- 1 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1500 OF 2022 (PAR) BETWEEN: 1. SRI. A.S.RAMAMURTHY, S/O LATE SHANKARAPPA AND LATE VENKATAKAKSHMAMMA, AGED ABOUT 56 YEARS, RESIDENT OF ABBENAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK - 563 130. …APPELLANT (BY SRI. RAMAKRISHNA HEGDE, ADVOCATE) AND: 1. SMT. PRABHAVATHI, D/O LATE SHANKARAPPA, AGED ABOUT 68 YEARS, R/O THIMMANAYAKANAHALLI VILLAGE, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT-163 130. 2. SMT. VIJAYALAKSHMI, D/O LATE SHANKARAPPA, AGED ABOUT 63 YEARS, R/O. NO.2636, 7TH CROSS, ‘C’ MAIN, VIVEKANANDANAGAR, BANGARAPET TOWN, KOLAR DISTRICT-563 114. 3. SRI. A.S.VENKATESH, S/O LATE SHANKARAPPA AND LATE VENKATALAKSHMAMMA, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 AGED ABOUT 54 YEARS, RESIDENT OF ABBENAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK-563 130. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.04.2022 PASSED IN R.A.NO.75/2021 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.10.2021 PASSED IN O.S.NO.104/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR. 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. The case of the plaintiff before the Trial Court while seeking the relief of partition and separation possession of 1/4th share is that the suit schedule properties are the ancestral and joint family properties and the plaintiff is entitled for 1/4th share in the suit schedule property by metes and bounds. The defendants appeared and filed the written statement contending that the suit is barred by limitation and also contended that the suit is bad for non-joinder of necessary - 3 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 parties. The suit item Nos.1 to 3 properties are the self- acquired properties of Smt.Venkatalakshmamma and also contended that defendant Nos.2 and 3 by virtue of Will dated 22.06.2000 executed by their mother, they became absolute owners of the suit item Nos.1 to 4 properties and hence the plaintiff is not entitled for any relief. 3. The Trial Court also re-casted the issue whether the defendants prove that schedule item Nos.1 to 5 properties are the self-acquired properties of Smt.Venkatalakshmamma? The Trial Court having considered both oral and documentary evidence available on record, answered issue No.1 in the affirmative in coming to the conclusion that the properties are joint family properties. In view of re-casting of issue i.e., issue No.4, considered the evidence available on record, particularly when the defendants have relied upon the Will and also the contention that the properties are self-acquired properties of their mother. The Trial Court having considered the admission on the part of D.W.1, who categorically admits that all the children of Smt.Venkatalakshmamma are having equal share over the property, discussed the same in paragraph No.17. With regard to the very execution of the - 4 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 Will by Smt.Venkatalakshmamma, though examined two witnesses as D.W.2 and D.W.3, their evidence was not suffice to come to the conclusion that Smt.Venkatalakshmamma had executed the Will. D.W.2 categorically admits that deed writer Narayanappa has expired and further states for getting drafted the Will, Smt. Vijayalakshmi, aged about 70 years, the testator alone had come and no other persons had accompanied her to the Sub-Registrar office and that he does not know the contents of the Will. The Trial Court also taken note of discrepancy in mentioning the deed writer licence number and the same is discussed in paragraph No.35 taking into note of the deed writer of Ex.D.23 Will and also Ex.D.9 sale deed is one and the same. Apart from that, D.W.3 evidence was also taken note of. D.W.3 claims that at the time of drafting the Will, he himself, Narayanappa and Smt.Venkatalakshmamma were present. The evidence of D.W.3 is contrary to the evidence of D.W.2. Hence, the Trial Court not accepted the Will and granted the relief of partition granting 1/4th share in favour of the plaintiff. 4. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in R.A.No.75/2021. The - 5 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 Appellate Court having re-assessed the material available on record as well as the reasoning given by the Trial Court and also the grounds urged in the appeal, formulated the point whether defendant Nos.2 and 3 prove that their mother/testator Smt.Venkatalakshmamma being absolute owner of the suit schedule item Nos.1 to 4 properties executed the Will on 22.06.2000 when she was in sound disposing state of mind? The Appellate Court on re- appreciation of the material available on record, comes to the conclusion that the same has not been proved. The evidence of D.W.2 and D.W.3 not inspires the confidence of the Court. D.W.3 has testified that Smt.Venkatalakshmamma executed Will on 22.06.2000 and he was called by her to the Taluk Office, Malur and Will has been prepared as per her instruction and he has signed the Will as witness. This evidence of D.W.3 does not establish the above manner of requirement of attestation as required under Section 63(c) of Indian Succession Act. Besides D.W.2 has testified in the above line of D.W.3. He has also not whispered his attestation to the Will as required under the above law. The Trial Court rightly appreciated that D.W.2, who is the attesting witness, in his cross-examination had stated that - 6 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 one Vijayalakshmi was present and he signed on the request of Vijayalakshmi to the said Will and none present except Vijayalakshmi at the time of execution of the Will and all these discussion was made in paragraph No.13 and comes to the conclusion that the evidence of D.W.2 is not credible to believe that Smt.Venkatalakshmamma executed Ex.D.23 and so also the evidence of D.W.3 is contrary to the evidence of D.W.2 and hence not accepted the very contention of the appellant and concurred with the judgment of the Trial Court. 5. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. 6. The main contention of the learned counsel for the appellant before this Court is that both the Courts have committed an error in granting the relief of partition without proving and in the absence of the material evidence that the suit schedule properties are the joint family properties of the plaintiff and the defendants. The learned counsel contend that both the Courts are not justified in not accepting the Will and even though D.W.2 and D.W.3, attesting witnesses are examined before the Trial Court to prove the Will and Will also - 7 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 proved, but even inspite of proving of the Will also, not accepted the Will and committed an error. 7. Having heard the learned counsel for the appellant and also on perusal of the reasons assigned by the Trial Court, it is not in dispute that the plaintiff has claimed 1/4th share in the suit schedule properties. The very contention of the learned counsel for the appellant is that the plaintiff has not proved that the properties are the ancestral properties. But, the very admission on the part of D.W.1 is clear, unequivocal admission that all the children of Smt.Venkatalakshmamma are having equal share over the property. When such admission is given, the very contention of the learned counsel for the appellant that the Trial Court committed an error cannot be accepted. With regard to the very claim made by the appellant that there was a Will, the same was also not proved. Both the Courts have taken note of that the evidence of D.W.2 and D.W.3 are contradictory to each other. D.W.2 claims that he was alone at the time of affixing the signature on the Will and D.W.3 evidence is contrary to the evidence of D.W.2 and D.W.2 says that he only accompanied the testatrix to the Sub-Registrar Office - 8 - HC-KAR NC: 2025:KHC:26933 RSA No. 1500 of 2022 and also he does not know the contents of the Will. All these factors were taken note of by the Trial Court as well as the Appellate Court while assessing the material available on record regarding Will. Hence, I do not find any ground to admit the appeal and frame any substantial question of law as contended by the learned counsel for the appellant, since there is a clear admission with regard to the share of the plaintiff and though the Will is propounded by the defendants, the same is also not proved. The evidence of D.W.2 and D.W.3, who are the attesting witnesses, is not credible and the same is not in consonance with Section 63 of the Indian Succession Act and Section 68 of Evidence Act. Hence, no ground to admit the appeal and frame any substantial question of law. 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.: 53