- 1 - RFA No. 100237 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25th DAY OF JULY 2025 PRESENT THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 100237 OF 2020 BETWEEN: 1. BASAVARAJ S/O. VEERAPPA ANKALI AGE: 45 YEARS, OCC: AGRICULTURE, R/O: CHIKKENAKOPPA, TQ: YELBURGA, DIST: KOPPAL-583232. 2. SRIKANTH S/O. VEERAPPA ANKALI AGE: 41 YEARS, OCC: AGRICULTURE, R/O: CHIKKENAKOPPA, TQ: YELBURGA, DIST: KOPPAL-583232. ...APPELLANTS (BY SRI. V.M.SHEELVANT, ADVOCATE) AND: BASAVARAJEPPA URF BASAVARAJ S/O. AADEPPA TOTTA (KURADI), AGE: 71 YEARS, OCC: AGRICULTURE, R/O: KURADI, TQ: MANVI, DIST: RAICHUR, NOW AT R/O: CHIKKENKOPPA, TQ: YELBURGA, DIST: KOPPAL-583232. …RESPONDENT (BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.01.2020 PASSED IN O.S.NO.32/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, YELBURGA, DECREEING THE SUIT FILED FOR DECLARATION OF TITLE AND PERPETUAL INJUNCTION. - 2 - RFA No. 100237 of 2020 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.06.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE R.NATARAJ) This is an appeal filed by defendants No.1 and 2 against the judgment and decree dated 30.01.2020 passed in O.S.No.32/2015 on the file of the Senior Civil Judge and JMFC., Yelburga (hereinafter referred to as the ‘trial Court’ for short) whereby, the trial Court declared the plaintiff to be the lawful owner of the suit schedule properties and restrained the defendants from interfering with his peaceful possession and enjoyment of the suit properties. 2. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. - 3 - RFA No. 100237 of 2020 3. The suit in O.S.No.32/2015 was filed for declaration that the plaintiff is the absolute owner in possession of the suit schedule properties and to restrain the defendants from interfering or obstructing with his peaceful possession and enjoyment in the suit schedule properties and to direct the revenue authorities to delete the names of the defendants from the record of rights and to enter his name. 4. The plaintiff claimed that Mr.Mahadevappa and Basamma were his natural parents and he was born on 01.01.1951. In the year 1954, Sri. Aadeppa and his wife Smt.Nagawwa being his grandparents took him in adoption which was evidenced by deed of adoption dated 17.05.1954 which was duly registered. As a result, the plaintiff claimed that he became the son of the said Sri. Aadeppa and Smt. Nagawwa. The said Sri. Aadeppa died long back leaving the plaintiff and his adopted mother Smt.Nagawwa who succeeded to the properties owned by Sri. Aadeppa. The plaintiff claimed that Smt.Nagawwa died - 4 - RFA No. 100237 of 2020 on 26.02.2007 and consequently, he became the sole owner and succeeded to the suit schedule properties. He claimed that he was in possession and enjoyment of the suit schedule properties and was in cultivation of the same. When things stood thus, defendants No.1 and 2 allegedly got their names illegally mutated in the revenue records of the suit properties by colluding with the revenue officers. Plaintiff contends that the defendants were not concerned in any way to his family and his adopted mother and therefore, the entries in the names of the defendants were illegal and did not bind his lawful rights. He also contended that the revenue authorities did not follow the due process of law before entering the names of the defendants in the revenue records. Consequently, he contended that the revenue entries did not bind him. He alleged that the defendants were denying his right, title and interest and were also illegally obstructing with his possession and enjoyment. The plaintiff therefore, requested the elders of the village to advise the defendants not to indulge in such high handed acts which - 5 - RFA No. 100237 of 2020 however went in vain. The plaintiff was therefore advised to seek for declaration of his title and for consequential relief of injunction. The suit schedule properties were agricultural lands bearing Sy.No.502/AAP1 and Sy.No.503 both situated at Kuknoor village, Yelburga taluk. 