- 1 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 608 OF 2011 (DEC/INJ) BETWEEN: 1. THIMMEGOWDA SINCE DEAD BY HIS LRS 1(a) SMT. SHIVAMMA W/O LATE THIMMEGOWDA AGED ABOUT 72 YEARS 1(b). SRI. JAYARAMA @ JAYARAMEGOWDA S/O LATE THIMMEGOWDA AGED ABOUT 49 YEARS 1(c). SRI. SWAMYGOWDA S/O LATE THIMMEGOWDA AGED ABOUT 45 YEARS ALL ARE R/AT HOSALAKKEGOWDANA KOPPALU KYATHANAHALLI DHAKALE HALLI MYSURU HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT - 573 210. Digitally signed by BELUR RANGADHAMA NANDINI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 2. DASEGOWDA S/O LATE THIMMEGOWDA @ KESTHURU THIMMA AGED ABOUT 56 YEARS BOTH ARE R/AT HOSALAKKEGOWDANA KOPPALU HALLI MYSURU HOBLI, HOLENARASIPURA TALUK. 3. THIMMAJAMMA SINCE DEAD BY HER LRS 3(a) SRI. LAKKEGOWDA S/O KEMPEGOWDA AGED ABOUT 75 YEARS 3(b) SRI. SWAMY GOWDA S/O LAKKEGOWDA AGED ABOUT 45 YEARS 3(c) SRI. SURESH H.L., S/O LAKKEGOWDA AGED ABOUT 42 YEARS 3(d) SRI. H.L. KUMARA S/O LAKKEGOWDA AGED ABOUT 40 YEARS ALL THE LRS ARE R/AT HOSALAKKEGOWDANA KOPPALU HALLI MYSURU HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT. - 3 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 4. PUTTAMMA W/O SANNEGOWDA D/O LATE THIMMEGOWDA@ KESTHURU THIMMA KALAMMANAKOPPALU GRAMA SALIGRAMA HOBLI N.R. NAGAR TALUK. 5. CHIKKAMMA W/O ANNEGOWDA D/O LATE THIMMEGOWDA@ KESTHURU THIMMA HOSALAKKEGOWDANA KOPPALU HALLI MYSURU HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT. …APPELLANTS (BY SRI. R.S. RAVI SENIOR COUNSEL FOR SRI. AKARSH KUMAR GOWDA., ADV., FOR A2, A4, A5 & PROPOSED LR'S OF DECEASED A3, A1(P/H; V/C/O DATED 04.04.2019 APPEAL AGAINST A3 IS DISMISSED AS ABATED) AND: 1. SUBBEGOWDA S/O LATE JAVAREGOWDA AGED ABOUT 58 YEARS 2. RANGEGOWDA S/O LATE JAVAREGOWD AAGED ABOUT 56 YEARS 3. KRISHNEGOWDA S/O LATE JAVAREGOWDA AGED MAJOR ALL ARE R/AT KYATHANAHALLI KOPPAL VILLAGE - 4 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 HOLENARASIPURA TALUK - 571 018. …RESPONDENTS (BY SRI. SYED AKBAR PASHA., ADVOCATE FOR SRI MAHANTESH S. HOSMATH., ADVOCATE FOR R1 TO R3(P/H)) THIS RSA FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.12.2010 PASSED IN R.A.NO.31/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, K.R.NAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.06.2008 PASSED IN O.S.NO.75/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, K.R.NAGAR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT Heard Sri. R.S. Ravi, learned Senior counsel appearing for the appellants and Sri. Syed Akbar Pasha, learned counsel appearing for the respondents. 2. This appeal is against the concurrent finding in a suit for declaration of title and injunction. The plaintiffs - 5 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 sought a declaration that they are the absolute owners of the suit property and also sought for injunction. 3. The defendants took a stand that defendants are the owners of the property on the basis of a Will allegedly executed by three persons, namely, Huchhegowda, Honnegowda and Kesturu Thimma. The said Will is dated 25.04.1936 and same is marked as Ex.D1. Attesting witnesses are not available. Scribe was not available. Hence, son of one of attesting witnesses and the son of the scribe were examined to prove the execution of Will. 4. The Trial Court accepted the contention of the defendants and held that the Will is proved. The Trial Court has also concluded that the plaintiffs did not establish that they are the grandsons of the testators. 5. On appeal filed by the plaintiffs, First Appellate Court concurred with the finding of the Trial Court. 6. Aggrieved by the aforementioned judgment and decree, the plaintiffs are before this Court. - 6 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 7. Learned Senior counsel appearing for the plaintiffs/appellants would submit that the Trial Court as well as First Appellate Court committed a serious error in holding that the Will is proved by applying presumption under Section 90 of the Indian Evidence Act. Section 90 of the Indian Evidence Act does not enable the Court to draw the presumption relating to proof of a Will. In addition, it is also submitted that there was no change of mutation pursuant to the alleged Will dated 25.04.1936 and mutation was changed only in the year 1989-90 that too without reference to alleged Will and the respondents have not explained the inordinate delay in not making a claim based on the alleged Will, though alleged testators died 50 years ago. 8. It is also his further submission that signatures of the testator and the attesting witnesses are not established by examining the persons who are acquainted with the signatures of the attesting witnesses. Thus, he would contend that the finding relating to the proof of Will is wholly erroneous. - 7 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 9. In addition, it is urged that the relationship of the plaintiffs with the testators was admitted by the respondents before the Assistant Commissioner when the appellants filed an appeal challenging the mutation. This being the position, the Trial Court as well as First Appellate Court could not have held that the appellants are not the lineal descendants of the testators. 