1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR FIRST APPEAL NO.123/2008 (RES) BETWEEN: 1 . H.G. KASHINATH S/O LATE H.K.GUNDU RAO SINCE DECEASED BY LRS 1(a) SMT. H.K.NAGAMANI AGED ABOUT 55 YEARS 1(b) SMT. H.K.KAVITHA D/O LATE KASHINATH AGED ABOUT 28 YEARS, 1(c) SRI. H.K. VINAY KUMAR S/O LATE KASHINATH AGED ABOUT 26 YEARS 1(a) TO 1(c) ARE R/AT SOUTHERN PARTITION OF HOUSE NO.86/132, SURVEYOR'S STREET, BASAVANGUDI, BENGALURU-560 004. … APPELLANTS (BY SRI. C.M.NAGABUSHANA, ADVOCATE) R 2 AND: 1 . H.G. ASHWATHANARAYANA S/O LATE H.K. GUNDU RAO 1(a) MRS. AKHILA ASWATH AGED ABOUT 50 YEARS D/O LATE H.G.ASHWATHANARAYANA W/O MADUSUDAN 1(b) MS. ANITHA ASWATH AGED ABOUT 47 YEARS D/O LATE H.G.ASHWATHANARAYANA BOTH ARE R/AT NO.132/1, SHANTHA SAI SADAN, SURVEYORS STREET, BASAVANAGUDI, BENGALURU-560 004. (AMENDED VIDE COURT ORDER DATED 09.06.2023) … RESPONDENTS (BY SRI. K. SRIRAM, ADVOCATE FOR R1[a & b]) THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.11.2007 PASSED IN O.S.NO.3163/1990 ON THE FILE OF THE XV ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-3), DECREEING THE SUIT FOR DECLARATION, POSSESSION, MESNE PROFITS ETC., THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 3 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT 1. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 2. This appeal is filed against the judgment and decree of the Trial Court dated 07.11.2007 in O.S.No.3163/1990 granting the relief of declaration and possession in favor of the plaintiff. 3. The factual matrix of case of the plaintiff/respondent before the Trial Court while seeking the relief of declaration and possession it is contended that the plaintiff himself and defendant are full blood brothers. It is contended that the plaintiff is the owner of the property bearing No.86/132, Surveyor Street, Basavanagudi, Bangalore-4 and out of the said property, a portion of it measuring 25 north-south and 17.5 east to west, morefully described in the schedule to the plaint is under the occupation and use of the defendant. The father of the 4 plaintiff and the defendant one Sri late H.K.Gundu Rao who expired in the year 1956 was the adopted son of one Sri.H.Kashi Rao who was the absolute owner of the above said entire property bearing No.86/132, Surveyor Street, Basavanagudi, Bangalore. He had purchased the said property for valuable consideration from T.Subba Rao Padke in the year 1918. The said Kashi Rao, in respect of the said self acquired property, executed a duly attested will and registered the same on 15/4/1936. He has bequeathed the said property to one of his grandsons i.e., the plaintiff. The wife of the executant of the will Smt.Bhageerathamma and plaintiffs mother Smt.Gowramma were granted life interest in the said property and absolute interest was created in favour of the plaintiff, said Kashi Rao died intestate in the year 1941 when the plaintiff was of 11 years of age. A portion of the suit property was sold by the plaintiff’s mother for the purpose of plaintiffs education and maintenance of the 5 family on 22/10/1952 in favour of one Sri.V.Venkatesha Sastry. In the suit schedule property there was a tenant who was evicted around 1974 and as the defendant was in difficult circumstances, he was provided shelter in the said suit schedule property. Thus, the possession of the suit schedule property by the defendant is only permissive in nature, under the title and ownership of the plaintiff. It is further contended that that the revenue records with respect to the entire property was made in the name of the plaintiff. The defendant was paying Rs.30/- per month to the plaintiff, which was to be treated as damages for the use and occupation of the suit schedule premises. The plaintiff being pressed for additional accommodation, filed an eviction petition bearing No.2653/1983 against the defendant. The said HRC petition came to be dismissed, directing the parties to approach a competent civil court, as the defendant had taken a stand of absence of relationship or landlord and tenant. The plaintiff took the contention 6 that being a legatee, he is the absolute owner of the suit schedule property and that the suit schedule property is required for his bonafide use and occupation, the plaintiff has sought for a judgment and decree for declaration that he is the owner of the suit schedule property and for a decree of possession, directing the defendant to vacate from the premises and also for past mesne profit of Rs.1080/- and for damages at the rate of Rs.30/- per month. 4. In pursuance of suit summons the defendant appeared and filed written statement admitting the relationship with the plaintiff, but denied the contention of the plaint and he contend that the property is the property of Hindu joint family, wherein he is a coparcener, having a share equal to that of the plaintiff in the property. He is in possession of the suit property in his own right and title and the entire property bearing No.86/132 is not partitioned. It is contended that the said property was belonging to Kashi 7 Rao, as an absolute owner. On the other hand, he has stated that the said property was ancestral property of Kashi Rao and after Gundu Rao was adopted, he became the coparcener. It is contended that the said Kashi Rao had purchased the property from T.Subba Rao Padke with the help of the ancestral property and entirely denied the claim of the plaintiff. The averment that as a good gesture, he was put in permissive possession also denied. It is contended that both parties were residing together and after the tenant had vacated, the joint family was extended so as to include the house occupied by the said tenant and he has been in possession. He also denied the question of payment of damages of Rs.30/- as contended by the plaintiff. The defendant also took the contention of other alternative plea of perfection of his title by adverse possession. 