5. The defendants contested the suit and filed their written statements denying the assertions made in the plaint. They also denied the adoption of the plaintiff by Sri. Aadeppa and Smt.Nagawwa and also denied that the plaintiff was in possession of the suit schedule properties. They contended that Smt.Nagawwa was the daughter of Hucchappa Gadag and Smt.Gunnawwa who were residents of Chikkenakoppa. That the suit schedule properties were the properties of Smt.Gunnawwa. That Nagawwa was given in marriage to Sri. Aadeppa and since she was treated cruelly, she returned to Chikkenakoppa within two months after her marriage and never returned back to her matrimonial home. They alleged that the plaintiff in collusion with his friends and his natural parents, created - 6 - RFA No. 100237 of 2020 illegal documents including the adoption deed to usurp the properties of Nagawwa. Hence, it was contended that the adoption of the plaintiff by Sri. Aadeppa and Smt. Nagawwa was fabricated and concocted. They contended that after Smt.Nagawwa came back to Chikkenakoppa, she stayed in her parental house. Smt. Gunnawwa gave away the suit schedule properties to Smt.Nagawwa by way of Varas decree in a civil suit before the Munsiff at Yelburga. Therefore, they claimed that the suit schedule properties were the Stridhan properties of Smt.Nagawwa and not the ancestral properties of Sri. Aadeppa as claimed by the plaintiff. They alleged that Smt.Nagawwa lived in Chikkenakoppa village and that they looked after her till her death. They claimed that Smt.Nagawwa in token of her love and affection towards the defendants, had executed a Will dated 02.07.2001 which was duly registered before the concerned Sub-Registrar, thereby bequeathing suit Item No.1 to defendant No.1 and suit Item No.2 to defendant No.2. Later the names of defendants No.1 and 2 were entered in the revenue - 7 - RFA No. 100237 of 2020 records vide M.E.No.11/28-10-2001 during the lifetime of Smt.Nagawwa. Thereafter, Smt.Nagawwa died on 26.02.2007 and hence, they claimed that they were in lawful possession and enjoyment of the suit schedule properties as beneficiaries of the Will dated 02.07.2001. They claimed that the fact of execution of the Will was known to the plaintiff and that he never took care of Nagawwa, but instead filed the suit to claim the suit schedule properties. 6. Based on these contentions, the trial Court framed the following issues: “1. Whether the plaintiff proves that he was duly adopted on 17.05.1954 by one Adeppa and Nagawwa? 2. Whether the plaintiff further proves that he is the absolute owner in possession of the suit properties? 3. Whether the defendants prove that suit properties were the Stridhana properties of Nagawwa and she executed a will on 02.07.2001 in favour of defendants No.1 & 2? 4. Whether the plaintiff proves that defendants interfered with his possession over the suit properties? - 8 - RFA No. 100237 of 2020 5. Whether the plaintiff is entitled for the relief of declaration and injunction as prayed for? 6. To what order or decree?” 