- 1 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR FIRST APPEAL NO.146 OF 2014 (DEC/INJ) BETWEEN: SRI. LAKSHMANADASAPPA @ NARASIMHAIAH SINCE DECEASED, REP. BY LRS 1 SMT. MUNISANDA W/O LATE L. LAKSHMANADASAPPA, AGED ABOUT 76 YEARS. 2. SRI. PURUSHOTHAMAN S/O LATE L. LAKSHMANADASAPPA AGED ABOUT 60 YEARS. 3. SMT. N. VEDAVATHI D/O LATE L. LAKSHMANADASAPPA, AGED ABOUT 51 YEARS. APPELLANTS 1 TO 3 ARE R/AT NO.2, KEMPANNA GARDEN, P.S.K. NAIDU ROAD, COX TOWN, BENGALURU -560 005. 4. SMT. JAYANTHI N. D/O LATE L. LAKSHMANADASAPPA, W/O CHANDRA S., AGE: MAJOR, NO.4, 18TH MAIN, 5TH CROSS NEAR PANCHAVATI APARTMENTS INDIRANAGAR HAL 2ND STAGE, BENGALURU NORTH, BENGALURU - 560 008. …APPELLANTS (BY SRI. NAGENDRA A., ADVOCATE FOR SRI. JANARDHANA G., ADVOCATE) Digitally signed by ARUNKUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 AND: 1. SRI. L. MUNIYELLAPPA SINCE DECEASED BY HIS LRS. SMT. MUTHAMMA W/O LATE MUNIYELLAPPA, AGED ABOUT 59 YEARS. 2. SRI. SRINIVASA W/O LATE MUNIYELLAPPA, AGED ABOUT 33 YEARS. 3. KUM. VEDAVATHI D/O LATE MUNIYELLAPPA. 4. KUM. SUMITHRA @ SUMI D/O LATE MUNIYELLAPPA, AGED ABOUT 27 YEARS. ALL ARE RESIDING AT: NO.16, HARIBABU BUILDING, 1ST CROSS, 6TH MAIN, VINAYAKANAGAR, MYSURU ROAD, BENGALURU. …RESPONDENTS (BY SRI. P. VITTAL SHETTY, ADVOCATE FOR R1 TO R4) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 AGAINST THE JUDGMENT AND DECREE DATED 25TH OCTOBER, 2013 PASSED IN ORIGINAL SUIT NO.8049 OF 2003 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH - 3 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 ORAL JUDGMENT This appeal is preferred by the plaintiff challenging the judgment and decree dated 25th October, 2013 passed in Original Suit No.8049 of 2003 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25) (for short, hereinafter referred to as 'Trial Court'), wherein the suit of the plaintiff filed for relief of declaration and permanent injunction came to be dismissed. 2. For the sake of convenience, the parties in this appeal are referred to as per ranking before the Trial Court. 3. The brief facts for adjudication of this appeal as averred in the plaint are that the plaintiff had acquired the suit schedule property as per the registered Will dated 18th December, 1936 executed by his great grandmother Muninanjamma. It is stated that the suit schedule property is acquired by the plaintiff as the testator died long back. It is also stated in the plaint that the plaintiff was a habitual alcoholic and as such, the defendant obtained the signatures and thumb impressions of the plaintiff and got registered the Partition Deed dated 07th December, 2001 by playing fraud. Therefore, it is the case of the plaintiff that the registered - 4 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 partition deed dated 07th December, 2001 is not binding on the plaintiff and the suit schedule property is not a joint family property of the defendants. Hence, the plaintiff filed the instant suit seeking relief of declaration and permanent injunction in respect of the suit schedule property. 4. On service of summons, the defendant entered appearance and denied the averments made in the plaint. It is the specific case of the defendant that, the suit schedule property is the ancestral property of the plaintiff and defendant and same was admitted in the registered Partition Deed dated 07th December, 2001. It is also stated in the written statement that the mother of the defendant died on 25th January, 1993 and the defendant came to know that, there is no property except the suit schedule property and as such, executed registered Partition Deed dated 07th December, 2001. It is also the case of the defendant that the defendant was an illiterate and the plaintiff in order to knock-off the suit schedule property has filed the instant suit. It is also contended that the suit filed by the plaintiff is not maintainable as the plaintiff has not sought for cancellation of the registered Partition Deed dated - 5 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 07th December, 2001. Accordingly, he sought for dismissal of the suit. 5. In order the prove their case, the plaintiff examined 2 witnesses as PW1 and PW2 and got marked 4 documents as Exhibits P1 to P4. On the other hand, defendants examined 5 witnesses as DW1 to DW5 and got marked 13 documents as Exhibits D1 to D13. 6. The Trial Court, based on the pleadings on record, formulated the following issues for its consideration: 1) Whether the plaintiff proves that he is the absolute owner of the suit property? 2) Whether he further proves that the partition deed dated 07.12.2001 came into existence in the circumstances stated in para 5 of the plaint? 3) Whether the plaintiff was in possession of the suit property as on the date of the suit? 4) Whether he proves interference by the defendant as alleged? 5) Whether the plaintiff entitled to the relief of declaration as prayed for? 6) Whether the plaintiff entitled to the relief of Permanent Injunction sought? - 6 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 7) What decree or order? 7. The Trial Court, after considering the material on record, by its judgment and decree dated 25th October, 2013, dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff preferred the present appeal. 8. Heard Sri. Nagendra A., learned counsel on behalf of Sri. Janardhana G., appearing for appellants and Sri. P. Vittal Shetty, learned counsel appearing for respondents. 9. Sri. Nagendra A., learned counsel appearing for appellants contended that the finding recorded by the Trial Court requires interference by this Court on the ground that the Trial Court failed to consider the fact that the great grandmother of the plaintiff had executed the registered Will dated 18th December, 1936 (Exhibit-P1) in favour of the plaintiff and the suit schedule property has been acquired by the plaintiff as per the said Will. Learned counsel appearing for appellants also argued that the Partition Deed dated 07th December, 2001 (Exhibit-P2) has been got executed fraudulently by the defendant at the time when the plaintiff was in the state of intoxication due to consumption of alcohol, which - 7 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 aspect was ignored by the Trial Court. Accordingly, he sought for interference of this Court. 