5. The Trial Court considering the pleadings of the plaintiff and defendant, framed the following issues: 8 1) Does the plaintiff prove will in his favour? 2) Does the defendant prove this suit property is ancestral property? 3) Whether Kashi Roa had no power to dispose by Will in favour of plaintiff? 4) Does the plaintiff prove his title and possession of the suit property? 5) Whether the defendant perfected his title by adverse possession? 6) Does the defendant prove his title or joint enjoyment of the suit property? 7) Whether the plaintiff is entitled for the possession of the suit property? 8) Whether the plaintiff is entitled for part mesne profits of Rs.1080/- at Rs.50/- per month? 9) To what relief's the parties are entitled? 6. In order to substantiate the contention of the plaintiff and defendant, allowed the parties to lead evidence and earlier there was a decree vide judgment and decree dated 24.11.2003 and the same was challenged before this Court in R.F.A.No.185/2004 and the same was allowed by 9 setting aside the judgment and decree and remanded the matter for fresh consideration permitting the defendant to amend their written statement and to lead additional evidence. After such remand of the matter, due to the death of the defendant, his legal heirs brought on record and amended the written statement and filed their additional written statement re-iterating that entire property including suit schedule property is a joint family property and the plaintiff and deceased are coparceners. The plaintiff also filed re-joinder to the additional written statement. After the remand, D.W.1 was permitted to lead further evidence. The plaintiff himself examined as P.W.1 and got marked Ex.P1 to Ex.P8 and two witnesses are examined on behalf of the defendant that is D.W.1 and D.W.2 and got marked Ex.D1 to Ex.D6. 7. The Trial Court having considered both oral and documentary evidence placed on record answered the issue No.1 as affirmative in coming to the conclusion that plaintiff 10 has proved the Will in his favour and the very contention of the defendant that suit property is a ancestral property is answered as negative, so also Trial Court comes to the conclusion that Kashinath had power to dispose of the property by Will in favour of the plaintiff and also comes to the conclusion that plaintiff has proved his title and possession by answering the issue No.4 as affirmative and contention of the defendant that he perfected the title by adverse possession and answered the same as negative and also comes to the conclusion that defendant fails to prove his title or joint enjoyment of the suit property by answering issue No.6 as negative. The Trial Court comes to the conclusion that plaintiff is entitled for the relief of possession and partly answered the issue No.8 as affirmative in coming to the conclusion that plaintiff is entitled for mesne profits 3 years prior to the date of filing of the suit and future mesne profits from the date of filing of the suit till the delivery of vacant possession. Being 11 aggrieved by judgment and decree, the present appeal is filed. The learned counsel for the appellant also not disputes the relationship between the parties but counsel would vehemently contend that when the property was purchased to an extent of 40 x 108, sold ½ of the portion and retained ½ of the portion. It is the contention of the plaintiff that defendant was permitted to occupy the defendant and also filed H.R.C and the same was dismissed as there was no tenant and relationship and approached the High Court and this Court also dismissed the same. 8. The counsel would vehemently contend that Will was not proved and counsel would vehemently contend that portion of the property was sold by both the plaintiff and defendant including the mother. The counsel also would vehemently contend that khata was transferred by consent only. The evidence of DW1 and DW2 has not been considered properly and document of sale deed is marked as Ex.D6. It is also the contention that the original 12 purchaser Kashi Rao was not having any source to purchase the property. The counsel also would vehemently contend that defendant has got ½ share and the property was purchased only out of joint family income. The plaintiff also not lead any evidence after the remand. The counsel would vehemently contend that Will has not been proved. Even the Kashi Rao was not having absolute right to execute the Will, only he can execute the Will in respect of his share. The burden is on the plaintiff to prove the Will and also counsel would vehemently contend that Will cannot be looked into when the Will was not proved. The counsel also would vehemently contend that even when the Will was not disputed, he is bound to prove the same. The counsel would vehemently contend that the defendant is also a co-parcener and also counsel would vehemently contend that in the year 1952 when the property was sold, this appellant was also one of the vendor and prior to that there was a Will in the year 1936 as claimed by the plaintiff and 13 also Will was not acted upon. If really there was a Will, no need to sell the property joining all the family members. 9. The counsel also would vehemently contend that even if the Court holds that there was a Will in existence and the same was not acted upon. There was no any reference of Will while changing the khata. The counsel also would vehemently contend that when the family was having the properties, plaintiff cannot claim the same as self acquired property and even not proved the same as a self acquired property. The defendant is also entitled for partition and also contend that when he relied upon the Will, ought to have examined the attestor of the Will and even if there is a admission, but the same has to be proved. 