- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO REGULAR SECOND APPEAL NO.1220 OF 2018 C/W REGULAR SECOND APPEAL NO.1119 OF 2018 IN RSA NO.1220 of 2018 BETWEEN: MUKUNDAPPA SON OF LATE M.V.RANGE GOWDA, AGED ABOUT 58 YEARS SINCE DECEASED BY HIS LRS, 1. SMT.ASWATHAMMA, WIFE OF LATE MUKUNDAPPA, AGED ABOUT 55 YEARS 2. SRI PRAKASH GOWDA SON OF LATE MUKUNDAPPA, AGED ABOUT 38 YEARS 3. SRI SURYANARAYANA GOWDA SON OF LATE MUKUNDAPPA, AGED ABOUT 33 YEARS ALL ARE RESIDING AT MYLAGANAHALLY VILLAGE, MANCHENAHALLI HOBLI, GAURIBIDANUR TALUK, CHIKKABALALPUR DISTRICT-561211. …APPELLANTS (BY SRI. MANJUNATH G. KANDEKAR, ADVOCATE) - 2 - AND: 1 . SRI. RANGANATHA GOWDA SON OF LATE VENKATARATNAIAH, AGED ABOUT 60 YEARS 2 . SRI NANJE GOWDA SON OF LATE VENKATARATNAIAH, AGED ABOUT 63 YEARS 3 . SRI KEMPANNA SON OF LATE VENKATARATNAIAH, AGED ABOUT 55 YEARS 4 . SRI VENKATACHALA SON OF LATE VENKATARATNAIAH, AGED ABOUT 54 YEARS ALL ARE RESIDING AT MYLAGANAHALLY VILLAGE, MANCHENAHALLI HOBLI, GAURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT-561211. …RESPONDENTS (BY SRI. Y.SADASHIVA REDDY, SR. COUNSEL A/W SRI. RAHUL S. REDDY, ADVOCATE FOR R1, R3, & R4; R2 – SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE OF THE 1ST APPELLATE COURT IN R.A.NO.81/2013 PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT GOWRIBIDANUR, DATED 13.03.2018 BY CONFIRMING THE JUDGMENT AND DECREE DATED 06.03.2013 PASSED IN O.S.NO.295/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GOWRIBIDANUR AND ETC. - 3 - IN RSA NO.1119 of 2018 BETWEEN: 1 . RANGANATH GOWDA SON OF LATE VENKATARATNAIAH, AGED ABOUT 60 YEARS 2. KEMPANNA SON OF LATE VENKATARATNAIAH, AGED ABOUT 55 YEARS 4 . VENKATESH GOWDA SON OF LATE VENKATARATNAIAH, AGED ABOUT 54 YEARS ALL ARE RESIDING AT MYLAGANAHALLY VILLAGE, MANCHENAHALLI HOBLI, GOWRIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT-562103. …APPELLANTS (BY SRI. Y.SADASHIVA REDDY, SR. COUNSEL A/W SRI. RAHUL S. REDDY, ADVOCATE) AND: MUKUNDAPPA SINCE DECEASED BY LRS 1. SMT ASWATHAMMA W/O LATE MUKUNDAPPA AGED ABOUT 55 YEARS, 2. PRAKASH GOWDA S/O LATE MUKUNDAPPA AGED ABOUT 38 YEARS 3. SURYANARAYANA GOWDA S/O LATE MUKUNDAPPA AGED ABOUT 33 YEARS - 4 - ALL ARE RESIDING AT MYLAGANAHALLI MANCHENAHALLI HOBLI GOWRIBIDDANUR TALUK CHIKKABALLAPURA DISTRICT-562103 …RESPONDENTS (BY SRI. MANJUNATH G. KANDEKAR, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO CALL FOR THE RECORDS IN R.A.NO.82/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT GOWRIBIDANUR AND IN O.S.NO.215/2010 ON THE FILE OF PRINCIPAL CIVIL JUDGE AT GOWRIBIDANUR AND ETC. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT The present Regular Second Appeals in RSA No.1220/2018 and RSA No.1119/2018 arise out of a common judgment and decree rendered in R.A. No.81/2013 and R.A.No.82/2013 dated 13.03.2018, passed by the Senior Civil Judge and JMFC, Gowribidanur - 5 - (hereinafter referred to as ‘the first appellate Court’) which in turn arose from O.S.No.285/2009 and O.S.No.215/2010 that were clubbed, tried together, and disposed of by a common judgment dated 06.03.2013, passed by the Principal Civil Judge and JMFC, Gowribidanur (hereinafter referred to as ‘the trial Court’). 2. The appellants in RSA No.1220/2018 are the respondents before the first appellate Court and respondents in RSA No.1220/2018 are the appellants before the first appellate Court and defendants before the trial Court. 3. The appellant in RSA No.1119/2018 is the plaintiff/appellant before the courts below and the respondents herein are the defendants/respondents before the courts below. 4. The brief facts in 1220/2018 are as follows: The original plaintiff, one Mukundappa, husband of appellant No.1 and father of appellants No.2 and 3, was - 6 - the fostered son of late M.V. Range Gowda and late Smt. Puttathayamma, who, being issueless, had taken him in adoption when he was five years old and brought him up under their shelter. Upon attaining majority, they performed his marriage, and by reason of affection, both Range Gowda and Puttathayamma executed a Will dated 06.06.2005, registered on 07.06.2005, bequeathing the suit schedule property to the said Mukundappa. Subsequently, M.V.Range Gowda passed away on 12.06.2005, and Mukundappa, being the original plaintiff in O.S. No.285/2009, succeeded to the property as per the said Will, obtaining ownership and possession thereof. 