- 1 - RSA No. 1151 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO REGULAR SECOND APPEAL NO. 1151 OF 2018 (PAR) BETWEEN: 1. MRS ANASUYA JAYAMANI MABEN D/O LATE OBED HENRY W/O LATE EBNEZAR MABEN, AGED 80 YEARS RESIDING AT HENRY COTTAGE, NEAR Y.M.K.SAW MILLS, ASHOKA NAGARA, MANGALORE-575 006 2. MRS LORA SHANTHI PRASANNA W/O LATE E.J. PRASANNA, AGED 67 YEARS RESIDING AT 15/11-IIND CROSS, KARGAPPA GARDEN, BANGALORE-560 027. …APPELLANTS (BY SRI. NATARAJ DONKENNANAVAR, ADVOCATE FOR SRI. PRUTHVI WODEYAR, ADVOCATE) AND: 1. MR SAMUEL JOHN HENRY S/O LATE OBED HENRY, AGED 84 YEARS RESIDING AT BETHEL VILLA, MULKI-574 154 2. MR EDWIN CLEMENT HENRY S/O LATE OBED HENRY, AGED 82 YEARS RESIDING AT "LAVENA",NO.4-4-27 - 2 - RSA No. 1151 of 2018 KINNI MULKI, UDUPI TALUK-574 113. 3. MR ALEXANDER DEVAPRIYA HENRY S/O LATE OBED HENRY AGED 78 YEARS RESIDING AT NEW STAR VILLA, MISSION COMPOUND, SANTHOOR, PILAR POST, UDUPI-574 113. 4. MRS LINNET CLARIBEL PAUL D/O LATE IDORA METHEW, AGED 47 YEARS RESIDING AT 4/2, IST MAIN, 1ST CROSS, LAKKASANDRA, BANGALORE-560 030. 5. MRS ADELAIDE ELIZABETH HENRY W/O VINCENT EPHRAIM HENRY, AGED 72 YEARS RESIDING AT "ADVIN HENRY" ASHOK NAGAR, MANGALORE-575 006. 6. MRS ANNIE SUREKHA HENRY/SOLOMON W/O PREETHAM SOLOMON, AGED 46 YEARS RESIDING AT A-104, SHOBHA HIBISCUS, BELLANDUR, SARJAPUR OUTER, RING ROAD, BANGALORE-560 103. 7. MRS JANET IRENE PETER W/O WILSON PETER, AGED ABOUT 57 YEARS ROCK # 462 B BLOCK, 2ND MAIN, AECS LAYOUT, KUNDRA HALLI, BANGALORE-560 037. 8. MRS JANE ASHALATHA HENRY/KARKADA W/O ASHOK KAKADA, - 3 - RSA No. 1151 of 2018 AGED 44 YEARS RESIDING AT "ADVIN HENRY’S" ASHOK NAGAR, MANGALORE-575 006. 9. MR ALEAN ROSHAN HENRY S/O VINCENT EPHRAIM HENRY, AGED 42 YEARS RESIDING AT "ADVIN HENRY’S" ASHOK NAGAR, MANGALORE-575 006. 10. MRS FREEDALEENA SOANS W/O STANLEY E SOANS, AGED 69 YEARS RESIDING AT ANGEL, 3-31A, 3RD MAIN, UDYAMPALLI, KALYANPUR, SANTHE KATTE, UDUPI-576 125. …RESPONDENTS (BY SRI. K.S. CHANDRAHASA, ADVOCATE FOR C/R2 & C/R5) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.01.2018 PASSED BY THE COURT OF IV ADDL. DISTRICT JUDGE DAKSHINA KANNADA, MANGALURU IN R.A.NO.6/2016, CONFIRMING THE JUDGMENT AND DECREE DATED 21.11.2015 PASSED BY THE COURT OF IST ADDL. SENIOR CIVIL JUDGE AT MANGALURU, DK, IN O.S.NO.46/2011, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.11.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO - 4 - RSA No. 1151 of 2018 CAV JUDGMENT The present Regular Second Appeal is filed by the plaintiffs to set aside the judgment and decree dated 30.01.2018, in R.A.No.6/2016, on the file of the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru (hereinafter referred to as ‘the first appellate Court’) and the judgment and decree dated 21.11.2015, in O.S.46/2011, on the file of the 1st Additional Senior Civil Judge, Mangaluru, D.K. (hereinafter referred to as ‘the trial Court’). 2. The appellants herein are the plaintiffs/appellants before the Courts below and the respondents herein are the defendant/respondent before the Courts below. 3. For convenience of reference, the parties herein are referred to as per the rankings before the trial Court. 4. The plaintiffs filed O.S.No.46/2011 against the defendants on the file of the 1st Additional Senior Civil Judge, Mangaluru, D.K., for the relief of partition and - 5 - RSA No. 1151 of 2018 separate possession of their legitimate share over the suit schedule properties. 