10. The counsel in support of his argument, he relied upon the judgment reported in (2010) Supreme Court Cases 274 in case of S.R.Srinivasa and others V/s S.Padmavathamma. The counsel referring this judgment would vehemently contend that legal position with regard to 14 admissions and evidentiary value thereof in respect of Will is concerned, admission about making of Will does not amounts to admission of due execution and genuineness of Will. The counsel also brought to notice of this Court in this judgment discussed proving of Will, mode and manner of proof and legal provisions of governing it and examination of scribe of Will who had not signed the Will with intention to attest, held, not sufficient to satisfy the statutory requirement of examination of atleast one attesting witness for proving the Will. The counsel brought to notice of this Court detailed discussion was made in respect of Section 63 of Succession Act and also Section 68 of Evidence Act and held that none of the attesting witnesses have been examined and also held that signature of the scribe could not be taken as proof of attestation and the execution of Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. Thus, it is evident that Will has not been duly proved. 15 11. The counsel also in support of his argument, he relied upon the judgment of reported in (2022) SCC Online Mad 1289 in case of Malliga V/s P.Kumaran and counsel referring this judgment brought to notice of this Court discussion made in the judgment that if by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on-formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be examination of an attesting witness, before a Will could be used as evidence and considering the said discussion brought to notice of this Court, paragraph No.19 a closed look at judgments makes it very clear that examination of attesting witness is 16 mandatory only where genuineness or the validity of the Will is questioned. In cases where the Will has not been specifically denied or it has been admitted, it has been held that examination of attesting witness to a Will is unnecessary and further discussion, the counsel brought to notice of this Court in the judgment of Apex Court in case of Ramesh Verma (dead) by Legal representatives V/s Lajesh Saxena (dead) by Legal representatives reported in (2017) 1 SCC 257 paragraph No.13 has been extracted in the judgment and brought to notice of this Court that wherein categorically held that this is mandate of Section 68 of the Evidence Act and this position remains the same even if the opposite party has not specifically denied the execution of the document in the written statement and further brought to notice of this paragraph No.21 discussion was made that law laid down that law to the effect that a Will shall not be used as a evidence until it is proved in the manner prescribed under 17 Section 68 of the Evidence Act and this position cannot be diluted even if the opposite party has not denied the execution of the Will and contend that Hon’ble Supreme Court also held that mandatory nature of Section 68 of the Evidence Act has categorically held that proviso to the section provides for a relaxation of the requirement only for a document other than a Will. The counsel referring this judgment would vehemently contend that there is no occasion for this Court to consider any other alternative source of right in the absence of pleading and evidence available on record. It therefore goes without saying that the main issue that was taken into consideration revolved around the proof of Ex.A6 Will and hence, it Will be left open toe the plaintiff to initiate fresh proceedings and agitate his rights in the manner known to law. 12. The counsel also relied upon the judgment of Kerala High Court reported in 2017 SCC Online Ker 41632 in case of Sarada V/s Radhamani the counsel 18 referring this judgment would vehemently contend that the Keral High Court also taken note of the judgment of the Ramesh Verma’s case and approved the dictum in Poulose A.V.’s cast as well as Vadakkayil Gopalan’s case (supra) referring paragraph No.19 as regards the necessity to examine one attesting witness atleast in evidence. The decisions in Thayullathil Kunhikannan’s case, Princelal G’s case and Maya Siva Sankar’s case which have been referred in the judgment to the extent it obviated such necessity are declared per incuriam. The counsel referring this judgment would vehemently contend that judgment which have been discussed above held that as per incuriam and referring this division bench judgment the counsel would contend that necessity of examination of attesting witness to prove the same. 13. Per Contra, the counsel appearing for the respondent in his argument, he vehemently contend that the Trial Court considered the material on twice and earlier 19 also there was a decree and subsequently also there was a decree.The fact that Kashi Rao had purchased the property in the year 1980 in terms of Ex.P2 is not in dispute. The counsel would vehemently contend that on the date of execution of the Will, this appellant was not born but plaintiff was 6 year old. The counsel would vehemently contend that when the tenant was got evicted by the plaintiff in the year 1974, this appellant was not having any house and hence he was given permissive possession to occupy the house. It is contended that when the notice was given in the year 1983 itself, categorically stated about the Will and suit was also filed in the year 1990. The counsel also would vehemently contend that in the rejoinder also specific pleading of Will was made and the same was not denied and none of the grounds urged regarding validity of the Will. The counsel would vehemently contend that plaintiff was examined in the year 1998 itself and there was 20 a decree earlier and the same was challenged and matter was remanded. 