5. Upon interference by the defendants, Mukundappa instituted a suit seeking declaration of title and injunction, asserting both his status as fostered son and beneficiary under the Will. The defendants, however, filed their written statement denying the plaint averments, contending that since Mukundappa had earlier filed a suit in O.S. No.17/2004 against Range Gowda and Puttathayamma, the subsequent Will dated 06.06.2005, - 7 - registered on 07.06.2005, was concocted and forged in collusion with the Sub-Registrar, alleging further that Range Gowda was not of sound disposing state of mind at the time of execution. Defendant No.1 set up that late Range Gowda and his wife had, in fact, executed a prior registered Will dated 15.11.2003 in favour of defendants No.1, 3, and 4, which, according to them, constituted their last Will and testament, while further alleging creation of a fabricated document during the mental sickness of Range Gowda. 6. It is further case of the defendants that they themselves had instituted a suit in O.S. No.215/2010 seeking declaration on the basis of the Will dated 15.11.2003 and another unregistered Will dated 20.11.2003 said to have been executed by Range Gowda and Puttathayamma. Both O.S.No.285/2009 and O.S.No.215/2010 came to be tried together and were disposed of by a common judgment. During the course of trial, the plaintiff examined witnesses who were treated as defendant witnesses owing to the clubbing of the matters. - 8 - 7. On the side of the defendants, witnesses were examined as PW-1 to PW-3, and documents at Exhibits P- 1 to P-16 were marked, while the plaintiff examined witnesses as DW-1 to DW-4 and produced Exhibits D-1 to D-35. The oral and documentary evidence led on behalf of the plaintiffs sought to establish that the Will dated 06.06.2005 was genuine and validly executed by Range Gowda and Puttathayamma, while also bringing on record the fact that the earlier Will had been cancelled. Cross- examination of DW-1 to DW-3 was also undertaken to discredit the version of the defendants. 8. The plaintiffs contended that the Will in favour of the defendants stood cancelled, as evidenced by Exhibit D-1 and Exhibit D-35, and consequently, the subsequent Will dated 06.06.2005 executed in favour of Mukundappa held the field. Upon due appreciation of the evidence, the trial Court decreed O.S.No.285/2009 in favour of the plaintiff and dismissed O.S.No.215/2010 filed by the defendants. Aggrieved thereby, the defendants preferred R.A.No.81/2013 before the first appellate Court, which, - 9 - contrary to the materials and evidence on record, proceeded on mere assumption and presumption, brushing aside the findings of the trial Court, and allowed the appeal by dismissing O.S.No.285/2009. 9. Aggrieved by the judgment and decree of the first appellate Court in R.A.No.81/2013, the present appellants have preferred this second appeal before this Court challenging the same. The brief facts of the case in RSA No.1119/2018 are as follows: 10. The appellants instituted a suit in O.S.No.215/2010 on against the deceased Mukundappa seeking declaration and injunction in respect of the suit schedule properties. The claim was founded upon the assertion that land bearing Sy.No.106 measuring 38 guntas belonged to their father, Venkataratnaiah, and his brother Sri M.V.Rangegowda. It was pleaded that Rangegowda and his wife, Smt. Puttathayamma, having no issues, executed a registered Will dated 15.11.2003 in - 10 - favour of the appellants bequeathing the schedule properties. Rangegowda died on 12.06.2005. Further, it was contended that on 20.11.2003 another Will was executed in favour of the appellants in respect of Sy.No.273 measuring 1 acre 05 guntas, of which 25 guntas were not included in the registered Will dated 15.11.2003. On these bases, the appellants claimed absolute ownership over the properties. 11. Further, the defendant, who is the son of the sister of Puttathayamma, bore animosity against the appellants and the deceased testators. During the lifetime of Rangegowda and Puttathayamma, the defendant instituted O.S.No.17/2004 against them seeking partition on the plea that he was their adopted son. Rangegowda and Puttathayamma filed written statements denying the adoption, and the suit was subsequently withdrawn by the defendant after the death of Rangegowda. Thereafter, the defendant filed O.S.No.285/2009 seeking declaration and injunction over the same properties, asserting that he had obtained a registered Will dated 06.06.2005 from - 11 - Rangegowda and Puttathayamma, and that the earlier Will of 15.11.2003 stood cancelled. The appellants contended that the Will dated 06.06.2005 was fabricated under suspicious circumstances, since six months prior thereto, Rangegowda and Puttathayamma were ailing and not in sound mental condition to execute such a document. 