Karnataka High Court
Nanda Kumar. N vs Smt. Komala on 3 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:44154
RSA No. 1709 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1709 OF 2024 (PAR)
BETWEEN:
1. NANDA KUMAR. N
S/O LATE NAGAPPA,
AGED ABOUT 43 YEARS,
2. ANAND @ ANAND KUMAR
S/O LATE NAGAPPA,
AGED ABOUT 40 YEARS,
BOTH R/AT NO.628,
'B' EXTENSION, BANNIMANTAPA
SHIVARATHRESWARA NAGARA
MYSURU CITY - 570 015
Digitally signed
by DEVIKA M
ALSO R/AT NO.1097/C,
Location: HIGH
COURT OF 5TH CROSS, 9TH MAIN,
KARNATAKA PRAKASH NAGARA,
BANGALORE - 560 021
...APPELLANTS
(BY SRI B R VISWANATH, ADVOCATE)
AND:
SMT. KOMALA
W/O MURUGHESH K M,
D/O LATE NAGAPPA,
AGED ABOUT 37 YEARS,
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RSA No. 1709 of 2024
HC-KAR
R/AT NO.6, 3RD MAIN,
BAMBOO BAZAR,
MYSURU CITY - 570 021
...RESPONDENT
(BY SMT. SUMATHI S, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 12.02.2024
PASSED IN R.A.NO.162/2022 ON THE FILE OF THE VI
ADDITIONAL PRINCIPAL DISTRICT AND SPECIAL JUDGE,
MYSURU 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 challenging the concurrent
finding of the Trial Court as well as the First Appellate
Court.
2. This appeal is listed for admission. Heard the
learned counsel appearing for the appellants and also the
learned counsel appearing for the respondent.
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3. The factual matrix of the case of plaintiff before
the Trial Court that the suit schedule properties are the
ancestral and joint family properties of plaintiff and
defendant Nos.1 and 2 and the plaintiff is entitled for 1/3rd
share in the suit schedule properties. The defendant Nos.1
and 2 took the specific defence that their mother has
executed the Will in their favour on 03.05.2014 with
respect to the suit Schedule No.1 of the property and
defendant Nos.1 and 2 also took the specific contention
that they have paid sufficient amount to the plaintiff and
hence, the plaintiff is not entitled for any relief.
4. The Trial Court having considered both oral and
documentary evidence placed on record comes to the
conclusion that it is not in dispute that property belongs to
the family and the Trial Court comes to the conclusion that
plaintiff is entitled for 1/3rd share in the suit schedule
properties taking note of the defence of the defendants in
the written statement regarding execution of the Will.
Having taken note of the fact that Will was executed in the
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month of May, 2014 and the testator passed away in the
very next month i.e., in the month of June. 2014. The
Trial Court also considered the fact that the document at
Ex.D4 is dated 15.02.2014 and the Will is dated
03.05.2014. But the Will at Ex.D1 was signed by the
mother but 3 months prior to the said Will, the testator
affixture her LTM on the document of Ex.D4. Hence, taking
note of all these factors into consideration comes to the
conclusion that Will is not proved. So also, in respect of
Issue No.4 is concerned that they have already paid
sufficient amount to the plaintiff, the Trial Court comes to
the conclusion that nothing is placed on record before the
Court to substantiate the same. Hence, granted the relief
of 1/3rd share by decreeing the suit of the plaintiff.
5. Being aggrieved by the judgment of the Trial
Court, an appeal was preferred in R.A.No.162/2022. The
First Appellate Court also having considered the grounds
urged before the Appellate Court, formulated the points
and also on reassessing the oral and documentary
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evidence available on record comes to the conclusion that
Trial Court has not committed any error in appreciating
both oral and documentary evidence and answered the
points as negative and confirmed the judgment and decree
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 learned counsel
appearing for the appellants that merely because some of
the documents contain the thumb impression and also the
signature of the testator cannot be a ground to disbelieve
the Will executed by the mother in favour of defendant
Nos.1 and 2. The counsel would vehemently contend that
the Will which was executed in their favour is the self
acquired property of their mother and said property was
acquired out of the income of the joint family. The counsel
also vehemently content that both the Courts have
committed an error in appreciating the Will and small
admission on the part of DW1 and DW2 is magnified with
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regard to doubting of the very Will. Hence, it requires
interference of this Court by admitting the appeal.
