- 1 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 422 OF 2013 (PAR) BETWEEN: 1. SMT. NETRAVATI, W/O. G.R.VIRUPAKSHAPPA, AGED ABOTU 62 YEARS, OCC:AGRICULTURIST, 2. ARUNA, S/O. G.R.VIRUPAKSHAPPA, AGED ABOUT 42 YEARS, OCC:AGRICULTURIST, 3. G.R.VIRUPAKSHAPPA, S/O. H.M.RUDRAPPA, AGED ABOUT 61 YEARS, AGRICULTURIST, ALL ARE R/O GONDICHATNAHALLI, SHIMOGA TALUK AND DISTRICT. …APPELLANTS (BY SRI. S.P. KULKARNI, SENIOR COUNSEL FOR SRI. PRUTHVI WODEYAR, ADVOCATE) AND: 1. G.R. SHEKHARAPPA, SINCE DEAD BY HIS LRS SMT. SUSHEELAMMA, W/O. LATE G.R.SHEKHARAPPA, Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 AGED ABOUT 74 YEARS, R/O. GONDICHATNAHALLI, SHIMOGA TALUK. 2. RAVI PRAKASH H.S., S/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 54 YEARS, AGRICULTURIST & SALES REPRESENTATIVES, R/O. BASAVESHWARA NAGARA, SHIMOGA TALUK. 3. H.S.SHIVAKUMAR, S/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 44 YEARS, AGRICULTURIST, R/O. GONDICHATNAHALLI, SHIMOGA TALUK. 4. H.S.SHASHIKALA, W/O. G.B.NAGARAJ, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 51 YEARS, R/O. MIG 53, 2ND STAGE, B BLOCK, KALLAHALLI, VINOBHANAGAR, SHIMOGA CITY. 5. H.S.SUJATHA, W/O. SHANKARAIAH, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 49 YEARS, R/O. SHARADHAMMA STORES, 14TH CROSS, KTJ NAGAR, DAVANGERE. 6. SMT. G.S.SUMA, W/O. K.B.MANJUNATH, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 47 YEARS, R/O. HOSURMATTI VILLAGE, MANDAGHATTA POST, - 3 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 SHIMOGA TALUK. 7. SMT. K.S.SUVARNA, W/O. RAVI, D/O. LATE G.R.SHEKHARAPPA, AGED ABOUT 42 YEARS, R/O. GANESHA NILAYA, 1ST FLOOR, RAMA MANDIRA ROAD, 2ND CROSS, JAYNAGAR, SHIMOGA CITY. 8. G.R.MANJAPPA, S/O. H.M.RUDRAPPA, AGED ABOUT 67 YEARS, AGRICULTURIST, R/O. GONDICHATNAHALLI, SHIMOGA TALUK. 9. SMT. PARVATHAMMA @ GOWRAMMA, W/O. K.G.LOKESHAPPA, R/O. KALLAHALLI, BHADRAVATHI TALUK. 10. 10(A). SMT. NEELAMMA, SINCE DEAD BY HIS LRS S.UMAPATHIYAPPA, S/O. ESHWARAPPA, AGED ABOUT 80 YEARS, R/O SUGUR, SHIMOGA TALUK. 10(B). G.PALAKSHAPPA, S/O. G.UMAPATHIYAPPA, AGED ABOUT 52 YEARS R/O. SUGUR VILLAGE, SHIMOGA TALUK. 10(C). NAGARAJA, S/O. G.UMAPATHIYAPPA, AGED ABOUT 41 YEARS, R/O. ADARSHA VIDYA SAMSTHE, - 4 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 K.T.J. NAGAR, DAVANAGERE. 10(D). SMT. GEETHA @ GEETHAMMA, W/O. GURURAJA, AGED ABOUT 38 YEARS, R/O KUNDUR, HONNALI TALUK, DAVANAGERE DISTRICT. 10(E). SMT. SAVITHA, W/O. M.JAYAPPA, AGED ABOUT 36 YEARS, SIRSI TRADERS, CAUVERY LODGE COMPOUND, P.B. ROAD, HAVERI DISTRICT. 11. SMT. LALITHA, W/O. S.M.MEENAKSHAPPA, AGED ABOUT 71 YEARS, HOUSEHOLD WORK, R/O. HOSAMANE EXTENSION, SHIMOGA CITY. 12. SMT. SAROJAMMA, W/O. K.C.PARAMESHWARAPPA, AGED ABOUT 74 YEARS, R/O. KADADAKATTE, BHADRAVATHI TALUK. 13. SMT. LEELA, W/O. NEELAKANTAPPA, AGED ABOUT 69 YEARS, R/O. CHETANA PRABHA NILAYA, VIDYANAGAR, SHIMOGA. 14. SMT. UMA, W/O. SHIVAMURTHY, AGED ABOUT 64 YEARS, R/O CIRCUIT HOUSE ROAD, (KUVEMPU ROAD), SHIMOGA. 15. SMT. ANASUY, - 5 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 W/O. MAHESWARAPPA, AGED ABOUT 59 YEARS, HOUSEHOLD WORK, R/O. HUTHA COLONY, BHADRAVATHI. 16. K.G.RENUKAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 70 YEARS, 17. K.G.KUMARAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 68 YEARS, 18. K.G.SHEKARAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 67 YEARS, 19. K.G.SIDDAPPA GOWDA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 65 YEARS, 20. K.G.MAHESWARAPPA, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 61 YEARS, 21. K.G.PRAKASH, S/O. LATE K.G.LOKESHAPPA, AGED ABOUT 57 YEARS, 22. K.G.SUDHA, W/O. G.PATHESHAPPA, AGED ABOUT 55 YEARS, RESPONDENT NOS.16 TO 22 ARE R/AT ARADOTHLU, DASARAKALAHALLI POST, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT. 23. K.G.LATHA, W/O. K.H.JAGADISH, - 6 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 AGED ABOUT 53 YEARS, R/AT ARALAHALLI, CHANNAGIRI ROAD, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT. 24. K.G.KAVITHA, W/O. LATE MANJUNATH, AGED ABOUT 52 YEARS, ARALAHALLI (DIDAGURU), ARALAHALLI POST, HONNALLI TALUK, DAVANAGERE DISTRICT. (AMENDED CAUSE TITLE AS PER THE COURT ORDER DATED 23.07.2024) …RESPONDENTS (BY SRI. S.V. PRAKASH,ADVOCATE FOR R1 TO R3; SRI. SUMANTH KUMAR S. PATIL, ADVOCATE FOR R4; R5, R6, R7, R9 ARE SERVED AND UNREPRESENTED; SRI. C.M.DESAI, ADVOCATE FOR R8; SRI. K.P. SHRAVAN MADHAV, ADVOCATE FOR R10(A-E), R11 TO R13 AND R15; SRI. NITHISH K.N., ADVOCATE FOR SRI. K.V. NARSIMHA, ADVOCATE FOR R14; SRI. S.B. TOTAD, ADVOCATGE FOR R16 TO R24) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 06.12.2012 PASSED IN R.A.NO.404/2009 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 05.10.2009 PASSED IN OS.NO.148/2002 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (SR.DN.), SHIMOGA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 7 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 ORAL JUDGMENT This appeal arises from a divergent finding in a suit for partition and separate possession. 2. The plaint discloses three distinct schedules of properties namely Schedule 'A', comprising survey No.100/2, measuring 3 acres, schedule 'B' comprising two properties namely 1) survey No.107/p, measuring 4 acres, 20 guntas and 2) survey No.60/1 measuring 20 guntas and schedule 'C' the movable properties namely a Tractor Trailer, cash of Rs.2,00,000/- and jewellery and silver articles. Existence of suit 'C' schedule properties is not established. 3. The suit is dismissed holding that the registered Will dated 23.06.1998 executed by Rudrappa, the propositus, in favour of defendant No.2, defendant No.10, the wife of defendant No.2 and defendant No.11, the son of defendants No.2 and 10 is established. - 8 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 4. The plaintiff filed appeal before First Appellate Court. The plaintiff died during the pendency of the First Appeal and legal representatives of the plaintiff are brought on record. 