- 1 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 796 OF 2020 (PAR) BETWEEN: 1. SMT LIDWIN FERNANDES AGED ABOUT 71 YEARS W/O LATE JOSEPH FERNANDES 2. SRI JOEL LIONEL PRADEEP FERNANDES AGED ABOUT 47 YEARS 3. SMT JOLLY LOVELEEN FERNANDES AGED ABOUT 44 YEARS APPELLANTS 2 AND 3 ARE CHILDREN OF LATE JOSEPH FERNANDES APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER & G.P.A. HOLDER FIRST APPELLANT SMT. LIDWIN FERNANDES RESIDENTS OF "JOELIN VILLA" OPP: A.P.M.C., KUNTALPADI ROAD KARKALA-574 104, UDUPI DISTRICT. …APPELLANTS (BY SRI. CHANDRANATH ARIGA K., ADVOCATE) AND: 1. SRI R. ALOYSIOUS FERNANDES AGED ABOUT 69 YEARS Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 S/O LATE GABRIAL FERNANDES "AYESHA PALACE", DAWOOD BHAGI 1ST FLOOR, ANDERI (WEST) MUMBAI-400 053. 2. SMT. MARY MARGRET FERNANDES AGED ABOUT 74 YEARS D/O LATE GABRIAL FERNANDES 3. 3(a) 3(b) 3(c) SRI MOHAN RODRIGUES, (SINCE DECEASED) AGED ABOUT 49 YEARS S/O LATE FLORINE FERNANDES SMT. CAROLINE RODRICKS W/O LATE OSCAR MARK RODRICKS AGED ABOUT 52 YEARS CHARLESTON RODRICKS S/O LATE OSCAR MARK RODRICKS AGED ABOUT 32 YEARS BERNICE RACHEL RODRICKS D/O LATE OSCAR MARK RODRICKS AGED ABOUT 27 YEARS APPLICANTS ARE ALL R/AT ROOM NO.4, EDWARD MACHADO CHAWL HOUSE TANK PAKHADI ROAD NO.3, SAHAR VILLAGE, ANDHERI EAST, MUMBAI-400099. (AMENDED AS PER THE ORDER DATED 08.06.2026 AND IMPLEADED AS RESPONDENT NO.3(a) TO 3(c). 4. SRI NOEL MENEJES AGED ABOUT 59 YEARS 5. SRI MABEL MENEJES AGED ABOUT 46 YEARS - 3 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 6. SRI SARITHA MENEJES AGED ABOUT 41 YEARS RESPONDENTS 4 TO 6 ARE CHILDREN OF LATE CELINE FERNANDES NO.2 TO 6 ARE RESIDING AT "AYESHA PALACE" DAWOOD BHAG, 1ST FLOOR, ANDERI (WEST) MUMBAI-400 053. 7. SMT. GRACY LEENA PINTO AGED ABOUT 67 YEARS D/O LATE DULCIN CARMINA FERNANDES @ DULCIN D'SOUZA A GRAND DAUGHTER OF GABRIEL FERNANDES PRESENTLY R/AT 5TH CROSS, JAYANTHI NAGAR, NEAR TALUK OFFICE KARKALA TALUK-574 104 UDUPI DISTRICT. 8. SMT. JULIET WINNIFRED PINTO AGED ABOUT 64 YEARS D/O LATE DULCIN CARMINA FERNANDES @ DULCIN D'SOUZA AND G/D OF GABRIEL FERNANDES KURUGAJE HOUSE SANOOR VILLAGE-574 104 KARKALA TALUK UDUPI DISTRICT. …RESPONDENTS (BY SRI. ABUBACKER SHAFI, ADVOCATE FOR R1, R2 & R6 (VC) R4, R5, R7, R8 ARE SERVED; SRI. PRASANNA V.R., ADVOCATE FOR LRS OF R3 I.E R3(A TO C)) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.11.2019 PASSED IN RA.NO.44/2012 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND - 4 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 CONFIRMING THE JUDGMENT AND DECREE DATED 18.04.2012 PASSED IN OS.NO.196/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA AND ETC., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Chandranath Ariga K., learned Counsel for the appellants. 2. Second appeal is filed by defendants No.1 to 3 in O.S.No.196/2005. Suit in O.S.No.196/2005 was filed by the first respondent seeking share in the following properties (hereinafter referred as 'suit properties left behind by Sri. Gabriel Fernandez') : DESCRIPTION OF THE PROPERTY 'A' SCHEDULE Immovable properties situated at Karkala Kasba village, Karkala taluk: S.No. S.D.No. Kissam Extent Assessment 186 -- Wet 3-65 9-49 - 5 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 The above properties with all appurtenances attached thereto including old farm house, hatti, kottige. The building is not separately valued since they are old farm house, hatti, kottige. Boundaries: North: Survey line; South: Survey line; East: Survey line; West: Survey line 3. Suit on contest came to be decreed by the Trial Court granting shares as per the Indian Succession Act, negating the plea of defendants No.1 to 3 that they are the legatees under the Will executed by Sri Gabriel Fernandez. 4. Being aggrieved by the same, appeal came to be filed before the First Appellate Court by defendants No.1 to 3, who are the appellants before this Court as well. 5. Learned Judge in the First Appellate Court on re- appreciation of the material on record dismissed the appeal of the defendants No.1 to 3 and confirmed the judgment of the Trial Court. - 6 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 6. Being further aggrieved by the same, defendants No.1 to 3 are before this Court. 7. Sri Chandranath Ariga K., learned Counsel for the appellants reiterating the grounds urged in the appeal memorandum would contend with vehemence that both the Courts have not properly appreciated the material evidence on record resulting in miscarriage of justice and sought for admitting the appeal on the following substantial questions of law: "1. Whether the courts below erred in disbelieving DW.5 who identified the signature of the attestor and DW.6, the scribe who deposed that deceased executant and attestors signed before him? 2. Whether the courts below have grossly erred in relying upon inadmissible Ex. P6 which was not proved by the examination of it's author? 3. Whether the courts below erred in drawing adverse inference and serious doubt against the profounder of the Will for not probating the Will in spite of the deletion of mandatory provision under the Indian Succession Act in the year 2002? 4. Whether the courts below grossly erred in their approach with regard to the - 7 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 appreciation of the evidence in respect of the Will Ex. D4?" 8. Per contra, learned counsel for respondents supports the impugned judgment. 9. This Court while appreciating the rival contentions of the parties, noted the fact that Will executed by Sri Gabriel Fernandes is not probated, which was a legal requirement before the amendment to the statute in the year 2002. 10. It is also pertinent to note that Sri Gabriel Fernandes died three days after execution of the Will. Taking note of these aspects of the matter, when the Christian Will is not duly probated, same cannot be considered as having a probative value/evidentiary value while appreciating the defence of defendants No.1 to 3. When the Will cannot be looked into in the evidence for want of necessary probate, naturally the Trial Judge decreeing the suit by natural succession which has been - 8 - HC-KAR NC: 2026:KHC:29951 RSA No. 796 of 2020 confirmed by the First Appellate Court needs no further interference in this second appeal. 11. Accordingly, the substantial questions of law do not merit for further consideration. 12. Hence the following: ORDER i) Admission is declined. ii) Regular Second Appeal is dismissed. iii) All pending Interlocutory Applications stand disposed of. Sd/- (V SRISHANANDA) JUDGE JT/- List No.: 1 Sl No.: 69