Karnataka High Court
Sri Appaiahshetty (Dead) vs Annaiah on 6 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1633 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1633 OF 2023 (PAR)
BETWEEN:
1. SRI. APPAIAHSHETTY (DEAD)
S/O LATE THIMMASHETTY
REPRESENTED BY HIS LRS.
1(a) SMT. PUTTATHAYAMMA
W/O APPAIAHSHETTY
AGED ABOUT 72 YEARS
R/AT ANNUR VILLAGE
KASABA HOBLI
H.D. KOTE-571 114.
2. SRI. SOMANNA
S/O APPAIAH SHETTY
AGED ABOUT 48 YEARS
Digitally signed
by DEVIKA M
3. SRI. JAYANNA
Location: HIGH
S/O APPAIAH SHETTY
COURT OF
KARNATAKA AGED ABOU 44 YEARS
4. SMT. RATHNAMMA
D/O DHASHARATHA
AGED ABOUT 32 YEARS
APPELLANTS NO.2 TO 4 ARE
R/AT ANNUR VILLAGE
KASABAHOBLI
H.D. KOTE TALUK
MYSURU DISTRICT-571 114.
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RSA No. 1633 of 2023
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5. SMT. SAVITHRAMMA
W/O RAMANNA
AGED ABOUT 50 YEARS
KUNTIBETTA CIRCLE
DEVEGOWDANAKOPPALUR VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT-571 434.
6. SMT. SUNDARAMMA
W/O LATE PADMANABHA
AGED ABOUT 40 YEARS
R/A VISHALAKSHIPURA VILLAGE
HONGANURU HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562 160.
...APPELLANTS
(BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR
SRI. VENKATESH SOMAREDDI, ADVOCATE)
AND:
1. ANNAIAH
S/O APPAIAH SHETTY
AGED ABOUT 37 YEARS
ANNURU VILLAGE
H.D. KOTE TALUK-571 114.
2. SMT. RATNAMMA
W/O SREENIVAS
AGED ABOUT 35 YEARS
VISHALAKSHIPURA VILLAGE
HONGANURU VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562 160.
...RESPONDENTS
(BY SRI. NANDISH GOWDA G.B., ADVOCATE)
THIS RSA IS FILED UNDER ORDER 42 READ WITH
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 27.02.2023 PASSED IN R.A No.41/2021 ON THE FILE
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RSA No. 1633 of 2023
HC-KAR
OF THE SENIOR CIVIL JUDGE AND JMFC, H.D. KOTE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.09.2021 PASSED IN O.S.NO.144/2012
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
HEGGADADEVANAKOTE.
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 and I have heard
learned counsel for the appellants and learned counsel for
respondent Nos.1 and 2.
2. This appeal is filed against the concurrent finding of
the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the plaintiffs
before the Trial Court while seeking the relief of partition and
separate possession, it is specifically pleaded that plaintiffs
themselves and the defendants are members of Hindu
Undivided Joint Family. It is also contended that all the suit
schedule properties are the joint family properties of
themselves and defendants and that they are entitled for the
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relief of partition and their legitimate share over the suit
schedule properties by metes and bounds.
4. The defendant No.1, who filed the written
statement contented that the suit schedule properties are the
self-acquired properties by virtue of registered Will dated
11.12.2006. It is also contended that the Trial Court
considering the defence of defendant No.2 that item No.5 of
suit schedule properties is the self-acquired property of late
Appiahshetty and on 11.12.2006 late Appiahshetty executed
the Will in favour of defendant Nos.5 and 6 comes to the
conclusion that question of granting any relief of partition and
separate possession does not arise.
5. The parties have led the evidence before the Trial
Court and the Trial Court having considered the material
available on record comes to the conclusion that plaintiffs have
proved that suit schedule properties are joint family properties
and there is no dispute with regard to the relationship between
the parties and answered issue No.3 as 'partly affirmative' that
plaintiffs are entitled for share in item Nos.1, 2 and 5 of the suit
schedule properties and though specific pleading was made by
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the defendants that there was a Will dated 11.12.2006 and the
same was not accepted by the Trial Court, since the Will was
not proved as mandated under Sections 63 and 68 of Evidence
Act and Indian Succession Act and not examined any of the
witnesses to prove the defence of Will which was executed.
