- 1 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.1303 OF 2024 (DEC/INJ) BETWEEN: 1. SRI LAKSHMAIAH SON OF THIRUMALA NARAYANAPPA, AGED ABOUT 62 YEARS, 2. SMT VENKATALAKSHMAMMA DAUGHTER OF THIRUMALA NARAYANAPPA, AGED ABOUT 60 YEARS, 3. SMT RATHNAMMA DAUGHTER OF THIRUMALA NARAYANAPPA, AGED ABOUT 57 YEARS, 4. SMT MANJULAMMA DAUGHTER OF THIRUMALA NARAYANAPPA, AGED ABOUT 53 YEARS, 5. SMT PAPAMMA DAUGHTER OF THIRUMALA NARAYANAPPA, AGED ABOUT 50 YEARS, APPELLANTS 1 TO 5 ARE RESIDING AT THUMAKUNTE VILLAGE, MANDIKAL HOBLI, CHIKKABALLAPURA, TALUK AND DISTRICT -562101 …APPELLANTS (BY SRI SRINIVASAN T, ADVOCATE) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 AND: SRI VENKATARONAPPA SON OF THIRUMALA VENKATARAYAPPA, AGED ABOUT 47 YEARS, RESIDING AT THUMAKUNTE VILLAGE, MANDIKAL HOBLI, CHIKKABALLAPURA TALUK AND DISTRICT-562101 …RESPONDENT (BY SRI B.R.RAGHAVENDRA, ADVOCATE C/R) THIS RSA IS FILED UNDER SECTION 100 OF CODE OR CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 31.03.2023 PASSED IN RA NO.23/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AT GUDIBANDE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.11.2018 PASSED IN OS NO.94/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC, GUDIBANDE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 ORAL JUDGMENT Heard Sri Srinivasan.T, learned counsel for the appellants. 2. Even though respondent has filed caveat, since caveat period has expired, none appears on behalf of the respondents. 3. Defendants in O.S No.94/2010 on the file of the Civil Judge and JMFC, Gudibande, are the appellants in this Second Appeal challenging the decreeing of the suit in respect of the land bearing Survey No.227, measuring 3 acres, out of which 1 acre towards northern side situated at Boyanahalli, Mandikal Hobli, Chikkaballapura District, hereinafter referred to as ‘suit property’. 4. Validity of the judgment and decree passed by Civil Judge and JMFC, Gudibande, in O.S No.94/2010 was subject matter of First Appeal filed by the defendants in R.A No.23/2019 on the file of the Senior Civil Judge, Gudibande. 5. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties in detail and dismissed the appeal. - 4 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 6. Facts, in brief which are utmost necessary for disposal of the present appeal are as under: 7. Plaintiff claiming to be the foster son of Thirumala Venkatarayappa laid claim in respect of the suit property based on the Will executed by Thirumala Narayanappa, S/o Papanna, which was registered in the office of the Sub Registrar on 14.12.2007. There was an earlier suit in O.S No.193/2009 before the Civil Judge (Senior Division), Chikkaballapura, wherein plaintiff was not a party in respect of the other properties left behind by Thirumala Narayanappa. 8. Suit in O.S.No.94/2010, on contest came to be decreed and plaintiff was declared to be the owner of the suit property in possession and enjoyment. Defendants were restrained from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. 9. Being aggrieved by the same, defendants filed an appeal on the file of the Senior Civil Judge at Gudibande, in R.A No.23/2019 contending that, Will marked at Ex.P-2 was surrounded with suspicious circumstances inasmuch as - 5 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 beneficiary under the Will viz., the plaintiff was present at the time of execution of the Will. Therefore, in view of the settled principles of law, the decreeing of the suit was incorrect. 10. Learned Judge in the First Appellate Court on re- appreciation of the legal and factual aspects, dismissed the appeal holding that first defendant had abandoned the executor of the Will though he was the real son. The daughter of the executant having been married, lived separately and did not take care of the executor in his last days. Accordingly, upheld the disposition made by the executant even though the near and dear were excluded from the bequeath. 11. Learned Judge in the First Appellate Court also noted that only one acre of the property was bequeathed in favour of the plaintiff though he was the owner of 3 acres and odd of the land and dismissed the appeal. 12. Being aggrieved by the same, defendants have filed the present appeal on the following grounds and substantial questions of law. - 6 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024  The Courts Below have given a complete go by to the evidence placed by the Appellants and have passed the impugned Judgments and Decree on wholly erroneous reasoning, contrary to the facts of the case, evidence on records, apart from being wholly perverse and capricious.  Both the Courts below failed to consider that on a comprehensive perusal of the evidence of plaintiff it was clearly establish that the alleged will in Ex.P.2 had been created at the instance of the plaintiff who had actively participated in the creation of the will. So also the witnesses to the will contradict each other as to the execution and registration of the will which ultimately falsifies the alleged will to be a bogus, fictitious and created document at the behest of the plaintiff in order to deprive the defendants of the valuable property belonging to them. This aspect has not been taken into consideration by both the Courts Below as such the impugned judgments are utterly perverse, arbitrary and illegal and are liable to be set aside by the Hon'ble Court.  The Courts below failed to consider that Thirumala Narayanappa was aged 70 years as on the date of alleged will. For almost a decade he was suffering from asthma and swelling in the body. He was having poor eyesight and was not in a sound and disposing state of mind. It is also seen that he was frequently hospitalized for his ailments as well as age related problems. In this regard the defendants have through cogent and believable evidence established that Thirumala Narayanappa did not have the requisite disposing - 7 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 state of mind, as well as sound mind in order to execute any will. So also he did not have any intention of bequeathing the suit property in favour of the plaintiff. So also it is seen that there is no proper explanation as to why he is disinheriting his children who are 5 in number. Further the property belonging to him is only about 3 acres of land and he has not explained as to why he is bequeathing a major portion of the property to the plaintiff. This aspect has not been taken into consideration by the Courts Below in the impugned judgments.  