- 1 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO.718 OF 2011 (PAR) BETWEEN: SRI.K.N.RAMESH S/O LATE K.NARASIMHAIAH AGED ABOUT 51 YEARS RESIDING AT NO.772, 7TH 'B' MAIN 5TH BLOCK RAJAJINAGAR BENGALURU - 560 010 …APPELLANT (BY SRI.CHANDRASHEKAR B.K, ADVOCATE FOR SRI.B.T.INDU SHEKAR, ADVOCATE) AND: 1. SRI.K.N.DRUVAKUMAR S/O LATE K.NARASIMHAIAH AGED ABOUT 58 YEARS 2. SMT.H.GAYATHRI W/O K.N.DRUVAKUMAR AGED ABOUT 50 YEARS 3. D.SHOBHA D/O K.N.DRUVAKUMAR AGED ABOUT 28 YEARS 4. D.SHIVARAJ S/O K.N.DRUVAKUMAR AGED ABOUT 19 YEARS RESPONDENT NOS.1 TO 4 ARE RESIDING AT NO.81 Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 1ST FLOOR (VYSHNAVI MARKETING SERVICE) 3RD CROSS, MARUTHI NAGAR 80 FEET ROAD, CHANDRALAYOUT BENGALURU - 560 072 5. SMT.K.N MANJULA DEVI D/O LATE K.NARASIMHAIAH W/O M.N.DAMODARA AGED ABOUT 60 YEARS RESIDING AT NO.2020 1ST MAIN, 12TH CROSS RPC LAYOUT, VIJAYANAGAR 2ND STAGE BENGALURU - 560 040 6. SRI.S.G.GARAGAM MAJOR RESIDING AT OUT HOUSE NO.772 17TH 'B' MAIN, 5TH BLOCK RAJAJINAGAR BENGALURU - 560 010 7. M.M.PAPER MART 8. GIRIJESHWAR MAJOR 9. BHUPAL RAO MAJOR 10. V.SAROJA NAIDU MAJOR 11. SRI.VENKATESHWARA CHATS RESPONDENT NOS.7 TO 11 ARE AT NO.772, 17TH 'B' MAIN 5TH BLOCK RAJAJINAGAR BENGALURU - 560 010. 12. L.N.DAGA MAJOR - 3 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 13. SANJAY MAJOR RESPONDENT NOS.12 AND 13 ARE RESIDING AT NO.772, 17TH 'B' MAIN 5TH BLOCK, RAJAJINAGAR BENGALURU - 560 010 …RESPONDENTS (BY SRI.NANDGOPAL B, ADVOCATE FOR C/R.1 TO C/R.4; SRI.B.V.KRISHNA, ADVOCATE FOR SRI.S.N.PRASHANTH CHANDRA, ADVOCATE FOR R.1 TO R.4; SRI.G.S.RAVISHANKAR, ADVOCATE FOR SRI.G.S.SRIKANTESHWARAN ASSOCIATES FOR R.5; NOTICE TO R.6 TO R.13 IS DISPENSED WITH V/O/D 24.08.2012) THIS RFA IS FILED U/O-41, RULE-1, R/W SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.02.2011 PASSED IN O.S.NO.968/2003 ON THE FILE OF THE XLIII-ADDL. CITY CIVIL AND SESSIONS JUDGE, CCH-44, BANGALORE, PARTLY DECREEING THE SUIT FOR THE PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned appeal is filed by defendant No.2 assailing the preliminary decree dated 04.02.2011 drawn in O.S.No.968/2003, wherein plaintiff No.1 is awarded 1/3rd share in 'A' schedule property by metes and bounds. - 4 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 2. For the sake of brevity, the parties are referred to as per their rankings before the Trial Court. 3. The genealogical tree of the family reads as under; 4. Plaintiff No.1, the son of late K. Narasimhaiah and elder brother of defendant No.2, along with his wife and children, instituted the present suit for partition and separate possession. It is his specific case that his father, late K.Narasimhaiah, acquired the suit ‘A’ schedule property in the year 1963. Thereafter, he constructed a residential house consisting of a ground floor in the year K NARASIMHAIAH (DECEASED 27.6.90) CK AMMAJAMMA (DECEASED 27.11.2002) K N MANJULA DEVI K N DRUVA KUMAR K N RAMESH (R5 - D1) (R1 - P1) (APPELLANT - D2) H GAYATHRI (WIFE) (R2 - P2) SOBHA D SHIVARAJ (R3 - P3) (R4 - P4) Respondents 6 to 13 are tenants - 5 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 1967 and added a first floor during 1978–1979. It is further pleaded that the father also constructed commercial shops in the very same property and inducted defendant Nos.6 to 10 as tenants therein. 5. The plaintiffs contend that upon the demise of their father, and subsequently their mother in the year 2002, plaintiff No.1 sought division and separate possession of his legitimate share in the suit schedule property. However, despite repeated demands and requests, defendant Nos.1 and 2 allegedly failed to co-operate for an amicable partition, thereby constraining the plaintiffs to institute the present suit. 6. Defendant No.1, the eldest daughter of late K.Narasimhaiah and sister of plaintiff No.1 and defendant No.2, filed her written statement. Defendant No.2, however, filed a separate written statement asserting absolute title over the suit ‘A’ schedule property. His defence is founded on a registered Will dated 10.01.1985, - 6 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 allegedly executed by his father, late K. Narasimhaiah. It is his specific contention that under the said Will, a life interest was created in favour of his mother, Smt.C.K.Ammajamma, and upon her demise, the property was to devolve absolutely upon him. 7. In light of the rival pleadings, the Trial Court framed appropriate issues for adjudication. Issue Nos.4 and 5 were specifically framed placing the burden upon defendant No.2 to prove the due execution and validity of the alleged Will and the consequential claim of exclusive title. 