- 1 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1836 OF 2024 (PAR) BETWEEN: 1. SMT. LAKSHMAMMA W/O MUNIVENKATASWAMY D/O LATE VENKATAPPA AGED ABOUT 64 YEARS R/AT MARIYAPPANAPALYA VILLAGE KASABA HOBLI GOWRIBIDANUR TOWN AND TALUK CHICKBALLAPUR DISTRICT-561 208. …APPELLANT (BY SRI. M.B. CHANDRACHOODA, ADVOCATE) AND: 1. SMT. NARAYANAMMA W/O G. GANGAIAH D/O LATE VENKATAPPA AGED ABOUT 56 YEARS R/AT IDRAHALLI VILLAGE MAJARA CHINNAHALLI, KASABA HOBLI, GUDIBANDE TALUK C.B. PURA DISTRICT-561 209. SRI. NARAYANAPPA S/O LATE VENKATAPPA SINCE DECEASED BY HIS LRS . 2. SMT. ESHWARAMMA W/O LATE NARAYANAPPA AGED ABOUT 65 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 3. SMT. ANITHA D/O LATE NARAYANAPPA AGED ABOUT 38 YEARS 4. SRI. MANJUNATHA S/O LATE NARAYANAPPA AGED ABOUT 33 YEARS 5. SMT. MAMATHA D/O LATE NARAYANAPPA AGED ABOUT 30 YEARS 6. SRI. PRAKASHA S/O LATE NARAYANAPPA AGED ABOUT 26 YEARS RESPONDENT NOS.2 TO 6 ARE R/AT BEHIND ST. JOSEPH CONVENT SCHOOL, CHICKBALLAPUR CITY, CHICKBALLAPUR TALUK AND DISTRICT-562 101. 7. SMT. ASHWATHAMMA, D/O LATE VENKATAPPA, AGED ABOUT 54 YEARS, R/AT BESIDE VIDYA NIDHI SCHOOL MADAVANAGARA GOWRIBIDANUR CITY CHIKBALLAPUR DISTRICT-561 208. 8. SMT. VENKATAMMA, D/O LATE VENKATAPPA W/O VENKATARAVANAPPA AGED ABOUT 51 YEARS R/AT GEDDALAPALYA VILLAGE HADOHALLI POST DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT-561 203. - 3 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 SRI. ASHWATHAPPA S/O LATE VENKATAPPA SINCE DECEASED BY HIS LRS 9. SMT. MUNIYAMMA W/O LATE ASHWATHAPPA AGED ABOUT 46 YEARS 10. SMT. RADHA D/O LATE ASHWATHAPPA AGED ABOUT 26 YEARS 11. SMT. RENUKA D/O LATE ASHWATHAPPA W/O HANUMANTHAPPA AGED ABOUT 24 YEARS 12. SRI MUNIRAJU S/O LATE ASHWATHAPPA AGED ABOUT 21 YEARS 13. SMT. RAJINI D/O LATE ASHWATHAPPA AGED ABOUT 25 YEARS RESPONDENT NOS.9 TO 13 ARE R/AT GEDDLAPALYA VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-560 077. 14. SMT. NIRMALA W/O NAGARAJ AGED ABOUT 31 YEARS R/AT IDAGURU VILLAGE KASABA HOBLI GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208. - 4 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 15. SRI. RAGHU S/O GOPALA SWAMY AGED ABOUT 55 YEARS R/AT 203, VINAYAKA APARTMENTS BOOPASANDRA BANGALORE-94. 16. SRI. M.S. NAGARAJ S/O M. SHIVALINGAIAH AGED ABOUT 51 YEARS R/AT 303 VINAYAKA APARTMENTS BOOPASANDRA BANGALORE-94. 17. SRI. G.P. RAJASHEKHAR S/O PUTTACHAR AGED ABOUT 61 YEARS R/AT “C” DIVISION, V.V. PURAM GOWRIBIDANUR TOWN AND TALUK CHICKBALLAPUR DISTRICT-561 208. SRI. DODDAPILAPPA SINCE DECEASED BY HIS LRS 18. SMT. THYAVVA W/O LATE DODDAPILLAPPA AGED ABOUT 81 YEARS 19. SRI. GANGARAJU S/O LATE DODDAPILAPPA AGED ABOUT 66 YEARS 20. SRI. NARAYANASWAMY S/O LATE DODDAPILLAPPA AGED ABOUT 56 YEARS RESPONDENT NOS.18 TO 20 ARE R/AT KANDAVARAPETE OLD AEO ROAD - 5 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 OPP: BHYRAWESHWARA NILAYA CHICKBALLAPUR CITY - TALUK AND DISTRICT-562 103. 21. SRI. NAGARAJ S/O SUBBANNA AGED ABOUT 43 YEARS R/AT JAKKENAHALLI VILLAGE IDAGUR MAZARA, KASABA HOBLI GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT-561 208. …RESPONDENTS (BY SRI. SANNAKKI UDAY KUMAR, ADVOCATE FOR C/R17) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.10.2024 PASSED IN R.A.NO.42/2023 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.03.2023 PASSED IN OS NO.13/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GOWRIBIDANUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. I have heard learned counsel for the appellant and learned counsel for caveator- respondent No.17. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of case of the plaintiff while seeking the relief of partition and separate possession is that suit schedule properties are joint family properties of herself and the defendants. 4. The defendants appeared and filed the written statement contending that defendant No.1 claims that Narayanappa has executed a registered Will in her favour on 23.02.2006. It is also the contention of defendant No.1 that he has sold item No.1 for family benefit and legal necessity in favour of defendant No.6 and in turn, defendant No.6 sold the property in favour of defendant No.9. The Trial Court taking note of pleadings of defendant No.9 also framed additional - 7 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 issue that defendant No.1 executed sale deed in favour of defendant No.6 on 22.03.2013. Thereafter, defendant Nos.6 to 8 have sold item No.2 in his favour on 14.12.2015 and thus, he is a bonafide purchaser of item No.2 and considering the written statement of defendant No.9 also framed an issue that item No.2 is the self-acquired property of Narayanappa and Mulubagilamma. 