- 1 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.751 OF 2024 (PAR) BETWEEN: SRI DHARNAPPA @ MUTHAYYA POOJARY S/O LATE ANGARA POOJARY AGED ABOUT 76 YEARS R/AT MELINAKURTHODY HOUSE MELANTHABETTU VILLAGE AND POST BELTHANGADY TALUK DAKSHINA KANNADA - 574214 OCCUPATION: AGRICULTURE …APPELLANT (BY SMT. ARCHANA MURTHY P, ADVOCATE FOR SMT. SARITHA KULKARNI, ADVOCATE) AND: 1. SMT. RATHNA D/O LATE ANGARA POOJARY AGED ABOUT 65 YEARS R/AT GERUKATTE HOUSE KALIYA VILLAGE, GERUKATTE POST BELTHANGADY TALUK DAKSHINA KANNADA – 574217 2. SRI KRISHNAPPA POOJARY S/O LATE ANGARA POOJARY AGED ABOUT 70 YEARS R/AT GERUKATTE HOUSE KALIYA VILLAGE, GERUKATTE POST Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 BELTHANGADY TALUK DAKSHINA KANNADA – 574217 3. SRI DHARNAPPA POOJARY S/O LATE ANGARA POOJARY AGED ABOUT 61 YEARS R/AT GERUKATTE HOUSE KALIYA VILLAGE GERUKATTE POST BELTHANGADY TALUK DAKSHINA KANNADA – 574217 4. SMT. NAGAMMA W/O LATE ANGARA POOJARY AGED ABOUT 74 YEARS R/AT PALETHADI HOUSE MELANTHABETTU VILLAGE BELTHANGADY TALUK DAKSHINA KANNADA – 574214 5. 5(A) CHANDRAPRAKASH (SINCE DECEASED) SMT. HARINAKSHI W/O LATE CHANDRAPRAKASH AGED ABOUT 45 YEARS R/AT SUBHOSH NAGARA BANKEL, MUDIGERE TALUK CHIKAMAGALURU DIST – 577113 5(B) APEKSHA D/O LATE CHANDRAPRAKASH AGED ABOUT 23 YEARS R/AT SUBHOSH NAGARA BANKEL, MUDIGERE TALUK CHIKAMAGALURU DIST – 577113 5(C) ANUSHKA D/O LATE CHANDRAPRAKASH AGED ABOUT 21 YEARS R/AT SUBHOSH NAGARA - 3 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 BANKEL, MUDIGERE TALUK CHIKAMAGALURU DIST – 577113 6. SMT. LAXMI @ DAMAYANTHI W/O BALAKRISHNA D/O LATE KUNJIRA POOJARY AGED ABOUT 52 YEARS R/AT PALETHADI HOUSE MELANTHABETTU VILLAGE BELTHANGADY TALUK DAKSHINA KANNADA – 574214 7. SRI ASHOKA S/O LATE KUNJIRA POOJARY AGED ABOUT 49 YEARS R/AT PALETHADI HOUSE MELANTHABETTU VILLAGE BELTHANGADY TALUK DAKSHINA KANNADA – 574214 8. SRI PRASAD S/O LATE KUNJIRA POOJARY AGED ABOUT 47 YEARS R/AT PALETHADI HOUSE MELANTHABETTU VILLAGE BELTHANGADY TALUK DAKSHINA KANNADA – 574214 9 SMT. PADMAVATHI W/O LAXMANA POOJARY D/O KUNJIRA POOJARY AGED ABOUT 44 YEARS R/AT BANGADY POST INDABETTU VILLAGE BELTHANGADY TALUK DAKSHINA KANNADA – 574214 …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.03.2024 PASSED IN - 4 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 R.A.NO.19/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY, D.K. AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the appellant. 3. The factual matrix of case of plaintiff before the Trial Court while seeking the relief of partition and separate possession in respect of the suit schedule property is that the property was granted in favour of the mother on 12.12.1977 and there was a partition between the mother and also the other legal heirs of mother on 01.08.1998 and there was a registered partition. The counsel would also vehemently contend that in terms of the said partition deed dated 01.08.1998, life interest is created in favour of the mother and after the death of the mother, the property shall be divided - 5 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 among her legal heirs. The counsel would vehemently contend that the plaintiff is entitled for a share in the suit schedule property. The defendants appeared and filed the written statement admitting that there was a grant in favour of the mother and subsequently there was a partition and also contend that during the lifetime of the mother, defendant No.3 has taken care of the mother and mother also executed a Will on 16.01.1999 and also he is enjoying the property of the mother left by her and all the revenue records were also changed in the name of defendant No.3. 