14. The counsel would vehemently contend that in paragraph No.10(b) pleaded regarding adverse possession, but not admitted the ownership in the absence of admitting any ownership, question of considering law of adverse possession does not arise. The counsel also would vehemently contend that adverse possession was not set- up when the notice was issued and also not lead any evidence about adverse possession. The Trial Court in detail discussed the material on record and finding was given. Though family tree was narrated and claimed that female members have not disclosed even not proved the family tree. In order to prove the contention that property was ancestral property also the same has not been proved. The Trial Court in detail discussed both the pleadings of the plaintiff and defendant and also the evidence and even considered the document of Ex.D5-Quit rent register. The 21 counsel would vehemently contend that Will was executed in the year 1936 itself and the same was not denied and question of attestation does not arise and Will was admitted and Trial Court also given the finding in respect of the Will in detail. 15. The counsel in support of his argument, relied upon the judgment reported in Manu/KA/0185/1989 in case of Danappa Revappa Kolli V/s Gurupadappa Mallappa Pattanashetti passed in R.S.A.NO.589/1989 wherein held that apart from actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. The counsel also brought to notice of this Court section 68 of Law of Evidence, proof of execution of document required by law to be attested is very clear if a document is required by law to be attested, I shall not be used as evidence until one attesting witness atleast has 22 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 and also brought to notice of this Court proviso that it shall not be necessary to call an attesting witness in proof of execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports have been executed, he specifically denied. The counsel referring this judgment would vehemently contend that when there is no any specific denial, question of examination of attesting witness does not arise. The counsel also would contend that if the execution of a registered document required by law to be registered, he specifically denied then an attesting witness must be called to prove it, but if the execution is not specifically denied, then it is not necessary to call an attesting witness to prove. 23 16. The counsel also relied upon the judgment reported in LAWS(KER)-1989-9-16 in case of Thayyullathil Kunhikannan V/s Thayyullathil Kalliani and brought to notice of this Court wherein discussion was made in paragraph No.34 in the absence of any such plea in the written statement, it will be height of technicality and waste of judicial time to insist on examination of attesting witness, before a Will could be used as evidence and examination of attesting witness is therefore unnecessary when the parties have not joined issue on the validity and genuineness of the Will. 17. The counsel also relied upon the judgment of the Apex Court MANU/SC/0819/2005 in case of Pentakota Satyanarayana and Ors. V/s Pentakota Seetharatnam and Others wherein discussion was made with regard to Section 68 onus to prove undue influence, fraud or coercion on person alleging same. 24 18. In reply to this argument, the counsel for appellants would vehemently contend that citation of Kerala High Court has already been held as per incuriam in the judgment of division bench already has been referred. The counsel would vehemently contend that Ex.D6 clearly discloses that there are 336 acres of land and 1/3rd was sold. In order to prove that the property is a self acquired property, no material is placed on record and Will has not been proved by attesting witness and entitled for ½ share and there cannot be declaration without proving the Will. 19. Having heard the learned counsel for the appellants and the learned counsel for the respondents and also the principles laid down in the judgment referred supra, the points that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in coming to the conclusion that the plaintiff has proved the Will? 25 2) Whether the Trial Court committed an error in coming to the conclusion that defendant fails to prove that it is an ancestral property? 3) Whether the Trial Court committed an error in coming to the conclusion that plaintiff has proved his title? 4) Whether the Trial Court committed an error in coming to the conclusion that Kashi Rao had power to dispose of the property by way of Will? 5) Whether the Trial Court committed an error in decreeing the suit for declaration and possession and for mesne profits as ordered by the Trial Court? 6) What Order? 20. Having considered the points for consideration, this Court is also First Appellate Court and this Court has to analyze evidence of both the parties and also the question of law as a statutory appeal including the pleadings of the respective parties. The plaintiff in order to prove his case 26 while seeking the relief of declaration and possession, examined himself as PW1 and he re-iterated the averments of plaint in his evidence that there was a Will in favour of him and the same was executed in the year 1936 and description of the property was also given and also stated that the defendant is living in the portion of the said property in permissive possession. 