Sri. a. Subbarayappa Vs Smt. S. Sujatha @ S Sujathamma

¶1

1 -

¶2

NC: 2025:KHC:42168 RSA No. 1182 of 2025

¶3

HC-KAR

¶4

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF OCTOBER, 2025

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1182 OF 2025 (PAR)

¶7

BETWEEN:

¶8

SRI A. SUBBARAYAPPA, S/O LATE CHIKKA AVULAKONDAPPA, AGED ABOUT 64 YEARS, R/AT KASSHAPURA VILLAGE, KASABA HOBLI, BAGEPALLI TALUK, CHIKKABALLAPURA DIST.-561 207.

¶9

…APPELLANT

¶10

(BY SRI M.B CHANDRACHOODA, ADVOCATE FOR SRI NAGARAJA N, ADVOCATE)

¶11

AND:

¶12

Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA

¶13

SMT. S. SUJATHA @ S SUJATHAMMA, W/O S.M. KRISHNAPPA, D/O LATE CHIKKA AVULAKONDAPPA, AGED ABOUT 49 YEARS, R/AT SOMESHWARA VILLAGE, SOMENAHALLI HOBLI, GUDIBANDE TALUK-561 209.

¶14

SRI A. BALAKRISHNA, S/O LATE CHIKKA AVULA KONDAPPA, AGED ABOUT 59 YEARS, R/AT KASHAPURA VILLAGE, KASABA HOBLI, BAGEPALLI TALUK-561 207.

¶15

SRI A ASHOK KUMAR, S/O LATE CHIKKA AVULAKONDAPPA, AGED ABOUT 54 YEARS,

¶16

2 -

¶17

NC: 2025:KHC:42168 RSA No. 1182 of 2025

¶18

HC-KAR

¶19

R/AT KASHAPURA VILLAGE, KASABA HOBLI, BAGEPALLI TALUK, CHIKKABALLAPURA DIST.-561 207.

¶20

…RESPONDENTS

¶21

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 14.03.2023, PASSED IN RA NO.88/2017 ON THE FILE OF IIIRD ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 27.06.2017 PASSED IN OS NO.150/2010 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPUR.

¶22

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶23

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶24

ORAL JUDGMENT

¶25

IA.No.1/2025 is allowed for reasons stated in the affidavit accompanying the application. Delay of 766 days in filing the appeal is condoned.

¶26

Heard the learned counsel for the appellant and this matter is listed for admission.

¶27

This second appeal is against the concurrent finding in respect of granting of share in favour of the plaintiff and defendants. The main contention urged by the appellant before this Court, granting of share in respect of Item No.6 is

¶28

3 - NC: 2025:KHC:42168 RSA No. 1182 of 2025

¶29

HC-KAR

¶30

concerned not correct as the same is not an ancestral property and no doubt, the trial Court also discussed in detail with regard to the nature of the property. But the fact is that the Item No.6 is gifted in favour of the mother and the contention of defendant No.1/appellant is that there was a Will in favour of him to the extent of 1 acre 14 guntas. Though examined an attesting witness to prove the Will, but trial Court did not accept the Will. Particularly, in paragraph No.16 comes to the conclusion that when the witness-DW.2 deposed before the Court, even he was not aware of who had brought the Venkatalakshmamma to the Sub-Registrar Office on the date of execution of the alleged Will at Ex.D15.

¶31

It is further observed that DW.2 has categorically admits in his cross-examination that he never participated in the document of transaction of Venkatalakshmamma and when such admission was given, not accepted the case of the appellant and also an observation is made that except this evidence of DW.2, there is no legal acceptable evidence in order to prove the valid execution of Ex.D15 by Venkatalakshmamma in favour of defendant No.1. Apart from that also no reason was assigned to disinherit the other legal

¶32

4 - NC: 2025:KHC:42168 RSA No. 1182 of 2025

¶33

HC-KAR

¶34

heirs and hence, not accepted the same as is not a genuine document.

¶35

The First Appellate Court also having reassessed both oral and documentary evidence available on record while considering the grounds which are being urged in the appeal memo, formulated the Point No.3, Whether the defendant No.1 proves that he acquired 1 acre 14 guntas of land in Sy.No.97/2 under a Will executed by Chikkavenkatamma and the Appellate Court also having reassessed taken note of the grounds which have been urged in paragraph No.21 and on perusal of the said document, it can be seen that it is an registered Will alleged to have been executed by Chikkavenkatamma in favour of defendant No.1 in respect of Sy.No.97/2 measuring 1 acre 14 guntas. Also there is a reference that property was allotted to the Chikkavenkatamma under a gift deed executed by her father on 05.03.1960 but it is not pleaded by defendant No.1 and he pleads that said property originally belongs to the Doddavenkatarayappa but the father of the said Chikkavenkatamma is Avulakonddappa as per the said Will. Hence, not accepted the same and also considered the evidence of witnesses in paragraph No.22 and comes to the

¶36

5 - NC: 2025:KHC:42168 RSA No. 1182 of 2025

¶37

HC-KAR

¶38

conclusion that in the absence of evidence of proving of the very Will and established principles that testator of the Will has to give his evidence regarding signing the Will in the presence of testator and he has seen the testator signing the Will in his presence and that evidence is missing and even also given the evidence DW.2 that no documentary transaction was taken place in his presence and hence, confirmed the judgment of the trial Court in coming to the conclusion that Will is not proved by answering the Point No.3 as negative.

¶39

Now the learned counsel appearing for the appellant in the second appeal would vehemently contend with regard to the Item No.6 is concerned that the same is not the ancestral property and there is no dispute with regard to the fact that same is not an ancestral property and the property was gifted in favour of the mother of the parties vide gift deed executed by grandmother. When the pleading was made before the trial Court and also the Appellate Court that Will was executed, the same is not accepted by the trial Court and the Appellate Court for the reason that the evidence of DW.2 is not credible for accepting that the Will was executed in favour of the appellant and when such evidence available before the Court, I do not

¶40

6 - NC: 2025:KHC:42168 RSA No. 1182 of 2025

¶41

HC-KAR

¶42

find any error on the part of the trial Court and Appellate Court and the very contention of the appellant counsel that when the property was not an ancestral property and the Will was executed and the same is proved, there cannot be any granting of share in respect of Item No.6 and said submission cannot be accepted and unless credible evidence is available before the Court in order to prove the very execution of the Will. As contemplated under Sections 63 and 68 of Indian Evidence Act and also the Succession Act, the very contention of the counsel appearing for the appellant cannot be accepted and hence, I do not find any ground to admit and frame any substantial question of law and do not find any perversity in the finding with regard to the proving of the Will is concerned and hence, no ground to admit and frame substantial question of law invoking Section 100 of CPC.

¶43