5. The appeal is allowed, consequently, judgment and decree passed by the Trial Court are set-aside and the suit is decreed for partition and separate possession disbelieving the Will set up by defendants No.2, 10 and 11. Hence, the present second appeal by defendants No.2, 10 and 11. 6. This appeal was admitted on 06.09.2013 to answer the following substantial question of law. "When the trial Court held the Will Ex.D2 having been proved on the basis of the evidence of a scribe and identity of the signature of a attesting witness through his son, when the attesting witnesses were dead, whether the First Appellate Court was justified in reversing the finding and holding that the Will Ex.D2 is not proved and in doing so, did not assign consistent and cogent reasons to overcome the said finding and thereby - 9 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 committed an error in reversing the judgment and decree of the trial Court?" 7. The certain admitted facts are as under:- 7.1 The relationship of the parties is admitted. One Mahadevappa was the propositus. The propositus had two sons, H.M. Rudrappa, and H.M. Karibasappa. 7.2 The present dispute is confined to the branch of H.R. Rudrappa who died on 28.09.2001. 7.3 H.M. Rudrappa when died on 28.09.2001 and was survived by three sons, and seven daughters. 7.4 The suit is filed by eldest son G.R. Shekharappa. Rest of the children have been arrayed as defendants No.1 to 9. The defendant No.10 is the wife of defendant No.2 and defendant No.11 is the son of defendant No.2. 7.5 There is no dispute that 'B' schedule property was the subject matter of registered partition dated - 10 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 25.12.1974 and said partition deed is marked at Ex.P1. However, 'A' schedule property was not specifically made the subject matter of the partition deed dated 25.12.1974. 7.6 The plaintiff claims that the suit schedule properties are ancestral properties and claimed 11/40th share in all the suit schedule properties. The defendant No.2, 10 and 11 raised the contention that father of defendant No.2 and father in law of defendant No.10 and grand father of defendant No.11 H.M. Rudrappa who died on 28.09.2001 had executed a registered Will dated 23.06.1998 bequeathing the suit 'A' and 'B' schedule properties in favour of defendants No.2, 10 and 11. 8. Before the Trial Court the defendant No.11 was examined. In addition to prove the attestation and execution of the Will, the son of one of the attesting witnesses was examined and the scribe was also examined. - 11 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 9. The defendants No.2, 10 and 11 contended that the attesting witnesses were not alive and this fact is not disputed by the plaintiff. 10. The Trial Court accepted the plea of defendants No.2, 10 and 11 and came to the conclusion that the Will is duly established and dismissed the suit. On appeal by the plaintiff, First Appellate Court reversed the judgment and decree passed by the Trial Court and consequently decreed the suit granting 1/10th share. 11. Learned senior counsel appearing for the appellants would contend that the Will is duly registered and duly attested by two attesting witnesses. Original Will was produced before the Trial Court. As the attesting witnesses were not alive, son of one of the attesting witnesses was examined to prove the signature of the attesting witness and in addition, the scribe is examined to prove the execution of the Will. - 12 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 12. Learned senior counsel would also urge that the signature on the Will was not disputed and it has come in evidence that testator was living with defendant No.2 after the partition of 1974 and testator was possessing sound state of disposing mind and executed a Will in respect of the property allotted to his share in the partition of 1974. 13. It is urged on behalf of the appellants that the Trial Court has rightly appreciated the evidence relating to execution of Will and has rightly upheld the execution of Will and dismissed the suit. However, First Appellate Court has disbelieved the evidence of the son of the attesting witness on the premise that there is no evidence to hold that the said witness is the son of one of the attesting witnesses. 14. Learned senior counsel would urge that there is no dispute that one of the witnesses examined before the Trial Court is the son of one of the attesting witnesses, - 13 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 as such, First Appellate Court could not have disbelieved the evidence of DW-2. 15. In addition, it is also urged that the scribe of the Will is also examined and his evidence would also support the execution of the Will and First Appellate Court could not have reversed the finding of the Trial Court. It is also urged that in the partition of 1974, the defendant No.2 was allotted less extent of share as compared to the plaintiff. 16. Learned senior counsel would urged that it has come in evidence that relationship of testator G.R. Shekharappa was strained with the remaining two sons of H.M. Rudrappa and this fact would establish the fact that the H.M. Rudrappa intended to execute the Will in favour of defendant No.2 his son, defendant No.10, his daughter in law, defendant No.11 his grand son who were living with the testator and who were taking care of H.M. Rudrappa in his old age. - 14 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 17. Learned counsel appearing for the respondents No.1 to 3, the legal representatives of the plaintiff raised the following contentions:- 17.1 The suspicious circumstances surrounding the Will has not been dispelled by defendants No.2, 10 and 11, who claim right under the Will. 17.2 Defendant No.2, the son of the propounder, was the best witness in the case to prove the execution of the Will. Defendant No.2 has not led any evidence and adverse inference is drawn against defendant No.2. 