Regular second appeal by a plaintiff challenging the dismissal of a suit for declaration and injunction regarding title to property based on a will. The High Court held that the lower courts did not commit any error in appreciating evidence of suspicious circumstances and inconsistencies in witness testimony.
The regular second appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:32961 RSA No. 624 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 624 OF 2020 (INJ)
BETWEEN:
GOPALAPPA S/O ANNAYAPPA, AGED ABOUT 75 YEARS, RESIDING AT MARALENAHALLI, KASABA HOBLI, DODDABALLAPUR TALUK, BANGALORE RURAL DIST-561203.
…APPELLANT
(BY SMT. S.K.NAGARATHNA & SRI VIJAYA N. ARADHYA, ADVOCATES)
AND:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
SMT. HANUMAKKA W/O MUNISHAMAPPA, AGED ABOUT 69 YEARS, RESIDING AT MARALENAHALLI, KASABA HOBLI, DODDABALLAPUR, BENGALURU RURAL DIST-561203.
…RESPONDENT
(BY SRI B.C.RAMA REDDY, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.09.2019 PASSED IN R.A.NO.10068/2016 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DODDABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING
NC: 2023:KHC:32961 RSA No. 624 of 2020
THE JUDGMENT AND DECREE DATED 01.10.2013 PASSED IN O.S.NO.144/2007 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, DODDABALLAPUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for appellant and also the counsel appearing for the respondent.
NC: 2023:KHC:32961 RSA No. 624 of 2020
statement and admitted the relationship and also the suit property was granted in favour of Kempakka. However, she has denied the alleged Will propounded by the plaintiff and also contend that the plaintiff is not in possession of the suit schedule property and without seeking the relief of possession, the very suit is not maintainable.
NC: 2023:KHC:32961 RSA No. 624 of 2020
made Will in favour of the plaintiff’s sons within 5 seconds i.e., registered Will dated 16.09.2004 with malafide intention to grab the suit property.
NC: 2023:KHC:32961 RSA No. 624 of 2020
of the parties, framed the issues as whether the plaintiff proves that he is in possession of the suit schedule properties as absolute owner, whether there is an interference by the defendants, whether the suit is barred by limitation and whether the suit is bad for non joinder of necessary parties and whether the plaintiff is entitled for the relief.
NC: 2023:KHC:32961 RSA No. 624 of 2020
negative in accepting the reasoning given by the Trial Court and also comes to the conclusion that evidence of PW2 who is also an advocate and scribe of Ex.P1 and also the evidence of PW3 who is an attester are contradictory to each other. The evidence who had purchased the stamp paper, the circumstances on which Smt. Kempakka came in contact with PW2, who unable to mention about the title of the Smt.Kempakka and gives contradiction and previous Will and cancellation deeds, the fact that attesting witness PW3 has not seen the scribe preparing of typing the Will or Smt.Kempakka affixing the signature on the Will has not witnessed by him and taking into note of all these factors into consideration, the First Appellate Court has dismissed the appeal.
the First Appellate Court of dismissal of the appeal, the present appeal is filed. The counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in not accepting the Will even though the PW2 and PW3 who are scribe and the attesting
witnesses to the Will have deposed before the Court with regard to the very execution of the Will. Both the Courts below have relying upon only the voters list holding that Smt.Kempakka was not residing with plaintiff and she was residing with the defendant and both the Courts below have comes to the conclusion that Will came into existence in a suspicious circumstances. The very approach of the Trial Court and the First Appellate Court is erroneous. Hence, this Court has to frame substantive question of law as whether the Courts below were justified in ignoring the evidence given by the attesting witnesses as well as the scribe which proves the execution of the Will dated 22.07.2005 and also both the Courts below have committed an error in discarding particularly the evidence PW2 and PW3 and hence, it requires interference.
the evidence of PW1 not inspires the confidence of the Court and in detail discussed in the judgment and even extracted the admission given by the PW1 in the cross examination and also extracted the evidence of the PW2 and PW3 and given the reasoning that Will came into existence in the suspicious circumstances. Hence, no ground is made to admit the appeal and frame any substantive question of law.
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submits that there is no any law that the Will has to be registered and no dispute with the said fact is concerned. But, the Court has to look into the circumstances under which the document came into existence and it is not in dispute that within a span of 3 ½ month Smt.Kempakka has passed away. Apart from that the witnesses who have been examined as PW2 and PW3 and their evidence is not inspiring the confidence of the Court. Even when the document was prepared by an advocate and scribe –PW2 and his evidence with regard to very title of Smt.Kempakka itself says that it is a granted land and in another breath says that the property devolves upon the Kempakka in a partition and also taken note of the evidence of the PW3 and the same is extracted in paragraph No.78 to 80 of the Trial Court judgment and also taken note of the admission given by PW3 that the ink in the said note and ink in the signature of the PW2 contained in Ex.P1 are different and the same is also extracted and plaintiff was not residing along with the
NC: 2023:KHC:32961 RSA No. 624 of 2020
Kempakka and she has given complaint earlier against the appellant.
appreciating both oral and documentary evidence, particularly summed up the contradictions found in paragraph No.18 of the judgment of the First Appellate Court.
NC: 2023:KHC:32961 RSA No. 624 of 2020
PW2 and PW3 in proper perspective and having considered the material on record, I do not find any error committed by the Trial Court as well as the First Appellate Court on appreciation of both oral and documentary evidence available on record. The second appeal could be admitted and substantive question of law is to be framed only if perverse finding is given by the Trial Court as well as the First Appellate Court.
elaborated. Both the Courts have given anxious consideration to the evidence available on record. Hence, no ground is made out to invoke Section 100 of CPC to admit the appeal and frame any substantive question of law.
NC: 2023:KHC:32961 RSA No. 624 of 2020
In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed .
Sd/JUDGE
RHS List No.: 1 Sl No.: 72
3 issues framed by the court
Whether the High Court was justified in dismissing the second appeal under Section 100 CPC as no substantive question of law was made out?
Whether the findings of the lower courts on the execution of the Will and the testimony of attesting witnesses were perverse?
Whether inconsistency in the evidence of the scribe and attesting witness warranted interference with the dismissal of the appeal?
Gopalappa S/o Annayappa
Hanumakka W/o Munishamappa
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