5. The trial Court having considered the pleadings and also the issues, allowed the parties to lead evidence. The plaintiff, in order to prove the case, examined herself as P.W.1 and examined four witnesses as P.W.2 to P.W.5 and got marked the documents Exs.P1 to P12 and unregistered Will dated 31.12.2005 as Ex.P13. On the other hand, defendant No.1, in support of her contention examined herself as D.W.1 and also examined in total 5 witnesses as D.W.2 to D.W.6 and got marked the documents as Exs.D1 to D27 original registered Will, mutation, RTC extracts, original SPA deed, Encumbrance Certificates, certified copy of the registered sale deed three in numbers as Exs.D15 to 17, mutations, hissa tippani, survey atlas, Akar Bandh and RTC Extracts. - 8 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 6. The Trial Court considering both oral and documentary evidence accepted the case of the defendants and not accepted the case of the plaintiff and answered issue No.1 as ‘negative’ and issue No.2 as ‘affirmative’ that there was a registered Will and the same is proved by examining the witnesses and dismissed the suit. 7. Being aggrieved by the judgment and decree of the Trial Court, the First Appellate Court also having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court has not appreciated both oral and documentary evidence in a proper manner and whether it requires interference and also framed a point whether the appellant has made out a ground to consider I.A.No.1 filed under Order 41, Rule 27 read with Section 151 of CPC and answered point Nos.1 and 2 as ‘negative’ and point No.3 as ‘affirmative’ in coming to the conclusion that Trial Court is justified in dismissing the suit of the plaintiff accepting the case of defendants i.e., original registered Will Ex.D1 and not believed the document of Ex.P13. While doing so, particularly, - 9 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 taken note of the evidence of witnesses in paragraph Nos.28 to 31 and confirmed the judgment of the Trial Court. 8. The main contention of learned counsel appearing for the appellant before this Court is that both the Courts have committed an error in relying upon document of Ex.D1 and ignored the document of Ex.P13 executed by Narayanappa at an undisputed point of time, dividing the schedule properties equally among the plaintiff and the defendants. The counsel would vehemently contend that no reasons are assigned for disinheriting the other family members and also counsel would vehemently contend that earlier Will was dated 23.02.2006 and the executant Narayanappa died on 26.02.2006 within a span of 3 days. The counsel would vehemently contend that both the Courts were not justified in dismissing the suit ignoring the fact that Sy.No.55/3 is the joint family property of Nagappa. Hence, this Court has to admit the second appeal and frame substantial question of law. 9. Per contra, learned counsel appearing for caveator- respondent No.17 would vehemently contend that document which the plaintiff relies upon i.e., Ex.P13 is an unregistered - 10 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 document and the same has not been proved. The Will which is marked on behalf of the defendants is Ex.D1 and the same is proved which is a registered Will. Even the Trial Court has taken note of Section 68 of the Indian Evidence Act and also Section 63 of Indian Succession Act in paragraph Nos.35 and 36 and reasons are assigned with regard to proving of earlier Will and not accepted the case of the plaintiff and witness D.W.2, who is the son of late Srirama Naik, the Scribe of Ex.D11 identifies his father's signature as Ex.D1(a). Though, he was cross-examined, even remotely, no suggestion was put to him that he is not the son of late Srirama Naik and said Srirama Naik was not the deed writer by profession. He denies the suggestion that his father has not prepared and signed Ex.D1. He also denies the suggestion that he is falsely deposing before the Court to help defendant No.1 and nothing is elicited from the mouth of D.W.2. So also in respect of D.W.3, one of the attesters of Ex.D1, she has deposed in her examination-in- chief that her elder paternal uncle bequeathed his properties in her sister Narayanamma's name and the evidence of D.W.2 and D.W.3 is accepted. The First Appellate Court also in detail - 11 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 considered both oral and documentary evidence and confirmed the same and it does not require any interference. 