17.3 The requirement of Sections 67 and 69 of Indian Evidence Act have not been complied with, as the attesting witness to the Will is not examined to prove the execution of the Will. 17.4 DW-1, the grandson of the testator, who is one of the beneficiaries under the Will has not stated anything about the acquaintance of the testator's signature and his - 15 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 evidence does not help the case of the defendants No.2, 10 and 11 to prove the execution of Will as requirement of Section 69 of Indian Evidence Act, 1872 not complied. 18. Merely because the plaintiff had filed a suit against his father- the alleged testator does not mean that the relationship between the plaintiff and his father is strained. Despite the suit being filed, nothing is stated in the evidence of the defendants to accept the contention that the relationship between the plaintiff and the father was strained. 19. The scribe was not available and a person claiming to be the son of the scribe was examined. He has not produced any records to show that he is the son of the scribe as such requirement of Section 69 is not established. 20. No reasons are forthcoming either in the Will or in the evidence explaining reasons for disinheriting the natural heirs, namely the plaintiff and the daughters. - 16 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 21. The propounders were required to lead evidence relating to sound health of the testator to execute the Will. Admittedly, the testator was aged 95. No evidence is led to take that the testator was possessing sound state of disposing of mind at the time of execution of the Will. 22. The stamp paper was brought on 11.06.1998. The will was drafted and presented for registration on 16.06.1998 and it was registered on 23.06.1998. Admittedly, the testator was living in a place which is 6 to 7 kilometers away from Shivamogga where the Will was allegedly drafted and registered and no evidence is led as to who took the Testator to buy the stamp paper, to draft the Will and to register the Will. From the circumstances brought on record, it is evident that defendant No.2 played a significant role in getting the Will executed by practicing fraud by taking undue advantage of the ill-health of the - 17 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 testator who was aged 95 and was confined to bed, hard of hearing, and was unable to read. 23. Merely because the larger extent of share is allotted to the share of the plaintiff in the partition of 1974, it does not mean that the properties given to plaintiff was more valuable. In partition depending upon the fertility of the land sometimes a less fertile land comprising larger extent is allotted to one party and more fertile land comprising lesser extent is allotted to another party and no evidence is led to show that the properties allotted to the plaintiff are more fertile and more valuable than the properties allotted to the share of other sons of H.M. Rudrappa. 24. Learned counsel Sri S.V. Prakash for plaintiff/respondents No.1 to 3 relied on the following judgments:- - 18 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 1. Moturu Nalini Kanth Vs. Gainedi Kaliprasad (dead, through LRs.)1. 2. H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors2. 3. Parappa and Another Vs. Bhimappa and Another3. 4. Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others 4 5. P. Kishore Kumar Vs. Vittal K. Patkar 5 6. Gurudev Kaur & Ors. Vs. Kaki & Ors. 6 25. Learned counsel for the defendants No.7 to 9 the daughters of H.M. Rudrappa would contend that defendants No.7 to 9 filed written statement supporting the case of the plaintiff. 26. Learned counsel for respondent No.3/defendant No.3 would support the case of the appellants and 1 Civil Appeal No.2435/2010 2 A.I.R. 1959 SC 443 (V 46 C 56) 3 2008 (3) KCCR 1374 4 AIR 1968 SC 1413 5 2024(1) KCCR 1(SC) 6 2006 AIR SCW 2404 - 19 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 defendant No.3 is one of the daughters of H.M. Rudrappa and she has supported the case of defendants No.2, 10 and 11 and admits the execution of the Will. 27. It is submitted that defendant No.3 did not appear before the Trial Court and there was no pleading on behalf of defendants No.3. However, before this Court having appeared, learned counsel for defendant No.3/respondent No.3 on instructions would support the case of the appellants. 28. Learned counsel appearing for respondent No.14 along with daughters of propositus raised the following contentions:- i) The recital in the Will does not contain correct statement relating to the nature of the property. 'A' schedule property being the ancestral property, the testator could not have recited that the 'A' schedule property is the exclusive property. ii) The testator was aged around 95 when the alleged execution of the Will took place. No evidence is - 20 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 placed before the Court to establish that he was possessing sound state of disposing mind. The stamp paper was purchased on 11.06.1998. The Will was attested on 16.06.1998 and it was registered on 23.06.1998. Admittedly, all these events allegedly happened in Shivamogga and the testator was residing in a village which is approximately 5 - 6 kilometres away from Shivamogga and the testator was not in a position to move around and he was confined to bed and these three different dates from 11.06.1998 to 23.06.1998 would indicate that somebody else on behalf of testator have taken active participation in the alleged execution of the Will. 29. The Will does not contain a recital as to why the testator is disinheriting the remaining children with whom he has cordial relationship. Assuming that the plaintiff did not have a cordial relationship with the testator, the daughters indeed had a cordial relationship with testator. - 21 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 The reason for disinheriting the daughters are not forthcoming in the evidence led by the propounder. 