21. It is also his case that his grand father by name Kashi Rao was owner of the entire property and the same was purchased from T.Subba Rao Padke in the year 1918 and also got marked the sale deed as Ex.P2. The hand sketch is marked as Ex.P1 and also it is his contention that grand father expired in the year 1941 and he had executed a Will wherein life interest was created in favour of his grand mother and also his mother. Thereafter, entire property was vest with him as owner. The certified copy of Will also produced as Ex.P3 and the same is marked subject to the admissibility. He claims that original registered Will 27 was delivered to Venkatesha Shastry when the portion of the property was sold and certified copy of the sale deed executed in favour of Venkatesh Shastry is marked as Ex.D4. It is also his case that tenant was in occupation in the portion in which defendant is in occupation till 1974 and when his brother that is defendant desired to live separately allowed him to reside in the same portion vacated by the tenant in the year 1976. It is also his case that he is paying damages of Rs.30/- and when he did not vacate, notice was issued in the year 1983 and office copy of the legal notice was also marked as Ex.P5 and he gave the reply in terms of Ex.P6. He also filed H.R.C case and the same was dismissed and filed C.R.P and the same was also dismissed. The copy of the objection statement was filed in H.R.C.No.2653/83 also produced and marked as Ex.P7 and also endorsement given by K.E.B is marked as Ex.P8. It is also his case that defendant never filed objections opposing transfer of khata in his favour and his mother was paying 28 tax during her life time and after the death, he is paying the tax. The contention of the defendant that he is entitled for ½ share is false and also not established the joint ownership as claimed by the defendant. 22. It is also his case that he sold the portion of the property to Venkatesh Shastry and never opposed the same in favour of the Venkatesh Shastry and hence sought for declaration. He was subjected to cross-examination and he contended that defendant is the only brother and both of them lived together with their parents and there was no partition in their joint family. He admits that the schedule property was in occupation of a tenant and he evicted him. He also admits that there is no documentary evidence to show that defendant is his tenant. He admits that total extent of earlier property was 100 x 40 feet and he sold the portion in the year 1952. He admits that he himself, his mother and defendants have signed the said sale deed. 29 23. It is suggested that grand father having ancestral property and the same was denied that he does not know the same. Further suggestion was made that his grand father was not holding any employment and the same was denied. He claims that his grand father retired as Head Clerk at Taluka office, Malur. It is suggested that out of the profits of the joint family property, his grand father had purchased the schedule property at Bengaluru. 24. It is suggested that grand father had no competence to execute the Will and the same was denied. Now, this Court has to consider the evidence of DW1 who is the legal heir of defendant No.1 and in his evidence he says that suit schedule property is their joint family property and suit schedule property earlier belongs to his great grand father by name Sri.Kashi Rao and Sri.H.K.Gundu Rao who is his grand father. It is also his evidence that his ancestors were living in a village in Hassan District and they sold all the joint family properties in that village and came to 30 Bangalore. They purchased the suit schedule property along with entire building from out of the sale profits of the earlier joint family properties in the village. This witness was subjected to cross-examination and in the cross- examination, he admits that he does not know the details of the property owned by Gundu Rao at Hassan and also he does not know who purchased the property, which is now in occupation of his senior uncle and also which was in occupation of his father. He admits that he does not know when the said property was purchased, but he contends that suit schedule property was purchased by his great grand father. In the cross-examination also he admits that soon after when N.Krishna Rao vacated the premises they occupied the same and also admits that great grand father had executed a Will in favour of Ashwathanarayana. He also admits that one portion was sold in favour of Venkatesha Shastry. He also admits that the said transaction had taken place prior to 27.08.1980 and the same was told to him by 31 his father and also he says that his father told him that others have also signed the sale deed along with his father while executing the sale deed in favour of Venkatesha Shastry. He also admits that in Ex.D1, the name of the owner is shown as Kashi Rao and Gowramma. The witness also further examined by filing an additional affidavit and had produced the certified copy of the registered sale deed dated 22.02.1920 executed by his great grand father Kashi Raya @ Kashi Rao in favor of Srikantaiah and Ramaswamaiah under which he had sold inam rights in respect of ancestral lands. The documents are also marked through him Ex.D5 and Ex.D6 that is certified copy of quit rent register and also the sale deed. This witness was subjected to cross-examination and in the cross- examination he admits that his grand father Gundu Rao was adopted son of Kashi Rao and he enquired the same with aunt Mahalakshmi about the details of the family and their property and admits that except the quit rent register at 32 Ex.D5, he has no any other documents and he want to show that there were two sons by name Subbaraya, Sri.Nanjappaiah. He admits that according to his knowledge, Gundappa had only one issue that is only one son Kashiraya and the same was told to him even by his aunt Mahalakshmi and also admits that the name of the said Mahalakshmi is not shown in the family tree of Nagappaiah in his written statement and based on the quit rent register, he has given the alias name of his great grand father Kashiraya. He also admits that they had filed a suit for partition in O.S.No.7335/2000 with respect to the suit schedule property and the said suit came to be dismissed recently. However, he admits that suit schedule property was purchased in the year 1918 and also admits that Ex.P6 is of the year 1920, but he claims that property was purchased in the year 1918 out of the income earned in the property which was sold under the sale deed of the year 1920. However, he admits that he has not produced 33 any document to show the details of the income from the property under Ex.D6. He is deposing based on the information given by his aunt Smt.Mahalakshmi, but he says that his father has not told him that his grand father Kashiraya had lands to an extent of 363 acres in Hassan District. It is suggested that suit schedule property was self acquired property of his great grand father Kashiraya and the same was denied. 