GOPALAKRISHNA BHAT AGED ABOUT 65 YEARS PRESENTLY R/AT OPP: GIRIJA MANDIRA NO.202, AMBAR BUILDING OLD DOMBAVELI WEST THANE DISTRICT MAHARASHTRA-421 201. …RESPONDENT (BY SRI. RAGHAVENDRA SHENOY M., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.11.2023 PASSED IN R.A.NO.17/2019 ON THE FILE ADDITIONAL DISTRICT AND SESSIONS JUDGE (SITTING AT KUNDAPURA), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.10.2019 PASSED IN O.S.NO.9/2016 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. Heard the learned counsel for the appellants and also the learned counsel for the respondent. This matter is listed for admission. 2. The case of plaintiff before the Trial Court that the plaintiff is the son of late Gopalakrishna Bhat. The 1st defendant is the mother and other defendants are the sister and brothers of the plaintiffs and ‘A’ schedule was inherited by the father and the ‘B’ schedule property is granted in favour of the father and on account of death of the father, he is also entitled for 1/5th share in the suit schedule property and hence, sought for the relief of partition and separate possession. The mother of defendant No.1 appeared and filed written statement and contend that in terms of the Will executed by her husband, she became the absolute owner of the suit schedule property as per the Will dated 05.06.2004. The Trial Court having take a note of the pleading of the plaintiff and - 4 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 defendant framed the issues both in respect of the case of the plaintiff as well as the defendant No.1. 3. The plaintiff in order to prove his case, he examined himself as P.W.1 and got marked the document Ex.P.1 to Ex.P.30. The defendant No.1 that is the mother in order to substantiate her case, she examined herself as D.W.1 but before her cross-examination, her evidence was expunged since she was not subjected for cross- examination. The D.W.2 was examined after discarding the evidence of D.W.1 and got marked document Ex.D1 to Ex.D.14 since D.W.1 filed a memo stating that due to old age, unable to appear before the Court. The power of attorney executed by defendant Nos.1, 2 and 4 in favour of defendant No.3 was produced along with I.A.No.12 and thereafter D.W.2 is examined and GPA is also marked as Ex.D.15. The Trial Court having considered both oral and documentary evidence placed on record answered the issue No.1 as partly affirmative and answered the issue No.2 in the negative since the very Will was not produced - 5 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 before the Trial Court and granted the relief of 1/4th share in ‘A’ and ‘B’ schedule properties by metes and bounds, but in respect of the incumbbed plaint filed by the plaintiff was rejected. Being aggrieved by the judgment and decree an appeal is filed in R.A.No.17/2019 before the First Appellate Court. This appeal is filed by legal heirs of defendant Nos.2, 3 and 4 and defendant No.1 passed away before the disposal of the suit but, the defendant Nos.2 to 4 are the legal heirs of defendant No.1, but legal heirs of defendant No.3 were not brought on record and the same was not brought to the notice of the Trial Court to bring them on record, but judgment was passed against dead person that is defendant No.3, the same is challenged by the LRs’ as well as the other defendants. 4. The main contention of the counsel appearing for the appellant before this Court that when the application is filed under Order 41 Rule 27 of CPC before the Trial Court and produced the document of Will - 6 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 executed by the father in favour of the mother and so also the Will executed by the mother in favour of defendant Nos.2 to 4 and same was not considered in a proper perspective. The counsel would vehemently contend that Trial Court also committed an error in appreciating the material available on record. The counsel would contend that First Appellate Court committed an error in rejecting the application filed under Order 41 Rule 27 of CPC and confirmed the judgment of the Trial Court. 5. The counsel would vehemently contend that the fact that mother passed away before the disposal of the suit is not in dispute and also the another brother that is Vamanmoorthy also passed away is not in dispute and judgment was passed against a dead person. The counsel also would vehemently contend that the respondent had executed a document of Hissa Tahanami Oppanda Patra dated 04.02.2008 and Trial Court committed an error in not marking the same subject to objection. The counsel also would vehemently contend that Appellate Court also - 7 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 fails to take note of the fact that the said document was not marked by the Trial Court. The First Appellate Court committed and error in not relying upon the additional documents which have been placed and those documents are very necessary for deciding the germane issues involved between the plaintiff and defendants since the specific defense was taken by the defendant No.1 in the written statement that there was a Will in favour of her executed by her husband and in the absence of those documents the First Appellate Court ought not have disposed of the appeal and ought to have allowed the same. Hence, this Court has to frame substantial question of law. 6. Per Contra, the counsel appearing for the respondent would vehemently contend that the reason assigned in application filed under Order 41 Rule 27 of CPC will not fit into the Order 41 and no sufficient reasons are assigned and the D.W.2 having the knowledge about the Will and also