- 1 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100016 OF 2022 (DEC/INJ-) BETWEEN: SHIVAPPA S/O. FAKIRAPPA CHALAVADI, A/A. 31 YEARS, OCC. COOLIE, R/O. AMBEDKAR ONI, HULAGUR TQ. SHIGGAVA, DIST. HAVERI. PIN CODE. 581205. …APPELLANT (BY SRI. S. M. KALWAD, ADVOCATE) AND: 1. SMT. SARSAWATI W/O. LAKSHMAN CHALAVADI A/A. 36 YEARS, OCC. COOLIE, R/O. BHU. TARLAGHATTAKOPPA, TQ. KUNDAGOL, DIST. DHARWAD, NOW AT HULAGUR, TQ. SHIGGAVA, DIST. HAVERI. PIN CODE – 581205. 2. SMT. LAXMAVVA W/O. FAKKIRAPPA CHALAVADI, A/A. 33 YEARS, OCC. COOLIE, R/O. KOLIWAD, TQ. HUBBALLI, DIST. DHARWAD PIN CODE – 580028. V N BADIGER Digitally signed by V N BADIGER Date: 2025.01.20 11:01:13 +0530 - 2 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 3. SMT. YALLAVVA W/O. KALLAPPA CHALAVADI, A/A. 31 YEARS, OCC. COOLIE, R/O. KOLIWAD, TQ. HUBBALLI, DIST. DHARWAD. PIN CODE – 580028. …RESPONDENTS ------- THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.01.2021 MADE IN R.A.NO.50/2017 PASSED BY THE COURT OF SENIOR CIVIL JUDGE & JMFC., SHIGGAON AND THEREBY CONFIRMING THE JUDGMENT AND DECREE DATED 04.10.2017 MADE IN O.S.NO.214/2012 PASSED BY THE COURT OF CIVIL JUDGE & JMFC., SHIGGAON, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is filed by the plaintiff, challenging the judgment and decree dated 05.01.2021 passed in RA No.50 of 2017 (Old RA No.100 of 2015) on the file of the Senior Civil judge and JMFC Shiggaon, - 3 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 dismissing the appeal and confirming the judgment and decree dated 04.10.2017 passed in OS No.214 of 2012 on the file of the Civil Judge and JMFC, Shiggaon, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that the suit schedule property belongs to one Nagappa Bharamappa Chalavadi, and the said property was granted to him by the Government. Smt. Basavannemma is the wife of Nagappa Bharamppa Chalavadi and they had three daughters (defendants). The plaintiff is son of brother of Nagappa Bharamappa Chalavadi. It is the case of the plaintiff that, the plaintiff was looking after the said Nagappa Bharamppa Chalavadi during his life time and as such, said Nagappa Bharamppa Chalavadi has executed Will dated 21.04.1995 in the presence of - 4 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 defendants and witnesses and he died on 18.11.1995 leaving behind the defendants and plaintiff as his legal representatives. It is further stated in the plaint that, the defendants without the knowledge of the plaintiff, have changed the revenue records of the suit schedule property and feeling aggrieved by the act of the defendants, the plaintiff has filed OS No.214 of 2012, seeking relief of declaration with consequential relief of perpetual injunction. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that the Will dated 21.04.1995 is created to knock off the suit schedule property and accordingly, sought for dismissal of the suit. - 5 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish the case, their plaintiff examined two witnesses as PW1 and PW2 and got marked 08 documents as Exs.P1 to P8. On the other hand, defendants have examined one witness as DW1 and produced 09 documents as Exs.D1 to D9. 7. The trial Court, after considering the material on record, by its judgment and decree dated 04.10.2017, dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.100 of 2015 on the file of First Appellate Court and same was renumbered as RA No.50 of 2017. The said appeal was resisted by the defendants. The First Appellate Court, after re- appreciating the facts on record, by its judgment and decree dated 05.01.2021 dismissed the appeal and confirmed the judgment and decree passed by the - 6 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 trial Court in OS No.214 of 2012. Being aggrieved by same, the plaintiff/appellant has preferred this Regular Second Appeal under Section 100 of CPC. 8. I have heard Sri S.M.Koliwad, learned counsel for the appellant. 9. Sri S.M. Koliwad, learned counsel for the appellant submits that, the reasons assigned by both the courts below requires to be interfered with in this appeal, despite the fact that, the plaintiff has produced the Will at Ex.P1 to support his case and therefore, sought for interference of this Court. He also submitted that, the plaintiff is in possession of the suit schedule property. Accordingly, he sought for allowing the appeal. 