7. The plaintiff was examined as PW.1 and he marked documents as Exs.P.1 to P.37. He also examined three witnesses as PW.2 to PW.4. Defendant No.2 was examined as DW.1 and marked Exs.D.1 to D.91. The defendants also examined two witnesses as DW.2 and DW.3. 8. Based on the oral and documentary evidence, the trial Court held that the antecedent title of Smt.Nagawwa to the suit schedule properties was not in dispute. It also held that Smt.Nagawwa and her husband had taken the plaintiff in adoption and consequently after the death of Nagawwa, plaintiff was the natural legal heir of Nagawwa. It held that the defendants failed to prove the lawful execution of Will dated 02.07.2001 and consequently decreed the suit and declared that the plaintiff is the absolute owner of the suit schedule properties and restrained the defendants from interfering - 9 - RFA No. 100237 of 2020 with the possession of the plaintiff in the suit schedule properties. Being aggrieved by the said judgment and decree, the defendants are before this Court. 9. Sri.V.M.Sheelvant, learned counsel for the appellants contended that the adoption propounded by the plaintiff was evidenced by a document dated 17.05.1954 i.e. prior to the Hindu Adoptions and Maintenance Act, 1956 coming into force. He therefore contends that the customary Hindu Law was applicable to such adoptions. He contends that the plaintiff did nothing to prove the adoption. He contends that for any adoption to be valid, the essential ceremony of giving and taking has to be proved to the satisfaction of the Court and the same was not done. He contends that the trial Court without noticing this fact proceeded to hold that the adoption was valid by relying upon Section 7 of the Hindu Adoptions and Maintenance Act, 1956. He also contends that in the adoption deed propounded by the plaintiff, the consent of the adoptive mother Smt.Nagawwa was not taken and - 10 - RFA No. 100237 of 2020 therefore, it was not a valid adoption. He also contends that the adoptive mother Smt.Nagawwa did not participate in the alleged ceremony of adopting the plaintiff. The trial Court without noticing these fundamental facts proceeded to hold that the adoption was valid. He contends that the adoption deed ought to have been attested by at least two witnesses. However, the plaintiff did not examine any witnesses to the adoption. He contends that the trial Court therefore committed an error in holding that the plaintiff had proved the adoption and that the defendants No.1 and 2 were entitled to the properties. 10. He contends that the suit schedule properties were undisputedly the properties of Gunawwa which came into the hands of Nagawwa. He contends that the deceased Smt.Nagawwa was under the care and custody of the defendants and out of love and affection towards the defendants, she executed a Will dated 02.07.2001 in favour of the defendants and that the said Will was duly registered before the office of the Sub-Registrar and - 11 - RFA No. 100237 of 2020 consequent revenue entries were brought about. He contends that the defendants had taken all necessary steps to remove any or all suspicious circumstances surrounding the execution of the Will. He therefore contends that the trial Court committed an error in disbelieving the Will executed by Nagawwa. He contends that despite adoption of the plaintiff, Smt.Nagawwa continued to hold the suit schedule properties as her absolute properties since she had inherited from her mother and therefore, she was entitled to transfer the suit schedule properties to the defendants by way of a Will. Therefore, he contends that the trial Court committed an