7. Per contra, the learned counsel appearing for
the respondent would vehemently contend that with
regard to the Will is concerned, both the Courts have
rightly comes to the conclusion that document of Will
came into existence in the month of May, 2014 and the
testator passed away in the month of June, 2014; prior to
3 months, i.e., in the month of February, 2014, the
document of Ex.D4 was executed which clearly discloses
that the testator had signed the document by putting her
left thumb impression, but within a span of 3 months,
signature of the testator is found in the Will. The Trial
Court has taken note of the said fact into consideration.
The First Appellate Court also having reassessed both oral
and documentary evidence placed on record, in page 35
and 36 considered the answer elicited from the mouth of
PW1 and in paragraph 27, in detail taken note of the same
and also in paragraph 28 comes to the conclusion that
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when the property belongs to the mother, all the family
members are entitled since there is no any testamentary
document which was propounded by the appellants was
not proved and the evidence of witnesses also creates
doubt. Hence, it does not require interference of this
Court.
8. Having heard the learned counsel appearing for
the respective parties and also considering the material on
record, it is not in dispute that property stands in the
name of the mother. But, whether the said property is a
self acquired property or purchased out of the income of
the family members is immaterial before this Court in view
of document exists in the name of the mother. It is also
important to note that mother becomes an absolute owner
of the property in view of Section 14 of the Hindu
Succession Act. The other contention of the defendants
that they have paid the sufficient amount in favour of the
plaintiff. But in order to substantiate the same, no material
is placed before the Court. Apart from that when the
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defence was taken that Will was executed by the mother
of defendant Nos.1 and 2, both the Courts taken note of
the fact that within a span of one month from the
execution of Will, the testator passed away. Apart from
that, the document at Ex.D4 came into existence in the
month of February 2014. But in that document, the
testator had put her left thumb impression. No doubt, in
the year 2009 also one more document was executed i.e.,
mortgage deed, wherein also left thumb impression of the
testator is found. But in a surprise circumstances, i.e.,
within a span of 3 months of Ex.D4, in Ex.D1-Will found
the signature of the testator. Having taken note of all
these factors into consideration, both the Courts come to a
right conclusion that the very execution of the Will is not
proved. The Trial Court in detail discussed the material
available on record holding that there must be a reason for
disinheriting the daughter while executing the Will in
favour of defendant Nos.1 and 2. When such being the
case, the very contention of the counsel appearing for the
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appellants cannot be accepted. The Will is shrouded with
suspicious circumstances particularly, the signature of the
executant i.e., testator since, in Ex.D4 dated 15.02.2014,
found left thumb impression of the testator and within a
span of 3 months from Ex.D4 i.e., in Ex.D1 dated
03.05.2014, found the signature of the testator. Hence, I
do not find any ground to admit and frame any
substantive questions of law invoking Section 100 of CPC
as there is no any perversity in the finding of both the
Courts. This Court, while exercising the power under
Section 100 of CPC, must find the perversity in the
judgment of both the Courts to admit the appeal and to
frame substantive question of law. In the present case,
both the Courts have passed reasoned judgments
appreciating the very existence of Will is concerned.
Hence, no ground is made out to admit the appeal and to
frame substantive question of law invoking Section 100 of
CPC since there is no any substantive question of law as
both facts and law are considered properly.
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9. In view of the discussion made above, I pass
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.As. if any,
do not survive for consideration and the same stand
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
