Karnataka High Court
Sri A S Ramamurthy vs Smt Prabhavathi on 18 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
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RSA No. 1500 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1500 OF 2022 (PAR)
BETWEEN:
1. SRI. A.S.RAMAMURTHY,
S/O LATE SHANKARAPPA AND
LATE VENKATAKAKSHMAMMA,
AGED ABOUT 56 YEARS,
RESIDENT OF ABBENAHALLI VILLAGE,
KASABA HOBLI,
MALUR TALUK - 563 130.
...APPELLANT
(BY SRI. RAMAKRISHNA HEGDE, ADVOCATE)
AND:
1. SMT. PRABHAVATHI,
Digitally signed D/O LATE SHANKARAPPA,
by DEVIKA M AGED ABOUT 68 YEARS,
Location: HIGH R/O THIMMANAYAKANAHALLI VILLAGE,
COURT OF
KARNATAKA TEKAL HOBLI, MALUR TALUK,
KOLAR DISTRICT-163 130.
2. SMT. VIJAYALAKSHMI,
D/O LATE SHANKARAPPA,
AGED ABOUT 63 YEARS,
R/O. NO.2636, 7TH CROSS,
'C' MAIN, VIVEKANANDANAGAR,
BANGARAPET TOWN,
KOLAR DISTRICT-563 114.
3. SRI. A.S.VENKATESH,
S/O LATE SHANKARAPPA AND
LATE VENKATALAKSHMAMMA,
-2-
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RSA No. 1500 of 2022
HC-KAR
AGED ABOUT 54 YEARS,
RESIDENT OF ABBENAHALLI VILLAGE,
KASABA HOBLI,
MALUR TALUK-563 130.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.04.2022
PASSED IN R.A.NO.75/2021 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 29.10.2021 PASSED IN O.S.NO.104/2013 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR.
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 matter is listed for admission. Heard the learned
counsel for the appellant.
2. This appeal is filed against the concurrent finding.
The case of the plaintiff before the Trial Court while seeking
the relief of partition and separation possession of 1/4th share
is that the suit schedule properties are the ancestral and joint
family properties and the plaintiff is entitled for 1/4th share in
the suit schedule property by metes and bounds. The
defendants appeared and filed the written statement
contending that the suit is barred by limitation and also
contended that the suit is bad for non-joinder of necessary
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parties. The suit item Nos.1 to 3 properties are the self-
acquired properties of Smt.Venkatalakshmamma and also
contended that defendant Nos.2 and 3 by virtue of Will dated
22.06.2000 executed by their mother, they became absolute
owners of the suit item Nos.1 to 4 properties and hence the
plaintiff is not entitled for any relief.
3. The Trial Court also re-casted the issue whether
the defendants prove that schedule item Nos.1 to 5 properties
are the self-acquired properties of Smt.Venkatalakshmamma?
The Trial Court having considered both oral and documentary
evidence available on record, answered issue No.1 in the
affirmative in coming to the conclusion that the properties are
joint family properties. In view of re-casting of issue i.e.,
issue No.4, considered the evidence available on record,
particularly when the defendants have relied upon the Will
and also the contention that the properties are self-acquired
properties of their mother. The Trial Court having considered
the admission on the part of D.W.1, who categorically admits
that all the children of Smt.Venkatalakshmamma are having
equal share over the property, discussed the same in
paragraph No.17. With regard to the very execution of the
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Will by Smt.Venkatalakshmamma, though examined two
witnesses as D.W.2 and D.W.3, their evidence was not suffice
to come to the conclusion that Smt.Venkatalakshmamma had
executed the Will. D.W.2 categorically admits that deed
writer Narayanappa has expired and further states for getting
drafted the Will, Smt. Vijayalakshmi, aged about 70 years,
the testator alone had come and no other persons had
accompanied her to the Sub-Registrar office and that he does
not know the contents of the Will. The Trial Court also taken
note of discrepancy in mentioning the deed writer licence
number and the same is discussed in paragraph No.35 taking
into note of the deed writer of Ex.D.23 Will and also Ex.D.9
sale deed is one and the same. Apart from that, D.W.3
evidence was also taken note of. D.W.3 claims that at the
time of drafting the Will, he himself, Narayanappa and
Smt.Venkatalakshmamma were present. The evidence of
D.W.3 is contrary to the evidence of D.W.2. Hence, the Trial
Court not accepted the Will and granted the relief of partition
granting 1/4th share in favour of the plaintiff.
