- 1 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.86 OF 2021 (RO) C/W MISCELLANEOUS SECOND APPEAL NO.85 OF 2021 (RO) IN MSA NO.86/2021: BETWEEN: S.K.MANJUNATHA S/O B. KARIYAPPA AGED ABOUT 83 YEARS R/O NO.170, 4TH CROSS 2ND MAIN, WOODS ENCLAVE PHASE-1, VIDYANAGARA CROSS INTERNATIONAL AIRPORT ROAD BENGALURU-562 157. …APPELLANT (BY SRI. HARISH KUMAR M.S., AND SRI. GANGADHARA D.C., ADVOCATE) AND: K.G. SRIKANTAPPA SINCE DECEASED BY LRS. SMT. SAKAMMA W/O LATE K.G.SRIKANTAPPA AGED ABOUT 82 YEARS R/O KORATIKERE VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT-577 215. …RESPONDENT (BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR C/R) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.09.2021 PASSED IN R.A.NO.67/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.05.2017 PASSED IN O.S.NO.251/2006 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE. DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION REMANDING BACK TO THE TRIAL COURT FOR FRAMING OF ADDITIONAL ISSUE WITH REGARD TO THE ALLEGED WILL DATED 21.11.2005, AND AFTER GIVING SUFFICIENT OPPORTUNITY TO BOTH PARTIES TO ADDUCE ADDITIONAL EVIDENCE. IN MSA NO.85/2021: BETWEEN: S.K.MANJUNATHA S/O B. KARIYAPPA AGED ABOUT 83 YEARS R/O NO.170, 4TH CROSS 2ND MAIN, WOODS ENCLAVE PHASE-1, VIDYANAGARA CROSS INTERNATIONAL AIRPORT ROAD BENGALURU-562 157 ...APPELLANT (BY SRI. HARISH KUMAR M.S., AND SRI. GANGADHARA D.C., ADVOCATE) AND: K.G. SRIKANTAPPA SINCE DECEASED BY LRS. SMT. SAKAMMA W/O LATE K.G. SRIKANTAPPA AGED ABOUT 82 YEARS R/O KORATIKERE VILLAGE - 3 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 CHANNAGIRI TALUK DAVANAGERE DISTRICT-577 215 ...RESPONDENT (BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR C/R) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.09.2021 PASSED IN R.A.NO.68/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.05.2017 PASSED IN O.S.NO.299/2006 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE. DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND REMANDING BACK THE MATTER TO THE TRIAL COURT. THESE APPEALS COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard learned counsel for the appellant and learned counsel for caveator-respondent. 2. These two miscellaneous second appeals are filed challenging judgment and decree passed in R.A.Nos.67/2017 and 68/2017, wherein the First Appellate Court allowed I.A.No.1 filed under Order 6, Rule 17 CPC and I.A.No.2 filed under Order 41, Rule 27 CPC and remanded the matter for fresh consideration, since specific plea is taken in terms of - 4 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 I.A.No.1 that there is a Will dated 21.11.2005. Hence, directed the Trial Court to give an opportunity to both the parties to adduce their additional evidence and then dispose of the matter afresh. 3. Learned counsel appearing for the appellant in his argument would vehemently contend that Trial Court committed an error in remanding the matter and contend that the Will is propounded after more than a decade and amendment allowed by the Trial Court is erroneous and ought not to have allowed the amendment and remanded the matter for fresh consideration. The counsel also vehemently contend that when the Will is produced and if the Court comes to the conclusion that, in order to decide the issue involved between the parties, Will is necessary, then ought to have remanded the matter only for the limited purpose to examine in respect of the Will is concerned and ought not to have set aside the entire judgment of the Trial Court. 4. Per contra, learned counsel appearing for caveator- respondent would contend that on search, found the document of Will which is a registered Will and counsel would contend - 5 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 that in terms of the Will, appellant as well as the respondent, who propounded the Will are the beneficiaries of the Will. When such being the case, the Trial Court has not committed any error in allowing the application filed under Order 6, Rule 17 CPC and while seeking for production of additional documents, pleading is necessary. Hence application for amendment is allowed and in order to allow the application, there must be pleading and having taken note of the fact that Will was executed and in order to decide the same, rightly allowed application Nos.1 and 2 and remanded the matter to the Trial Court to decide the same. 5. Learned counsel for caveator-respondent in support of his argument relied upon the judgment passed by this Court in R.S.A.NO.683/2015 dated 04.03.2020 and in similar set of facts, when the Will was traced after the judgment, in paragraph No.5 taken note of regarding remanding the matter and in similar circumstances, matter was remanded to the Trial Court to decide the application within a time bound period of six months. Hence, learned counsel for the appellant cannot find fault with the judgment of of the trial Court, - 6 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 6. Having heard learned counsel for the appellant and learned counsel for caveator-respondent and also considering the material available on record, the points that would arise for consideration of this Court are: (1) Whether the First Appellate Court committed an error in allowing I.A.Nos.1 and 2 in remanding the matter for fresh consideration? (2) What order? 