25. The other witness is DW2 claiming that plaintiff in the above case is her elder brother and she also re-iterates that family was having 363 acres of land and other lands at Sakaleshpur in which he had 1/3rd share in a house property from it and he was deriving good amount of income and making use of it, he had purchased the property bearing No.86. This witness was also subjected to cross-examination and in the cross-examination admits that she does not know the survey numbers of the lands at different places at Hassan District and also does not know 34 whether her grand father sold the property in Hassan District in the year 1920, but claims that her mother was regularly getting income in cash from it. 26. Having re-analyzed both oral and documentary evidence placed on record and also considering the material on record, the main case of the plaintiff is that Kashiraya had executed a Will in his favour and he is having title and possession over the suit schedule property and claims the possession of the suit schedule property on the ground that he has given the possession of the property to the defendant and the defendant was in possession as permissive possession. 27. Having perused both oral and documentary evidence placed on record, it is clear that there was a Will which is marked as Ex.P3 and it is the claim of the defendant that suit property is an ancestral property and though contend that family was having 363 acres of land belongs to the family and nothing is placed on record to 35 show that family was having that much of property and hence, the Trial Court comes to the conclusion that in order to prove that family was having joint nucleus before the purchasing the property in the year 1918 and no doubt Ex.D6 is produced before the Court and the same is of the year 1920 and the same is sold subsequent to the purchase of the property and no material what was the income derived from the sale of the property in the year 1920 and the same is admitted by the witnesses. In order to prove the factum of the suit schedule property is an ancestral property, no such material is placed before the Court. 28. The other contention that defendant perfected his title by adverse possession is concerned and unless the ownership is admitted, question of claiming adverse possession also does not arise. 29. The judgment relied upon by the counsel appearing for the respondent is aptly applicable to the case on hand when the adverse possession is claimed firstly the 36 party should admit the title of ownership and then to plead for animus with regard to the possession is concerned. Hence, the Trial Court taken note of the said fact into consideration. 30. The judgment relied upon the counsel for the respondent in Danappa Revappa Kolli V/s Gurupadappa Mallappa Pattanashetti referred above passed in R.S.A.No.589/1989 that actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession and the same is aptly applicable to the case on hand, question of considering the adverse possession does not arise unless ownership is admitted and animus or possession is proved. 31. The other contention that the defendant is having the title or joint enjoyment of the suit property is concerned, nothing is placed on record and all the revenue 37 records are stands in the name of the plaintiff and only it is the contention of the plaintiff that permissive possession was given to the defendant and also it is the contention that entitled for mesne profits of Rs.1,080/- at the rate of Rs.50/- per month. In order to prove the factum of getting Rs.50/- per month or Rs.30/- as claimed, nothing is placed on record. 32. Now, the question before this Court is concerned, whether the plaintiff proves the Will in his favour and admittedly there is a Will and the same is marked subject to admissibility, the same is certified copy, it is the case of the plaintiff that original Will was given while selling the property in favour of one Venkatesh Murthy that is portion of the property. The counsel appearing for the appellant also relied upon the judgment of the Apex Court referred supra in case of S.R.Srinivasa and others V/s S.Padmavathamma and having referred this judgment the counsel also brought to notice of this 38 Court legal position with regard to admission and evidentiary value thereof in respect of Will is concerned, admission about making of Will does not amounts to admission of due execution and genuineness of the Will. In this judgment discussed with regard to the proving of Will, mode and manner of proof and legal provisions of governing it and examination of scribe of Will who had not signed the Will with intention to attest, held, not sufficient to satisfy the statutory requirement of examination of atleast one attesting witness for proving the Will. In this judgment also discussion was also made with regard to Section 63 of Succession Act and also Section 68 of the Indian Evidence Act and held that none of the attesting witnesses have been examined and also held that signature of the scribe could not be taken as proof of attestation and the execution of Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. Thus, it is evident that Will has not been duly proved in the 39 absence of examining the attesting witness. It is also admitted fact that as per the statute, statutory requirements of proving of the Will under Section 63 of Succession Act and Section 68 of Evidence Act. This Court would like to extract Section 63 of Indian Succession Act and Sections 68 and 69 of Indian Evidence Act which reads as hereunder: “Section 63 - Execution of unprivileged wills. “Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:— (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. 