B.C. Chandrashekar Aradhya, Vs President

SMT. MALA B.C., W/O. RUDRESHA B, AGED ABOUT 33 YEARS, R/O. FLAT NO.202, STANFORD, OMKAR HOMES, BOMMASANDRA INDUSTRIAL AREA, NEAR INCH FURNITURES, BENGALURU-560 099.

¶16

SRI. SIDDESHWARA SWAMY B.C., S/O. LATE B.C.CHANDRASHEKAR ARADHYA, AGED ABOUT 31 YEARS, R/AT NO.129/12, NAGARAJ BUILDING,

¶17

2 - NC: 2025:KHC:48494 RSA No. 860 of 2025

¶18

HC-KAR

¶19

MULLUR, SARJAPURA ROAD, BENGALURU-560 035.

¶20

&APPELLANTS

¶21

(BY SRI. MUNIYAPPA, ADVOCATE)

¶22

AND:

¶23

PRESIDENT, GRAMA PANCHAYATH, BANAVARA, ARSIKERE TALUK-573 103.

¶24

P.D.O., BANAVARA, ARSIKERE TALUK-573 103.

¶25

SMT. SUSHILAMMA, W/O. LATE B.R. SADASHIVASWAMY, AGED ABOUT 67 YEARS, R/O. HEREMATTA, BANAVARA, KOTE, ARSIKERE TALUK-573 103.

¶26

SRI. CHANDRASHEKAR, S/O. LATE B.R.SADASHIVASWAMY, AGED ABOUT 34 YEARS, R/O. HEREMATTA, BANAVARA, KOTE, ARSIKERE TALUK-573 103.

¶27

&RESPONDENTS

¶28

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.03.2025 PASSED IN R.A.NO.12/2024 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, ARSIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.03.2024 PASSED IN O.S.NO.390/2016 ON THE FILE OF C/C. II ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE.

¶29

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

¶30

3 -

¶31

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶32

HC-KAR

¶33

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

¶34

ORAL JUDGMENT

¶35

This matter is listed for admission. Heard the learned

¶36

counsel for the appellants.

¶37

This second appeal is filed against the concurrent

¶38

finding.

¶39

The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs are the absolute owners of the suit schedule properties as per the Will dated 20.01.2009 executed by Smt. Bramarambha. On the basis of the Will, the plaintiff applied for change of khatha and at that time, husband of defendant No.3 and father of defendant No.4 Sri Sadashivaswamy B.R., filed objections stating that it comes under the Civil Court. It is contended that defendant Nos.3 and 4 tried to construct the building without obtaining the licence and tried to knock off the property of the plaintiff and the same was intimated to defendant Nos.1 and 2 and later defendant Nos.1 and 2 stopped the construction and they are made as formal parties in the above suit.

¶40

4 -

¶41

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶42

HC-KAR

¶43

In pursuance of the suit summons, defendant Nos.3 and 4 appeared and filed the written statement contending that defendant Nos.1 and 2 are the public servants, the Government is a necessary party, as such the suit is not maintainable. The averments made in paragraph No.2 of the plaint is admitted. It is true that after the partition, they are enjoying the properties of their respective shares. It is false to state that the grandfather Veerabhadraswamy had given his share to Bramarambha and the sons of Veerabhadraswamy have not given consent for the partition dated 25.07.1962. It is further stated that the plaintiff has created the alleged Will in order to knock off the suit schedule property. The alleged Will is created, concocted and got-up by the plaintiff for the purpose of this suit. The said Bramarambha had never executed any Will as stated in the plaint. The plaintiff colluded and created the witnesses Bikkalamdhar and notary also by creating document. The alleged Will is not genuine and denied the total execution of the document. The plaintiff is not the resident of Banavara and wrong address has been given by the plaintiff and hence, the suit is false, frivolous and vexatious.