error in decreeing the suit. 11. Per contra, Sri.Mallikarjunswamy B.Hiremath, learned counsel for the plaintiff-respondent submitted that the adoption deed was executed on 17.05.1954. He therefore contends that the presumption under Section 90 of the Indian Evidence Act, 1872 was applicable. He contends that though registration of a deed of adoption - 12 - RFA No. 100237 of 2020 itself does not prove that the adoption was valid but, the evidence of PW.2 sufficiently established the adoption of the plaintiff by Sri. Aadeppa and Smt.Nagawwa in the year 1954. He contends that PW.2 who had attended the adoption ceremony was found in a photograph which was marked at Ex.P.36 and he also identified Smt.Nagawwa and Sri. Aadeppa in Ex.P.36. He therefore contends that PW.2 was a competent witness who spoke about the adoption of the plaintiff by Sri. Aadeppa. He therefore contends that there is no serious doubt about the adoption of the plaintiff by Sri. Aadeppa and Smt. Nagawwa. He contends that PW.2 denied the suggestion that Smt.Nagawwa did not attend the adoption ceremony though she was not present in the office of the Sub- Registrar when the adoption deed was registered. He contends that the presence of Sri. Aadeppa and Smt.Nagawwa and the plaintiff in one photograph establishes the adoption of the plaintiff beyond doubt. He therefore contends that the plaintiff is the adopted son of Nagawwa. - 13 - RFA No. 100237 of 2020 12. He also contends that as per the evidence of PW.2, he and Sri. Aadeppa belonged to the same caste. PW.2 deposed that Sri. Aadeppa had a wife named Smt. Bhimabai from whom he had a daughter named Basamma and that after Smt. Bhimabai died, he married Nagawwa. He deposed that the plaintiff is the son of the said Basamma and that he was taken in adoption by Sri. Aadeppa and Smt. Nagawwa. He therefore contends that the plaintiff was the grandson of Sri. Aadeppa and Smt. Nagawwa and even in the ordinary course, he would have succeeded to the properties of Smt.Nagawwa as a Class-III heir. He contends that the defendants are not related to Smt.Nagawwa in any manner whatsoever but they have propounded a Will allegedly executed by Nagawwa. He contends that the very fact that the defendants had obtained revenue entries in their names based on the Will even during the lifetime of Smt.Nagawwa establishes beyond doubt that the said document was concocted and fabricated by the defendants. He contends that DW.2 accepted this fact. He - 14 - RFA No. 100237 of 2020 further contends that DW.2 admitted that plaintiff was taken in adoption by Sri. Aadeppa but claimed that there was no consent of Smt.Nagawwa. He contends that the Will propounded by the defendants allegedly contained the thumb impression of Smt.Nagawwa which indicates that the said Smt.Nagawwa was not worldly wise and educated. He submits that the original of the Will is not produced but a certified copy of the same is marked as Ex.D.51. He submits that even in the Will there is reference of the adoption of the plaintiff by Nagawwa. He therefore contends that the validity of the adoption is proved beyond doubt. He contends, on the contrary, the defendants have not proved the valid execution of the Will and have not removed suspicious circumstances surrounding the execution of the Will, in as much as it is mentioned in the Will that Smt.Nagawwa was suffering from Asthma and was aged 75 years. He contends that DW.2 was not known to Smt.Nagawwa and therefore he had to come out clean as to how he attested the Will of Smt.Nagawwa. He therefore contends that the claim of the - 15 - RFA No. 100237 of 2020 defendants that deceased Smt.Nagawwa had executed the Will at Ex.D.51 is fraudulent and suspicious. 