Plaintiff claimed ownership of properties under an unregistered Will executed by a deceased woman; courts below rejected the Will on fingerprint evidence and unreliable attesting witnesses. The High Court held no substantial question of law arose from concurrent findings of fact and dismissed the second appeal.
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: 2024:KHC:10703 RSA No. 459 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 459 OF 2018 (DEC/INJ)
BETWEEN:
H.V. SURESH, S/O. VENKATASOMACHAARI, AGED ABOUT 41 YEARS, R/O. HEMMARAGALA VILLAGE, DODDAKAVALANDE HOBLI, NANJANGUD TALUK - 571 301, MYSORE DISTRICT.
…APPELLANT
(BY SRI. GURURAJ KULKARNI, ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
…RESPONDENTS
(BY SRI. NAGARAJA R.C., ADVOCATE)
NC: 2024:KHC:10703 RSA No. 459 of 2018
THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.07.2017 PASSED IN R.A.NO.1/2014 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.10.2013 PASSED IN O.S.NO.248/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff aggrieved by the judgment and decree dated 29.10.2013 passed in O.S.No.248/2005 on the file of the Senior Civil Judge and
CJM, Chamarajanaga (for short 'Trial Court') which is confirmed by judgment and order dated 11.07.2017 passed in R.A.No.1/2014 on the file of Principal District Judge, Chamarajanagar (for short 'First Appellate Court').
peaceful possession and enjoyment of the same. Suit schedule property consists of three items of properties
which are as under:-
"SCHEDULE"
1. The land bearing Sy.No.244 measuring 04 acres of dry land, assessed at Rs.3.76, situated at Yeraganahalli, Haradanahalli Hobli, Chamarajanagar Taluk, Bounded on:
East by : Dandapani; West by : Kandaswamy; North by : Periyappa Gowunder; South by : Perumal.
2. 02 ankanams of old country tiled house measuring East to West 04 yards and North to South 4 1/2 yards and the Hosaru abuttin to it measuring East to West 04 yards and North to South 02 yards, and vacant site measuring East to West 04 yards and North to South 08 yards, bounded on:
East by : House property of others; West by : House of Hosuru Mallanna; North by : House of Kullachari; South by : Road. At Kolada Beedi. Chamarajanagar.
3. The dry land bearing Sy.No.454 measuring 07 guntas and having Asst. At Rs.0.25 out of which 02 guntas having Asst. At Rs.0.12 situated at Chamarajanagar Kasaba Hobli, Chamarajanagar Taluk and bounded on:
East by : Hasanur Gati Road; West by : Land of Chowdasetty; North by : Lands of Marimuthu setty & others;
South by : Halla.
Smt.Puttavenkatamma, wife of Puttachari, resident of Chamarajanagar Town, was the owner of the suit schedule properties and she was in possession and enjoyment of the same during her lifetime. She died on 06.10.1996 at about 05.30 p.m. at Chamarajanagar without leaving behind any legal heir. Husband of the said Puttavenkatamma namely Sri. Puttachari had passed away about 25 years prior to her death. It is the case of the plaintiff that he is the nearest relative of the said Puttavenkatamma, being a grand son of paternal uncle of the said Puttavenkatamma. It is further case of the plaintiff that he was living with the Puttavenkatamma in the schedule property for a period of 9 (nine) years and was looking after Puttavenkatamma till her death, helping her in day to day activities. Considering the services rendered by the plaintiff said Puttavenkatamma bequeathed the suit properties in his favour by executing
an unregistered Will dated 21.09.1996. The existence of the said Will came to the knowledge of the plaintiff only after her demise, when he had taken the things that were kept in the schedule property by the said Puttavenkatamma. Thus by virtue of said Will of Puttavenkatamma plaintiff succeeded to the suit schedule properties being her nearest legal heir.