12. Upon service of summons, the defendant entered appearance and filed written statement denying the appellants’ case. He claimed to be the foster son of Rangegowda and Puttathayamma, having been brought up by them from the age of five years, and treated as their son throughout, including at the time of his marriage performed at Mylaganahalli. He asserted that out of love and affection, Rangegowda and Puttathayamma executed the Will dated 06.06.2005 in his favour, which was registered on 07.06.2005, and that the said Will was their last testament. He further pleaded that Rangegowda died on 12.06.2005 and Puttathayamma on 22.02.2006, after which he became absolute owner. The learned trial Court clubbed O.S.No.285/2009 and O.S.No.215/2010. - 12 - 13. Based on the pleadings of the respective parties, learned trial Court has framed following issues for its consideration:- Issues in O.S.No.285/2009: 1. Whether the plaintiff proves that by virtue of the Will dtd.6.6.05 executed by late M.V. Rangegowda and Smt. Puttathayamma, he became the absolute owner of the suit property P 2. Whether the plaintiff proves his possession over the suit property as on the date of suit ? 3. Whether the plaintiff proves the alleged interference caused by the defendants ? 4. Whether the defendants prove that late Range Gowda and his wife have executed a Regd. Will infavour of first defendant on 15.11.03 in respect of the suit property and the Will relied by the plaintiff is concocted, forged and created document? 5. Whether the plaintiff is entitled to the relief of declaration of his title ? 6. Whether the plaintiff is entitled to the relief of injunction? 7. What order or decreе? - 13 - Issues in O.S.215/2010: 1. Whether the plaintiffs prove that by virtue of the registered Will dtd. 15.11.2003, they became the absolute owners of the suit property? 2. Whether the plaintiffs prove their possession over the suit property as on the date of suit? 3. Whether the plaintiffs prove the alleged interference caused by the defendant? 4. Whether the defendant proves that deceased Range Gowda and plaintiffs Smt. Puttathayamma have cancelled the Will relied by the and bequeathed the suit property in his favour under a Registered Will dtd.7.6.2005? 5. Whether the plaintiffs are entitled to the relief of declaration as prayed for? 6. Whether the plaintiffs are entitled to the relief of injunction? 7. What order or decree? 14. Upon appreciation of evidence, the trial Court dismissed O.S.No.215/2010 and decreed O.S.No.285/2009, holding that the plaintiffs failed to prove the Will dated 15.11.2003 (Ex.P15), since its attesting witnesses, Sudhindra Rao and M.R. Krishnappa, were not examined, and the examined witnesses Govindappa and - 14 - Jayaramegowda did not depose regarding the Will. Conversely, the defendant examined attesting witness Sudhindra Rao, who proved the circumstances of execution of the Will dated 06.06.2005 (Ex.D1), which bore the thumb impression of Rangegowda affixed at Manasa Hospital when he was unwell. Consequently, the trial court dismissed O.S.No.215/2010 and decreed O.S. No.285/2009 in favour of the defendant. 15. Aggrieved by the order of the trial Court, the appellants preferred R.A.No.81/2013 against the decree in O.S. No.285/2009 and R.A. No.82/2013 against the dismissal of O.S. No.215/2010 before the Principal Senior Civil Judge and JMFC, Gowribiddanur. Both appeals were clubbed. The appellants filed applications under Order 41 Rule 27(aa) and (b) r/w Section 151 CPC to produce additional documents. The appellate court allowed applications under Rule 27(b), permitted examination of additional witnesses P.W.4 to P.W.7, and marked Ex.P17 to P67. The appellants filed further I.A. Nos.11 to 13 seeking production of additional documents and summons - 15 - to deed writer M.K. Yeshwanth Kumar and R. Ashwath Narayana, which were opposed by the respondents. 16. Based on the pleadings, oral and documentary evidence, learned first appellate Court has framed following issues for its consideration:- 1) Whether the Appellants have made out sufficient ground to consider the I.A.No.11 to 13 filed under order 41 Rule 27 (aa) and (b) r/w Sec.151 of C.P.C., under order 41 Rule 27 (b) r/w Sec. 151 of C.P.C. and under order 41 Rule 27(aa) r/w. Sec. 151 of C.P.C.? 2) Whether the plaintiffs/appellants established their ownership before the Trial Court on the suit schedule properties of item No.1 to 8 by proving the will dated 15-11-2003? 