- 1 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1564 OF 2021 (DEC/INJ) BETWEEN: SRI. H.H. MALLIKARJUNAPPA S/O. LATE SRI. H.P. HALAPPA AGED ABOUT 70 YEARS, R/AT NO.55, "SURYA CHANDRA" 2ND CROSS, CHANNAPPA LAYOUT OPPOSITE TO ZILLA PANCHAYATH QUARTERS SHIMOGA - 577 201 …APPELLANT (BY SRI. R.B. SADASIVAPPA, ADVOCATE) AND: 1. SMT. V REKHA HANGI W/O LATE SRI H.H. PARAMESHWARAPPA AGED ABOUT 54 YEARS, 2. SMT. H P BHAVANA D/O LATE SRI H H PARAMESHWARAPPA AGED ABOUT 28 YEARS, 3. MS. H P IMPANA D/O LATE SRI H H PARAMESHWARAPPA AGED ABOUT 24 YEARS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 ALL ARE R/AT NO.422, 22ND MAIN ROAD 2ND STAGE, J P NAGARA MYSORE - 570 037 …RESPONDENTS (BY SRI. SAMARTH S. LOKRE, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.11.2020 PASSED IN RA.No.46/2018 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.04.2018 PASSED IN O.S.No.84/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT 1. Heard Sri. R.B. Sadashivappa, learned senior counsel for the appellants and Sri. Samarth S. Lokre, learned counsel for the respondent. - 3 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 2. Unsuccessful plaintiff is the appellant in the second appeal challenging the dismissal of the suit in O.S.No.84/2012 confirmed in R.A.No.46/2018. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: A suit for declaration and permanent injunction came to be filed by the plaintiff in respect of the following immovable property (hereinafter referred to as 'suit property'): SCHEDULE The vacant site bearing site no.C-264 in C-Block, admeasuring East-West: 18.40 mts, and North-South: 12.00 mts. Totaling 220.80 sq.mts situate at Gopala Gowda (Gopala) Extension, Shivamogga city and bounded by East: Land in Sy. No.33, West: Land in Sy. No.33, North: Land of Allappa, South: Land of Ramanna 4. Plaint averments would reveal that father of the appellant Sri. H.P. Halappa was a school teacher and he had a great ambition to make plaintiff's brother H.S. Parameshwarappa as a Chartered Accountant. Defendant No.1 - 4 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 is the widow and defendants No.2 and 3 are the children of H.S. Parameshwarappa. 5. In the year 1972-73, said Parameshwarappa completed his graduation in science and plaintiff got him joined to the Office of Sri. G.C. Shettar, a Senior Chartered Accountant in Shivamogga. Plaintiff's brother also joined National Law College and completed his LLB degree and thereafter C.A. intermediate. 6. In the year 1984-85, Parameshwarappa expressed his desire to open an office at Davanagere, but he was unsuccessful in completing the Chartered Accountancy degree. Thereafter, he has joined S.S.Y. Course and worked as a tutor. Parameshwarappa went to Bangalore and he was fully frustrated in the life and therefore plaintiff brought him back to Shivamogga and sent him to Madras to study in the Institute of Chartered Accountancy. 7. It is plaintiff who met all the educational expenses of his brother and was instrumental in Parameshwarappa - 5 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 completing the Chartered Accountancy degree in the year 1987. 8. In the year 1989-90, Parameshwarappa went to Mysore and started his profession as a Chartered Accountant and plaintiff has helped him and encouraged him in his practice. Parameshwarappa developed his practice rapitedly and in the year 1996, unfortunately Parameshwarappa developed brain tumor and he died on 24.09.2000. 9. According to the plaintiff, out of love and affection and the timely help that has been rendered by the plaintiff for the completion of Chartered Accountancy of Parameshwarappa, on 09.06.1996, Parameshwarappa executed a Will (Ex.P26). It is also contended that Parameshwarappa was hale and healthy and was in sound and disposing state of mind, voluntarily executed the Will-Ex.P16 and thereby bequeathed the suit property in his favour and defendants are claiming rights over the suit property and suit is necessitates. 10. Pursuant to suit summons, defendants appeared and denied the plaint averments and also denied the execution - 6 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 of Will by Sri. Parameshwarappa and taken a specific contention that Ex.P26 - Will is a ingenious concoction by the plaintiff in order to knock over the property of Sri. Parameshwarappa and sought for dismissal of the suit. 11. Having taken note of the rival contentions of the parties, learned Judge raised necessary issues and after conducting a due trial, dismissed the suit of the plaintiff inter- alia, holding in paragraphs 17 and 18 as under: "17. As per the contents of Ex.P.26 - document dated: 09.06.1996 and in the entire recitals, there is no reference that the testator was suffering from brain tumor or he had undergone surgery. The testator has also not disclosed the purpose behind execution of the Will in favour of the plaintiff. There is also no reference that he is having wife and children and what are the details of other properties he was holding as on the date of execution of the document. He has also not disclosed the reason for disinheriting his wife and children or whether they have been given sufficient property. In the contents of Ex.P.26, there is no reference that testator had handed over Ex.P.1 original lease cum sale agreement in favour of the plaintiff. In this regard, the defendants have forwarded an explanation