NC: 2024:KHC:10703 RSA No. 459 of 2018
the khatha in the name of the defendants and further directed the plaintiff to apply and obtain probate certificate and thereafter to approach the revenue authorities for change of khatha of schedule properties in his name. Accordingly, plaintiff filed the suit seeking relief as refer to above.
thus she was residing with the defendants. The averment
NC: 2024:KHC:10703 RSA No. 459 of 2018
that plaintiff was taking care of said Puttavenkatamma, is denied. It is further contended that the uncle of the defendants had purchased the suit property with the help of joint family funds. As such Puttavenkatamma, wife of Puttachari had no right, title or interest over the suit properties to execute any Will in favour of the plaintiff or any other person. That jhatha of the suit property was mutated in the name of the defendants and they have been in possession and enjoyment of the suit schedule property. It was on these grounds defendants sought for dismissal of the suit.
"1. Whether plaintiff proves that the Genealogy shown in the plaint is true and correct and it concerned to the family members of husband of Puttavenkatamma namely Puttachari?
2. Whether Defendants prove that they are nearest relatives of late Puttavenkatamma, as alleged in their written statement?
3. Whether Plaintiff further proves that, he is the absolute owner of the suit property under the
NC: 2024:KHC:10703 RSA No. 459 of 2018
'Will' dated 06.10.1996 executed by Smt.Puttavenkatamma wife of late Puttachari?
4. Whether plaintiff further proves that, he is in lawful possession and enjoyment over the suit property?
5. Whether the Plaintiff further proves that the Defendants interfered in his peaceful possession and enjoyment of the suit property?
6. Whether Plaintiff proves that they are entitled for declaration and permanent injunction against the Defendants?
7. What order or relief?"
49 documents marked as Ex-P1 to Ex-P49. Four additional
witnesses were examined as PW2 to PW5. First defendant examined himself as DW1 and exhibited 32 documents marked as Ex-D1 to Ex-D32 and also examined additional four witnesses as DW-2 to DW-5. A Court Commissioner was appointed by the Court to conduct the scientific examination of the Will and the report of the Commissioner has been marked as Ex-C1.
NC: 2024:KHC:10703 RSA No. 459 of 2018
No.2 in the affirmative, and issue No.3 to 6 in the negative
and consequently, dismissed the suit.
First Appellate Court framed the following points for its consideration:-
"(1) Whether appellant/plaintiff proves the genealogy given by him in the plaint is correct?
(2) Whether respondent/defendants prove that they are nearest relative of Puttavenkatamma?
(3) Whether appellant/plaintiff proves that he is the absolute owner of the suit schedule property by virtue of WILL dated 21.09.1996 and he was in lawful possession and enjoyment of suit schedule property and he is entitled for the relief of declaration and permanent injunction?
(4) Whether appellant/plaintiff proves that the Judgment and decree of the trial Court are perverse and unsustainable and interference of this Court is required?
(5) What order or decree?"
the appeal confirming the judgment and decree passed by
NC: 2024:KHC:10703 RSA No. 459 of 2018
the Trial Court. Being aggrieved by the same, the appellant /plaintiff is before this Court.
NC: 2024:KHC:10703 RSA No. 459 of 2018
conclusion that the left thumb mark appearing on the Will was not that of the Puttavenkatamma. He further submits that evidence obtained under Section 45 of the Evidence Act 1872, is only an opinion and the same would not form substantial evidence unless corroborated with other evidence. He further submits that the plaintiff therefore, had examined attesting witnesses to the Will, in compliance to Section 63 of Indian Succession Act 1925 and Section 68 of Evidence Act. Thus it is his submission, the Trial Court without taking note of the other material evidence, erred in relying upon a selective evidence with regard to the proof of left thumb mark of the deceased and accordingly has come to the erroneous conclusion which is confirmed by the First Appellate Court resulting in perversity in the judgment, giving rise to substantial question of law requiring for consideration, at the hands of this Court.
NC: 2024:KHC:10703 RSA No. 459 of 2018
to the family of Puttavenkatamma or the defendants. Narrating the family tree of Puttavenkatamma, he submits that one Dasachari had two sons by names Puttachari and Thimmachari. Deceased Puttavenkatamma was the wife of Puttachari. The said Puttachari and Puttavenkatamma died issueless. The second son of Dasachari namely Thimmachari had two sons, namely Nagachari and Chinnasomachari who are the defendant Nos. 1 and 2 in the suit and as such they are the nearest relatives of Smt.Puttavenkatamma. It is submitted that name of
Nagachari was wrongly spelt as Rajachari and same was corrected. He submits that the Trial Court and the First Appellate Court have adverted to the issues of controversy in accordance with law and appreciated the evidence produced by the parties in detail and have thus come to the right conclusion warranting no interference. Hence, seeks for dismissal of the appeal.
