- 1 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.496 OF 2025 (PAR) BETWEEN: 1. SRI. MUKHESH S/O RAMAIAH AGED ABOUT 30 YEARS R/AT DYAPENAHALLI VILLAGE SITAKALLU POST TUMAKURU DISTRICT-572 140. PRESENTLY RESIDING AT HOUSE NO.15, 2ND CROSS, WARD NO.14, BAGALAKUNTE NEAR BONE MILL SIDDENAHALLI POST BENGALURU-560 073. …APPELLANT (BY SRI. H.V.MANJUNATHA, ADVOCATE) AND: 1. SMT.KAMALAMMA W/O ERANNA D/O LATE RAMAIAH AGED ABOUT 51 YEARS R/O MAVINAKUNTE VILLAGE HULUKUNTE POST THYMAGONDLU HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT-562 123. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 SMT. RAMAKKA SINCE DEAD BY LRS. 2. SRI. MANJANNA S/O LATE MARAPPA AGED ABOUT 54 YEARS R/AT GUNDLAHALLI VILLAGE KASABA HOBLI MADHUGIRI TALUK TUMAKURU DISTRICT-572132. SRI. RAMAIAH S/O LATE RAMAIAH SINCE DEAD BY LRS. 3. SMT. VARALAKSHMAMMA W/O LATE RAMAIAH, AGED ABOUT 53 YEARS, 4. KUM. KOKILA W/O LATE RAMAIAH AGED ABOUT 31 YEARS RESPONDENTS NOS.3 AND 4 ARE R/O DYAPENAHALLI VILLAGE SITAKALLU POST TUMAKURU DISTRICT-572 104. 5. SMT. KENCHAMMA D/O LATE RAMAIAH AGED ABOUT 52 YEARS 6. SMT. PUTTAMMA D/O LATE RAMAIAH AGED ABOUT 46 YEARS RESPONDENTS NO.5 AND 6 ARE R/O DYAPENAHALLI VILLAGE SITAKALLU POST TUMAKURU DISTRICT-572104. - 3 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 7. SRI. RAMAMURTHY S/O LATE KEMPAIAH @ KEMPANAIAH AGED ABOUT 40 YEARS SRI. NANJUNDAPPA S/O LATE RAMAMALLAIAH SINCE DEAD BY LRS. 8. SMT. GANGAMMA W/O NANJUNDAPPA AGED ABOUT 55 YEARS 9. SMT. RATHNAMMA D/O LATE NANJUNDAPPA W/O NAGARAJU AGED ABOUT 29 YEARS R/AT KALENAHALLI SITAKAL POST ORDIGERE HOBLI TUMAKURU TALUK-572 104. 10. SRI. RAJU S/O LATE NANJUNDAPPA AGED ABOUT 28 YEARS 11. SMT. RADHAMMA, S/O LATE NANJUNDAPPA W/O MURTHY AGED ABOUT 27 YEARS R/AT MATAGUNDANAHALLI PATHAGANAHALLI POST KOLLALA HOBLI KORATAGERE TALUK TUMAKURU DISTRICT-572 140. 12. SRI. RADHAVENDRA S/O LATE NANJUNDAPPA AGED ABOUT 24 YEARS 13. SRI. VIJAYAKUMAR S/O LATE NANJUNDAPPA AGED ABOUT 24 YEARS - 4 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 RESPONENT NOS.7, 8, 10, 12 AND 13 ARE R/AT GUNDLAHALLI VILLAGE SIDDAPURA POST, MADHUGIRI TALUK TUMAKURU DISTRICT-572 132. 14. SMT. LAKSHMIDEVAMMA W/O ERANNA D/O LATE RAMAMALLAIAH AGED ABOUT 78 YEARS R/AT KAMANA AGRAHARA VILLAGE DODDABELAVANGALA HOBLI KOLIGERE POST DODDABALLAPURA TALUK-561 203. 15. SMT. PUTTARAMAKKA W/O SRIRANGAPPA D/O LATE RAMAMALLAIAH AGED ABOUT 78 YEARS R/AT GUNDLAHALLI VILLAGE SIDDAPURA POST MADHUGIRI TALUK TUMAKURU DISTRICT-572 132. 16. SMT. JAYAMMA, W/O JAYANNA D/O NANJUNDAPPA AGED ABOUT 50 YEARS R/AT YYALACHAGERE VILLAGE KOLLALA HOBLI, KORATAGERE TALUK TUMAKURU DISTICT-572 140. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.12.2024 PASSED IN R.A.NO.138/2024 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.12.2019 PASSED IN O.S.NO.198/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU. - 5 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 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 appellant. 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 is that plaintiff and defendants have constituted a Hindu Joint Family and suit schedule properties are their joint family properties and also contend that both of them are in joint possession and enjoyment of the suit schedule properties. Hence, entitled for a share over the suit schedule properties. 4. The defendant No.3, who filed the written statement contended that item No.1 of the suit schedule properties was the exclusive property of Ramaiah and he has bequeathed the same to defendant No.3 under the Will Deed dated 10.08.2005. - 6 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 5. The Trial Court having considered both oral and documentary evidence comes to the conclusion that suit schedule properties are the ancestral and joint family properties. The Trial Court also answered issue No.4 as ‘negative’, since the evidence of D.Ws.1 to 3 are contrary to each other and in detail discussed the same while considering issue No.4, since D.W.1, the legatee during his cross- examination stated that after the death of his grand-father Ramaiah, he has opened a steel trunk in his house at Dypenahalli Village and at that time, he saw a Will and other papers, then only he came to know that his grand-father has executed a Will in his favour. The Trial Court also taken note of contrary evidence of D.W.1 and D.W.2 and defendant No.3 was also very much present at the time of getting the document executed and the same is discussed in paragraph Nos.14 and 15 and then comes to the conclusion that the evidence of D.W.1 and D.W.2 and the recitals