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Karnataka High Court
Sri Dharnappa @ Muthayya Poojary vs Smt Rathna on 9 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:51939
RSA No. 751 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.751 OF 2024 (PAR)
BETWEEN:
SRI DHARNAPPA @ MUTHAYYA POOJARY
S/O LATE ANGARA POOJARY
AGED ABOUT 76 YEARS
R/AT MELINAKURTHODY HOUSE
MELANTHABETTU VILLAGE AND POST
BELTHANGADY TALUK
DAKSHINA KANNADA - 574214
OCCUPATION: AGRICULTURE
...APPELLANT
(BY SMT. ARCHANA MURTHY P, ADVOCATE FOR
SMT. SARITHA KULKARNI, ADVOCATE)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF 1. SMT. RATHNA
KARNATAKA D/O LATE ANGARA POOJARY
AGED ABOUT 65 YEARS
R/AT GERUKATTE HOUSE
KALIYA VILLAGE, GERUKATTE POST
BELTHANGADY TALUK
DAKSHINA KANNADA - 574217
2. SRI KRISHNAPPA POOJARY
S/O LATE ANGARA POOJARY
AGED ABOUT 70 YEARS
R/AT GERUKATTE HOUSE
KALIYA VILLAGE, GERUKATTE POST
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RSA No. 751 of 2024
HC-KAR
BELTHANGADY TALUK
DAKSHINA KANNADA - 574217
3. SRI DHARNAPPA POOJARY
S/O LATE ANGARA POOJARY
AGED ABOUT 61 YEARS
R/AT GERUKATTE HOUSE
KALIYA VILLAGE
GERUKATTE POST
BELTHANGADY TALUK
DAKSHINA KANNADA - 574217
4. SMT. NAGAMMA
W/O LATE ANGARA POOJARY
AGED ABOUT 74 YEARS
R/AT PALETHADI HOUSE
MELANTHABETTU VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA - 574214
5. CHANDRAPRAKASH
(SINCE DECEASED)
5(A) SMT. HARINAKSHI
W/O LATE CHANDRAPRAKASH
AGED ABOUT 45 YEARS
R/AT SUBHOSH NAGARA
BANKEL, MUDIGERE TALUK
CHIKAMAGALURU DIST - 577113
5(B) APEKSHA
D/O LATE CHANDRAPRAKASH
AGED ABOUT 23 YEARS
R/AT SUBHOSH NAGARA
BANKEL, MUDIGERE TALUK
CHIKAMAGALURU DIST - 577113
5(C) ANUSHKA
D/O LATE CHANDRAPRAKASH
AGED ABOUT 21 YEARS
R/AT SUBHOSH NAGARA
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RSA No. 751 of 2024
HC-KAR
BANKEL, MUDIGERE TALUK
CHIKAMAGALURU DIST - 577113
6. SMT. LAXMI @ DAMAYANTHI
W/O BALAKRISHNA
D/O LATE KUNJIRA POOJARY
AGED ABOUT 52 YEARS
R/AT PALETHADI HOUSE
MELANTHABETTU VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA - 574214
7. SRI ASHOKA
S/O LATE KUNJIRA POOJARY
AGED ABOUT 49 YEARS
R/AT PALETHADI HOUSE
MELANTHABETTU VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA - 574214
8. SRI PRASAD
S/O LATE KUNJIRA POOJARY
AGED ABOUT 47 YEARS
R/AT PALETHADI HOUSE
MELANTHABETTU VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA - 574214
9 SMT. PADMAVATHI
W/O LAXMANA POOJARY
D/O KUNJIRA POOJARY
AGED ABOUT 44 YEARS
R/AT BANGADY POST
INDABETTU VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA - 574214
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.03.2024 PASSED IN
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RSA No. 751 of 2024
HC-KAR
R.A.NO.19/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC, BELTHANGADY, D.K. AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This second appeal is filed against the concurrent finding
of the Trial Court as well as the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the appellant.
3. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of partition and separate
possession in respect of the suit schedule property is that the
property was granted in favour of the mother on 12.12.1977
and there was a partition between the mother and also the
other legal heirs of mother on 01.08.1998 and there was a
registered partition. The counsel would also vehemently
contend that in terms of the said partition deed dated
01.08.1998, life interest is created in favour of the mother and
after the death of the mother, the property shall be divided
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among her legal heirs. The counsel would vehemently contend
that the plaintiff is entitled for a share in the suit schedule
property. The defendants appeared and filed the written
statement admitting that there was a grant in favour of the
mother and subsequently there was a partition and also
contend that during the lifetime of the mother, defendant No.3
has taken care of the mother and mother also executed a Will
on 16.01.1999 and also he is enjoying the property of the
mother left by her and all the revenue records were also
changed in the name of defendant No.3.
4. The Trial Court having considered pleadings of the
parties, framed the Issues and allowed the parties to lead their
evidence. Plaintiff examined as PW1 and got marked the
documents at Ex.P1 to P3. On the other hand, defendant No.3
also examined himself as DW1 and also examined one of the
witnesses invoking Section 68 of the Evidence Act, since
attesting witnesses are no more. The Trial Court considering
the admission on the part of DW1 as well as the evidence
adduced before the Court comes to the conclusion that
defendant No.3 was taking care of the mother and
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subsequently, sale deed was also executed and also
categorically admits that defendant No.3 is in occupation and
enjoyment of the suit schedule property which is allotted in
favour of the mother i.e., the property which was bequeathed
in favour of defendant No.3 and revenue records are also
changed. All these admissions were taken note of by the Trial
Court and dismissed suit of the plaintiff. Being aggrieved by the
judgment of the Trial Court, an appeal was filed before the First
Appellate Court.
5. The First Appellate Court having considered the
grounds which have been urged in the appeal memo,
formulated the points and having reassessed both oral and
documentary evidence placed on record, answered the points
as negative particularly taking note of admission on the part of
PW1 in the cross-examination in paragraph 45 and also taken
note of document of Ex.D5 and even it is stated in the Will that
the last son made the improvement of the property and reason
is also given in the Will for bequeathing the property and PW1
admitted that testator Seethuu Hengsu was living with
defendant No.3 during her last days and also taken note of the
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recitals in document of Ex.D5 and comes to the conclusion that
the reason given in the Will also probable and believable to
confirm the judgment with regard to proving of Will and in
paragraph 57 taken note that DW2 is examined since both the
attesting witnesses were not alive and one of the attesting
witness's son was examined before the Court as DW2. The
First Appellate Court also made an observation that Will is not
surrounded by any suspicious circumstances in paragraph 58
and confirmed the judgment of the Trial Court. Being aggrieved
by the concurrent finding of both the Courts, the present
second appeal is filed before this Court.
6. The main contention of the appellant's counsel that
both the Courts have committed an error in accepting the
document of Ex.D5-Will as proved and failed to comply with
Section 69 of the Indian Evidence Act and Section 69 of the
Evidence Act provides for proof of handwriting of at least one of
the attesting witness as well as the signature of the person
executing the document and the same has not been proved.
Hence, it requires interference of this Court admitting the
appeal and framing substantial question of law.
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7. Having heard the learned counsel for the appellant
and also considering the material on records and pleadings, it
discloses that it is very clear that the property was granted in
favour of the mother on 12.12.1977 and no dispute to that
effect. There was a partition on 01.08.1998 among the mother
and children and the same also not in dispute. The only
contention of the appellant's counsel that in the partition deed,
it is specifically mentioned that after the death of the mother, it
should go to all the legal heirs. The admission on the part of
PW1 in the cross-examination is that PW1 categorically
admitted that mother was staying along with defendant No.3
and also clear admission was given that the very property was
in possession of the beneficiary and he had cultivated the
same. The recital of document of Will wherein categorically
mentioned the reason for bequeathing the property that
defendant No.3 only got improved the property and taken care
of the mother. All these factors were taken note of by both the
Trial Court as well as the First Appellate Court. Even the First
Appellate Court also gone into that whether there is any
suspicious circumstance in creating the document of Will. Even
though attesting witnesses were not alive, but son of one of the
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attesting witnesses is examined as DW1 in order to prove the
Will invoking Section 69 of Evidence Act. Hence, the question of
fact and question of law were taken note of by the Trial Court
as well as First Appellate Court. Under the circumstances, I do
not find any ground to admit the appeal and to frame
substantial question of law invoking Section 100 of CPC.
8. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