¶44

5 -

¶45

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶46

HC-KAR

¶47

The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence placed on record, particularly taken note of the mandatory requirement of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act and also taken note of the Will, which is marked as Ex.P.11 and the stamp paper was purchased at Belur and address of Bramarambha is mentioned as Banavara Kote. The Trial Court taken note of the evidence of P.W.2 and extracted the same in paragraph No.17 and extracted the evidence of the scribe P.W.3 in paragraph No.18 and extracted the evidence of P.W.1 in paragraph No.19 and comes to the conclusion that the Will, which is propounded by the plaintiff is surrounded with suspicious circumstances and there is no any corroboration. There are contradictions in the evidence of P.W.1, P.W.2 and P.W.3 with regard to the place of execution of the document and also place of residence and also with regard to stamp paper. P.W.2 is not aware of the exact stamp value, but he gave the details of Rs.20/- stamp paper. On perusal of Ex.P.11, it is prepared on the stamp paper of Rs.100/- and according to

¶48

6 -

¶49

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶50

HC-KAR

¶51

the witnesses, testator is the resident of Banavara, but stamp paper was purchased at Belur and created the document at Belur and hence, comes to the conclusion that the plaintiff fails to prove the very execution of the Will.

¶52

Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed and the First Appellate Court having considered the grounds urged in the appeal, formulated the point whether the Trial Court committed an error in dismissing the suit disbelieving the document of Ex.P.11 Will. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, particularly in paragraph No.20, taken note of the document Ex.P.10 and so also subsequent document Ex.P.13 and evidence of P.W.1 was taken note of in paragraph No.21 and evidence of P.W.2 and P.W.3 in paragraph Nos.22 and 23. Having re-assessed the material on record, comes to the conclusion that Bramarambha never resided with the plaintiff and she was never under the care and custody of the plaintiff and the plaintiff has not provided any treatment to Bramarambha when she met with an accident and it clearly creates doubt about the genuineness of the due execution of the Will as pleaded by the plaintiff and the

¶53

7 -

¶54

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶55

HC-KAR

¶56

Trial Court rightly taken note of all these materials while dismissing the suit. Though defendant Nos.3 and 4 have not produced any oral and documentary evidence, but burden is on the plaintiff to prove his case and to prove the due execution of the Will from which he has acquired the suit properties and comes to the conclusion that the very execution of the Will is not proved and answered point No.1 in the affirmative and point No.2 in the negative that the Trial Court has not committed any error.

¶57

Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

¶58

The main contention of the learned counsel for the appellants before this Court is that both the Courts have committed an error in appreciating both oral and documentary evidence placed on record. The Trial Court has committed an error in coming to the conclusion that the contents of the Will has not been proved by the appellants despite the fact that P.W.2 and P.W.3 were examined. The learned counsel contend that the very appreciation of the evidence is not based on the

¶59

8 -

¶60

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶61

HC-KAR

¶62

material on record and hence, this Court has to admit the appeal and frame substantial question of law.

¶63

Having heard the learned counsel for the appellant and considering the reasonings given by the Trial Court and the First Appellate Court, it is the plea of the plaintiff that the Will was executed in his favour and in order to prove the case, the plaintiff examined himself as P.W.1 and examined two witnesses as P.W.2 and P.W.3. P.W.2 is the attesting witness, P.W.3 is the scribe and P.W.1 is the one who propounded the Will. The Trial Court having re-assessed the evidence in paragraph Nos.17, 18 and 19, comes to the conclusion that the evidence of P.W.1, P.W.2 and P.W.3 does not inspire the confidence of the Court. The very execution of the Will is doubtful, the place of abode of the testator is different from the place where the Will was prepared and the stamp paper is purchased at Belur and the evidence of P.W.2 and P.W.3 is contrary to the evidence of P.W.1 and the testator is the resident of Banavara and not Belur. All these factors were taken note of by the Trial Court.

¶64

9 -

¶65

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶66

HC-KAR

¶67

The First Appellate Court having re-assessed both oral and documentary evidence placed on record, particularly in paragraph Nos.20, 21, 22 and 23 taken note of the evidence of P.W.1, P.W.2 and P.W.3 and also taken note of discrepancy found in the evidence with regard to the residence of the testator as well as the plaintiff and comes to the conclusion that the evidence of P.W.2 and P.W.3 is contrary to each other. P.W.2 claims that at the time of execution of the Will, himself and the executor were present, but P.W.3 claims that he is the scribe and details also not given and when such contradictions are found, it does not inspire the confidence of the Court. The very proviso of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act is clear that the attesting witness evidence must be clear with regard to the very execution and attestation and nothing is found worth of accepting the evidence of P.W.2, who is an attesting witness and his evidence is contrary to the evidence of P.W.1 and P.W.3. When such being the case, I do not find any error on the part of both the Courts in considering the Will Ex.P.11 and the evidence of attesting witness and scribe also not inspires

¶68

NC: 2025:KHC:48494 RSA No. 860 of 2025

¶69