30. Defendant No.2 who was supposed to be having the knowledge about the father's intention and alleged execution has not stepped into the witness box and defendant No.11 one of the beneficiaries under the Will has led evidence but he does not know anything about the execution of the Will, as such, the Will is not duly proved in accordance with law. 31. The Will does not contain the required description of the attesting witnesses and that is one of the suspicious circumstances surrounding the execution of the Will. 32. The doctor has not been examined despite defendant No.11 making a statement that the father was treated by Krishnaji. 33. The obligation was on the propounders to examine the doctor to establish the fact that the testator - 22 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 was in sound state of health at the time of execution of the Will and the burden was more in the present case given the fact that the testator was aged about 95 years at the time of alleged execution of Will. The DW-2 who is said to be the son of the one of the attesting witnesses does not say in the examination-in-chief that his father is not alive, as such, his evidence is inadmissible. 34. There is no evidence to show that another attesting witness was not alive when the evidence was led in support of the Will. 35. Learned counsel for the respondent No.14 would also place reliance on the judgment of the coordinate Bench of this Court in J.T. Surappa vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others7 to urge his contention that five steps that are required to be established, to prove the execution of the Will have not been established by the propounder. 7 ILR 2008 KAR. 2115 - 23 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 36. The recital in the Will would indicate that the testator has recited 'A' schedule property as the self acquired property, but in fact, said property is not the self acquired property. This itself would establish the fact that the testator has not executed the Will and he was not in a sound state of disposing mind. 37. Learned counsel appearing for respondents No. 16 to 24, legal representatives of defendant No.3 would submit that though the defendant No.3 did not file the written statement before the Trial Court, would support the case of the appellants and would admit the execution of Will by the testator in favour of defendants No.2, 10 and 11. 38. Learned counsel for respondents No.16 to 24 has relied upon on the following judgment:- - 24 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao and Others8. 39. The Court has considered the contentions raised at the bar and perused the records. The Court has also considered the ratio in the judgments cited by both sides. 40. As can be noticed from the judgment of First Appellate Court after analysing the evidence on record has taken view that suit 'A' schedule property is not the self acquired property of the testator and it is the ancestral property and was not subject matter of the partition of 1974. 41. The Trial Court dismissed the suit in respect of 'A' schedule property on the premise that the other joint family properties are not included. The trial Court has also held that the execution of the Will proved. The Trial Court 8 (2006) 13 SCC 433 - 25 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 has also held that the plaintiff has not sought a declaration to invalidate the Will in favour of defendants No.2, 10 and 11. 42. First Appellate Court has come to the conclusion that suit 'A' schedule property is the ancestral property and the testator could not have executed the Will. 43. In addition, First Appellate Court has disbelieved the plea relating to the due execution of the Will on the following grounds:- i) Defendant No.2-the son of the testator has not stepped into the witness box though he has independently filed the written statement. ii) DW-2, who claims to be the son of one of the attesting witnesses has not produced any records to show that he is the son of one of the attesting witnesses. iii) The contesting defendants have not proved the signature of the testator on the Will which is marked - 26 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 at Exhibit D-2(a) by invoking Section 47 of the Indian Evidence Act. iv) There is no explanation as to who accompanied the testator to the deed writer, when he purchased the stamp paper, the entire Will was typed and the date of the Will was kept blank and it was filled up in the handwriting on the date of registration. v) This stamp paper was obtained on 11.06.1998 and the Will was registered on 23.06.1998. There is no explanation as to how at the age of 90, Rudrappa would go to Shivamogga and purchase the stamp paper on 11.06.1998 and get the Will typed through DW-3 scribe and executed on 16.06.1998 and again got it registered on 23.06.1998. vi) Signature of the testator marked at Exhibit-D2(a) is not proved by any independent evidence. vii) DW-1 has admitted in the cross examination that his aunts used to visit the testator’s house and there - 27 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 was no in-will between the testator Rudrappa and remaining children and no reasons are assigned to disinherit the daughters. viii) The recital in the Will that 'A' schedule property is the absolute property of the testator also speaks about the state of mind of the testator and came to the conclusion that he was not possessing sound state of mind as the property was not the self-acquired property of the testator, it was the joint family property and the testator could not have executed the Will holding that it is the self acquired property. 