that after registration of Ex.P.1 agreement as per the request of deceased Parameshwarappa plaintiff had obtained the original document from the office of Sub-Registrar and fraudulently retained the said - 7 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 document. It is further stated, after concocting Ex.P.26 Will he is taking an advantage to claim Ex.P.1 was delivered by the Will in order to suit the testator after execution of Ex.P.26 circumstances of the case. The explanation forwarded by the defendants that how Ex.P.1 original agreement came to the possession of the plaintiff is probable and acceptable. In the family partition, property allotted to the share of deceased Parameshwarappa, husband of defendant no.1 was in the possession and enjoyment of the plaintiff. Therefore under the above circumstances, plaintiff had agreed and made payment to meet the education expenses of Parameshwarappa is proper and natural. The testator Parameshwarappa undergone three surgeries during the month of February to April, 1996 and immediately after his discharge from the hospital in the month of May 1996, he came to Shivamogga and executed Ex.P.26 - Will is unbelievable. The plaintiff has not produced any medical bills to claim he has made payment of hospital expenses when his brother was admitted as an inpatient. As per the contents of Ex.P.26, it is stated, the testator was hale and healthy and it is contrary to the specific admission of the plaintiff that Parameshwarappa had undergone three surgeries in 1996. 18. As per the evidence of P.W.2, he was not a close associate of the testator - Parameshwarappa to become a witness to Ex.P.26 - Will. During cross- examination of P.W.2, the witness has deposed, as on the - 8 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 date of execution of Ex.P.26, the testator had full hair in his head and he had combed his hair. But the evidence on record shows 15 days prior to the execution of the Will the deceased had undergone surgery of his head and there is every possibility that before surgery, hospital authorities making clean shave of his head. The explanation forwarded by P.W.3 scribe that Ex.P.1 was a lease-cum-sale agreement and therefore Will was not registered is also not satisfactory and acceptable. The deceased was C.A. and LL.B. graduate, but deceased approached P.W.3-document-writer to execute Ex.P.26 - Will is also suspicious." 12. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in R.A.No.46/2018. 13. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on re-appreciation of the factual and legal aspects of the matter, recorded a categorical findings that the plaintiff has failed to establish that the Will marked at Ex.P26 is properly executed and has not surrounded by any suspicious and thus dismissed the appeal, inter-alia holding in paragraphs No.29 and 30, as under: - 9 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 "29. Let me go through Ex.P.26, the Will alleged to have been executed by deceased H.H.Parameshwarappa on 09.06.1996. On perusal of Ex.P.26, it shows that the paper used for writing the Will is very thin and old paper and the recitals written in Ex.P.26 are congested to suit the signature. Admittedly, PW.3 B.V.Chayapathi who is the document writer having 40 years of experience in document writing. It is surprise to know that such an experienced man has prepared Will in old and thin paper instead of writing the Will in a ledger paper. Therefore, these are the suspicious circumstances surrounding the execution of the alleged Will. Ex.D.1 letter given by Manipal Hospital shows that H.H.Parameshwarappa underwent surgery of pituitary gland tumor. Ex.D.1 shows that on 21.02.1996, he underwent surgery of Transnasal approach and decompression of Tumor and on 27.03.1996, he underwent surgery of Fronto temporal and craniotomy with decompression of pituitary adenoma and on 18.04.1996, he underwent nasal packing. Admittedly, H.H.Parameshwarappa was discharged from hospital in the 3rd week of May 1996. The alleged Will was got executed on 09.06.1996. Whether he had sound disposing state of mind to execute a Will is the point for consideration. Dr.A.S. Hegde examined through Court Commissioner. In his evidence, he deposed that he treated H.H.Parameshwarappa during the year 1996 at Manipal Hospital, Bengaluru and he came with the problem of eyesight and he was becoming dull and drouzing and he was diagnozed to be suffering from pituitary tumor. He further deposed that the post surgery - 10 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 complication bleeding into the tumor bed, worsening of vision, unconsciousness. This evidence shows that he was not in good health at the time of executing Will on 09.06.1996. Admittedly, weakness of limbs infection he was taken to Mysore after discharge from the Manipal Hospital, Bengaluru. PW.1 says that H.H.Parameshwarappa came down to Shivamogga one day prior to the exection of the Will and stayed in his house and executed a Will. A person who had undergone three successive operations in the moth of February, March and April, how he could able to come down to Shivamogga alone is not explained by the plaintiff. It is the argument of plaintiff side that the evidence of Dr.A.S.Hegde cannot be considered, as he is suffering from Parkinson disease. The plaintiff has not raised any objection before examining Dr.A.S.Hegde. Only after examination, the plaintiff raised objection that Dr.A.S.Hegde is not competent to give evidence, as the documents in the Manipal Hospital was destroyed, and he is not a competent person to give evidence regarding the health condition of deceased H.H.Parameshwarappa. This argument cannot be accepted. 