8. In support of their claim, the plaintiffs adduced both oral and documentary evidence. Plaintiff No.1 examined himself as P.W.1 and produced in all twenty documents. Defendant No.2, while relying upon the alleged Will marked as Ex.D.26 to substantiate the testamentary disposition, did not examine any of the - 7 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 attesting witnesses to the Will nor led independent evidence to establish its due execution and attestation. 9. The Trial Court, upon appreciation of the evidence on record, answered Issue Nos.4 and 5 in the negative, holding that defendant No.2 had failed to comply with the mandatory requirements of Section 68 of the Indian Evidence Act in proving the Will. Observing that no attesting witness was examined despite opportunity, the Trial Court concluded that the Will was not proved in accordance with law and consequently decreed the suit by granting 1/3rd share to Plaintiff No.1. 10. Aggrieved by the said judgment and decree, defendant No.2 has preferred the present appeal. During the pendency of the appeal, an attempt is made to produce an affidavit purportedly sworn by one M. Krishna Rao, stated to be an attesting witness to the alleged Will, in an effort to cure the evidentiary lacuna. - 8 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 11. Heard the learned counsel appearing for defendant No.2, the learned counsel for the plaintiffs, and the learned counsel appearing for defendant No.1. The records of the Trial Court have been carefully perused. 12. The following points arise for consideration in this appeal: (i) Whether the finding of the Trial Court on Issue Nos.4 and 5, holding that defendant No.2 failed to establish the due execution and attestation of the Will in compliance with Section 68 of the Indian Evidence Act and consequently concluding that the Will is not proved, suffers from perversity or illegality warranting interference by this Court? (ii) What order? Findings on Point No.(i):- 13. Though defendant No.2 stoutly contested the suit and sought to non-suit his elder brother–plaintiff No.1 - 9 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 by setting up a testamentary disposition allegedly executed by late K. Narasimhaiah, the conduct of defendant No.2 in proving the said Will is wholly inconsistent with the seriousness required in law. Admittedly, the Will (Ex.D.26) is shown to have been attested by two witnesses, namely Dr. Lakshmidevi and Sri M. Krishna Rao. However, despite having produced the Will on record and having full knowledge that the burden squarely rested upon him to prove its due execution and attestation in terms of Section 68 of the Indian Evidence Act, defendant No.2 did not choose to examine either of the attesting witnesses during the course of trial. 14. The order sheet reveals a consistent pattern of reluctance and lack of diligence. Though an application was filed as early as 26.06.2009 seeking to examine an attesting witness, defendant No.2 went on seeking adjournments without taking effective steps to secure their presence. Even when sufficient opportunities were granted by the Trial Court, no attesting witness was examined. - 10 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 Ultimately, the Trial Court, finding no further evidence forthcoming, closed the evidence of defendant No.2. 15. Curiously, when the matter was posted for final arguments, defendant No.2 filed an application stating that one of the attesting witnesses, Dr.Lakshmidevi, had suffered a paralytic stroke and sought permission to examine her daughter, Kumari Lalitha. The said application was rightly rejected, as examination of a daughter cannot substitute the mandatory requirement of examining an attesting witness to prove the Will. 16. The record further discloses that defendant No.2 had filed I.A. No.9 seeking issuance of summons to the other attesting witness, Sri M. Krishna Rao. However, on 23.10.2010, defendant No.2 consciously sought dismissal of the said application as “not pressed.” The order sheet unmistakably indicates that despite being afforded repeated adjournments on 31.07.2010, 12.08.2010 and 07.09.2010 to take steps for service of summons by way - 11 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 of hand summons, defendant No.2 failed to act with due diligence. 17. Thus, it is not a case where the attesting witnesses were unavailable or beyond reach. On the contrary, both attesting witnesses were alive at the time when the Will was set up as a defence in the pending suit. Defendant No.2 had the opportunity, the means, and the procedural liberty to secure their examination. Yet, he consciously chose not to press the application for issuance of summons and allowed the evidence to be closed. 