Karnataka High Court
Sri. B. M. Chennaiah vs Smt. Bhadramma on 30 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 685 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.685 OF 2025 (DEC/POS)
BETWEEN:
1. SRI. B.M. CHENNAIAH,
S/O. LATE MYLARASHETTY,
AGED ABOUT 78 YEARS.
2. SMT. PUTTALAKSHMI,
W/O. B.M.CHENNAIAH,
AGED ABOUT 78 YEARS.
3. SRI. B.C.RAVI KUMAR,
S/O. B.M. CHENNAIAH,
AGED ABOUT 46 YEARS.
4. SRI. B.C.CHANDRU,
S/O. B.M. CHENNAIAH,
Digitally signed AGED ABOUT 52 YEARS.
by DEVIKA M
Location: HIGH
COURT OF ALL THE APPELLANTS ARE
KARNATAKA R/AT M.G.ROAD,
SOMWARPET TOWN,
KODAGU DISTRICT-571 236.
...APPELLANTS
(BY SRI. MANJUNATHA K., ADVOCATE)
AND:
1. SMT. BHADRAMMA,
W/O. B.M.CHENNAIAH,
AGED ABOUT 78 YEARS,
C/O. MOHAN,
R/AT ABHINAYA TAILOR, 2ND CROSS,
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RSA No. 685 of 2025
HC-KAR
NEAR HEBBAL POLICE STATION, HEBBAL,
BENGALURU - 560 024.
...RESPONDENT
(BY SRI. MURALI M., ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.02.2025
PASSED IN R.A.NO.21/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE, SOMWARPETE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
17.06.2022 PASSED IN O.S.NO.64/2015 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, SOMWARPETE.
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 appellants and the learned counsel for the
caveator/respondent.
2. This second appeal is filed against the concurrent
finding.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that the plaintiff is the absolute owner
of the suit schedule property and the defendants are in illegal
possession and enjoyment of the suit schedule property and
hence, the plaintiff filed a suit seeking the relief of
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possession. The defendants appeared and filed the written
statement contending that the Will was executed on
25.07.1975 and they are entitled for possession of the suit
schedule property as averred in paragraph Nos.3 and 7 of
their written statement. The Trial Court framed the issue as
to whether the plaintiff is entitled for the relief as prayed.
Having considered both oral and documentary evidence
available on record, the Trial Court comes to the conclusion
that the plaintiff is the owner of the property bearing
Sy.No.16/5P1 (Old Sy.No.16/2) and directed the defendants
to deliver the possession within three months. Though the
defendants took the defence of the Will, the same has not
been proved by examining any attesting witnesses.
4. Being aggrieved by the said judgment and decree
of the Trial Court, an appeal is filed in R.A.No.21/2022 and
the First Appellate Court having considered the grounds urged
in the appeal memo, formulated the points whether the
appellants prove that Mallamma executed her last Will in
favour of the plaintiff and defendant No.1 jointly vide Will
dated 25.07.1975 and as a result, whether the appellants
become the absolute owners and whether the appellants are
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in lawful possession and enjoyment of the suit schedule
property. The First Appellate Court on re-appreciation of both
oral and documentary evidence available on record, answered
all the points in the negative and comes to the conclusion that
the Trial Court rightly considered the material on record and
passed the judgment.
5. Being aggrieved by the said concurrent finding,
the present second appeal is filed before this Court.
6. The learned counsel for the appellants in this
appeal would vehemently contend that both the Courts
committed an error in not appreciating both oral and
documentary evidence on record. The Trial Court failed to
consider the fact that the revenue records were standing in
the name of the appellants and held that mere revenue
records does not define the title of the property. The
approach of both the Courts is erroneous. The Trial Court
failed to note that the appellants have filed an application in
original suit for examining the attesting witnesses, but since
they could not trace out the whereabouts of the attesting
witnesses, they were not able to appear before the Court and
examine those witnesses. The learned counsel contend that
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the First Appellate Court also not given an opportunity to
examine the witnesses and the application was rejected and
hence writ petition was filed and within a span of one week of
rejection, an order was passed and the writ petition became
infructuous with regard to the proving of the same. Hence,
the learned counsel contend that this Court has to frame the
substantial question of law that both the Courts committed an
error in granting the relief of declaration. The learned counsel
contend that the Trial Court as well as the First Appellate
Court has not properly construed and understood the
evidence adduced and committed an error in not giving an
opportunity to prove the Will by examining the children of the
attesting witnesses of the Will dated 27.05.1975 and hence
this Court has to admit the appeal and frame substantial
question of law.