10. In the light of the submission made by the learned counsel for the appellant and perusal of the appeal papers, it is relevant to cite the judgment of - 7 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar vs B. N. Thimmajamma & Others reported in AIR 1959 SC 443 has laid down the guidelines to prove the Will. It is also to be noted that, as per Section 68 of the Indian Evidence Act, it is the duty of the propounder of the Will to prove the Will by examining one of the attesting witnesses to the Will. On careful examination of the finding recorded by both the courts below, the plaintiff has not taken steps to examine the witnesses to the Will as required under Section 68 of the Indian evidence Act. Therefore, I am of the opinion that, both the courts below have concurrently held that, the plaintiff has failed to prove the Will in a manner known to law. In this regard, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of Murthy and Others vs. C. Saradambal and others reported in (2022) 3 SCC 209, wherein in paragraphs 49 to 51 reads as under: - 8 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 49. Apart from that, Section 63(c) of the Indian Succession Act, 1925, firstly states that the will has to be attested by two or more witnesses/attestators, each of whom should have seen the testator sign on the will in his presence, or has received from the testator, a personal acknowledgment of his signature on the will. Secondly, each of the witnesses shall sign on the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation is necessary. The aforesaid two mandatory requirements have to be complied with for a testament to be valid from the point of view of its execution. 50. In the instant case, there are two attestors namely, PW2-Varadan and Dakshinmurthy and the latter had died. The evidence on record has to be as per Section 68 of the Indian Evidence Act, 1872 which deals with proof of documents which mandate attestation. In order to prove the execution of the document such as a testament, at least one of the attesting witnesses who had attested the same must be called to give evidence for the purpose of proof of its execution. Since one of the attestors, namely, Dakshinmurthy had died, PW2, Varadan had given his evidence as one of the attestors of the will. However, the deposition of PW2 is such that it is fatal to the case of the plaintiffs. - 9 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 51. The evidence of PW2 could be highlighted as under: 51.1. He was a friend of the testator and he was frequently visiting the testator once in two or three days. 51.2. He signed as the first attesting witness on Ex-P1 and Dakshinmurthy signed as second attesting witness and the testator saw both the attestors signing Ex-P1. However, he has deposed that it was not possible to take the testator to the Registrar’s office for registering the will as the testator was not in a sound condition and he was very seriously ill, he was suffering from paralysis. 51.3. He has admitted that testator was suffering from paralysis of right hand and right leg and prior to his death, was sick for about 10 months and was confined to his house and not in a position to write. 51.4. PW2 has also stated that he had not disclosed about the will to S. Damodaran, the son of the testator and during his lifetime, S. Damodaran was unaware of the will executed by his father. 51.5. S. Damodaran, (who was a practicing advocate) lived for about eleven years after the execution of will (Ex-P1) and since he was unaware of the will - 10 - NC: 2025:KHC-D:605 RSA No. 100016 of 2022 executed by his father, he did not take steps to seek probate of the will. 51.6. He has also admitted that he signed the affidavit in the suit on the instructions and as requested by the counsel. 11. Following the declaration of law made by the Hon'ble Supreme Court in the said judgment, I do not find material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. Since, the plaintiff/appellant has not made out a ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, the Regular Second Appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 27