- 1 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1245 OF 2017 (DEC/INJ) BETWEEN: SMT MANGALAMMA F DODDAMANAI WIFE OF LATE RANGAIAH AGED ABOUT 47 YEARS RESIDING AT HETHENAHALLI VILLAGE GULUR HOBLI TUMKUR TALUK AND DISTRICT PIN CODE-572 118 NOW RESIDING AT MARUTHI NAGAR 40 FEET ROAD, 5TH A CROSS TUMKUR-572101 …APPELLANT (BY SRI. P.M.GOPI, ADVOCATE FOR SRI. SIDDAMALLAPPA P M., ADVOCATE) AND: 1. SMT HANUMAKKA WIFE OF LATE HANUMANTHAIAH AGED ABOUT 59 YEARS RESIDING AT HETHENAHALLI VILLAGE GULUR HOBLI TUMKUR TALUK AND DISTRICT PIN CODE-572 118 2. SRI RAJASHEKAR SON OF LATE HANUMANTHAIAH AGED ABOUT 39 YEARS RESIDING AT HETHENAHALLI VILLAGE GULUR HOBLI Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 TUMKUR TALUK AND DISTRICT PIN CODE-572 118 3. SRI MOHAN KUMAR SON OF LATE HANUMANTHAIAH AGED ABOUT 34 YEARS RESIDING AT HETHENAHALLI VILLAGE GULUR HOBLI TUMKUR TALUK AND DISTRICT PIN CODE-572 118 4. SRI RAVEESH SON OF LATE HANUMANTHAIAH AGED ABOUT 34 YEARS RESIDING AT HETHENAHALLI VILLAGE GULUR HOBLI TUMKUR TALUK AND DISTRICT PIN CODE-572 118 …RESPONDENTS THIS RSA FILED U/S. 100 OF CPC., PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DTD 13.04.2017 PASSED IN R.A.NO. 04/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, AND JMFC GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 13.12.2012 PASSED IN OS.NO.138/2003 ON THE FILE OF THE CIVIL JUDGE AND JMFC., GUBBI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the plaintiff against the judgment and decree dated 13.04.2017 passed in RA - 3 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 No.04/2013 by the Additional Senior Civil Judge, and JMFC, Gubbi, dismissing the appeal and confirming the judgment and decree dated 13.12.2012 passed in OS No.138/2003 by the Civil Judge, Gubbi, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to their ranking before the Trial Court. 3. It is the case of the plaintiff that, the subject matter of the land belonged to the husband of the defendant No.1-late Hanumanthaiah. It is also stated that, originally the land in question belonged to the Government and same was granted in favour of the husband of defendant No.1. It is further stated that, the husband of the plaintiff-Rangaiah was assisting the husband of defendant No.1 and therefore husband of the defendant No.1 has executed the Will dated 06.03.1986 bequeathing the land in question in favour of the plaintiff. 4. It is also stated that, the husband of the defendant No.1-Hanumanthaiah died on 04.04.1986 leaving behind a Will dated 06.03.1986, bequeathing the property in favour of the husband of the plaintiff-Rangaiah, and as such the plaintiff has - 4 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 filed O.S.No.138/2003 claiming right over the property in question based on the Will dated 06.03.1986. 5. After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant that, the land in question was granted in favour of the husband of the defendant No.1-Hanumanthaiah and thereafter the defendants are in possession and enjoyment of the of land in question. It is also the case of the defendants while denying the execution of the Will dated 06.03.1986 said to have been executed by the husband of the defendant No.1- Hanumanthaiah. Accordingly, sought for dismissal of the suit. 6. The Trial Court based on pleadings on record formulated the issues for its consideration. 7. In order to establish the case, the plaintiff has examined three witnesses as PW.1 to PW.3 and got marked eight documents as Exs.P1 to P8. Defendants have examined two witnesses as DW1 and DW2 and produced five documents, and the same were marked as Exs.D1 to D5. It is also - 5 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 forthcoming that deposition of the DW1 was discarded since DW1 has not offered for cross examination. 8. The Trial Court after considering the material on record, by judgment and decree dated 13.12.2012, dismissed the suit. Feeling aggrieved by the same, the plaintiff has preferred RA No.4/2013 before the First Appellate Court, and same was resisted by the defendants. 9. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 13.04.2017, dismissed the appeal, consequently, confirmed the judgment and decree dated 13.12.2012 passed in OS No.138/2003 by the Civil Judge, Gubbi. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 10. Heard Sri P.M. Gopi, learned counsel along with Sri Siddamallappa P.M., appearing for the appellant, and perused the material on record. 11. The learned counsel appearing for the appellant, submitted that, both the Courts below have committed an error - 6 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 in not considering the factual aspect on record as the husband of the defendant No.1-Hanumanthaiah had executed the Will dated 06.03.1986 in favour of the husband of the plaintiff-late Rangaiah and the plaintiff has examined two witnesses namely PW.2-son of scribe to the Ex.P1 as well as P.W.3-witness to the Will dated 06.03.1986, before the Trial Court, P.W.3 has deposed about the execution of the Ex.P.1 and admits the signature on the Ex.P.1. Despite the same, both the Courts below have not considered the same in right perspective, and accordingly, sought for interference of this Court. 12. In light of the submission made by the learned counsel for the appellant, and on careful examination of the findings recorded by the Courts below, would indicate that, the plaintiff has sought for relief of declaration against the defendants based on the Will dated 06.03.1986 said to have been executed by the husband of the defendant No.1- Hanumanthaiah, bequeathing the suit property in favour of the husband of the plaintiff-late Rangaiah. 13. It is also forthcoming from the finding recorded by the Courts below that, the plaintiff has filed a suit in - 7 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 O.S.No.301/1997 against the defendants seeking perpetual injunction and thereafter, the suit came to be dismissed on 08.07.2003 as not pressed, and therefore, the plaintiff has filed O.S.No.138/2003. Having taken note of the findings recorded by the Courts below, the plaintiff examined three witnesses, and PW.3, being a witness to the execution of the Will dated 06.03.1986 deposed in the cross examination that he has not seen that the testator signed Ex.P.1 before him. 14. In that view of the matter, since, the Will dated 06.03.1986, is an unregistered Will and also the plaintiff has not proved the Will in a manner known to law as per Section 68 of the Indian Evidence Act, I am of the opinion that, the findings recorded by both the Courts below is just and proper. 15. It is also to be noted that, the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar -vs- B.N.Thimmajamma & Others, reported in AIR 1959 SC 443, wherein, it was held that, the execution of the Will requires to be proved by the propounder of the Will as per Section 68 of the Indian Evidence Act, and Section 63 of the Indian Succession Act. - 8 - HC-KAR NC: 2025:KHC:31323 RSA No. 1245 of 2017 16. In that view of the matter, as propounder of Will has not removed the suspicious circumstances to prove the execution of the Will dated 06.03.1986, the finding recorded by both the Courts below is just and proper, and accordingly there is no perversity in the judgment and decree passed by the Courts below and the appellant has not made out a case for formulation of the substantial question of law as required under Section 100 of CPC, and I am of the view that, no interference is called for. 17. Accordingly, the Regular Second appeal stands dismissed. SD/- (E.S.INDIRESH) JUDGE HR