13. After considering the contentions of the learned counsel for the defendants, the learned counsel for the plaintiff and after perusing the records of the trial Court, the following points arise for consideration: (i) Whether the plaintiff had proved that he was lawfully adopted by Sri. Aadeppa and Smt. Nagawwa? (ii) Whether the defendants had proved the lawful execution of the Will (Ex.D.51) by Smt. Smt.Nagawwa in their favour? (iii) Whether there was any suspicious circumstance surrounding the execution of the Will (Ex.D.51)? 14. In so far as the first point for consideration is concerned, the plaintiff claimed that he was adopted by Smt. Nagawwa and Sri. Aadeppa in the year 1954. He claimed that the adoption ceremony was performed in the house of Sri. Aadeppa and Smt. Nagawwa in the presence - 16 - RFA No. 100237 of 2020 of his natural parents. He claimed that the adoption was later registered in the Office of the Sub-Registrar, Raichur on 17.05.1954. Plaintiff, who was examined as P.W.1, stated in his cross-examination, that the ceremony of adoption was held on 05.05.1954 and thereafter, it was registered in the office of the Sub-Registrar, Raichur on 17.05.1954. He has marked Ex.P.20 which is the Deed of Adoption which was duly registered. A perusal of the translation of Ex.P.20 which is marked as Ex.P.21 shows that Sri. Aadeppa and Smt. Nagawwa had adopted the plaintiff. In order to further establish the said fact, P.W.1 marked Ex.P.36 which was the photograph taken at the time of his adoption. P.W.1 identified Sri. Aadeppa and Smt. Nagawwa in the photograph. In so far as this photograph is concerned, the defendants suggested to P.W.1 that it was taken when Smt. Nagawwa was not residing in Kurudi village but was residing at Chikkanakoppa. A further suggestion was made that Ex.P.36 was taken when a religious leader came to Kurudi village. These two suggestions made it more than evident - 17 - RFA No. 100237 of 2020 that the photograph was genuine and the evidence of P.W.2 established that the persons found in the photograph were indeed, Sri. Aadeppa and Smt.Nagawwa. It is relevant to note that plaintiff was none other than the grandson of Sri. Aadeppa and Smt.Nagawwa. This is evident from the evidence of D.W.1 who stated in his cross-examination as follows: “DzÉ¥Àà PÀÄgÀÄr gÀªÀgÀ ºÉAqÀw £ÁUÀªÀÄä. DzÉ¥Àà gÀªÀjUÉ ªÀiÁ¤é vÁ®ÄPÀÄ PÀÄgÀÄr UÁæªÀÄzÀ°è vÉÆvÀÛ JAzÀÄ CqÀØ ºÉ¸Àj¤AzÀ PÀgÉAiÀÄvÁÛgÉ JAzÀgÉ ¸Àj. £ÁUÀªÀÄä¼À vÁ¬ÄAiÀÄ ºÉ¸ÀgÀÄ UÀÄ£ÀߪÀé. CªÀgÀ vÀAzÉ ºÉ¸ÀgÀÄ ºÀÄZÀÑ¥Àà UÀzÀUÀ. ªÁ¢ §¸ÀªÀgÁd£À d£ÀPÀ vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ ªÀĺÁzÉêÀ¥Àà, vÁ¬ÄAiÀÄ ºÉ¸ÀgÀÄ §¸ÀªÀÄä. ¸ÀzÀj ªÀĺÁzÉÃ¥Àà£À vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ ºÀÄZÀÑ¥Àà. ºÀÄZÀÑ¥Àà UÀzÀUÀ gÀªÀjUÉ E§âgÀÄ ºÉAqÀwAiÀÄgÀÄ, CªÀgÀ ºÉ¸ÀgÀÄ «ÃgÀ§¸ÀªÀé ªÀÄvÀÄÛ UÀÄ£ÀߪÀé. ªÁ¢AiÀÄ d£ÀPÀ vÀAzÉ ªÀĺÁzÉêÀ¥Àà gÀªÀgÀÄ ¸ÀzÀj «ÃgÀ§¸ÀªÀÄä£À ªÀÄUÀ. ¸ÀzÀj £ÁUÀªÀÄä ªÀÄvÀÄÛ ªÀĺÁzÉêÀ¥Àà gÀªÀgÀ vÀAzÉ ºÀÄZÀÑ¥Àà DzÀgÉ ¨ÉÃgÉ ¨ÉÃgÉ vÁ¬ÄAiÀÄgÀÄ. ¸ÀzÀj £ÁUÀªÀé¼À£ÀÄß PÀÄgÀÄr UÁæªÀÄzÀ CzÉ¥Àà vÉÆvÀÛ gÀªÀjUÉ ªÀÄzÀÄªÉ ªÀiÁr PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. ¸ÀzÀj £ÁUÀªÀé¼À£ÀÄß ªÀÄzÀÄªÉ DUÀĪÀÅzÀQÌAvÀ ªÀÄÄAZÉ DzÉ¥Àà£ÀÄ ©üêÀiÁ¨Á¬Ä J£ÀÄߪÀªÀ¼À£ÀÄß ªÀÄzÀĪÉAiÀiÁVzÀÝ JAzÀgÉ ¸Àj. ¸ÀzÀj ©üêÀiÁ¨Á¬ÄUÉ §¸ÀªÀÄä J£ÀÄߪÀ M§â¼ÀÄ ªÀÄUÀ¼ÀÄ EzÀݼÀÄ JAzÀgÉ ¸Àj. ¸ÀzÀj §¸ÀªÀÄä£À ªÀÄUÀ£Éà ªÁ¢ §¸ÀªÀgÁd JAzÀgÉ ¸Àj.” Therefore, the above evidence established the relationship of plaintiff with Sri. Aadeppa. P.W.1 stated that Sri. Aadeppa