30. I have gone through the recitals of the Will. The defendant No.1 is the wife and defendants No.2 and 3 are the children of deceased H.H.Parameshwarappa. The defendant No.1 was residing with H.H.Parameshwarappa till his death. The relationship was good and there is no evidence on record to show that there was misunderstanding between deceased H.H.Pameshwarappa - 11 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 and the defendants. But in Ex.P.26, there is no recital as to the health condition of H.H.Parameshwarappa at the time of executing Will. It is nowhere stated that he underwent surgery for removal of pituitary gland tumor. There is no recital as to whether H.H. Parameshwarappa is a married person and whether he has children and whether he has any other property and there is no recital in Ex.P.26 as to why he is hisinherited his wife and children. Naturally, the person executes the Will in favour of his wife and children. If he does not execute Will in favour of his wife and children, he has to explain as to why he discarded his wife and children to make arrangement of his property after his death. These are all suspicious circumstances. The signature finds place in Ex.P.26 is a shaky than the signature finds place in other documents i.e., Ex.P.1 and Ex.D.1 to D.10. 14. Being further aggrieved by the same, plaintiff is before this Court on the following grounds and substantial questions of law: GROUNDS: The judgment and decree for the trial court and the first appellate court are erroneous are unsustainable both in law and on facts, and the same are liable to be set aside. The trial court gravely erred in answering issue No. 1 in negative, though the plaintiff has proved the Will executed by Late Sri. H.H. Parameshwarappa by examining the attesting witness and also the scribe of the - 12 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 Will, and therefore under the circumstances, the trial count has gravely erred in answering the issue No. 1 in negative. The trial court also gravely erred in answering issue No.2 in negative since in the light of the Will, in favor of the plaintiff with respect to the suit schedule site, the authority ought to have executed the sale deed in favor of the plaintiff. The trial court also gravely erred in answering issue No. 3 in affirmative when it is specifically stated that Sri. H.H. Parameshwarappa knew that the schedule site belonged to his brother, i.e., the plaintiff, since it is. the plaintiff who bought that site allotted in his name and it is the plaintiff who has paid the consideration for the said site. Therefore, the first detendant has not proved that there was no occasion for Sri. H.H. Parameshwarappa to execute the Will. The trial court also gravely erred in answering issue No. 6 in affirmative and the suit is not barred by limitation as the cause of action to the suit arose only when the first defendant turned hostile and denied execution of the convenience in favor of the plaintiff. The answers for the issues claimed by the trial court are not on the appreciation of the evidence, both oral and documentary, available on record. The first appellant court has not assessed the evidence available on record properly, and that has resulted in miscarriage of justice. The first appellant court failed to note that the defendants tried to interfere the possession of the plaintiff by attempting to sell the suit site to the - 13 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 third parties. The first appellant court ought to have answered the point No. 1 in affirmative when the plaintiff had proved the Will in accordance with law and therefore ought to have held that the plaintiff is the owner of the suit site on the basis of the Will dated 09.06.1996 executed by his brother, Sri. H.H. Parameshwarappa. The first appellant failed to note that the Will, when proved, the natural succession to the property is obstructed and the Will takes over the natural succession, and therefore point No. 2 ought to have been answered in affirmative. The first appellant court also gravely erred in answering point No. 4 in affirmative, holding that the suit was barred by limitation. The impugned judgment and decree of the trial court and the first appellate court since erroneous and not based on the material evidence available on record, the same are required to be interfered by this Hon'ble Court. SUBSTANTIAL QUESTIONS OF LAW : i. Whether the courts below are justified in observing that the suit was barred by limitation. When the appellate is claiming declaratory relief on the basis of the Will executed by his brother, Sri. H.H. Parameshwarappa. ii. Whether the courts below are justified in observing that there was no occasion for the brother of the plaintiff by name Sri. H.H. Parameshwarappa to execute the Will in his favor when the plaintiff has helped - 14 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 his brother to qualify for CA as desired by his father Sri. H.P. Halappa. iii. Whether the courts below are justified in observing that the first defendant has approved that there was no occasion for Sri. H.H. Parameshwarappa to execute the Will having regard to the same that it is the plaintiff who has paid the sale consideration for the site, and on the date of allotment, Sri. H.H. Parameshwarappa was unmarried. iv. Whether the courts below have correctly assessed the evidence of DW1, i.e., Smt. V. Rekha Hangi. 