of Ex.D3 are very much contradictory. Hence, not accepted the case of defendants with regard to the Will is concerned and granted the relief of 1/7th share in the share of her father in the suit schedule property. - 7 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 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.138/2024. The First Appellate Court also having reassessed the material available on record in keeping the contentions urged in the appeal, formulated the points whether the Trial Court committed an error in holding that suit schedule properties are the ancestral joint family properties, whether the Trial Court has erred in holding that defendant No.3 has failed to prove that item No.1 of suit schedule property was the exclusive property of Ramaiah and he has bequeathed the same to the defendant No.3 under Will dated 10.08.2005, whether the Trial Court has erred in holding that plaintiff is entitled for 1/7th share in the share of her father Ramaiah in the suit schedule property and whether it requires interference of this Court. The First Appellate Court having considered both oral and documentary evidence placed on record, answered point Nos.1 and 2 as ‘negative’ that the Trial Court has not committed any error. However, answered point No.3 ‘partly in the affirmative’ and modified the share of parties in coming to the conclusion that plaintiff is entitled for a share in the suit schedule property. The plaintiff and defendant Nos.2, - 8 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 4 and 5 are entitled to 1/24th share each in the plaint schedule properties and so also, the defendant Nos.8 and 9 are entitled for 4/24th share each and judgment and decree of the Trial Court is modified only in respect of the proportionate share is concerned. Being aggrieved by the said finding, the present second appeal is filed before this Court by defendant No.3. 7. The main contention of learned counsel for the appellant before this Court is that both the Courts have committed an error in not properly appreciating the document of Will and failed to take note of the very document of Ex.D3 and the same has been proved in terms of Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act and committed an error in coming to the conclusion that the evidence of D.W.2 and D.W.3 not inspires the confidence of the Court and their evidence is contrary to each other and the very approach of both the Courts is erroneous and perverse. 8. Having heard learned counsel for the appellant and also on perusal of the material available on record, the main argument of learned counsel for the appellant with regard to the Will is that there was a Will in favour of the appellant in - 9 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 respect of item No.1 of the suit schedule property. In order to prove the Will also, though examined the witnesses, particularly D.W.1 to D.W.3, the evidence of these witnesses were taken note of by the Trial Court while answering issue No.4 in paragraph Nos.13 to 15 and found contrary evidence of each of the witnesses and comes to the conclusion that the Will propounded by the appellant is shrouded with suspicious circumstances. The First Appellate Court also having reassessed the material available on record, particularly with regard to the Will is concerned in paragraph Nos.31 and 32 even extracted the evidence of D.W.2 and with regard to the suspicious circumstances is concerned, discussed in paragraph No.33 and so also in paragraph No.34 observed that D.W.1 states that he is not aware of the witnesses to the Will, whereas D.W.2 states that he was the tenant in the house of defendant No.3 for 2-3 years. Apart from that also taken note of the fact that the evidence of D.W.1 to D.W.3 is contrary to each other with regard to the Will is concerned and the same is also discussed in paragraph No.35 and material contradictions are also taken note of by the First Appellate Court. Hence, I do not find any error on the part of both the Trial Court as well as the First - 10 - HC-KAR NC: 2025:KHC:46737 RSA No. 496 of 2025 Appellate Court with regard to the Will is concerned which is marked as Ex.D3 and when the Will is shrouded with suspicious circumstances, I do not find any perversity in the finding of Trial Court and the First Appellate Court. Hence, question of admitting the second appeal and framing any substantial question of law invoking Section 100 of CPC does not arise. Both question of law and facts are considered judiciously. 9. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 60