- 1 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 750 OF 2024 (DEC/INJ) BETWEEN: 1. SMT. ASHWATHAMMA S/O LATE ESHWARAPPA, AGED ABOUT 71 YEARS, 2. SMT. NANJAMMA D/O LATE ESHWARAPPA, AGED ABOUT 46 YEARS, 3. SRI NANJUNDAPPA S/O LATE ESHWARAPPA, AGED ABOUT 44 YEARS, 4. SRI SHANKARAPPA S/O LATE ESHWARAPPA, AGED ABOUT 41 YEARS, ALL ARE R/AT KOTALADINNE VILLAGE, HOSSUR HOBLI, GOWRIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT-561 210. …APPELLANTS (BY SRI. VENKATESH N., ADVOCATE) AND: 1. SMT. LAKSHMINARASAMMA W/O SRI NAGARAJAPPA, AGED ABOUT 61 YEARS, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 2. SRI NANJUNDAPPA S/O MYLARAPPA, AGED ABOUT 66 YEARS, 3. SRI SRIRAMAPPA S/O MYLARAPPA, AGED ABOUT 62 YEARS, SRI NAGARAJAPPA (LATE) S/O MYLARAPPA, SINCE DECEASED REPRESENTED BY HIS LRS 4. SRI KITTI S/O LATE NAGARAJAPPA AGED ABOUT 44 YEARS, 5. SMT. GEETHA D/O LATE NAGARAJAPPA AGED ABOUT 39 YEARS, 6. SRI SHEKRI S/O LATE NAGARAJAPPA AGED ABOUT 34 YEARS, ALL ARE R/AT KOTALADINNE VILLAGE, HOSSUR HOBLI, GOWRIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT-561 210. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 21.12.2023 PASSED IN RA.NO.7/2020 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, GOWRIBIDANUR, DISMISSING THE APPEAL AND UP-HELD THE JUDGMENT AND DECREE DATED 16.12.2019 PASSED IN OS NO.49/2012 ON THE FILE OF C/C PRINCIPAL CIVIL JUDGE AND JMFC, GOWRIBIDANUR. - 3 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 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 and I have heard learned counsel for the appellants. 2. This appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and permanent injunction is that she is the absolute owner in respect of the suit schedule properties, who acquired the same vide registered Will dated 15.04.2006 and plaintiff is in possession and enjoyment of the suit schedule properties and the defendants are interfering with possession and enjoyment of the suit schedule properties. 4. In pursuance of the suit summons, the defendants appeared and filed written statement that Honnappa acquired no right and interest in respect of the suit schedule properties - 4 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 to execute a Will in favour of the plaintiff and plaintiff is not entitled for the relief of declaration. 5. The Trial Court having considered both oral and documentary evidence as well as the Will Ex.P1, the plaintiff also in order to substantiate the execution of the Will relied upon the evidence of P.W.4, who is an attesting witness and the evidence of attesting witness is also considered by the Trial Court, particularly in paragraph No.24, wherein when the suggestion was made that he was not having any knowledge about the contents of the Will and the said suggestion was denied that only after reading the contents, he had signed the same. The Trial Court also taken note of oral and documentary evidence placed by the plaintiff and P.W.3 is the Scribe of Ex.P1, who prepared the Will as per the desire of the testator and got typed from the typewriter and at the time of execution of Ex.P1, P.W.3, P.W.4 and attestor to Ex.P1 were present before the Sub-registrar and nothing is elicited from the mouth of P.W.3 and P.W.4 to disbelieve the case of plaintiff with regard to very proving of document Ex.P1. The Trial Court also taken note of the answer elicited from the mouth of D.W.1 in - 5 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 paragraph No.28, wherein categorically admitted that item Nos. A and B schedule properties belong to the joint family i.e., Mylarappa, Eshwarappa and Honnappa and all of them are having share over the property and they are cultivating the property separately and this admission was also taken note of by the Trial Court and also very Honnappa had executed the Will in favour of the plaintiff. Hence, answered issue Nos.1 to 3 as ‘affirmative’ and granted the relief in favour of the plaintiff. 6. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.7/2020. The First Appellate Court also, while considering the grounds which have been urged in the appeal, formulated the point whether the plaintiff proved the very execution of the Will and whether the Trial Court committed an error in accepting the Will. The First Appellate Court also on reassessing both oral and documentary evidence available on record, particularly considering Section 63 of the Indian Succession Act as well as Section 68 of the Evidence Act regarding proof of execution of document required under law to be attested, considered the evidence of the attested witness - 6 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 P.W.4 as well as the Scribe, who has been examined before the Court and he categorically deposed that at the instance of the testator itself the document of Ex.P1 was executed and comes to the conclusion that the Trial court has not committed any error in accepting the evidence of P.W.3 and P.W.4 and confirmed the judgment of Trial court. 7. The learned counsel appearing for the appellants would vehemently contend that the Will was executed during the pendency of suit in O.S.No.76/2005 and the Trial Court failed to consider the said aspect and also O.S.No.49/2012. The Trial Court committed an error in coming to the conclusion that Will was proved and the said finding is erroneous and the same is against the material on record. The counsel also vehemently contend that both the Courts were not justified in holding that Trial Court has jurisdiction to take divergent view as taken in O.S.No.49/2012 in respect of the same schedule properties which has been taken in earlier suit in O.S.No.76/2005. Hence it requires interference. 8. Having heard learned counsel appearing for the appellants and also considering the reasoning of the Trial Court - 7 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 and considering the pleadings of the plaintiff before the Trial Court, the plaintiff specifically pleaded that Will was executed in favour of the plaintiff and based on the Will itself sought the relief of declaration and permanent injunction and Will was placed before the Trial Court i.e., Ex.P1 was proved by examining P.W.3 and P.W.4. The evidence of P.W.4, who is an attesting witness is consistent with regard to execution of Will and the Will is also a registered Will and nothing is elicited from the mouth of P.W.3 and P.W.4 to discredit the case of plaintiff and also taken note of admission on the part of P.W.1 that the testator was also having a share over the suit schedule properties and also categorically admitted that the testator was also cultivating the property separately and the same is taken note in paragraph No.28 of the judgment of the Trial Court. The Trial Court also taken note of the evidence of P.W.4 attesting witness which was discussed in paragraph No.24 and in paragraph No.25 also taken note of the fact that evidence of P.W.3 and P.W.4 are credible. The First Appellate Court also having considered both oral and documentary evidence comes to the conclusion that the Trial Court has not committed any error and having considered the reasoning of the Trial Court, I - 8 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 do not find any perversity in the finding of the Trial Court as well as the First Appellate Court while considering both oral and documentary evidence placed on record and when the Will was proved by examining the witnesses P.W.3 and P.W.4, the very contention of learned counsel for the appellants that when the earlier suit was filed in O.S.No.76/2015 and order in FDP No.3/2010 was also passed, the same cannot bind the plaintiff and the same is also observed by the Trial Court, since the plaintiff was not a party. Learned counsel for the appellants would contend that plaintiff's husband was party in the earlier suit and the same was inter-se between the brothers and when one of the brother had executed the Will in respect of his share is concerned and also when there is an admission that the testator was having a share over the property, now cannot contend that in view of earlier suit ought not to have executed the Will. Hence, no ground is made out to admit the second appeal and frame substantial question of law invoking Section 100 of CPC. 9. In view of the discussion made above, I pass the following: - 9 - HC-KAR NC: 2025:KHC:45986 RSA No. 750 of 2024 ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 30