44. This Court has considered the contentions raised at the bar and perused the records. 45. The findings of the Trial Court and First Appellate Court are supported by evidence in so far as the 'A' schedule property is concerned that the property is concerned and the said property is not the absolute - 28 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 property of the testator Rudrappa. Both the Courts have concurrently held so. 46. It is also forthcoming from the records in the partition of 1974 that the said property was not partitioned. Though an attempt is made to contend that all the parties to the partition orally agreed that Rudrappa should enjoy the property till his life and thereafter, it should go to the children and thereby it would become the self acquired property of Rudrappa. Both Courts have not accepted the said plea. This Court also does not find any reason to accept the contention that 'A' schedule property allotted to the share of Rudrappa. 'A' schedule property at the time of execution the Will remained as the joint family property in the hands of Rudrappa. Thus, Rudrappa could not have executed the Will in respect of entire 'A' schedule property. At the most, he could have executed the Will in respect of 'A' schedule property only to the extent of his share. - 29 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 47. If the execution of Will by Rudrappa is established, then the Will would be effective only to the extent of share held by Rudrappa in the 'A' schedule property. 48. Now the question is whether Rudrappa executed the Will in favour of Defendants No.2, 10 and 11. 49. Learned counsel appearing for the plaintiff/respondent, placed reliance on the judgment of the Apex Court as well as the coordinate Bench of this Court in P. Kishore Kumar supra to contend that the Court cannot set aside the finding relating to the facts while exercising jurisdiction under Section 100 of the Code of Civil Procedure. It is his submission that based on assessment of facts, the First Appellate Court which is the last Court on facts has come to the conclusion that execution of Will is not proved, as such, the said finding is - 30 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 not capable of correction in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 50. This Court has perused the aforementioned judgments and has kept in mind the principle laid down therein. 51. The power of the court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure is well settled. If the material evidence on record is ignored or the material evidence on the court is grossly misinterpreted, then the court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure will have the jurisdiction to correct the errors committed by First Appellate Court even it is an interpretation relating to fact in issue, though First Appellate Court is a last court on finding the facts. 52. Now the Court has to analyze whether there is any such gross error committed by First Appellate Court in - 31 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 appreciating the evidence relating to the execution of the Will. It has already noticed one of the reasons assigned by the appellate court is that the signature of the testator as well as the signature of the attesting witness to the Will are not established in accordance with the requirement of Section 69 of the Indian Evidence Act. Section 69 of the Indian Evidence Act reads as under: "69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." 53. Admittedly, the attesting witnesses were not available when the case went for trial. The defendants No.2, 10 and 11 made an attempt to prove the execution of Will by examining a person, namely DW-2, who is said to be the son of one of the attesting witnesses. - 32 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 54. In addition, an attempt is also made to examine DW-3 the scribe of the alleged Will. 55. The DW-2, who claimed to be the son of the attesting witnesses, appeared before the Trial Court and identified his father's signature and same is marked as Exhibit D-2(b). In the Examination-in-Chief, he did not speak about the death of his father. However, in the cross examination, he states that his father is no more and he died when he was 70 years old in the year 2004. The Will is dated 16.06.1998 and said to have been presented for registration on 16.06.1998 itself and the registration process is said to have been completed on 23.06.1998. The trial Court has accepted the evidence of DW-2 as valid evidence under Section 69 of the Indian Evidence Act. First Appellate Court holds that the said evidence is not a credible evidence and requirement of Section 69 of Indian Evidence Act is not complied. One of the reasons assigned by First Appellate Court to disbelieve the evidence of DW-2 - 33 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 is that no document is placed before the Court to accept the contention that DW-2 is the son of the one of attesting witnesses. 56. It is relevant to notice that in the Examination- in-Chief he has stated that he is identifying the signature of his father and same is marked as Exhibit D-2(b). Said statement would indicate that he claims to be the son of the attested witness and he is acquainted with the signature of his father. Though it is not so spelt out in the Examination-in-Chief that he is very much acquainted with the signature of his father, what is required to be noticed is his status as one of the sons of the attesting witnesses is not disputed. It is nobody’s case that the DW-2 is not the son of one of the attesting witnesses. 