3) Whether the plaintiffs/appellants further established before the Trial Court that they were in possession and enjoyment on the date of suit? 4) Whether the plaintiffs/appellants further established before the Trial Court that interference made by the defendants? 5) Whether the respondent/defendant deceased Mukundappa established before the Trial Court that on 07.06.2005 deceased M.V.Range Gowda and Puttathayamma have executed Will in his favour in respect of the suit - 16 - lands by cancellation of the Will dated 15.11.2003, thus they became owner? 6) Whether the Common Judgment and Decree of the Trial Court is pervasive, frivolous and opposed to principles of law? 7) Whether the Common Judgment and Decree of the trial court calls for interference by this court? 8) What order? 17. After considering the facts and circumstances The first appellate Court passed the following Order:- The appeal filed by the appellants in R.A.No.81/2013 is hereby allowed with cost. Consequently common Judgment and passed in respect decree of O.S.No.285/2009, dated 06.03.2013 on the file of Principal Civil Judge and JMFC Court, Gowribidanur is set aside. Consequently, the O.S.No.285/2009 filed by the defendant Mukundappa is dismissed. The appeal filed by the appellants in R.A.No.82/2013 is also hereby dismissed with cost. Consequently the common judgment and decree passed in respect of O.S.No.215/2010, dated 06.03.2013 on the file of Principal Civil Judge and JMFC court, Gowribidanur is stand confirmed. Office is directed to return the trial court records along with copy of this judgment for perusal of the trial court. Draw up the decree accordingly. - 17 - 18. Ultimately, the first appellate Court allowed R.A.No.81/2013 by setting aside the decree in O.S.No.285/2009, but dismissed R.A.No.82/2013, holding that although Shivakumar, son of attesting witness Shashidarappa, identified his father’s signature on Ex.P15, the plaintiffs failed to lay foundation for non-production of the original Will dated 15.11.2003. 19. It is contended by the learned counsel for the appellants in RSA No.1220/2018, that the first appellate Court failed to appreciate that the Will 06.06.2005 was executed jointly by M.V.Rangegowda and his wife Smt. Puttathayamma in favour of their foster son, Mukundappa, upon cancellation of earlier Wills dated 15.11.2003 and 20.11.2003 relied upon by the Respondents. The plaintiffs had proved due execution of the Will dated 06.06.2005 by examining the attesting witnesses as well as the scribe, who clearly deposed to their presence during execution and registration of the Will in Manasa Hospital. The Sub- Registrar himself had visited the hospital to register the Will, where M.V. Rangegowda, though unwell, was of - 18 - sound and disposing state of mind, and put his thumb impression owing to illness. 20. It is also contended that the first appellate Court further erred in casting assumptions regarding the mental state of M.V. Rangegowda at the time of execution of the Will dated 06.06.2005. Despite the plaintiffs discharging their burden by examining the attesting witnesses, the first appellate Court held against them without any proof being adduced by the defendants to establish unsoundness of mind of the testator. The first appellate Court also completely ignored the fact that the Will dated 06.06.2005 was a joint Will executed not only by M.V. Rangegowda but also by his wife Smt. Puttathayamma, who signed and affixed her thumb impression in the presence of witnesses. The Appellate Court’s observations are restricted only to the thumb impression of M.V. Rangegowda while overlooking the execution and attestation by Puttathayamma. - 19 - 21. The learned counsel for appellants raised the following substantial questions of law in RSA No.1220/2018:- 1. Whether the lower appellate court erred in not taking into consideration evidences of the Plaintiffs/Appellants in support of the Will dated 6/6/2005 registered on 7/6/2005 executed by both M. V.Range Gowda and his wife Puttathayamma. 2. Whether the lower appellate court failed to notice that the presence and execution of the Will by Puttathayamma along with her husband M.V.Range Gowda in favour of Mukundappa. 3. Whether the lower appellate court failed to notice that the documentary and oral evidence of the witnesses examined on behalf of the Appellants before the lower court. 4. Whether the judgement and decree of the lower appellate court in dismissing the suit of the Appellants is correct? 5. What order? 