10. Having heard learned counsel for the appellant and learned counsel for the caveator-respondent No.17, it is the specific case of the plaintiff that suit schedule properties are joint family properties. It is the case of the defendant that properties are the separate properties of the executant and both the plaintiff and the defendants claim the suit schedule properties based on Ex.P13 as well as Ex.D1 respectively. The Trial Court in detail taken note of evidence of D.Ws.1, 2 and 3 in coming to the conclusion that the Ex.D1-Will is a registered document and nothing is elicited from the mouth of D.Ws.2 and 3 to disbelieve the case of the defendants with regard to the Will is concerned and nothing elicited that Will is surrounded by doubtful circumstances. Apart from that the Trial Court also taken note of Ex.P13 which is an unregistered Will relied upon by the plaintiff and comes to the conclusion that the same is not proved by placing any credible evidence before the Court and particularly taken note of evidence of attesting witnesses'. The First Appellate Court also while reassessing the material - 12 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 available on record, keeping in view the contentions urged in the appeal memo taken note that defendants have marked the document Ex.D1 dated 23.02.2006 and the same is discussed in paragraph No.25 and also taken note of the case of the plaintiff that marked Ex.P13 is an unregistered Will which is relied upon by the plaintiff and also taken note of the fact that in order to prove the document of Will Ex.P13, the plaintiff has examined two attesting witnesses P.W.4 and P.W.5. 11. The Trial Court also taken note of the fact that plaintiff never pleaded in her plaint about execution of Ex.P13- Will deed by deceased Narayanappa. In the absence of pleadings, any amount of evidence will not help the plaintiff to claim the relief on the basis of Ex.P13-Will deed and not sought for any declaratory relief in respect of Ex.P13 Will deed and considering the discussion made in paragraph Nos.24 and 25 and particularly, the evidence of witnesses D.W.2 and D.W.3 which has been discussed in paragraph No.26 and considered the material in paragraph No.27 with regard to nature of the property is concerned and observed that D.W.3-Ashwathamma is the sister of both plaintiff and defendant No.1, who is not an - 13 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 attesting witness to Ex.D1-Will deed. However, she has supported the defendant No.1 by stating that her elder brother Ashwathappa puts his LTM signature on Ex.D1-Will deed. The First Appellate Court also considered the cross-examination on the part of P.W.1, wherein she has admitted that her younger brother Ashwathappa puts his LTM on the Will deed executed by Narayanappa and suggestion was made to P.W.1 that one Ashwathappa, son of Venkatappa has signed Will deed for which she has answered that they have obtained the LTM signature of her younger brother on the Will deed when he was suffering from ill-health. This admission made by P.W.1- Lakshmamma clearly establishes that one of the attesting witness of Ex.D1 is her younger brother and also P.W.1 in her cross-examination admitted that her brother Ashwathappa put his LTM on Ex.D1-Will deed and it is her explanation that his LTM signature was obtained on Ex.D1 when he was suffering from ill-health. All these materials were taken note of and particularly in paragraph Nos.29 and 31 comes to the conclusion that Ex.D1-Will is proved by examining witnesses D.W.2 and D.W.3 and subsequently, item No.2 of the property was sold on 22.03.2013 by defendant No.1 and her children in - 14 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 favour of defendant No.6, then, in turn, she sold the property in favour of defendant No.9 through Ex.D17 on 14.12.2015 and all these factors were taken note of that subsequent to execution of Will also, item No.2 of the property was sold which is discussed in paragraph Nos.30 and 31 and it is also admitted by both the parties that suit schedule properties belong to Narayanappa and no dispute with regard to the said fact is concerned. When such being the case, I do not find any error on the part of Trial Court and the First Appellate Court in appreciating both oral and documentary evidence available on record and no perversity is found in the findings of both the Courts. The Will-Ex.D1 is proved by examining the witnesses and the said Will is also a registered document and the same was executed long back and when there was no pleading on the part of the plaintiff with regard to Ex.P13 which is also an unregistered document, the same was not accepted by both the Trial Court as well as the First Appellate Court. When such being the case, I do not find any ground to admit the second appeal and frame any substantial question of law. - 15 - HC-KAR NC: 2025:KHC:49848 RSA No. 1836 of 2024 12. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 57