7. Having perused the material available on record, it is not in that dispute that both the suits are filed for the relief of declaration and permanent injunction. It is the contention in O.S.No.251/2006 that one B. Kariyappa and his wife Basamma of Sirigere Village, Chitradurga Taluk has got plaintiff and a daughter S.K. Sarojamma and they were the only children to them. The plaintiff’s sister S.K. Sarojamma, who was much devotee of Akkamahadevi and she was accustomed to spiritual life and she led sacred life of spinster. She was a retired Professor of Kannada in AVK College of Babuji Education at Davanagere. It is further contended that said S.K. Sarojamma was a member of Babuji Educational Association Employees - 7 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 House Building Co-operative Society Limited, Davanagere. The said society was allotted Site No.32 for Rs.4,200/- and building was constructed by the society in the said site in the name of S.K. Sarojamma and sale deed was executed by House Building Co-operative Society on 09.03.1989 in the name of S.K. Sarojamma. The said S.K.Sarojamma become the absolute owner and in peaceful possession and enjoyment of the suit schedule property. The said S.K. Sarojamma has very much love and affection on her brother i.e., the plaintiff, who is the only brother and there is no other brothers and sister, except the plaintiff. The plaintiff also had high love and affection with his sister and they were always in very high good cordial terms throughout their life and both of them were ready to sacrifice each other anything and everything. The said S.K.Sarojamma inclined to transfer the suit schedule property in favour of plaintiff in her lifetime by way of gift, but the plaintiff refused the same, as he told that the property be continued to be stand in her name till the end of her life. 8. It is contended that the plaintiff lived with his sister in the suit schedule property during her last days of years and - 8 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 still residing in the suit schedule property and he continued his possession over the suit schedule property. It is also the contention that she had suffered from so many ailments with cancer since last 5-6 years. The said S.K. Sarojamma died on 12.06.2006 leaving behind suit schedule property. The father and mother of deceased S.K. Sarojamma were no more and the plaintiff is the only full blood uterine brother, who succeeded to the estate of his deceased sister and he become the absolute owner and in enjoyment of the suit schedule property and hence contend that by succession, she become the absolute owner of the property. 9. The main contention of defendant in the said suit is that he married Sakamma, the first wife when he was 20 years old. The doctor’s and Astrologers told that she cannot get any children. Therefore, this defendant at the instance of Shivakumar Swamiji of Sirigere, Mutt married S.K.Sarojamma at his costs, when she was aged about 16-17 years at Koratikere in the presence of above said Swamiji. The parents of S.K.Sarojamma acted as a guardian for her. As promised, the defendant helped in completing the education of - 9 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 S.K.Sarojamma at Davanagere, Mysore and Dharwad. After completion of education, she was employed by Sirigere Swamiji in their educational institution. This defendant also helped the plaintiff to complete his education and also helped him to get a job at Siddagangamutt Educational Institution. The defendant was running a Dalali Shop. After the marriage of plaintiff, this defendant brought S.K. Sarojamma to Davanagere and got her job in Bapuji Education by influencing the Secretary S. Kotrabasappa. Therefore, she was working in AVK College as a Lecturer. The defendant was living with S.K.Sarojamma in a rented building and become member of Bapuji Educational Employees House Building Co-operative Society. The said society allotted Site No.32 and defendant paid the said amount to the society through S.K.Sarojamma. The house was constructed by the society on the said site. The defendant has spent money for constructing extra needs of the said house. The sale deed was executed by the society in the name of S.K. Sarojamma on 29.03.1989. The plaintiff never used to come to schedule house and ill-treated his mother, though she was a widow. Therefore, the mother of the plaintiff came to Davanagere in 1990 and lived in the suit schedule house along - 10 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 with this defendant and S.K. Sarojamma. Afterwards, the plaintiff used to come to house with a view to see his mother. Then the plaintiff used to get money from S.K.Sarojamma by saying that he has no money even to purchase ration. He got money from Paramashiva, who is the son of this defendant's younger brother. The plaintiff executed a pronote in favour of S.K.Sarojamma for an amount of Rs.28,000/- got from this defendant and his son Prashanth got from S.K. Sarojamma in 1995. The plaintiff never helped in treating his mother when there was fracture of her leg. 10. The Trial Court taking into note of pleadings of the parties, framed the issues and allowed the parties to lead evidence. In the other suit in O.S. No.299/2006 filed by the defendant, also sought for the relief of declaration to declare that he is the husband of Smt. S.K. Sarojamma and claimed that he is the legal heir. The Trial Court having considered the material on record, decreed the suit