was 40 years at the time of adoption while plaintiff was 10 years old. Therefore, there was apparently - 18 - RFA No. 100237 of 2020 no bar for plaintiff to be adopted by Sri. Aadeppa and Smt. Nagawwa in the year 1954. Besides this, D.W.1 in his cross-examination admitted that, the land bearing Sy.No.241/335 which stood in the name of Sri. Aadeppa was transferred to the plaintiff as per Ex.D.3 to Ex.D.9. Similarly, in respect of Sy.No.287/427, it stood in the name of Sri. Aadeppa as per Ex.D.12 and was later transferred to the name of plaintiff as adopted son of Sri. Aadeppa. Likewise, he admitted as Ex.P.13 and P.14 the name of plaintiff was continued. He admitted that the land bearing Sy.No.287/2/Aa./428 stood in the name of Sri. Aadeppa as per Ex.D.15 and was later transferred to the plaintiff as adopted son. He also admitted that the said property was sold by plaintiff to Sri. Chandrashekar and others as adopted son of Sri. Aadeppa which was evident from Ex.D.17. Therefore, the above evidence and the documents did establish that plaintiff was adopted by Sri. Aadeppa and Smt. Nagawwa. He identified Sri. Aadeppa and Smt. Nagawwa in Ex.P.36. Therefore, the plaintiff had adduced credible evidence to establish - 19 - RFA No. 100237 of 2020 that he was adopted by Sri. Aadeppa and Smt. Nagawwa. Besides this, the Adoption Deed (Ex.P.20) was duly registered on 17.05.1954 and was 30 year old document and consequently, the presumption under Section 90 of the Indian Evidence Act, 1872 had to be drawn. In addition, the defendants had set up a ‘Will’ dated 02.07.2001 (Ex.D.51) allegedly executed by Smt. Nagawwa bequeathing her property to the defendants. In this ‘Will’, there is clear reference that plaintiff was adopted by Sri. Aadeppa and Smt.Nagawwa and the same is extracted below: “…........... §¸ÀªÀgÁd vÀA¢ ªÀĺÁzÉêÀ¥Àà UÀzÀUÀ EvÀ£ÀÄ vÁ£ÀÄ £À£Àß zÀvÀÛPÀ ªÀÄUÀ£ÀAvÁ ¸Á¢ü¹ DvÀ£ÀÄ £À£Àß §UÉÎ AiÀiÁªÀ PÁ¼Àf ªÀiÁqÀzÉ ªÀÄvÀÄÛ £À£Àß ªÉÄÃ¯É AiÀiÁªÀ ¦æÃw¬ÄAzÁ £ÉÆÃr¯Áè DzÀÝjAzÁ DvÀ¤UÉ £À£Àß D¹ÛAiÀÄ£ÀÄß PÉÆqÀ®Ä JµÀÄÖ ªÀiÁvÀæ£ÀÆ EZÉÒ EgÀĪÀÅ¢®è.” Therefore, it is evident that even defendants acknowledged that plaintiff was adopted by Sri. Aadeppa and Smt. Nagawwa in the year 1954. Under the circumstances, we have no hesitation to hold that plaintiff - 20 - RFA No. 100237 of 2020 was lawfully adopted by Sri. Aadeppa and Smt. Nagawwa as per Ex.P.20. In so far as the lawful and valid execution of the Will (Ex.D.51) by Smt. Nagawwa in favour of the defendants is concerned, it is relevant to note that the defendants in their written statement had claimed that after marriage of Smt. Nagawwa with Sri. Aadeppa, she was ill-treated and therefore, she returned to her parents house in Chikkenakoppa. The defendants alleged that Nagawwa never went back to Kurudi village and was residing with her mother. The defendants stated that Smt.Gunnawwa gave away the suit property by way of ‘waras’ decree to Smt.Nagawwa before the Munsiff at Yelburga. They further claimed that Nagawwa lived her life in Chikkenakoppa and that they being her sister’s children looked after her till her death. Therefore, they claimed that Smt.Nagawwa executed the Will on 02.07.2001 before the Sub-Registrar, Yelburga and bequeathed suit item no.1 to defendant No.1 and suit item No.2 to defendant no.2. They also stated - 21 - RFA No. 100237 of 2020 that their names were entered in the revenue records as per M.E. No.11/28.10.2001 during the life time of Smt. Nagawwa. They admitted that Smt. Nagawwa died on 26.02.2007. In order to prove the lawful execution of the will, they examined D.W.2 who