57. This being the position, First Appellate Court could not have said that there is nothing on record to believe that DW-2 is the son of the one of the attesting witnesses. In fact, the status of DW-2 as the son of one of - 34 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 the attesting witnesses was never in dispute. This is the error committed by First Appellate Court. 58. Now the Court has to ascertain as to whether evidence of DW-2 fulfills the requirement of Section 69 of the Indian Evidence Act. 59. In the Examination-in-Chief he has stated that he is the son of the attesting witness and he identifies the signature of his father and the same is marked at Exhibit D-2(b) as already noticed. In the cross-examination by plaintiff to DW-2, though there is a suggestion to the effect that the signature at Exhibit-D2(b) is not the signature of the father, the witness has denied the said suggestion. This being the position, the mere suggestion that Exhibit-D2(b) is not the signature of the father of DW- 2, is not sufficient to disbelieve the statement of the son of one of the attesting witnesses who was testified about the signature of his father. - 35 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 60. Thus First Appellate Court fell in error in holding that evidence of DW-2 is not sufficient to prove the signature of one of the attesting witnesses. This Court is of the view that the Trial Court is justified in holding that signature of one of the attesting witnesses is very much established through the evidence of DW-2. 61. Next question is whether the defendants No. 2, 10 and 11 have established the signature of the testator on the Will as well. 62. It is urged by the learned counsel for the plaintiff as well as the learned counsel appearing for respondents No.10(a to e) and 13 to 15 that signature of the testator is not established. The basis for the said contention is that the defendant No. 2, the son of the H.M. Rudrappa has not entered the witness box to identify the signature of his father. It is their submission that he was the best witness to identify the signature of the father, - 36 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 and as defendant No.1 has not stepped into the witness box adverse inference has to be drawn against the propounders of the Will. 63. In addition, it is also urged by the learned counsel appearing for respondent No.14 that in the cross examination DW-1 has pleaded ignorance about the date of execution and registration of the said Will. Thus it is contended that the statement in the Examination-in-Chief that he identified the signature without making a statement that he is acquainted with the signature is not the evidence as required under Section 69 of the Indian Evidence Act. 64. This Court has also considered the said contention in the light of the evidence which is placed on record. It is noticed that defendant No. 11 is examined as DW-1 to prove the execution of the Will. It is also forthcoming from the Will that the movable property - 37 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 namely a tractor is bequeathed to defendant No.2 and the immovable properties are bequeathed to the daughter-in- law and the grandson of the testator and it is also noticed that DW-1 i.e. Defendant No.11 the grandson of one of the beneficiaries under the Will was aged 30 when he testified before the Court on the proof of the Will. 65. It is not in dispute that defendants No.2, 10 and 11 lived with the testator. Thus absolutely there is no difficulty in holding that the defendant No. 11 who is examined as DW-2 was acquainted with the signature of his grandfather. There may not be a statement in the Examination-in-Chief to say that he was acquainted with the signature of the grandfather in the specific terms. However, in the Examination-in-Chief he has identified the signature on the Will and makes a statement that the said signature is the signature of his grandfather and the signature is marked at Exhibit D-2(a). - 38 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 66. In addition to that, it is also required to be noticed that in the cross examination, it is not suggested that the signature marked at Exhibit D-2(a) is not the signature of the testator. Thus, it is evident that the signature of the testator is duly proved through the evidence of DW-1, who is none other than the grandson of the testator and one of the major beneficiaries under the Will who lived with the testator for more than 20 years. Merely because the son of the testator is not examined, it does not mean that the said omission is fatal to the defence raised by the propounders. What is required to be proved under Section 69 is, the signature of the testator is the handwriting of the testator. It does not say as to who should enter the witness box to prove the signature. It goes without say that the signature is to be proved by the person who is acquainted with the signature of the testator. It cannot be held in the circumstance of the present case that the grandson, who was aged 30 years and was living with the grandfather was not acquainted - 39 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 with the signature of the testator. This Court holds that the signature of the testator is duly proved in the light of evidence led and more particularly when there is no dispute relating to the signature of the testator on the Will. 67. In the light of the discussions made above, the finding of First Appellate Court that the signature of the testator is not established is again gross misinterpretation of the acceptable evidence on record. 