18. Even thereafter, at the stage when the matter was about to be reserved for judgment, an attempt was made to reopen the evidence and examine Kumari Lalitha, the daughter of Dr.Lakshmidevi. This belated attempt clearly reflects an afterthought to fill up lacunae rather than a bona fide effort to comply with statutory requirements. The Trial Court, therefore, rightly rejected the said application. - 12 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 19. In the present appeal, an affidavit purportedly sworn by the attesting witness Sri M. Krishna Rao was produced in the year 2011 in an attempt to cure the fatal defect in proof. Learned counsel for the appellant sought adjournment to secure the presence of the said attesting witness, who was stated to be residing at Chennai. However, today it is fairly submitted that the said attesting witness has also passed away two years ago. 20. This subsequent development only fortifies the conclusion that defendant No.2 squandered the opportunity available during trial. The appellate stage cannot be converted into a forum to remedy deliberate omissions or negligent prosecution of defence. 21. On an overall appreciation of the material on record, this Court is of the considered view that conduct of defendant No.2 reflects certain degree of laxness and lacking in bona fides in proving the Will. The conduct of withdrawing I.A. No.9 as “not pressed,” despite seeking - 13 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 summons to Sri M. Krishna Rao, coupled with repeated adjournments and failure to secure either of the attesting witnesses when they were alive, unmistakably demonstrates reluctance rather than inability. 22. The dispute is inter se between siblings. Significantly, defendant No.1—the sister has not supported defendant No.2’s plea of exclusive entitlement under the alleged Will. Though she is stated to be a beneficiary under the testamentary arrangement and the Will purportedly casts an obligation upon the widow to pay Rs.1,000/-, she has specifically denied receipt of such amount on behalf of her son who was pursuing education. This further casts doubt on the genuineness of the alleged arrangement. 23. In a suit for partition, when one among the siblings sets up a testamentary disposition to exclude the natural line of succession, the burden lies heavily upon such propounder to prove the Will strictly in accordance - 14 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 with law. The mandatory requirement under Section 68 of the Indian Evidence Act necessitates examination of at least one attesting witness to prove execution, provided such witness is alive and capable of giving evidence. 24. In the present case, both attesting witnesses were admittedly alive during the pendency of the suit. Yet, defendant No.2 failed to examine either of them. In the absence of such statutory compliance, the Court need not even enter upon an enquiry into suspicious circumstances surrounding the Will. Failure to prove due execution itself is fatal. 25. Now that both attesting witnesses are no more, and in light of the clear lack of diligence exhibited by defendant No.2 during trial, the question of granting any indulgence at the appellate stage does not arise. The omission is not procedural but substantive, striking at the root of proof. - 15 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 26. Plaintiff No.1 has instituted the suit asserting inheritance upon the demise of his father. It is not in dispute that the suit schedule property was the self- acquired property of late K. Narasimhaiah. In the absence of a duly proved Will, succession opens under Section 8 of the Hindu Succession Act, and all Class-I heirs—namely plaintiff No.1 and defendant Nos.1 and 2 are entitled to equal shares. 27. In the absence of proof of the testamentary arrangement, each of them is entitled to 1/3rd share. The Trial Court, having rightly held that the Will was not proved in accordance with law and having consequently decreed the suit granting 1/3rd share to plaintiff No.1, has committed no error. 28. Upon independent re-appreciation of the entire oral and documentary evidence, this Court finds that the findings recorded by the Trial Court are sound, legally - 16 - HC-KAR NC: 2026:KHC:8262 RFA No. 718 of 2011 sustainable, and free from perversity. Accordingly, point No.(i) is answered in the “Negative.” 29. Point No.(ii):- For the foregoing reasons, this Court proceeds to pass the following; ORDER (i) The appeal is dismissed. (ii) Pending applications, if any, are also dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE NBM List No.: 1 Sl No.: 21