22. It is contended by the learned counsel appearing for the appellants in RSA No.1119/2018 that that both the trial Court in O.S.No.285/2009 and the first appellate Court in R.A.No.82/2013 failed to appreciate that upon the death of M.V. Rangegowda on 12.06.2005 and - 20 - his wife Smt. Puttathayamma, in the absence of a valid Will, the properties would devolve upon their reversioners, namely the appellants, being the sons of Rangegowda’s brother Venkatarathnaiah. Admittedly, defendant Mukundappa is the son of the sister of Smt. Puttathayamma and, under the Hindu Succession Act, cannot claim as a reversioner. His plea of adoption also remains unproved, as no witness has been examined to establish such adoption. 23. It is further contended that M.V. Rangegowda was a licensed Stamp Vendor, accustomed to putting his signature, as seen from Exhibit P16. However, the alleged Will dated 06.06.2005 (Exhibit D1), relied upon by the defendants, bears only his thumb impression, with no explanation as to why he abandoned his usual practice of signing. Moreover, one of the witnesses admitted that the execution occurred in the hospital, without clarity as to the sound state of mind of Rangegowda. It is also contended that Exhibit P65, being the extract of the Registration Book, shows that Exhibit D1 was registered only on - 21 - 07.08.2005, whereas Rangegowda had admittedly died on 12.06.2005. Similarly, Exhibit P66, being the movement register of the Sub-Registrar, Gowribidanur, makes no reference to any hospital visit on 06.06.2005 or 07.06.2005 for registration of the Will. These documentary evidences clearly establish that Exhibit D1 is a created and fabricated document. 24. The first appellate Court has also erred in law in not considering the applications filed under Order XLI Rule 27(a)(a) read with Section 151 CPC and under Order XLI Rule 27(b) read with Section 151 CPC, despite the settled law laid down by the Apex Court in the case of Balbir Singh Jathinder Singh v. Mahar Singh Jathinder Singh reported in AIR 2009 SC 354, which mandates consideration of such applications on merits. By ignoring this binding precedent, the first appellate Court has committed a jurisdictional error. - 22 - 25. Aggrieved by the order of the first appellate Court, the present second appeals have been preferred before this Court. 26. The learned counsel for appellants raised the following substantial questions of law in RSA No.1119/2018:- 1. Whether the court below justified in ignoring the law laid down under the Hindu Succession Act while dismissing the suit in O.S.NO.215/2010 and R.A No.82/2013. 2. Whether the First Appellate court justified in ignoring the law laid down as report in AIR 2009 SC 354 in case of Balbir Singh Jathinder Singh vs Mahar Singh Jathinder Singh while dismissing the appeal without considering the applications filed under XLI rule 27(aa) r/w section 151 CPC and one more application filed under order XLI rule 27(b) r/w section 151 CPC. 3. Whether the courts below justified in dismissing the suit and appeal in ignoring the law laid down under section 65 of the Indian Evidence Act. 4. Whether the First Appellate court justified in dismissing the appeal in R.A No.82/2013 while allowing the R.A No.81/2013. While allowing the R.A No.81/2013 the first appellate court comes to the conclusion the - 23 - signature of deceased M.V.Rangegowda taken by someone in the hospital and at that time neither the deed writer J.N.Krishna Shahstry nor the Sudheendra Rao DW3 were present. 27. Heard learned counsel appearing for the appellants as well as the learned counsel for the respondents in both the connected Regular Second Appeals, on hearing the substantial questions of law in both the appeals and in view of the fact that both counsel have agreed for a remand of the matter, this Court is of the considered opinion that the interest of justice would be best served if the matter is remitted to the first appellate Court for fresh disposal, after affording adequate opportunity to both parties to lead additional evidence, if so required, and upon independent appreciation of the entire materials on record. 28. Accordingly, the matters are remanded to the first appellate Court for fresh consideration in accordance with law, on the basis of the pleadings, evidence already available on record. - 24 - 29. Hence, this Court proceed to pass the following Order with directions: a) The present appeals are hereby disposed of. b) The first appellate Court is directed to proceed with the suit on merits in accordance with law. c) The first appellate Court is directed to dispose of the Regular Appeal as expeditiously as possible i.e., within a period of four months from the date of receipt of the copy of this order. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV Ct-ADP