- 1 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1300 OF 2015 (DEC/INJ) BETWEEN: 1. SMT. C. SUNANDAMMA D/O.LATE KEMPAMMA, AGED ABOUT 56 YEARS, R/AT NO.547, 5TH DIVISION, VALASAMMA STREET, CHIKKABALLAPUR TOWN-562101. …APPELLANT (BY SRI. H.C. SHIVARAMU, ADVOCATE) AND: 1. THE AMMANNI TRUST NO.284, 34TH CROSS, 9TH MAIN ROAD, 4TH BLOCK, JAYANAGAR BANGALORE-560011, REPRESENTED BY ITS MANAGING TRUSTEE AND GPA HOLDER, N. KESHAVAKUMAR, S/O.V.NANJUNDAPPA. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 2. KALPANA W/O.C.N.SATHISH, AGED ABOUT 46 YEARS, TEACHER GOVERNMENT HIGH SCHOOL UPENDRASHARMA BUILDING NAGARTHAPETE, 5TH STAGE, DOOR NO.258, CHIKKABALLAPURA-562101. …RESPONDENTS (BY SRI. MANIKANTA C., ADVOCATE FOR SRI. S.G. LOKESH, ADVOCATE FOR R1; R2 SERVED AND UNPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 15.04.2015 PASSED IN R.A. NO.26/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, CHIKKABALLAPUR, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 22.04.2009 PASSED IN O.S. NO.11/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND CJM., CHICKBALLAPUR. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the plaintiff assailing the Judgment and Decree dated 15.04.2015 in R.A. No. 26/2009 on the file of Prl. Dist. Judge, Chickballapur, dismissing the appeal and confirming the Judgment and Decree dated 22.04.2009 in O.S.11/2004 on the file of Civil Judge (Sr. Dn.) and CJM, Chickballapur, dismissing the suit of the plaintiff. 2. For the sake of convenience, parties are referred with reference to their status before the Trial Court. 3. It is the case of the plaintiff that the suit schedule property belonged to one Smt. P.Kempamma, w/o late Chennappa and the plaintiff is the foster daughter of P. Kempamma, as P.Kempamma had no issues. It is the case of the plaintiff that mother of the plaintiff - P. Kempamma had executed registered Will dated 25.09.1996 and died on 04.11.2002 and thereafter, the plaintiff is in possession of the suit schedule property. It is further stated in the plaint that portion of the suit property was let out in favour of defendant - 4 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 No.2 and as there was arrears of rent by defendant No.2, plaintiff had filed HRC No.3/2003 before the Prl. Civil Judge (Jr. Dn.) and JMFC, Chikkaballapura, seeking recovery of arrears of rent and the proceedings is yet to be concluded by the Trial Court. Therefore, it is contended by the plaintiff that, the defendant No.2 has created a fabricated Will said to have been executed by P.Kempamma and based on the same, the defendant No.1 has approached the Municipal Administration, seeking change of khata. The said proceedings was contested by the plaintiff in Appeal No.15/2003. Hence, the plaintiff has filed O.S.No.11/2004 seeking relief of declaration with consequential relief of permanent injunction against the defendant. 4. After service of notice, the defendants entered appearance and filed separate written statements stating that late Kempamma had executed a Will bequeathing the suit property in favour of defendant No.1 and accordingly, sought for dismissal of the suit. 5. On the basis of the pleadings on record, the Trial Court framed issues for its consideration. In order to establish their - 5 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 case, plaintiff was examined as P.W.1 and produced 26 documents and same were marked as Exs.P1 to P26. Defendants have examined 5 witnesses as D.W.1 to D.W.5 and got marked 14 documents as Exs.D1 to D14. The Trial Court after considering the material on record, vide Judgment and Decree dated 22.04.2009, dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.26/2009 and same was resisted by the defendants. The First Appellate Court, after re-appreciating the material on record by its Judgment and Decree dated 15.04.2015, dismissed the appeal and as such confirmed the Judgment and Decree in O.S.11/2004. 6. This Court, vide order dated 13.02.2020, formulated the following substantial questions of law: " (1) Whether the Trial Court has erred in not casting the burden of proof on the first defendant to prove Ex.D4 to be the last validly executed Will of the Testator? - 6 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 (2) Whether affirmation of the judgment of the Trial Court and by the First Appellate Court has to be set aside in the light of the above?" 7. I have heard Sri. H.C. Shivaramu, learned counsel for the appellant and Sri. Manikanta C., learned counsel for the respondent No.1. 