Second appeal against concurrent findings in execution proceedings under Order 21 Rule 97/101 CPC where the obstructor proved her Will and the decree holder failed to prove a subsequent Will. The High Court found no perversity or error warranting interference and dismissed the appeal at admission stage.
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NC: 2024:KHC:20203 RSA No. 1609 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1609 OF 2018
BETWEEN:
RATHNAM,
SINCE DEAD BY HIS LRS.
…APPELLANT
(BY SRI RAGHAVENDRA RAO K., ADVOCATE)
AND:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
(BY SRI NANJUNDA SWAMY N., ADVOCATE FOR R1 R2 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.03.2018 PASSED IN R.A.NO.359/2014 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 23.02.2013 PASSED ON I.A.NO.III IN EX.124/2005 ON THE FILE OF THE PRINCIPAL I CIVIL JUDGE AND JMFC, MYSORE, ALLOWING THE I.A.NO.III FILED UNDER ORDER 21 RULE 97, 101 R/W SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for respondent No.1.
A.W.2 and examined the attesting witnesses as A.W.3 and A.W.4 and other witness as A.W.5. The obstructor got marked the documents at Exs.A1 to 13. On the other hand, the decree holder examined herself as P.W.1 and examined other witness as P.W.2 and got marked the documents at Exs.P.1 to 16(c). The Executing Court after evaluating both oral and documentary evidence placed on record, accepted the evidence of A.W.1 and also the attesting witnesses and not believed the evidence of P.W.1 and P.W.2 and comes to the conclusion that the propounder of the Will i.e., the decree holder has not proved the case and there are contradictions in the evidence of P.W.2 and also there is a reference in the document of subsequent Will marked as Ex.P.16 that the Will was executed in terms of the document Ex.A.1.
NC: 2024:KHC:20203 RSA No. 1609 of 2018
to the conclusion that there is no error on the part of the Trial
Court and confirmed the judgment of the Trial Court.
finding with regard to proof of Ex.A.1 and hence it requires interference of this Court. The learned counsel contend that on perusal of the entire judgment of the First Appellate Court, there is no discussion with regard to the evidence of the parties regarding proving of the Will of the respective parties and there is no clear adjudication with regard to the contentions of the respective parties and the matter requires admission and this Court has to frame the substantial questions of law.
Will, has to prove the document without any suspicious circumstances and accordingly the objector has proved the document of Ex.A.1 and the decree holder fails to prove the document of Ex.P.16. The Appellate Court also in detail discussed the points for consideration while answering the point No.2 and not committed any error.
in detail discussed the material on record, particularly proving of the document of Ex.A.1 as well as Ex.P.16. The Trial Court taken note of the contradictions found in the evidence of witness P.W.2 which has been extracted in paragraph No.23 of the judgment of the Trial Court and comes to the conclusion that the health condition of the executant has not been disputed and also reference was made in Ex.P.16 with regard to Ex.A.1. The Trial Court also taken note of the evidence of the scribe, who has been examined as A.W.2 in respect of Ex.A.1 and two witnesses A.W.3 and A.W.4, who are the attesting witnesses and taking note of consistent evidence of these witnesses, comes to the conclusion that Ex.A.1 is proved and Ex.P.16 has not been proved, which is a subsequent Will dated 26.01.2000. Having considered the material available on record, the contention of the learned counsel for the appellant that both the Courts are not right in recording the finding that Ex.A1 is proved, cannot be accepted having considered the reasoning given by the Trial Court and the First Appellate Court. Hence, I do not find any ground to invoke Section 100 of CPC to frame the substantial question of law and consider the matter. Hence, no grounds are made out to admit the appeal and invoke Section 100 of CPC.
following:
ORDER
The second appeal is dismissed.
Sd/JUDGE
MD List No.: 1 Sl No.: 51
1 issue framed by the court
Whether the second appeal disclosed grounds to frame a substantial question of law against concurrent findings upholding the objector's Will (Ex.A1) and rejecting the decree holder's later Will (Ex.P1
3 provisions across 2 enactments
Rathnam (since dead by his LRs, represented by Smt. R. Pushpalatha)
Smt. R. Pushpalatha
Smt. M.R. Rathnamma
Abdual Subhan
H.P.Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