10. Learned counsel appearing for the respondents would submit that the original Will dated 25.04.1936 is produced. Attesting witnesses were dead. The scribe was also dead. The son of the scribe is examined to prove the signature of the scribe. Son of one of the attesting witnesses is also examined and the Will is proved in the manner known to law. 11. It is also submitted that the Will is said to have been proved based on the evidence led before the Trial Court and the Will is not held to be proved only on the basis of presumption under Section 90 of the Indian Evidence Act. Assuming that presumption under Section 90 of the Indian - 8 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 Evidence Act is not available to uphold the execution of the Will, the evidence on record is more than sufficient to uphold the execution of the Will. 12. Learned counsel for the respondents would further submit that the observations made in the orders passed by the Assistant Commissioner, wherein the plaintiffs' relationship with the testators is alleged to have been admitted is not substantiated by producing the records other than the observation. The said observation is incorrect and same can be challenged in any other proceedings or collateral proceedings and evidence on record would indicate that the plaintiffs are not the lineal descendants of testators. 13. In the alternative, it is urged that assuming that the plaintiffs are the lineal descendants of the testators, once the Will is proved, the plaintiffs do not inherit any right over the property. 14. In addition, it is also urged that the entry based on the Will was certified in the year 1989 and 1990 and that was within the knowledge of the plaintiffs and this aspect is - 9 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 admitted in the cross-examination, wherein the witness PW.1 says that he was aware of the mutation entry in the name of the defendants 16 years prior to the evidence which was recorded in the year 2006. Thus, he would contend that the suit filed in the year 2003 is time barred. 15. This Court has considered the contention of the parties and perused the records. 16. As can be seen, the original Will dated 25.04.1936 is marked as Ex.D1. There is no dispute that the attesting witnesses to the alleged Will are no more when the evidence was recorded, so also the scribe. 17. The son of one of the attesting witnesses has identified his father's signature. The son of the scribe has identified his father's signature. Nothing is pointed out in the cross-examination of those two witnesses to disbelieve that their evidence is not credible. Based on the evidence led by two witnesses referred to above, the Trial Court and the First Appellate Court have concurrently held that the execution of the Will is proved. No glaring infirmity is pointed out in - 10 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 appreciating the evidence of said witnesses so as to interfere in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 18. Now the question is whether the delay on the part of the defendants in not producing the Will immediately after the death of three testators would be fatal to the case of the defendants. 19. The defendants to substantiate their contention that they are in possession of the property even before the entries certified based on the Will have produced tax paid receipts at Ex.D3 and D5, which are the tax paid receipts for the year 1976 and 1982. Those tax paid receipts do not reveal the survey number. However, said documents reveal the name of one of the testators and it also reveals the name of tax payer who is said to be one of the beneficiaries under the Will. 20. The Trial Court has considered this aspect of the matter and came to the conclusion that the beneficiaries were in possession of the property even before the - 11 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 certification of the mutation entries. It is not the case of the plaintiffs/appellants that the tax paid receipts are pertaining to some other lands if any held by the respondents. 21. This being the position, the Court can conclude that the said Will is acted upon. Thus, merely because there is delay on the part of the respondents to move an application to enter their names in the property records based on the Will of the year 1936 by itself cannot be a ground to disbelieve the claim based on the Will. It is an admitted factual position that the predecessors of the respondents were agricultural coolies. Thus, the delay in filing in producing the Will for changing the property records by itself is not a ground to disbelieve the Will. Moreso, in a situation where the evidence indicates that the respondents were in possession of the property even before certifying their names in the property records. However, the delay in producing the Will or making a claim based on the Will is one of the suspicious circumstances and same has to be properly explained by the legatee. - 12 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 22. In the cross-examination the plaintiff No.1 has admitted that he came to know about the entry in the property records 16 years prior to the date on which evidence was led. Admittedly the evidence was led in the year 2006. In other words, the plaintiff No.1 has admitted that he came to know about the entry in the property records in the year 1990. It is relevant to note that the mutation is certified in the year 1989 and 1990. 