Plaintiff claimed suit property under an unregistered Will executed by his brother, but neither attesting witness proved the testator's signature as required by law; trial and first appellate courts dismissed the claim. The High Court found no substantial question of law 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:13113 RSA No. 923 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.923 OF 2023 (DEC/INJ)
BETWEEN:
SHRI CHAKKALARAPPA, S/O LATE PAPAIAH, AGED ABOUT 62 YEARS, R/AT APPAIANA AGRAHARA VILLAGE, MASTHI HOBLI, MALLUR TALUK.
…APPELLANT
(BY SRI. R.A. DEVANAND, ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.11.2022 PASSED IN R.A.NO.118/2017 ON THE FILE OF THE SENIOR
NC: 2024:KHC:13113 RSA No. 923 of 2023
CIVIL JUDGE AND JMFC, MALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.11.2017 PASSED IN O.S.NO.356/2010 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MALUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
NC: 2024:KHC:13113 RSA No. 923 of 2023
05.11.2008. It is his further case that said
Venkataramanappa along with his father had purchased the suit property in terms of a registered deed of sale dated 21.05.1983 from one Sri. M. Srinivas, which was being enjoyed by the family members. That on 11.05.2007, there was partition and severance of joint family status between himself and other family members. In the said partition, suit property fell to the share of Venkataramanappa, as such he had become the owner of the suit schedule property. That defendant No.1 was the wife of said Venkataramanappa and she had deserted him twentytwo years ago and she did not take care of him. After having deserted her husband, defendant No.1 had joined one Munivenkatappa and married him and stayed with him. As such, she had lost all ties with Venkataramanappa. Said Venkataramanappa was under the care and custody of the plaintiff who looked after his welfare. As such, out of love and affection, Venkataramanappa bequeathed the said property in terms of unregistered Will dated 05.11.2008 and he had
NC: 2024:KHC:13113 RSA No. 923 of 2023
thereafter passed away on 24.05.2009. Ever since then, the plaintiff became owner in possession of the suit property. That defendant No.1 in collusion with the revenue authorities obtained mutation of her name in the revenue records and thereafter immediately sold the suit property in favour of defendant No.2 on 13.04.2010. That defendant No.1 had no right over the suit property. The sale made by her in favour of defendant No.2 was thus invalid and not binding on the plaintiff. Hence the suit.
statement contending that the suit property belonging to one Papaiah. The said Papaiah had three sons namely, Venkataramanappa i.e. husband of defendant No.1, Chakkarlappa i.e. plaintiff and Periyanna. The said sons of Papaiah entered into partition. The suit property fell to the share of Venkataramanappa. Defendant No.1 being the wife of Venkataramanappa was in possession of the suit property. After the demise of Venkataramanappa, the revenue authorities mutated her name. As such, she is
enjoying the suit property as his legal heir. In order to meet her financial necessities and to clear other loans, she had alienated the suit property in favour of defendant No.2 in terms of the deed of sale dated 13.04.2010. Defendant No.2 thus has become owner of the suit property. It was further contended that the Will dated 05.11.2008 is created by the plaintiff, that Venkataramanappa was neither in the care and custody of plaintiff nor did he execute any Will. Hence, the defendants sought for dismissal of the suit.
4. The Trial Court framed the following issues for consideration:
two more witnesses as P.W.2 and P.W.3 and exhibited
NC: 2024:KHC:13113 RSA No. 923 of 2023
eleven documents as Exs.P1 to P11. The General Power of attorney holder of defendant No.2(a) was examined as D.W.1 and got another witness examined as D.W.2 and marked sixteen documents as Exs.D1 to D16. Upon appreciation of material evidence, the Trial Court answered issue Nos.1 and 2 in the negative and accordingly, dismissed the suit. Being aggrieved by the same, plaintiff preferred the appeal in R.A. No.118/2017 before the Court of leaned Senior Civil Judge and JMFC at Malur.
Court and the First Appellate Court ought not to have declined to accept the said evidence. He further submits
that the Trial Court and the First Appellate Court have failed to take into consideration the overall facts and circumstances of the matter and the conduct of defendant No.1 which had necessitated execution of such a will in
favour of plaintiff, in that, he submits that, defendant No.1 had deserted deceased Venkataramanappa two decades
prior to execution of the Will and had settled in another village marrying to another person, as such, there was every justification to Venkataramanappa to have executed Will in favour of plaintiff who cared for him. He submits that there was nothing wrong in execution of the will which fact had not been taken note of by the Trial Court. It is his further submission that though P.W.2 had not specifically identified the signature of the Testator, a holistic view had to be taken by the Court instead of being
too technical on the requirements of law. Hence he submits that matter has given rise to substantial question of law requiring consideration in the hands of this Court.
9. Heard and perused the records.
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has propounded the Will dated 05.11.2008 purported to have been executed by Venkataramanappa. Since the plaintiff has set up title in respect of the suit property, the Trial Court casted burden on the plaintiff to prove the factum of execution of the Will.
has also noted that the plaintiff has not confronted the signature of deceased Venkataramanappa to P.W.2.
Taking note of the provisions of law, the Trial Court has found that mere examination of attesting witnesses and the Will without identification of the signature of the deceased Venkataramanappa was of no relevance, thus, has declined to accept the contention of the plaintiff that deceased had executed the Will and consequently held that execution of the Will was not proved.
during his life time. Venkataramanappa passed away admittedly on 24.05.2009. As such, the Trial Court did not
NC: 2024:KHC:13113 RSA No. 923 of 2023
accept the contention of the plaintiff that he was in possession of the property even during lifetime of Venkataramanappa.
" The Will shall be attested by two or more witnesses, each of whom has seen the testator sign
NC: 2024:KHC:13113 RSA No. 923 of 2023
or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Thus, apart from a Will requiring to be attested by two witnesses, the said witnesses ought to have seen the testator signing or affixing his mark in the Will in their presence.
NC: 2024:KHC:13113 RSA No. 923 of 2023
his father. This being the legal requirement, the Trial Court and the First Appellate Court having declined to accept proof of Will, same cannot be found fault with.
Sd/JUDGE
sac List No.: 2 Sl No.: 24
2 issues framed by the court
Whether the unregistered Will dated 05.11.2008 was validly proved in accordance with Sections 63(c) and 68 requirements.
Whether any substantial question of law arose warranting interference in the second appeal.
3 provisions across 3 enactments
Shri Chakkaralappa s/o Late Papaiah
Smt. Ashwathmma w/o Munivenkatappa
Smt. K.R. Geetha @ Aruna w/o Late H.R. Manjunath
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