40 (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. “ Section 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 41 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. “ Section 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.” 33. The Madras High Court also in the judgment reported in 2022 SCC Online Mad 1289 in case of Mallliga V/s P.Kumaran also held that any rule of law of pleadings, such proof is not required, Section 68 cannot operates to insist on formal proof by calling an attesting witness, but held that Section 58 has to be read as overriding Section 68 and as obviating the necessity for 42 calling an attesting witness, unless the execution of the Will or attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness before a Will could be used as evidence and considering the said discussion, the counsel also brought to notice of this Court that the examination of attesting witness is mandatory only where genuineness of the Will of the validity of the Will is questioned. 34. The counsel also relied upon the judgment of Ramesh Verma (dead) by Legal representatives V/s Lajesh Saxena (dead) by Legal representatives reported in (2017) 1 SCC 257 wherein also in paragraph No.13 extracted the judgment and brought to notice of this Court Section 68 is mandate of Section 68 of the Evidence Act and this position remains the same even if the opposite party has not specifically denied the execution of the document in the written statement and further brought to 43 notice of this Court paragraph No.21 wherein discussion was made that law laid down that law to the effect that a Will shall not be used as a evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act and this position cannot be diluted even if the opposite party has not denied the execution of the Will and contend that Hon’ble Supreme Court also held that mandatory nature of Section 68 of the Evidence Act. 35. This Court also would like to rely upon judgment repo (2023) 2 S.C.R 237 in case of Ashutosh Samanta (D) by LRs and Ors V/s SM.Ranjan Bala Dasi and Ors wherein also discussion was made with regard to Wills cannot be proved only on the basis of their age, presumption under Section 90, Evidence Act as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of Wills, which have to be proved in terms of the ss.63(c), Succession Act and Section 68, Evidence Act. It is also important to note that 44 when the often situations when Wills which otherwise may have satisfied the requirements of being attested, as provided by law, cannot be proved in terms of the said two provisions, for the reason that attesting witnesses are not available, or if one of the witnesses denied having attested the Will. Even Apex Court also discussed with regard to Section 69 and Section 71 of the Evidence Act, 1872 then come to the aid of the propounder in the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable. The Apex Court also taken note of the fact that attesting witnesses have died, two sons of the testator deposed about their presence when the Will was signed by him and also identified the signature of a person who drive and signed the Will and discussion was made with regard to Section 69 that person who is acquaintance with the signature of attesting witness can come and depose proving of the factum of execution of the Will. The 45 detail analysis was made even considering Section 90 presumption as to documents which are 30 year old also discussed in paragraph No.11 and also discussed the judgment of M.B.Ramesh (D) by L.Rs’ V/s K.M V/s K.M.Veeraje Urs (D) by L.Rs’ and others wherein discussion was made with regard to applicability of Section 19 and held in paragraph No.13 that Wills cannot be proved only on the basis of their age, the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to the proof of the Wills, which have to be proved in terms of the Section 63(c) of Succession Act, 1925 and Section 68 of the Evidence Act, 1872 and also discussion was made with regard to the there are often situations and taken note of the Section 69 and Section 71 of Evidence Act and same was also extracted. 36. The Apex Court also discussed the judgment in case of Babu Singh and Ors. V/s Ram Sahai alias Ram 46 Singh in Civil Appeal No.3124/2008 dated 30.04.2008 wherein also held that in a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way the adverse party cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69 that is examining witnesses who are able to prove the handwriting of the testator or executant, but held that burden of proof may be shifted to others. The Apex Court also to that effect discussed Section 69 which was considered in case of K.Laxmanan V/s Thekkayil Padmini and others case held that signature and handwriting as contemplated under Section 69 must be proved. Even discussion was made the judgment of the V.Kalyanaswamy (D) by L.Rs & Ors V/s L.Bakthavatsalam (D) by L.Rs & Ors wherein also considered the effect of Section 68 and 69 referring the paragraph No.70 of the judgment and in the said paragraph it is held that in the event where the attesting witnesses 47 may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable. In the case on hand, first of all no witnesses have been