Hence, comes to the conclusion that plaintiffs are entitled for
share only in item Nos.1, 2 and 5 of the suit schedule
properties and comes to the conclusion that plaintiff No.1 is the
absolute owner of suit schedule item No.3 of the property and
plaintiffs are not entitled for the relief of partition and separate
possession in respect of item No.4 is concerned.
6. The judgment and decree of the Trial Court was
challenged before the First Appellate Court in R.A.No.41/2021.
The First Appellate Court having considered the grounds which
have been urged in the appeal memo, formulated the point
whether the Trial Court was justified in holding that the
plaintiffs are the children of Appaiahshetty through his second
wife Jayamma and item Nos.1, 2 and 5 of the suit schedule
properties are undivided and ancestral properties of the
defendants and plaintiffs and whether the Trial Court was
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justified in holding that the defendants Nos.5 and 6 have failed
to prove that they are the absolute owners of item Nos.1, 2 and
5 of the suit schedule properties by virtue of the registered Will
dated 11.12.2006 executed by Appaiahshetty in their favour.
The First Appellate Court having reassessed the material
available on record, particularly in respect of the relationship
between the parties is concerned that they are the children of
Appaiahshetty and also with regard to the very execution of the
Will is concerned though propounded the Will executed on
11.12.2006 in favour of defendant Nos.5 and 6, the same was
not proved by complying the mandatory provisions. Hence,
comes to the conclusion that the Trial Court not committed any
error and confirmed the judgment of the Trial Court. Being
aggrieved by the concurrent finding, the present second appeal
is filed before this Court.
7. The main contention of learned counsel for the
appellants in his argument is that both the Courts have
committed an error in granting the relief, particularly relying on
Ex.D1-voter's list, Ex.P4-voter's list, Ex.P5-genealogical tree
and Ex.P10-voters identity card issued by the Election
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Commission and comes to the conclusion that they are the
children of defendant No.1-late Appaiahshetty and when those
documents are prepared only on the basis of information given
by the interested person, learned counsel would vehemently
contend that both the Courts are not justified in coming to the
conclusion that Ex.D1 is a document produced by the
defendants when it was the documents very much produced by
the plaintiffs themselves and confronted to P.W.1 during his
cross-examination. The counsel also would vehemently contend
that when an application is filed under Order 41 Rule 27 of CPC,
the same was not considered properly. Hence, this Court has to
admit the second appeal and frame substantial question of law.
8. Per contra, learned counsel for the respondent
Nos.1 and 2 would vehemently contend that the Trial Court has
taken note of the documents which have been placed before
the Court with regard to relationship is concerned and taken
note of both question of fact and question of law and rightly
comes to the conclusion that Will was not proved. When such
finding is given, question of admitting and framing substantial
question of law does not arise.
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9. Having heard learned counsel for the appellants and
learned counsel for respondent Nos.1 and 2 and particularly
taking note of the pleadings of the plaintiffs before the Trial
Court and also considering the defence of the defendants,
specific defence of the appellants/defendants is that there was
a Will dated 11.12.2006. Admittedly, the Will was not proved as
required under Sections 63 and 68 of Indian Evidence Act and
Indian Succession Act. Apart from that, taken note of material
available on record, particularly oral and documentary evidence
with regard to relationship is concerned. However, learned
counsel appearing for the appellants mainly contends that
relationship is not established and even with regard to the
findings of the Trial Court and the First Appellate Court with
regard to the factual aspects is concerned, I do not find any
grounds to admit and frame substantial question of law, when
the mandatory provisions of the Evidence Act and the Indian
Succession Act in proving the Will is not complied with and
even if the Will is disputed or not, that is not the issue. Even if
the Will is disputed or not, the defendants have to compulsorily
examine one of the attesting witnesses to the Will and when
such attempt is not made by the appellants/defendants, in
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order to substantiate their case and to prove the Will, I do not
find any ground to admit this second appeal and frame any
substantial question of law and there is no such perversity in
the findings of both the Courts and both the Courts have
considered question of fact and question of law. Hence,
question of invoking Section 100 of CPC does not arise.
10. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