7. Per contra, the learned counsel for the
caveator/respondent would contend that even inspite of an
opportunity was given to the defendants, the defendants did
not examine the witnesses before the Trial Court and the suit
was pending for a period of 7 years. The learned counsel
contend that though they propounded the Will, the same has
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not been proved and even an attempt was made before the
First Appellate Court and the First Appellate Court rightly
rejected the application, since an opportunity was given
before the Trial Court for examining the attesting witnesses
and none of them have been examined and hence the
question of giving an opportunity to prove the Will does not
arise. When an opportunity was given, the same was not
utilized. Hence, no question of admitting the appeal and
framing any substantial question of law, as contended by the
learned counsel for the appellants.
8. Having heard the learned counsel for the
appellants and the learned counsel for the caveator/
respondent and also considering the material available on
record, the suit is filed for the relief of declaration as well as
possession on the ground that the defendants are in illegal
possession and enjoyment of the suit schedule property.
Though the defendants took up the contention that there was
a Will dated 25.07.1975 and they are entitled for possession,
the same was not proved. The learned counsel for the
appellants not disputes the fact that an application was filed
before the Trial Court for examining the persons who are
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having acquaintance with the attestors signatures. Having
perused the records, the application was allowed on
23.09.2021 and the judgment was passed on 17.06.2022.
The First Appellate Court observed that when such an
application was allowed and an opportunity was given, the
opportunity was not utilized and hence the question of
granting similar relief in the appeal does not arise. The First
Appellate Court dismissed the application and thereafter
considered the matter on merits.
9. Having considered the reasons assigned by the
Trial Court, though the defendants contend that there was a
Will, the Will has not been proved and the same ought to
have been proved by examining the witnesses under Section
63 of the Indian Succession Act and Section 68 of the Indian
Evidence Act. The First Appellate Court having re-assessed
the material on record, comes to the conclusion that on the
basis of the said Will, khatha of the suit property was not
changed in the name of defendant No.1 and the plaintiff and it
is the case of the defendants that the Will was executed in
favour of the plaintiff and defendant No.1. The First Appellate
Court having considered the grounds which have been urged,
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in paragraph No.26 extracted Section 68 of the Indian
Evidence Act regarding proving of the same. In paragraph
No.29 observed that the appellants deposed that with consent
of the respondent, khatha of the schedule property has been
changed in the name of the appellants and they are the
absolute owners and they are in possession of schedule
property from 1998. In order to prove the said contention,
the appellants have not produced any document to show that
consent was given for change of khatha. In one breath, they
claim that there is a Will and also other contention is that
consent was given for change of khatha. The First Appellate
Court observed that on re-appreciation of the material on
record about the execution of the Will, the Trial Court has
elaborately considered all the contentions raised by the
appellants before the Trial Court and has come to the right
conclusion that as per Section 15 of the Hindu Succession Act,
the respondent is the absolute owner of the schedule property
and after the death of her mother, the respondent become
the owner of the schedule property and it is considered that it
is her self-acquired property. The First Appellate Court comes
to the conclusion that in the absence of proving of the Will
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and placing on record cogent evidence, the contention of the
appellants cannot be accepted and dismissed the appeal.
10. Having considered the reasons assigned by the
Trial Court and the First Appellate Court, both the Courts have
taken note of the very contention of the respective learned
counsel and also appreciated the facts in issue as well as the
question of law. The appellants have not proved the Will as
under Section 68 of the Indian Evidence Act and Section 63 of
the Indian Succession Act and when such reasoning was given
by both the Courts and even extracted the provisions of
Section 68 of the Indian Evidence Act and Section 63 of the
Indian Succession Act, I do not find any error committed by
both the Courts in appreciating oral and documentary
evidence and the reasons are also assigned that the Will was
not proved. In the absence of proving of the Will, the
contention of the appellants that an opportunity was not given
cannot be accepted when the application was allowed and
opportunity was given and opportunity was not utilized by the
appellants. Hence, I do not find any ground to admit the
appeal and frame any substantial question of law.
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11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
