- 1 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1703 OF 2024 (PAR) BETWEEN: 1. SMT. SARASU D/O LATE PONKU MOOLYA AGED ABOUT 69 YEARS R/AT MANJA HOUSE KONDEMOOLA VILLAGE, KATEEL MANGALURU-574 148. …APPELLANT (BY SMT. RAJALAKSHMI V. MUNI, ADVOCATE) AND: 1. SMT. GIRIJA D/O LATE PONKU MOOLYA AGED ABOUT 67 YEARS R/AT ADU HOUSE, SHIBAROOR MUTTIGALLU POST, DELANTHABETTU MANGALURU-575 030. 2. SMT. SHOBHA W/O LATE DUGGAPPA MOOLYA AGED ABOUT 63 YEARS R/AT BHARATH BEEDI COMPOUND NEAR S.V.T.SCHOOL, KARKALA-574 104. 3. SRI. HONNAYYA MOOLYA D/O LATE PONKU MOOLYA AGED ABOUT 53 YEARS R/AT GAMPADA BAIL, KATEEL MANGALURU-574 148. 4. SMT. PADMA MOOLYA Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 D/O LATE PONKU MOOLYA AGED ABOUT 61 YEARS R/AT DEVI DAYA, AGAR HOUSE KONDEMOOLA VILLAGE, KATEEL MANGALURU-574 148. 5. SMT.SUMATHI D/O LATE PONKU MOOLYA AGED ABOUT 59 YEARS R/AT SHARADA KRIPA, AMILA HOUSE THADAMBAIL, SURATHKAL MANGALURU-575 014. 6. SMT. LAKSHMI D/O LATE PONKU MOOLYA AGED ABOUT 57 YEARS R/AT C/O PADMA MOOLYA DEVIDAYA, AGAR HOUSE KONDEMOOLA VILLAGE, KATEEL MANGALURU-574 148. …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.07.2024 PASSED IN RA NO.192/2017 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.09.2017 PASSED IN OS NO.567/2006 ON THE FILE OF PRINCIPAL CIVIL JUDGE, MANGALURU. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 11.07.2024 passed in R.A. 192/2017 by the learned II Addl. Senior Civil Judge and - 3 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 CJM, Mangalore, Dakshina Kannada and the judgment and decree dated 15.09.2017 passed in O.S. 567/2006 by the learned Principal Civil Judge, Mangalore, Dakshina Kannada. 2. For Convenience, the parties are referred to, based on their rankings before the trial court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this Appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that, the plaintiff and defendants No.1 to 7 are the children of PonkuMoolya and the suit properties were the agricultural leasehold properties of PonkuMoolya. It is contended that the Land Tribunal had conferred occupancy rights to him regarding the suit property. The propositus, PonkuMoolya, died on 05.11.2002, bequeathing the suit properties in favour of his children and wife by executing a registered Will dated 10.02.1995. The said Will was executed by PonkuMoolya when he was in a sound state of mind. As per the said Will, the properties were divided into various schedules and they were - 4 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 allotted to the children and wife of PonkuMoolya. His wife was allotted 44 cents in Sy.No.38-48 and 0.13 cents in Sy.No.7.13 in B. Schedule property. PonkuMoolya’s wife passed away, leaving behind the plaintiffs and defendants as the surviving legal heirs. The property bequeathed to Kamala is to be divided into eight equal shares. It is contended that the plaintiff learnt that defendant No3 is trying to alienate the suit properties. Hence, a cause of action arose for the plaintiffs to fie the instant suit. Accordingly prays to decree the suit. 4. Defendant No.3 filed a written statement denying the execution of the Will by PonkuMolya and contended that his father had executed a settlement deed dated 30.08.2001 in his favour, settling the portion of the suit schedule properties which are described in the schedule ‘A’ of his written statement. It is contended that he became the absolute owner regarding the said property by a settlement deed and it was contended that those properties were not available for partition. Hence, he prays to dismiss the suit. 5. The plaintiff filed a rejoinder to the written statement of defendant No.3 and contended that through - 5 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 misrepresentation. Such document was executed, it is sham document. Hence, prays to decree the suit. 6. The trial Court, based on the pleadings of the parties, framed the relevant issues and additional issues. 7. The plaintiff to prove his case, examined his son and a general power of attorney holder as PW-1, examined three witnesses as DWs-2 to 4 and marked 10 documents as Exs.P.1 to P.10. On the other hand, defendant No.3 examined himself as DW-1 and marked two documents as Exs.D.1 and D.2. The trial Court on assessing verbal and documentary evidence dismissed the suit of the plaintiffs vide judgment dated 15.09.2017. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.567/2006 preferred an appeal in R.A.No.192/2017. The first appellate Court on reassessing verbal and documentary evidence, dismissed the appeal vide judgment dated 11.07.2024 and confirmed the judgment and decree passed in O.S.No.567/2006. The plaintiff aggrieved by the impugned judgment filed this Regular Second Appeal. 8. Heard the arguments of the learned counsel for the plaintiff. - 6 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 9. Learned counsel for the plaintiff submits that the PonkuMoolya had bequeathed the properties under a registered Will dated 10.02.1995 in favour of his children and wife Smt. Kamala. Smt. Kamala died leaving behind the plaintiffs and defendants. No partition is effected regarding the properties left by the deceased Kamala. Both the Courts below have not adequately appreciated the materials and evidence on record and committed an error in passing the impugned judgment. Hence, prays to allow the appeal. 10. Perused the records and considered the submissions of the learned counsel for the plaintiffs. 11. The plaintiff, to prove her case examined through power of attorney holder, as PW-1. He reiterated the plaint averments in the examination-in-chief and he contends that PonkuMoolya executed a registered Will bequeathing the suit schedule properties in favour of his children and his wife, Smt. Kamala. His wife died leaving behind the plaintiff and the defendants. Hence, the plaintiff and defendants have succeeded to the suit schedule properties left by the deceased Kamala. There is no partition effected between the plaintiff and - 7 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 defendants regarding the properties of Kamala and further, the plaintiff to prove the execution of a registered Will dated 10.02.1995, examined attesting witness as PW-2. He has deposed that PonkuMoolya executed a Will bequeathing the suit schedule properties in favour of his children and wife, and he has identified his signature on Ex.P.9, i.e., the Will. His signature was marked as Ex.P.9(a), but in the course of cross- examination, he could not recall the contents of the alleged Will and he also admits that it is impossible for him to recall anything about Ex.P.9 i.e., Will. 12. The burden is on the plaintiff to establish the mental condition of the executant –testator and the testator has signed the Will the testator understood the nature and its position and the testator had affixed his signature on the Will on his own free will. 13. From the perusal of the records, the plaintiff has not examined the mental status of the testator. In the absence of fulfilment of the requirement of proving a Will, both the Courts below have rightly held that suspicious circumstances surround the Will and the plaintiff has failed to remove the - 8 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 suspicious circumstance surrounding Will. The plaintiff has summoned the Sub Registrar and he was examined as PW-4. She has stated that she cannot identify the testator and also admits that she has not verified the documents on the day of registration. The plaintiff has failed to prove the execution of the alleged Will by PonkuMoolya. Both the Courts below have categorically recorded a finding of the facts that the plaintiff has been unable to establish the execution of a Will and rightly passed the impugned judgments, I do not find any error or any substantial question of law, that arises for consideration in this appeal. 14. Accordingly, I proceed to pass the following: ORDER (i) The Appeal is dismissed. (ii) The judgment and decree dated 11.07.2024 passed in R.A. 192/2017 by the learned II Addl. Senior Civil Judge and CJM, Mangalore, Dakshina Kannada and the judgment and decree dated 15.09.2017 passed in O.S. 567/2006 by the learned Principal Civil Judge, - 9 - NC: 2025:KHC:12617 RSA No. 1703 of 2024 Mangalore, Dakshina Kannada are hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, I.A.No.1/2024 does not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK List No.: 1 Sl No.: 50