15. Sri. R.B. Sadashivappa, learned senior counsel for the appellant, reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have failed to note that Sri. Parameshwarappa though undergone surgery, he was in sound and disposing state of sound of mind and he has reached Shivamogga and thereafter executed the Will in the presence of the attesting witnesses. 16. He also contends that the scribe and the attesting witnesses have been examined to prove the Willl that has been totally ignored by both the Courts and unnecessary prominence - 15 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 has been given to health condition of Parameshwarappa and sought for admitting the appeal on the aforesaid substantial questions of law. 17. Per contra, Sri. Samarth S. Lokre, learned counsel for the respondents, supports the impugned judgment. 18. Having heard the arguments on both sides, this Court perused the material on record meticulously including Ex.P26 which is a Will said to have been executed by Sri. Parameshwarappa in favour of the plaintiff. 19. As could be seen from the material on records, there is no dispute that the suit property exclusively belonged to Parameshwarappa. 20. No doubt the plaintiff has stated in so many words about the necessary assistance and help rendered by him for Sri. Parameshwarappa to pursue Chartered Accountancy degree. However, after establishing the Chartered Accountancy office in Mysore, Parameshwarappa died in the year 1996. - 16 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 21. What are all the things that transpired in the interregnum is not spoken to by the plaintiff. Nor there is any material on record to establish that as to why Sri. Parameshwarappa wanted to exclude his wife and children in granting the suit property and bequeathed the suit property in favour of the plaintiff. 22. Further, there is not even a whisper in the Ex.P26 about the ill-health of Sri. Parameshwarappa as he was suffering from cancer, especially when he has been discharged from the hospital in the month April 1996. Will is executed on 09.06.1996. 23. In other words, the recovery of health condition of Parameshwarappa is in April 1996 and he has been permitted to go back to his native place namely Mysore and thereafter only for the purpose of execution of the Will, on the date of execution of Will, he has visited Shivamogga. 24. No further particulars are forthcoming as to why Sri. Parameshwarappa alone went from Mysore to Shivamogga and or whether plaintiff has visited Mysore and accompanied - 17 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 Parameshwarappa to Shivamogga. A person who has underwent surgery of the pituitary tumor, whether he was in a position to visit Shivamogga all alone only for the purpose of execution of the Will is not explained by the plaintiff. 25. Further, if Sri. Parameshwarappa was hale and healthy, why not the Will - Ex.P26 came to be registered before the Sub-Registrar is again a question which remains unanswered. 26. More over, Ex.P26 is a on a single page. There are particulars about the suit property including the book number, volume and other details as to the registration. But there is no mention as to the wife and children who are the defendants in the suit in the Will. Further, there is also no mention as to what made Parameshwarappa to prefer plaintiff as against his wife and children. 27. It is needless to emphasise that while considering the proof of the Will, the Panchapadi explained by the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar vs. Thimmajjamma & others reported in AIR 1959 SC 443 will - 18 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 have to be applied. The said test is consistently applied by this Court. In the case of J.T. Surappa & another vs. Srisathchidhananendra Saraswathi Swamiji Public Charitable Trust and Others reported in ILR 2008 KAR 2115, those principles have been reiterated. 28. This Court again had occasion to consider the validity of the Will in RSA No.1467/2007 disposed of on 14.07.2023. Wherein this Court taken note of the circumstances which would surround the Will to held to be a non-genuine Will in detail. 29. When those tests are applied to the case on hand, exclusion of kith and kin, non mentioning about the ill-health of Parameshwarappa who has undergone the surgery for pituitary tumor in April 1996 and Will executed on 09.06.1996, would definitely expose the hollowness in the case of plaintiff in propounding the genuineness of the Will at Ex.P26. 30. Both the Courts on facts have categorically held that Ex.P26 is not established in accordance with law. - 19 - HC-KAR NC: 2025:KHC:34957 RSA No. 1564 of 2021 31. Having regard to the scope of this Court under Section 100 of the Code of Civil Procedure, this Court does not find any good grounds whatsoever to admit the appeal for further consideration on the aforesaid substantial questions of law. 32. Resultantly, following Order: ORDER (i) Appeal is meritless and hereby dismissed. (ii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 39 CT-SG