NC: 2024:KHC:10703 RSA No. 459 of 2018
Puttavenkatamma had succeeded to the suit property which belonged to her husband Puttachari. There is also no dispute the fact that said Puttachari and Puttavenkatamma passed away issueless.
NC: 2024:KHC:10703 RSA No. 459 of 2018
PW3. The said witnesses have also filed two separate affidavits contending that they have seen the testatrix/Puttavenkatamma affixing her left thumb impression to the Will. They also have affirmed affixing of their signatures to the Will in the presence of the testatrix. The said witnesses further contended that the Will was prepared by a deed writer namely Shamanna upon the instructions given by said Puttavenkatamma.
NC: 2024:KHC:10703 RSA No. 459 of 2018
Puttavenkatamma was aged 70 years at the time of execution of Will and that she had come from her place of residence at Chamarajnagar to Nanjangud all alone. Trial Court declined to accept the deposition of said witness as it found that the stamp paper on which the Will was typed has been purchased at Mysore and that there has been no explanation by any of the witnesses in that regard. The story of 70 years old Puttavenkatamma travelling from Chamarajanagar to Mysore, purchasing of stamp paper at Mysore and there after go to Nanjanagud and execute the Will all by herself has been rejected by the Trial Court as unreliable and improbable.
examine the scientific examination of the left thumb mark that was available on the Will Ex-P1 with the admitted left thumb mark of the deceased Puttavenkatamma which was available at Ex-P38. Ex-P38 is the original registered mortgage deed executed by Puttavenkatamma and her husband in favour of one B.S. Rama Shetty which contains her LTM and the same was admitted by the defendants as well. The said document Ex-P38 and Ex-P1 was referred for the examination by the Court Commissioner, who
submitted his report as per Ex-P1. The said commissioner has been examined as DW5 and the report has been marked as Ex-C1. Some of the portion of the certificate is marked as Ex-C1(a). The Trial Court at paragraph 49 of its judgment has extracted the portion of the report, wherein left thumb mark marked as "Q" is stated to be notidentical with the left thumb mark marked as "A", for the reasons assigned thereunder. The said extract reads as under:-
NC: 2024:KHC:10703 RSA No. 459 of 2018
"The LTI marked as "Q" is Not-Identical with the LTI marked as "A" because of the following reason.
"Q" - "A"
Though both the LTIs marked as 'Q' and 'A' belong to the same pattern i.e., "Loop", even they are not identical with each other because of the following reason:-
The ridge characteristics that are found in the left thumb impression marked as 'Q' are not available in their relative sequence in left thumb impression marked as 'A'."
also his expertise in the field in the finger print analysis, the Trial Court came to the conclusion that the said report of the Commissioner was reliable and based on which has held, that the finger prints found on the Ex-P1 was not that of the deceased Puttavenkatamma. The Trial Court also took note of certain typing, re-typing and over writing appearing in Ex-P1 and also the alignment in the recitals of the said Will and also correction made in the Will.
and the contents of the Will, failed to inspire its confidence and accordingly held that the plaintiff failed to prove the execution of the Will by said Puttavenkatamma and answered the issue framed thereon accordingly and consequently dismissed the suit.
NC: 2024:KHC:10703 RSA No. 459 of 2018
being made out no substantial question of law would arise for consideration. Appeal is dismissed.
Sd/JUDGE
CR List No.: 1 Sl No.: 23
2 issues framed by the court
Did the plaintiff prove execution of the unregistered Will dated 21.09.1996 by Puttavenkatamma in his favour?
Was there any substantial question of law justifying interference with the concurrent findings of the courts below?
6 provisions across 4 enactments
H.V. Suresh
Chinnaswamachari
Nagachari
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