8. Perusal of the order sheet would indicate that respondent No.1 reported the death of the Managing Trustee of respondent No.1 on 28.05.2024 and till date, the death certificate of the Managing Trustee is not furnished to this Court. Again, learned counsel for respondent No.1, seeks time to furnish the same, however, the said prayer is rejected. 9. Sri. H.C.Shivaramu, learned counsel appearing for the appellant submitted that, Smt. P. Kempamma had bequeathed the suit property in favour of the plaintiff on 25.09.1996 and further the said Will is a registered document and on the other hand, the defendants took up the contention that the earlier Will has been cancelled on 13.08.2001 and in this regard the finding recorded by both the Courts below requires to be interfered with as the defendants have not proved the - 7 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 cancellation of the registered Will produced at Ex.D4 and accordingly, sought for interference of this court. In this regard, he places reliance on the Judgment of the Hon'ble Supreme Court in the case of DAULAT RAM Vs. SODHA reported in (2005) 1 SCC 40 wherein, the beneficiary of the second Will is required to prove the Will by removing the suspicious circumstances and such onus is on the propounder to remove the suspicion by leading appropriate evidence. 10. Per contra, Sri. Manikanta C., learned counsel for the respondent No.1 sought to justify the impugned Judgment and Decree passed by the courts below. 11. In the light of the submissions made by the learned counsel appearing for the parties, it is the case of the plaintiff that plaintiff is the foster daughter of Smt. P. Kempamma and late Chennappa. The schedule property belonged to late Kempamma and she had executed the Will dated 25.09.1996 (Ex.P22) bequeathing the property in favour of the plaintiff. P. Kempamma died on 04.11.2002. On careful examination of the records of the Courts below, would indicate that, except Ex.P22 - Registered Will said to have been executed by - 8 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 late P. Kempamma, the plaintiff has not taken any steps to prove the same. On the other hand, the defendants have taken a plea that late P. Kempamma had cancelled the Will dated 25.09.1996 by execution of the cancellation deed dated 13.08.2001 (Ex.D4) and thereafter executed the Will dated 24.10.2002. bequeathing the suit property in favour of defendant. It is not in dispute that said Kempamma died on 04.11.2002 (Ex.D6). 12. Having taken note of the submissions made by the learned counsel appearing for the parties and on careful examination of the issues framed by the Trial Court, as the Trial Court has committed an error in not framing the issue relating to the execution of the registered Will dated 25.09.1996, revocation of the same by the Testator - P.Kempamma on 13.08.2001 and that apart, the claim made by the defendant that the said Testator - P. Kempamma had executed another will dated 24.10.2002 and that apart, it is pertinent to mention here that, the said P.Kempamma died on 04.11.2002, I am of the opinion that, proper appreciation of evidence is required to be made by framing appropriate issue by the Trial Court, which - 9 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 is necessitated in view of the rival contentions made by the learned counsel appearing for the parties as well as the pleadings on record before the Trial Court. Accordingly, it is a fit case to remand the matter to Trial Court for fresh consideration. Hence, the substantial questions of law framed as noted above, are answered in favour of the plaintiff, only in so far as remanding the matter to the Trial Court for fresh appreciation of material on record. 13. In the result, I pass the following: (i) The Regular Second Appeal is allowed. (ii) The Judgment and Decree dated 15.04.2015 in R.A. No. 26/2009 on the file of Prl. Dist. Judge, Chickballapur, is hereby set aside. (iii) The Judgment and Decree dated 22.04.2009 in O.S.11/2004 on the file of Civil Judge (Sr. Dn.) and CJM, Chickballapur, is hereby set aside. The matter is remitted to the Trial Court for fresh consideration. (iv) All contentions of the parties are kept open and liberty is reserved to the parties to adduce further evidence in - 10 - HC-KAR NC: 2025:KHC:30862 RSA No. 1300 of 2015 the matter, if so advised. Trial Court is requested to expedite the disposal of the suit. (v) Needless to say that, as the Managing Trustee representing the defendant No.1 is no more, it is open for the defendant No.1 to make necessary application to prosecute the case before the Trial Court, if so advised. SD/- (E.S.INDIRESH) JUDGE sac List No.: 2 Sl No.: 20