68. Now the next question is whether the exclusion of natural heirs in the course of succession amounts to suspicious circumstance in the light of the facts obtained in the present case. 69. The law in this point is again well settled. Merely because the natural heir is excluded from the testamentary succession, it does not mean that the Will is suspicious. However, it is also well settled that is one of - 40 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 the factors that has to be taken into consideration while considering the evidence relating to the proof of the Will. It is required to be noticed that there was a partition in the family in the year 1974 and male issues and the father separated in the family and in addition to that, one of the aunts of the plaintiff is also allotted a share. 70. The partition deed of 1974 is not in dispute. Around 34 acres of land were allotted to the share of the plaintiff and around 22 acres of land are allotted to the share of defendant No.1 and defendant No.2 was allotted around 23 acres of land. 71. It has come in the evidence that after the partition, the father stayed with defendant No.2, 10 and 11. The plaintiff was residing away from the father. In one of the houses, two divisions were made and defendant No.1 was residing in one of the houses adjacent to the house of defendant No.2. - 41 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 72. What was retained by the father in the partition of 1974 is only around 5 acres of land. Though the learned counsel for the plaintiff/respondents No.1 to 3 would urge that the there ought to have been a recital in the Will as to why, the testator is conferring benefit only on few persons excluding other natural heirs. It is urged that no evidence is led by the parties to explain as to why the testator has excluded some of the natural heirs and has given benefit only to one of the natural heirs and not other natural heirs. 73. This Court is of the view that there is no such requirement in law that the testator should give an explanation in the Will as to why he is excluding the natural heirs. The explanation may be required to be provided to remove the suspicious circumstances surrounding the Will as exclusion of natural heirs in one of the suspicious circumstances. - 42 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 74. The question is whether the propounders have explained the reason as to why the testator has excluded the plaintiff and the other natural heirs. 75. It is an admitted fact that the plaintiff had filed a suit against the father during his lifetime and the said suit was for injunction in respect of an immovable property. Though there is no pleading and documentary evidence placed in this behalf, it is noticed from the cross examination of DW-1 that the plaintiff himself has suggested that he had filed a suit against his father seeking permanent injunction and in the said suit he also sought temporary injunction against the father. 76. Though the learned counsel for the plaintiff would urge that filing of suit itself is not a ground to hold that the relationship of the father and the plaintiff was strained, in the absence of any other evidence to show that the relationship was not strained, this Court is of the - 43 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 view that the relationship of the father with the plaintiff was strained. 77. In addition to that, it is already noticed that the plaintiff was residing separately and the defendant No.2, his son was residing with the testator along with the testator's daughter-in-law and the grandson. 78. The plaintiff and the daughters of the testator have urged that the father was not keeping well. It is noticed from the evidence that father was living with defendant No.2 one of his sons and daughter in law and the grandson. This would indicate that defendant No.2 one of his sons was taking care of the father. It is not the case of the plaintiff or the contesting daughters that they took care of the testator who according to them was aged and ailing. 79. And it is already noticed that the plaintiff was given 34 acres of land in the partition of 1974 and - 44 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 remaining sons are allotted lesser extent. Though learned counsel for the plaintiff would urge that it is not forthcoming from the evidence of the propounders that the properties allotted to the share of the plaintiff are more valuable and larger in extent and in the absence of any other evidence to show that the properties allotted to the share of the plaintiff are less fertile, this Court is of the view that in the partition of 1974, plaintiff was allotted a larger extent of land. It is also noticed that all the lands are located in the same village. Hence, it was the burden on the plaintiff to establish that he was allotted less fertile land which was larger in extent but was of the same value as allotted to the share of the remaining children. This is also one of the circumstances which would indicate that as to why the testator might have thought of disinheriting the plaintiff. 80. In addition to that, there is one more important circumstance which has to be taken into consideration. It - 45 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 is only the plaintiff who has disputed the execution of the Will among the sons of testator. Another son/defendant No.1 who is not given any benefit under the Will has not disputed the Will of the father. 81. The stand of the another son who was not disputed the Will of the father assumes lot of importance because he has taken a stand which is against his own interest. If he had disputed the Will, he would have inherited the share in the property of the father. But he has not chosen to do so. What is also required to be noticed and taken into consideration is that defendant No.1 resided in the adjoining residential house where the father resided. So probably defendant No.1 has witnessed defendants No.2, 10 and 11 taking care of his father. 