The Courts below failed to consider that the plaintiff has utterly failed to establish and prove that he had taken care of Sri.Thirumala Narayanappa as such the property was bequeathed upon him. In fact Thirumala Narayanappa did not stay together with the plaintiff he was staying separately from the plaintiff. So also the plaintiff has failed to produce any evidence to show that he was taking care of Sri. Thirumala Narayanappa. The contention of the plaintiff that the suit property was bequeathed upon him for having taken care of his junior uncle is not supported and established by any evidence at all. This aspect has not been taken into consideration by the Courts Below.  The Courts below failed to consider that it is the specific case of the plaintiff that the judgment and decree in O.S.No. 193/2009 has been obtained by the defendants and Smt.Gangamma wife of Thirumala Narayanappa by fraud and deceit in order to deprive him of the suit property. In this regard it is the prayer of the plaintiff in the suit filed by - 8 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 him that the judgment and decree in O.S.No. 193/2009 is not binding on the plaintiff. In this regard the judgment and decree in O.S.No.193/2009 has been produced and marked as Ex.D.4 and 5. The plaintiff has every knowledge that Smt.Gangamma wife of Thirumala Narayanappa was the defendant No.1 in that suit. In spite of having all knowledge that Smt.Gangamma was a proper and necessary party to the suit filed by the plaintiff as she derived right, title and interest in the suit property, deliberately she was not made as a party to the suit. This aspect has not been taken into consideration by both the Courts Below in the impugned judgment. The Courts Below ought to have held that the suit is bad for non-joinder of necessary party.  The Courts Below ought to have held that when issue No.2 is answered in the negative, issue No.1, 3 and 4 could not have been answered in the affirmative. Thus the findings of the Courts Below is highly erroneous and thus liable to be set aside.” SUBSTANTIAL QUESTION OF LAW “i). Whether the Courts Below were at error in holding that the plaintiff is the absolute owner in peaceful possession and enjoyment of the suit property having bequeathed upon him by Thirumala Narayanappa by the registered will dated 14/12/2007? ii) Whether the Courts Below while holding in negative that the plaintiff has failed to prove that the judgment and decree passed in O.S.No. 193/2009 rendered by The Senior Civil Judge, Chikkaballpur could have held that the - 9 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 plaintiff has proved the alleged will dated 14/12/2007 and he is entitled for the decree of declaration of title? iii) Whether the Courts Below could have passed the judgment in favour of the plaintiff granting the decree of permanent injunction when the plaintiff has failed to establish his possession and enjoyment of the suit property and so also failed to prove interference over the plaintiff's possession by the defendants? iv) Whether the Lower Appellate Court was at error in not re appreciating the factual matrix of the case, pleading, facts and evidence and rendering the impugned Judgment without judicial examination of decision of the Trial Court? v). Whether, in light of facts and circumstances of the case, whether the judgment and decree passed by both the Courts Below requires interference as the same is not justified in law.” 13. Sri T.Srinivasan, learned counsel for the appellants/ defendants reiterating the grounds urged in the appeal memorandum contended that, both the Courts failed to appreciate that, plaintiff, in the guise of serving the executant in his last days, managed to get a Will executed in his favour in respect of the suit property. - 10 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 14. The answers elicited in the cross- examination of the plaintiff and the witnesses shows that the plaintiff was very much present at the time of execution of the Will. Therefore, Ex.P-2 surrounded with suspicious circumstances which has been ignored by both the Courts and sought for admitting the appeal on the aforesaid substantial questions of law. 15. In the light of the arguments put forward on behalf of the plaintiff, this Court bestowed its best attention to the material on record. 16. On such perusal of the material on record, it is crystal clear that in the Will itself there is a clear mention as to why he is excluding the near and dear and why he bequeathed one acre of his total properties in favour of the plaintiff. 17. It is settled principles of law and requires no emphasis that while interpreting the terms of the Will, the Courts are required to step into the shoes of the Executor to find out from his angle whether the disposition is justified in the attendant facts and circumstances of the case than introducing the normal circumstances to appreciate bequeath. - 11 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 18. If such a test is carried out in the case on hand, the reasons assigned by the Executant in the Will itself is sufficient as to why he excluded the defendants in Ex.P-2 while granting one acre of the land to the plaintiff. 19. Reasons assigned are plausible, sound and real having regard to the fact that first defendant deserted his own father and left the family. Daughters of the Executant having been married did not care to even visit the Executant in his last days. 20. No doubt, in the evidence of the plaintiff, it is alleged that there is no document to establish that the Executant had been hospitalized and necessary medical expenses has been met by the plaintiff. 21. But expecting all those evidence that a litigation would ensue in the future, is too much on the part of the defendants wherein they were duty bound to look after the executants, but failed to do so. - 12 - HC-KAR NC: 2025:KHC:33147 RSA No. 1303 of 2024 22. Under such circumstances, this Court is of the considered opinion that the decreeing of the suit by both the Courts does not require further interference in this Second Appeal. 23. Accordingly, the substantial questions of law do not merit further consideration. 24. Hence, the following: ORDER Appeal is meritless and is hereby dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 67