5. The brief facts of the case are that:- It is the specific case of the plaintiffs that the suit properties originally belonged to late Obed Henry, who was granted occupancy rights in LRT No. 37/1979-80 on 15.01.1981. Later Form No.10 was issued on 08.02.1982. Obed Henry died intestate on 17.06.1990 and his wife predeceased him on 03.01.1984, resulting in the properties devolving upon their 11 children, of whom two died intestate and without issue. The remaining nine heirs, including the plaintiffs and defendants, succeeded jointly to the suit properties, remaining in joint possession. The plaintiffs claim 5/9th share and after requesting partition in November 2010 which was not complied with, they filed the suit seeking partition by metes and bounds and allotment of 1/9th share each to the plaintiffs, restricting their claim for future income from the date of filing. 6. It is the specific case of the defendants that while admitting that the properties belonged to Obed - 6 - RSA No. 1151 of 2018 Henry, contend that the suit was not maintainable as he had executed a registered Will on 22.07.1983 bequeathing the suit properties in favour of defendant No.1 and plaintiff No.3, thereby making them the absolute owners to the exclusion of other heirs. They deny that any valid demand for partition was made and assert that the plaintiffs issued an illegal notice on 23.11.2010, which was duly replied to on 10.12.2010. They maintain that in view of the Will, the plaintiffs have no right, title or interest in the properties and the claim for partition and mesne profits is liable for dismissal. The plaintiffs, in rejoinder, dispute the execution and validity of the Will alleging it to be fabricated, asserting that Obed Henry was not in a sound state of mind at the time of execution of the Will and claim entitlement to shares as legal heirs on the basis that Obed Henry died intestate. 7. Based on the pleadings, the trial Court has framed following issues for consideration:- (i) Whether the plaintiffs proves that they and defendants are joint owners in joint possession of the suit properties? - 7 - RSA No. 1151 of 2018 (ii) Whether the plaintiffs prove that the defendants are avoiding to give his legitimate share in the suit properties? (iii) Whether the defendants No.1 to 4 have proved that the deceased Obed Hendry had executed his last Will on 22-07-1983 bequeathing his all properties in favour of defendant No.1 and plaintiff No.3? (iv) Whether the defendant No.1 is entitled for allotment of half share in the said properties as prayed for? (v) Whether the plaintiffs are entitled for partition and separate possession in the suit properties and such other reliefs as prayed for? (vi) What order or decree? 8. In order to substantiate his claim, the plaintiff examined himself as PW-1 and got marked the documents as per Exs.P1 to Ex. P17. On the other hand, the defendants to substantiate their defense, defendant No.1 himself examined as DW-1 and got documents marked as per Exs.D1 to D8. 9. The trial Court based on the pleadings, oral and documentary evidence decreed the suit with costs and held that the plaintiffs No.2 to 5 are entitled for 1/9th share each in the suit schedule properties and plaintiffs - 8 - RSA No. 1151 of 2018 No.6 and 7 and defendants No.5 and 6 together are entitled for 1/9th share in suit schedule properties. Likewise defendants No.1 to 4 are entitled for 1/9th share each in suit schedule properties. 10. Assailing the said Judgement and decree of the trial Court, the plaintiffs have preferred an appeal in R.A.No.6/2016. 11. The first appellate Court has framed following issues for its consideration:- (i) Whether the order dated 21.11.2015 passed in O.S.No.46/2011 by the I Addl. Sr. Civil Judge, Mangalore is erroneous or requires any interference by this Court? (ii) What Order? 12. The first appellate Court after considering the facts and circumstances and appreciating the oral and documentary evidence, passed the following order:- Regular Appeal filed under Section 96 Order 41 Rule 1 & 2 of CPC is hereby dismissed. The judgment and decree dated 21.11.2015 passed in O.S. No.46/2011 by the - 9 - RSA No. 1151 of 2018 I Addl. Senior Civil Judge Mangalore is hereby confirmed. No order as to costs. Draw decree accordingly. 