82. Apart from that among 7 daughters, only 2 daughters have contested the claim disputing the Will. It is again noticed that none of the daughters who disputed the - 46 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 Will led evidence to substantiate their contention relating to alleged ill-health of their father. 83. The remaining 2 daughters did not contest the Will at all. This would again indicate that those daughters really believed that the father executed the Will in favour of defendants No.2, 10 and 11. 84. Under these circumstances, this Court of the view that First Appellate Court is not justified in holding that execution of the Will is not proved. 85. It is also referred to the notice that the First Appellate Court has taken a view that there is doubt relating to the Will on the premise that the testator has described the 'A' schedule property as his absolute property. Absolutely there is no difficulty in holding that 'A' schedule property is not the absolute property. But it appears that the 'A' schedule property was agreed to be retained by the father till his death. Probably, in these - 47 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 circumstances, testator might have thought that he has the testamentary capacity to execute the Will in respect of 'A' schedule property. This being the position, the averment in the recital of the Will that 'A' schedule property is also his self acquired property will not lead to the conclusion that the testator was not possessing sound state of mind. What is required to be noticed is the stamp paper to draft the Will was purchased on 11.06.1998. The Will was drafted and presented for registration on 16.06.1998 and the process of registration was completed on 23.06.1998. Whether the testator went alone to purchase the stamp paper and went alone to get the Will drafted or was assisted by any one else are not so relevant given the fact that the Will is duly registered and testator lived almost 3 years after the execution and registration of the Will. - 48 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 86. It is not the case of the plaintiff or the other contesting defendants that it is a case of impersonation when it came to registration of the Will. 87. This being the position, the Court has to presume that the testator went to the office of the Sub Registrar on 11.06.1998 and on the same day, he had also been to the scribe to get the Will drafted and registered. In the light of the discussions made above, this Court is of the view that First Appellate Court was in error in appreciating the material evidence on record relating to proof of execution of the Will in the light of the requirement under Section 69 of the Indian Evidence Act. 88. It is noticed that the plaintiff/respondents No.1 to 3 have filed an application for amendment of the plaint on the premise that the Item No.2 of 'B' schedule property is wrongly described. It is his contention that Item No.2 in 'B' schedule also comprises his property measuring - 49 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 120x80 and that should be amended to exclude his property. It is his contention that in item No.2, i.e. survey No.60/1, the total extent is shown as 20 guntas and in that 20 guntas of land he has been allotted property measuring 120x80 in the partition of 1974. Thus, he would contend that there has to be an amendment by excluding the property measuring 120x80 which is allotted to his share in the partition of 1974. 89. To this application an objection is filed by the appellants contending that the property measuring 20 guntas in Surrey No. 60/1 is allotted to Rudrappa in the partition of 1974 and the property allotted to the plaintiff is different property and same is not covered under the Item No.2 property. 90. This court has considered the contentions relating to the application seeking amendment. The partition deed of 1974 is not in dispute. In the said - 50 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 partition, the property measuring 120x80 in Survey No.60/1 is allotted to the share of the plaintiff. The boundary of property measuring 120x80 is also specified in the partition deed. 91. The boundary of the property allotted to the share of the Rudrappa is also mentioned in the said partition deed. 92. Learned counsel for the appellants on instructions would submit that they have no claim over the property measuring 120x80 allotted to the share of the plaintiff. This being the position this Court is of the view that there is no need to pass any separate orders on the application for amendment. 93. Suffice to clarify that the property at Item No.2 of 'B' schedule property does not include the property measuring 120x80 allotted to the share of the plaintiff in - 51 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 the partition of 1974. Substantial questions of law are answered in favour of the appellant. 94. Hence the following: ORDER (i) The appeal is allowed in part. (ii) The judgment and decree dated 06.12.2012 in R.A. No.404/2009 on the file of Additional District Judge, Shimoga are set aside. (iii) The judgment and decree dated 05.10.2009 in O.S. No.148/2002 on the file of II Additional Civil Judge (Senior Division), Shimoga are set aside in part. (iv) The suit of the plaintiff is decreed in part granting share in 'A' schedule property, 1/11th share to the plaintiff, 1/11th share to the defendants No.2, 10 and 11 under the Will of the testator and 1/11th share to defendant No.2 - 52 - HC-KAR NC: 2025:KHC:38462 RSA No. 422 of 2013 on his own and each daughter is entitled to 1/11th share. (v) Suit in respect of 'B' and 'C' schedule properties are dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 8