4. Being aggrieved by the said judgment and decree
of the Trial Court, an appeal is filed in R.A.No.75/2021. The
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Appellate Court having re-assessed the material available on
record as well as the reasoning given by the Trial Court and
also the grounds urged in the appeal, formulated the point
whether defendant Nos.2 and 3 prove that their
mother/testator Smt.Venkatalakshmamma being absolute
owner of the suit schedule item Nos.1 to 4 properties
executed the Will on 22.06.2000 when she was in sound
disposing state of mind? The Appellate Court on re-
appreciation of the material available on record, comes to the
conclusion that the same has not been proved. The evidence
of D.W.2 and D.W.3 not inspires the confidence of the Court.
D.W.3 has testified that Smt.Venkatalakshmamma executed
Will on 22.06.2000 and he was called by her to the Taluk
Office, Malur and Will has been prepared as per her
instruction and he has signed the Will as witness. This
evidence of D.W.3 does not establish the above manner of
requirement of attestation as required under Section 63(c) of
Indian Succession Act. Besides D.W.2 has testified in the
above line of D.W.3. He has also not whispered his
attestation to the Will as required under the above law. The
Trial Court rightly appreciated that D.W.2, who is the
attesting witness, in his cross-examination had stated that
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one Vijayalakshmi was present and he signed on the request
of Vijayalakshmi to the said Will and none present except
Vijayalakshmi at the time of execution of the Will and all
these discussion was made in paragraph No.13 and comes to
the conclusion that the evidence of D.W.2 is not credible to
believe that Smt.Venkatalakshmamma executed Ex.D.23 and
so also the evidence of D.W.3 is contrary to the evidence of
D.W.2 and hence not accepted the very contention of the
appellant and concurred with the judgment of the Trial Court.
5. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court.
6. The main contention of the learned counsel for the
appellant before this Court is that both the Courts have
committed an error in granting the relief of partition without
proving and in the absence of the material evidence that the
suit schedule properties are the joint family properties of the
plaintiff and the defendants. The learned counsel contend
that both the Courts are not justified in not accepting the Will
and even though D.W.2 and D.W.3, attesting witnesses are
examined before the Trial Court to prove the Will and Will also
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proved, but even inspite of proving of the Will also, not
accepted the Will and committed an error.
7. Having heard the learned counsel for the appellant
and also on perusal of the reasons assigned by the Trial
Court, it is not in dispute that the plaintiff has claimed 1/4th
share in the suit schedule properties. The very contention of
the learned counsel for the appellant is that the plaintiff has
not proved that the properties are the ancestral properties.
But, the very admission on the part of D.W.1 is clear,
unequivocal admission that all the children of
Smt.Venkatalakshmamma are having equal share over the
property. When such admission is given, the very contention
of the learned counsel for the appellant that the Trial Court
committed an error cannot be accepted. With regard to the
very claim made by the appellant that there was a Will, the
same was also not proved. Both the Courts have taken note
of that the evidence of D.W.2 and D.W.3 are contradictory to
each other. D.W.2 claims that he was alone at the time of
affixing the signature on the Will and D.W.3 evidence is
contrary to the evidence of D.W.2 and D.W.2 says that he
only accompanied the testatrix to the Sub-Registrar Office
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and also he does not know the contents of the Will. All these
factors were taken note of by the Trial Court as well as the
Appellate Court while assessing the material available on
record regarding Will. Hence, I do not find any ground to
admit the appeal and frame any substantial question of law as
contended by the learned counsel for the appellant, since
there is a clear admission with regard to the share of the
plaintiff and though the Will is propounded by the defendants,
the same is also not proved. The evidence of D.W.2 and
D.W.3, who are the attesting witnesses, is not credible and
the same is not in consonance with Section 63 of the Indian
Succession Act and Section 68 of Evidence Act. Hence, no
ground to admit the appeal and frame any substantial
question of law.
8. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