13. The learned counsel for the appellant has raised following substantial question of law for consideration of this Court:- (a) Whether the Courts below are right in decreeing the suit without appreciating the oral and documentary evidence, pleadings and admissions which are against to the appellant/Plaintiffs case? (b) Whether the reasons assigned by both the Courts below are perverse? (c) Whether both the Courts below were justified in decreeing the suit in contrary to Section 68 to 71 if the Indian Evidence Act, 1872? 14. The learned counsel appearing for the appellants would contend that the Courts below failed to properly appreciate the oral and documentary evidence on record, including the document marked as Ex.D-6, which was proved in accordance with Sections 68 to 71 of the - 10 - RSA No. 1151 of 2018 Indian Evidence Act, 1872, and further failed to consider that the execution of the will was duly established through the testimony of DW.3 and DW.4, and that at no point did the plaintiffs dispute that late Obed Henry was of sound mind on the date of execution of Ex.D-6/Will. 15. Heard learned counsel for the appellant and Respondents No.2 and 5. 16. Having considered the contentions advanced and perused the material on record, this Court finds that both the Courts below have properly examined the evidence on record and have correctly held that the Will dated 22.07.1983, relied upon by the defendants, is not proved in the manner contemplated by Sections 63 of the Indian Succession Act and 68 of the Indian Evidence Act, 1872. The evidence of DW.3 and DW.4 only shows that they recognized the signatures of their deceased fathers, but does not establish that the attesting witnesses had seen the testator signature on the Will in their presence, as required under said provisions. Therefore, the defendants failed to prove proper execution and - 11 - RSA No. 1151 of 2018 attestation of the Will, and the presumption under Section 90 of the Indian Evidence Act cannot be applied in such a case. 17. This Court also finds that the findings of the Courts below regarding suspicious circumstances surrounding the Will are based on sound reasoning. The recital in the Will portraying defendant No.1 as financially dependent on the testator is contradicted by the admitted fact that he was, at the relevant point of time, a Corporator in Mangaluru City Corporation and an independent and influential individual. The unexplained exclusion of several natural heirs, including the wife of the testator, coupled with the active participation of the primary beneficiary in the preparation and execution of the Will, gave rise to legitimate suspicion. In such circumstances, the propounder was required to clear the doubts surrounding the Will, which was not done. Hence, the findings of the Courts below are based on proper reasoning. - 12 - RSA No. 1151 of 2018 18. This Court also finds that no substantial question of law, as required under Section 100 of the CPC, arises for consideration in this appeal. The findings of the Courts below are based on correct appreciation of material evidence and there is nothing to show that their findings are perverse or illegal. 19. Therefore, the judgment and decree in R.A.No.6/2016 passed by the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru and judgment and decree passed in O.S.No.46/2011 passed by the 1st Additional Senior Civil Judge, Mangaluru, D.K. are hereby confirmed. Accordingly, this appeal is hereby dismissed. Sd/- (DR.K.MANMADHA RAO) JUDGE BNV