stated that he was one of the witnesses who attested the ‘Will’ of Smt. Nagawwa. This witness was casually cross-examined and his credibility was not shaken. P.W.1, in his cross- examination, admitted that Smt. Nagawwa died in Chikkenakoppa in the year 2007 which was evident from Ex.P.19. Likewise, P.W.3 admitted that Smt. Nagawwa died in Chikkenakoppa. He went ahead and stated that Smt.Nagawwa died in the house of defendant No.2. Therefore, there is no serious challenge to the execution of the ‘Will’ by Smt. Nagawwa in favour of the defendants. However, the defendants who were bound to purge the suspicious circumstances surrounding the execution of the Will, failed to do so. This Court has noticed the suspicious circumstances which are as follows: - 22 - RFA No. 100237 of 2020 i) The original of the Will was not produced before the Court. ii) Even during the lifetime of Smt.Nagawwa, the defendants had got their names entered in the revenue record based on the will dated 02.07.2001 giving an impression that defendants No.1 and 2 had some role in bringing about the ‘Will’. iii) As per the case of the defendants, Smt. Nagawwa was a recluse and she was leading a solitary life. As per Ex.D.52, Smt. Nagavva was shown to be aged 75 years as on 1995 which meant that she was 81 years old on the date of the alleged execution of the ‘Will’. She was also suffering from Aasthma. Therefore, no evidence is adduced to establish who procured the attesting witnesses, who took Smt. Nagawwa to the office of the Sub-Registrar, Yelburga, and who gave the instructions to prepare the ‘Will’. iv) In the ‘Will’, Smt. Nagawwa was described as wife of Sri. Aadeppa Kurudi. If there was no love lost between Smt. Nagawwa and Sri.Aadeppa as stated by the defendants, it is strange as to how she described herself as the wife of Sri. Aadeppa Kurudi, while in Ex.P.52, her name appears as Smt. Nagamma Aadeppa Gadaga. There is no evidence to show that - 23 - RFA No. 100237 of 2020 Smt. Nagawwa lived with the defendants and that the defendants took care of her. v) Expect the self-serving statement in the Will that plaintiff did not take care of Smt.Nagawwa, nothing in this regard is proved by the defendants. There is also no material produced to show that Smt. Nagawwa and plaintiff were not on good terms. Therefore, there is no palpable reason as to why Smt. Nagawwa excluded the plaintiff from inheriting her properties. Besides this, plaintiff had succeeded to the properties of Sri. Aadeppa as the adopted son and Smt. Nagawwa did not challenge the same or claim her share in the said properties during her lifetime. Under the circumstances, though the defendants complied with requirement of Section 68 of the Evidence Act by examining D.W.2, but they failed to remove the suspicious circumstances surrounding the execution of the ‘Will’. Consequently, it is held that though the defendants had proved the lawful execution of the will, but they failed to remove the suspicious circumstances surrounding the execution of the ‘Will’. - 24 - RFA No. 100237 of 2020 In view of the above, we hold that the Trial Court had rightly held that the plaintiff had proved that he was the adopted son of Sri. Aadeppa and Smt. Nagawwa and was therefore, entitled to succeed to the estate of Smt. Nagawwa. The Trial Court was also right in holding that there were doubtful circumstances surrounding the execution of the ‘Will’. Hence points (ii) (iii) are answered against the defendants. As a result, the appeal lacks merit and is dismissed. Sd/- (R.NATARAJ) JUDGE Sd/- (RAJESH RAI K) JUDGE RH Ct:vh