examined proving of the Will and as discussed above, statutory requirement under Section 63 and 68 is very clear and even if any person not disputes the Will, the same has to be proved and the same is a statutory requirement of proving of the Will. The counsel appearing for the appellant brought to notice of this Court the judgment reported in (2010) Supreme Court Cases 274 in case of S.R.Srinivasa and others V/s S.Padmavathamma which is referred supra, even in the absence of disputing the Will, the same has to be proved. No doubt in the case on hand, Will is of the year 1936 and facts are also very clear that at the time of execution of the Will, the plaintiff was aged about 6 years and defendant was not born at that time. No doubt the Will was propounded long back and also it has to be noted that even 48 subsequent to the Will also portion of the property was sold in favour of Venkatesh Shastry, the plaintiff and defendant and other family members are also party to the said sale deed. It is the contention of the defendant the said Will though is in existence, but the same is not acted upon, it is settled law that even if the Will is not disputed, burden is on the propounder of the Will to prove the same and it requires the statutory requirement of attestation as well as proving of the same by examining the attesting witness. It is also important to note that law is settled that even if attesting witnesses are no more, then the propounder can avail the benefit of Section 69 proving of the same. When such being the case, Trial Court committed an error in coming to the conclusion that the plaintiff has proved the Will even though either the attesting witnesses or any of the persons who are having acquaintance with the handwriting, signature and attestation have not been examined. Hence, the Trial Court 49 committed an error in answering the issue No.1 that plaintiff proved the Will. 37. No doubt the defendants have not proved the fact that the property is an ancestral property and other contention that Kashi Rao had no power to dispose of the property by Will in favour of the plaintiff also subject to proving of the Will only but he was having a right to execute the Will since he had purchased the property in the year 1918 itself. This Court and also the First Appellate Court comes to the conclusion that to show that family was having ancestral property, nothing is placed on record before purchasing the said property even though document Ex.D6 is produced and the same is subsequent to the purchase of the property. If the plaintiff proves that there was a Will and the same has been proved by statutory requirement of proving of the Will then plaintiff is entitled for the possession of the suit property and the relief as sought. 50 38. Having considered the principles laid down in the judgments relied upon by this Court referred supra and also the judgment relied upon by the counsel for the appellant with regard to the proving of fact is concerned, matter requires to be remitted back to the Trial Court to consider the issue for limited purpose with regard to proving of the Will is concerned which is marked subject to admissibility by the Trial Court when the document was marked before the Trial Court and in respect of other aspect is concerned, the Trial Court has not committed any error in discussing the pleadings as well as the evidence available on record. The statutory and mandatory requirements has to be complied under Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act as discussed above. Hence, I answer the point No.1 as ‘Affirmative’ in coming to the conclusion that the Trial Court committed an error in coming to the conclusion that the plaintiff has proved the Will and answer the point No.2 as ‘Negative’ since the Trial 51 Court has not committed any error in coming to the conclusion that defendant fails to prove that it is an ancestral property. The Trial Court also to consider the aspect that the plaintiff has proved his title and same is subject to the answer in point No.1 as whether the plaintiff proved the Will as required under the Statute. The Trial Court has not committed any error in coming to the conclusion that Kashi Rao had power to dispose of the property by way of Will since the property exclusively belongs to him and the same was purchased in the year 1918 and this Court also comes to the conclusion that same is not an ancestral property and the same is a self acquired property. Hence, I answer the point No.4 as ‘Negative’. The other points for consideration whether the Trial Court committed an error in decreeing the suit for declaration and possession and for mesne profits and the same is also subject to finding to be given by the Trial Court with regard to the proving of the Will is concerned, if the Will has been 52 proved, then automatically plaintiff is entitled for the declaration and possession and for mesne profits. 39. In view of the discussions made above, I pass the following: ORDER i) The Appeal is allowed-in-part. ii) The impugned judgment and decree of the Trial Court dated 07.11.2007 passed in O.S.No.3163/1990 is set-aside only for the limited purpose and remitting the matter for fresh consideration with regard to the proving of the Will in view of the observation made by this Court in the light of the principles laid down in the judgments referred supra. The Trial Court is directed to give a finding on that within four months from 25.03.2025. iii) The parties are directed appear before the Trial Court on 25.03.2025 without expecting any notice. The parties are also directed to assist the Trial Court to give a finding on this aspect within the time bound period four months. 53 iv) The Registry is directed send the records to the Trial Court forthwith to enable the Trial Court to take up the matter on 25.03.2025. Sd/- (H.P. SANDESH) JUDGE RHS