filed by the plaintiff in O.S.No.251/2006 and the other suit in O.S.No.299/2006 filed by the defendant is dismissed. - 11 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 11. When the appeals were filed challenging both the suits in R.A.Nos.67/2017 and 68/2017, the respondent came up with an application for amendment that the respondent found the Will executed by Smt. S.K. Sarojamma and the same was produced before the First Appellate Court and sought for an amendment by filing an application under Order 6, Rule 17 CPC. The First Appellate Court having considered the pleadings, application as well as the documents produced, allowed the two applications and though filed application in I.A.No.3 for summoning the original Will from the appellant herein, the same was rejected. The First Appellate Court having considered both the appeals and also considering the application comes to the conclusion that evidence requires to be recorded in respect of the Will is concerned and remanded the matter. 12. Having considered the reasoning given by the First Appellate Court, the First Appellate Court comes to the conclusion that when the document is placed before the Court by producing certified copy of the Will and the same is registered and invoked Order 41, Rule 27 CPC and when pleading is made to that effect, in detail discussed the - 12 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 contentions raised in the appeal and also taken note of the very claim made in paragraph Nos.44 and 45 regarding Will is concerned whether Will is in existence or not, matter requires to be considered by the Court and witnesses have to be examined to prove the same. When such pleading was made and also additional document was produced, in paragraph No.45 of the judgment, the First Appellate Court comes to the conclusion that matter requires reconsideration and remanded the matter to the Trial Court. 13. The main contention of learned counsel appearing for the appellant is that Trial Court ought not to have remanded the matter and ought to have set aside the judgment and remanded the matter only for limited purpose and when the Will is propounded and it is the burden on the profounder of the Will to prove the same and the Court cannot set aside the judgment of the Trial Court for limited purpose as contended by appellant and if the respondent succeeds in proving the Will also, decision has to be taken by the Trial Court in terms of the Will and such argument of learned counsel of the appellant cannot be accepted. - 13 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 14. The counsel appearing for the caveator-respondent relied upon the judgment of this Court, wherein also in similar set of circumstances, when it was pleaded that they came to know about the Will after disposal of the suit, remanded the matter to consider the same afresh. Hence, the very judgment is aptly applicable to the case on hand. 15. Having considered the material available on record, the issue has to be considered by the Trial Court considering the contents and recitals of the Will and also whether the Will was executed and whether the same has to be proved by examining the attesting witnesses and unless the same is done, the Court cannot take any decision and the Court cannot remand the judgment only for limited purpose as contended by learned counsel for the appellant. Hence, I do not find any error committed by First Appellate Court in remanding the matter by allowing the applications filed under Order 6, Rule 17 CPC and Order 41, Rule 27 CPC and matter requires reconsideration by the Trial Court in view of the additional document of Will being produced. Hence, no ground is made to set aside the order of - 14 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 remand made by the First Appellate Court and no merit in the miscellaneous second appeals. 16. Learned counsel for the appellant would contend that Trial Court has already decided the matter with regard to the fact that respondent is not the legal heir and the same cannot be reversed. To that effect also, the First Appellate Court has not given any finding and only passed an order in coming to the conclusion that matter requires reconsideration and if such argument is accepted, the First Appellate Court would have taken note of said fact into consideration and would have passed an order to that effect and there is no such finding by the First Appellate Court. Hence, the very contention of learned counsel for the appellant cannot be accepted and matter requires to be considered afresh. 17. In view of the discussion made above, I pass the following: ORDER (i) The miscellaneous second appeals are dismissed. (ii) The Trial Court is directed to dispose of the matter within a time bound period of four months. - 15 - HC-KAR NC: 2025:KHC:27988 MSA No. 86 of 2021 C/W MSA No. 85 of 2021 (iii) Both the parties are directed to appear before the Trial Court on 28.08.2025 and from the said date, the Trial Court is directed to dispose of the matter within a period of four months. (iv) The appellant and the respondent and their respective counsels are directed to assist the Trial Court in disposal of the matter within a time bound period of four months. (v) The Registry is directed to send the records to the concerned Court, forthwith to enable the Trial Court to take up the matter on 28.08.2025. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 62