the pleading of defendant No.1 and also the - 8 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 same was in their possession and intentionally they did not produce the same before the Court and hence all these aspects were taken note of by the First Appellate Court while rejecting the application filed under Order 41 Rule 27 of CPC and detailed order has been passed. Hence, there are no grounds to allow the application. However, this Court put questions on the counsel on the respondent regarding when the defendant No.1 claiming that there was a Will and when document was not produced before the Court and also the defendant No.1 passed away before the disposal of the suit and also one of the defendant also passed away before passing of the judgment and his LRs’ also not brought on record and decree was passed against a dead person. The learned counsel for the appellants submits that for the limited purpose this Court can consider the matter and matter can be remanded to the Appellate Court with such a direction to consider those additional documents and give a finding on the same that too for a limited purpose. - 9 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 7. The counsel appearing for the appellants would submits that with regard to the very execution of document of Tahaname Oppanda Patra, there is an admission on the part of the P.W.1 and the same can be considered while considering the suit, but counsel appearing for the respondent would vehemently contend that when an attempt was made to mark the said document, the prayer was rejected and also document was not marked. The counsel for the respondent contend that the document Hissa Tahaname Oppanda Patra dated 04.02.2008 is not a registered document. Hence, Trial Court rightly rejected the document. The very contention that document ought have been marked subject to objection cannot be accepted, there is a force in the contention of learned counsel for the respondent with regard to non-marking of document i.e., Hissa Tahaname Oppanda Patra which is not an admissible document. However, having taken note of submissions of learned counsel for the respondent, the fact that properties - 10 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 belongs to late Gopalakrishna Bhat is not in dispute and ‘A’ schedule property is inherited by him and ‘B’ schedule property was granted in his favour, but he died subsequently. However, the very contention of defendant No.1 is that during his lifetime, he executed a Will and the said defence was also putforth in the written statement. But, admittedly, the original Will is not placed before the Trial Court, though claimed that there was a Will by late Gopalakrishna Bhat. However, an attempt was made to produce the same before the First Appellate Court and crux of the issue is also with regard to proving of the Will allegedly executed by Gopalakrishna Bhat in favour of defendant No.1. When such document is placed before the First Appellate Court, the First Appellate Court ought to have taken note of said fact into consideration and out rightly rejected said document. Hence, it is a fit case to set aside the order passed by the First Appellate Court on the application filed under Order 41 Rule 27 CPC and decide the matter on merits considering the documents which - 11 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 have been placed by the appellants before the First Appellate Court and for the limited purpose of consideration of these documents which have been produced under Order 41 Rule 27 CPC, the matter is remanded to the Trial Court. 8. The learned counsel for appellants would contend that there is an admission for having received an amount of Rs.10,00,000/- and learned counsel for the respondent contend that the same is not received as consideration for leaving the rights in respect of the property and the same is received under some circumstances and the said fact also can be explained before the Trial Court while considering the matter on merits and the Trial Court is directed to dispose of the matter within a time bound period, since the suit was filed in the year 2016 and almost a decade has elapsed. The issue is with regard to whether the plaintiff is entitled for the relief of partition and whether the defendant No.1 succeeded to the property in terms of the Will and also whether she was - 12 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 having any right to execute another Will in favour of defendant Nos.2 to 4 and the same can be decided within a period of six months. 9. In view of the discussion made above, I pass the following: ORDER (i) The Regular Second Appeal is disposed of. (ii) The parties are directed to appear before the Trial Court on 7th of July 2025 without expecting any notice and the Trial Court is also directed to dispose of the same within a period of six months from 7th July 2025. (iii) The respective parties are directed to assist the Trial Court in disposal of the matter within a time bound period of six months and no further time will be extended. (iv) The First Appellate Court is directed to send the original documents which are filed along with the application under - 13 - HC-KAR NC: 2025:KHC:20117 RSA No. 329 of 2024 Order 41 Rule 27 CPC to the Trial Court, forthwith, to enable the parties to place on record the same before the Trial Court. (v) Learned counsel for the appellants and learned counsel for the respondent and their respective parties are directed to assist the Trial Court in disposal of the case within the time bound period of six months. Sd/- (H.P.SANDESH) JUDGE RHS,ST List No.: 1 Sl No.: 54