23. Though it is stated in the cross-examination that defendants have got their names entered in the property records 16 years prior to the cross-examination, the said entry is not based on the Will. It appears that the Will was projected for first time before the Assistant Commissioner when the appeal was filed challenging the change of katha in the names of defendants. The Assistant Commissioner has dismissed the appeal and directed the parties to approach the Civil Court. 24. Though the katha was changed in the year 1989 not based on the Will, but the plaintiffs were aware that the - 13 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 katha was changed in the year 1989 itself. Challenging the katha, the appeal is filed in the year 2000. Before the Appellate Forum, the respondents have taken a contention that the Will is executed in their favour. The Appeal is dismissed directing the plaintiffs to approach the Civil Court. 25. Despite the defendants taking a contention before the Assistant Commissioner that their right is based on the alleged Will dated 25.04.1936, there is no challenge to the Will when the suit was filed. The plaintiffs have sought a declaration of title over the suit property. As already noticed, the defendants have raised a contention based on the Will. Though this Court is not holding that not challenging the Will in the suit itself is a proof of execution of the Will, considering the over all circumstances and the evidence brought on record, the conduct of the plaintiffs in not challenging the entry for 16 years and not raising a plea in the plaint relating to the Will set up by the defendants who had raised the contention based on the Will before the Assistant Commissioner, would suggest that the plaintiffs were also aware of the execution of the Will. - 14 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 26. On considering the evidence relating to proof of Will, this Court has concurred with the concurrent finding recorded by the Trial Court as well as First Appellate Court. In the backdrop of aforementioned circumstances, the claim that the defendants are in possession of the property appears more probable. 27. Going through the evidence as well as the reasoning assigned by the Trial Court, this Court is of the view that the Trial Court has come to the conclusion that the defendants are in possession of the property much prior to the mutation entry being certified in the year 1989. The findings recorded by the Trial Court and First Appellate Court cannot be said to be findings without any basis or evidence. And the finding relating to possession in favour of respondents also leads to the conclusion that the Will might have been executed in favour of the defendants by the three testators in the year 1936. 28. The appellants have not produced any records to disbelieve the execution of Will. The main contention appears - 15 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 to be that the Will is produced many years after the death of the testators and not immediately after the death of the testators. The delay in not producing the Will immediately after the death of the testators in the facts and circumstances of the present case does not appear to be fatal to the case of the respondents. 29. This being the position, this Court is of the view that the findings recorded by the Trial Court which are confirmed by First Appellate Court cannot be interfered in exercise of jurisdiction under Section 100 of Code of Civil Procedure. 30. The observation made by the Trial Court that the presumption under Section 90 of the Indian Evidence Act is available to prove the execution of a 30 years old Will is erroneous. 31. On reconsideration of the judgments and decrees passed by the Trial Court and First Appellate Court, this Court is of the view that the reasons assigned based on presumption under Section 90 of the Indian Evidence Act, - 16 - HC-KAR NC: 2025:KHC:22655 RSA No. 608 of 2011 are not the only reason assigned to uphold the execution of Will. In addition to the aforementioned reason which of course is erroneous, the Trial Court and First Appellate Court have held that execution of Will is proved based on evidence. 32. Though it is urged by the learned Senior counsel appearing for the appellants that the finding relating to the relationship recorded by the Trial Court and First Appellate Court is contrary to admission by the respondents before the Assistant Commissioner, this Court is of the view that even if the relationship is held to be established that would not change the course of succession based on the Will at Ex.D1. 33. No substantial question of law would arise for consideration. 34. For the aforementioned reasons, the appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE RU List No.: 1 Sl No.: 16