10. Per contra, Sri. P. Vittal Shetty, learned counsel appearing for respondents sought to justify the impugned judgment and decree passed by the Trial Court. 11. Having taken note of the submission made by learned counsel appearing for the parties, the following points arises for consideration in the appeal: 1) Whether the plaintiff has proved Will dated 18th December,, 1936 (Exhibit-P1) as required under Section 69 of the Indian Evidence Act, 1872? 2) Whether the judgment and decree passed by the Trial Court requires interference in this appeal? 12. On perusal of the averments made in the plaint, the same would indicate that the plaintiff had acquired the suit schedule property as per the registered Will dated 18th December, 1936 (Exhibit-P1) executed by the great grandmother of the plaintiff. It is forthcoming from the finding recorded by the Trial Court that, there was a partition in the - 8 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 joint family consisting of the plaintiff and defendant on 07th December, 2001 (Exhibit-P2). The suit schedule property is acquired by the great grandmother of the plaintiff as per the registered Sale Deed dated 01st July, 1925 (Exhibit-D4). 13. In order to establish the acquisition of the suit schedule property by the plaintiff, the plaintiff examined himself as PW1 and another witness namely, Chinnappa as PW2. On perusal of the deposition of PW1, the same would indicate that the PW1 reiterates the plaint averments and deposed that the suit schedule property has been acquired by him through the registered Will said to have been executed by the great grandmother of the plaintiff and accordingly, he sought for nullifying the Partition Deed dated 07th December, 2001 said to have been executed between the plaintiff and the defendant. In this regard, on perusal of the evidence of PW1 makes it clear that the plaintiff, defendant and their brother namely, Ramadasappa were jointly enjoying the suit schedule property for a considerable period as to the fact that the suit schedule property is the joint family property of the plaintiff and defendant. It is also forthcoming from the cross-examination of the PW1 that the certified xerox copy of the Panchayat - 9 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 Palukararu was shown to the plaintiff and he admits his signature on the same as well as the Partition Deed dated 07th December, 2001 (Exhibit-P2). 14. In the backdrop of these aspects, on careful consideration of the evidence of PW2, the same would indicate that the PW2 is the close relative of the plaintiff, who deposed that, his wife Smt. Lalitha is the daughter of Ramadasappa, who is the brother of the plaintiff. On perusal of the deposition of the PW2 would indicate that the Original Suit No.5832 of 2004 is filed by the defendant-Muniyellappa against the said Ramadasappa, father-in-law of the PW2, which is pending consideration before the competent civil Court. In that view of the matter, the evidence of the PW2 cannot be accepted to prove the registered Will dated 18th December, 1936 (Exhibit P1). On the other hand, I have carefully examined the evidence of the DW1 to DW5, wherein the respective witnesses in an unequivocal terms have stated that the plaintiff, defendant and their brother Ramadasappa constitute a joint family. Therefore, it has to be regarded as the joint family property of the children of Narayanamma i.e., the plaintiff, defendant and Ramadasappa. - 10 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 15. It is well settled principle in law that, in order to prove the execution of Will and to remove the suspicious circumstances surrounded with the execution of Will, the propounder of the Will i.e., the plaintiff has to examine one of the witnesses to the Will to prove the due execution. In this regard, it is argued at the Bar that the witnesses to the said Will were no more. In that view of the matter, taking into consideration the requirement of proving the Will, the signatures of the witnesses to the Will have to be proved by examining the competent witness by the plaintiff. In the present case, as the signature of the witnesses to the Will have not been examined by the plaintiff as required under Section 69 of the Indian Evidence Act, 1872, I am of the view that the plaintiff has failed to prove the execution of the Will said to have been executed on 18th December, 1936. 16. Hon'ble Supreme Court in the case of H. VENKATACHALA IYENGAR vs. B.N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443, laid down the dictum with regard to proving the execution of Will, so also, to remove the suspicious circumstances surrounded with the execution of Will by the propounder of the Will. In that view of the matter, - 11 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 though the plaintiff is claiming right over the suit schedule property based on the Will dated 18th December, 1936 (Exhibit- P1), had failed to establish the due execution of Will by proving the signature of the Testator and the witnesses to the Will as required under law. Paragraph 18 of the judgment of Hon'ble Supreme Court in the case of H. VENKATACHALA IYENGAR (supra) reads as under: "18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its - 12 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to - 13 - HC-KAR NC: 2025:KHC:41396 RFA NO.146 OF 2014 be applied would be the usual test of the satisfaction of the prudent mind in such matters." 17. Following the law declared by Hon'ble Supreme Court in the case of H. VENKATACHALA IYENGAR (supra), I am of the view that the Trial Court after appreciating the material on record including the oral and documentary evidence by the parties, had rightly dismissed the suit of the plaintiff seeking relief of declaration and permanent injunction. In that view of the matter, the points for consideration referred to above favours the defendants and accordingly, no interference be called for in this appeal. Accordingly, Regular First Appeal is dismissed. SD/- (E.S. INDIRESH) JUDGE ARK List No.: 1 Sl No.: 13