4. The Trial Court having considered pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. Plaintiff examined as PW1 and got marked the documents at Ex.P1 to P3. On the other hand, defendant No.3 also examined himself as DW1 and also examined one of the witnesses invoking Section 68 of the Evidence Act, since attesting witnesses are no more. The Trial Court considering the admission on the part of DW1 as well as the evidence adduced before the Court comes to the conclusion that defendant No.3 was taking care of the mother and - 6 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 subsequently, sale deed was also executed and also categorically admits that defendant No.3 is in occupation and enjoyment of the suit schedule property which is allotted in favour of the mother i.e., the property which was bequeathed in favour of defendant No.3 and revenue records are also changed. All these admissions were taken note of by the Trial Court and dismissed suit of the plaintiff. Being aggrieved by the judgment of the Trial Court, an appeal was filed before the First Appellate Court. 5. The First Appellate Court having considered the grounds which have been urged in the appeal memo, formulated the points and having reassessed both oral and documentary evidence placed on record, answered the points as negative particularly taking note of admission on the part of PW1 in the cross-examination in paragraph 45 and also taken note of document of Ex.D5 and even it is stated in the Will that the last son made the improvement of the property and reason is also given in the Will for bequeathing the property and PW1 admitted that testator Seethuu Hengsu was living with defendant No.3 during her last days and also taken note of the - 7 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 recitals in document of Ex.D5 and comes to the conclusion that the reason given in the Will also probable and believable to confirm the judgment with regard to proving of Will and in paragraph 57 taken note that DW2 is examined since both the attesting witnesses were not alive and one of the attesting witness’s son was examined before the Court as DW2. The First Appellate Court also made an observation that Will is not surrounded by any suspicious circumstances in paragraph 58 and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 6. The main contention of the appellant’s counsel that both the Courts have committed an error in accepting the document of Ex.D5-Will as proved and failed to comply with Section 69 of the Indian Evidence Act and Section 69 of the Evidence Act provides for proof of handwriting of at least one of the attesting witness as well as the signature of the person executing the document and the same has not been proved. Hence, it requires interference of this Court admitting the appeal and framing substantial question of law. - 8 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 7. Having heard the learned counsel for the appellant and also considering the material on records and pleadings, it discloses that it is very clear that the property was granted in favour of the mother on 12.12.1977 and no dispute to that effect. There was a partition on 01.08.1998 among the mother and children and the same also not in dispute. The only contention of the appellant’s counsel that in the partition deed, it is specifically mentioned that after the death of the mother, it should go to all the legal heirs. The admission on the part of PW1 in the cross-examination is that PW1 categorically admitted that mother was staying along with defendant No.3 and also clear admission was given that the very property was in possession of the beneficiary and he had cultivated the same. The recital of document of Will wherein categorically mentioned the reason for bequeathing the property that defendant No.3 only got improved the property and taken care of the mother. All these factors were taken note of by both the Trial Court as well as the First Appellate Court. Even the First Appellate Court also gone into that whether there is any suspicious circumstance in creating the document of Will. Even though attesting witnesses were not alive, but son of one of the - 9 - HC-KAR NC: 2025:KHC:51939 RSA No. 751 of 2024 attesting witnesses is examined as DW1 in order to prove the Will invoking Section 69 of Evidence Act. Hence, the question of fact and question of law were taken note of by the Trial Court as well as First Appellate Court. Under the circumstances, I do not find any ground to admit the appeal and to frame substantial question of law invoking Section 100 of CPC. 8. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE SN