- 1 - HC-KAR NC: 2025:KHC:40039 RSA No. 709 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.709 OF 2024 (DEC) BETWEEN: 1. SMT. SAROJA SHEDTHY, D/O LATE HIRIANNA SHETTY, AGED ABOUT 51 YEARS, RESIDING AT MALINGANAHITHLU, HOSADU VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 247. …APPELLANT (BY SRI. YABESH M., ADVOCATE) AND: 1. MR. UDAY SHETTY, S/O LATE HIRIANNA SHETTY, AGED ABOUT 54 YEARS, RESIDING AT MALINGANAHITHLU, HOSADU VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 247. 2. MR. ANAND SHETTY, S/O LATE NAGAYYA SHETTY, AGED ABOUT 74 YEARS. 3. MR. SHIVARAMA SHETTY, S/O LATE NAGAYYA SHETTY, AGED ABOUT 71 YEARS. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40039 RSA No. 709 of 2024 4. MR. SHEKAR SHETTY, S/O LATE NAGAYYA SHETTY, AGED ABOUT 68 YEARS. ALL ARE RESIDING AT HANINAMAKKI, HOSADU VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 247. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.01.2024 PASSED IN R.A.NO.20/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 16.04.2018 PASSED IN O.S.NO.116/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KUNDAPURA C/C. 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 matter is listed for admission. Heard the learned counsel for the appellant. 2. This appeal is filed against the concurrent finding of the Trial Court. 3. The main contention of the plaintiffs before the Trial Court is that a Will was executed in their favour on 10.03.1989. In order to prove the Will, the plaintiffs examined P.W.2, who is an attesting witness to the Will. The defendant No.1 was - 3 - HC-KAR NC: 2025:KHC:40039 RSA No. 709 of 2024 examined before the Trial Court. The Trial Court taking into note of the admission as well as the contents of the document of Ex.P.4 Will, comes to the conclusion that Will executed by the executant on 10.03.1989 is proved. Though the defendants took the specific contention in the written statement that the Will is forged, fabricated and the same is a false document, the Trial Court comes to the conclusion that the same is not substantiated by placing any document except examining D.W.1 before the Trial Court. D.W.1 also given the admission with regard to the fact which supports the recitals of the document of Ex.P.4 that the beneficiaries are taking care of the executant of the Will and the same is extracted in paragraph No.29 of the judgment of the Trial Court and hence the Trial Court decreed the suit. 4. Being aggrieved by the said order, an appeal is filed before the First Appellate Court in R.A.No.20/2018. The First Appellate Court formulated the points for consideration and particularly in paragraph No.18 extracted the recitals mentioned in Ex.P.4 Will and even extracted the admission of D.W.1 in paragraph No.20. The First Appellate Court having - 4 - HC-KAR NC: 2025:KHC:40039 RSA No. 709 of 2024 considered both oral and documentary evidence placed on record, re-assessed the same and confirmed the judgment of the Trial Court. 5. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court. 6. The learned counsel for the appellant would vehemently contend that the appellant is defendant No.2. The defendant No.1 colluded with the plaintiffs and that defendant No.1 intentionally avoided the appellant to the Court proceedings and it is not true that the plaintiffs had looked after the said Hirianna Shetty during his last days or that the said Hirianna Shetty had any special attachment towards the plaintiffs. It is further contended that he has not executed any Will dated 10.03.1989 and fraudulently the said document was obtained. The learned counsel would vehemently contend that the very approach of both the Courts are not proper and hence it requires interference of this Court. 7. Having heard the learned counsel for the appellant and also on perusal of the material available on record, the Will - 5 - HC-KAR NC: 2025:KHC:40039 RSA No. 709 of 2024 is marked as Ex.P.4 and the Trial Court and the First Appellate Court taken note of the recitals of the Will Ex.P.4. Apart from that, admission on the part of D.W.1, who has been examined before the Trial Court categorically given the admission that either he himself or his sister have not taken care of the father Hirianna Shetty. Both the Courts considering the recitals of Ex.P.4 and also the admission, considered both oral and documentary evidence placed on record and also taken note of the evidence of P.W.2, who is an attesting witness to the Will. P.W.2 categorically deposed that in his presence only the said Hirianna Shetty has executed the Will. The very contention of the defendants that the Will is forged and created is not substantiated by placing any documentary evidence except the oral evidence of D.W.1. The oral evidence of D.W.1 also supports the case of the plaintiffs and he has given categorical admission and the same is extracted in paragraph No.29 of judgment of the Trial Court. The First Appellate Court also while re-appreciating the evidence available on record, taken note of admission of D.W.1 in paragraph No.20 and considering the reading of the deposition of the said D.W.1, it shows that he clearly admitted that the possession of the suit schedule - 6 - HC-KAR NC: 2025:KHC:40039 RSA No. 709 of 2024 property was with their father up to his death, but he did not deny the suggestion to the effect that the plaintiffs are not in possession and he categorically admitted that possession is with the plaintiffs also. When such being the case, I do not find any ground to admit the appeal and frame any substantial question of law and there is no any perversity in the finding of the Trial Court as well as the First Appellate Court and hence no substantial question of law arises for consideration. 8. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 36