Karnataka High Court
Smt Saroja Shedthy vs Mr Uday Shetty on 10 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:40039
RSA No. 709 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.709 OF 2024 (DEC)
BETWEEN:
1. SMT. SAROJA SHEDTHY,
D/O LATE HIRIANNA SHETTY,
AGED ABOUT 51 YEARS,
RESIDING AT MALINGANAHITHLU,
HOSADU VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT-576 247.
...APPELLANT
(BY SRI. YABESH M., ADVOCATE)
AND:
Digitally signed 1. MR. UDAY SHETTY,
by DEVIKA M S/O LATE HIRIANNA SHETTY,
Location: HIGH AGED ABOUT 54 YEARS,
COURT OF RESIDING AT MALINGANAHITHLU,
KARNATAKA
HOSADU VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT-576 247.
2. MR. ANAND SHETTY,
S/O LATE NAGAYYA SHETTY,
AGED ABOUT 74 YEARS.
3. MR. SHIVARAMA SHETTY,
S/O LATE NAGAYYA SHETTY,
AGED ABOUT 71 YEARS.
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RSA No. 709 of 2024
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4. MR. SHEKAR SHETTY,
S/O LATE NAGAYYA SHETTY,
AGED ABOUT 68 YEARS.
ALL ARE RESIDING AT HANINAMAKKI,
HOSADU VILLAGE, KUNDAPURA TALUK,
UDUPI DISTRICT-576 247.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.01.2024
PASSED IN R.A.NO.20/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
16.04.2018 PASSED IN O.S.NO.116/2013 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, KUNDAPURA C/C.
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 of
the Trial Court.
3. The main contention of the plaintiffs before the Trial
Court is that a Will was executed in their favour on 10.03.1989.
In order to prove the Will, the plaintiffs examined P.W.2, who is
an attesting witness to the Will. The defendant No.1 was
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examined before the Trial Court. The Trial Court taking into
note of the admission as well as the contents of the document
of Ex.P.4 Will, comes to the conclusion that Will executed by
the executant on 10.03.1989 is proved. Though the
defendants took the specific contention in the written statement
that the Will is forged, fabricated and the same is a false
document, the Trial Court comes to the conclusion that the
same is not substantiated by placing any document except
examining D.W.1 before the Trial Court. D.W.1 also given the
admission with regard to the fact which supports the recitals of
the document of Ex.P.4 that the beneficiaries are taking care of
the executant of the Will and the same is extracted in
paragraph No.29 of the judgment of the Trial Court and hence
the Trial Court decreed the suit.
4. Being aggrieved by the said order, an appeal is filed
before the First Appellate Court in R.A.No.20/2018. The First
Appellate Court formulated the points for consideration and
particularly in paragraph No.18 extracted the recitals
mentioned in Ex.P.4 Will and even extracted the admission of
D.W.1 in paragraph No.20. The First Appellate Court having
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considered both oral and documentary evidence placed on
record, re-assessed the same and confirmed the judgment of
the Trial Court.
5. Being aggrieved by the said concurrent finding, the
present second appeal is filed before this Court.
6. The learned counsel for the appellant would
vehemently contend that the appellant is defendant No.2. The
defendant No.1 colluded with the plaintiffs and that defendant
No.1 intentionally avoided the appellant to the Court
proceedings and it is not true that the plaintiffs had looked
after the said Hirianna Shetty during his last days or that the
said Hirianna Shetty had any special attachment towards the
plaintiffs. It is further contended that he has not executed any
Will dated 10.03.1989 and fraudulently the said document was
obtained. The learned counsel would vehemently contend that
the very approach of both the Courts are not proper and hence
it requires interference of this Court.
7. Having heard the learned counsel for the appellant
and also on perusal of the material available on record, the Will
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is marked as Ex.P.4 and the Trial Court and the First Appellate
Court taken note of the recitals of the Will Ex.P.4. Apart from
that, admission on the part of D.W.1, who has been examined
before the Trial Court categorically given the admission that
either he himself or his sister have not taken care of the father
Hirianna Shetty. Both the Courts considering the recitals of
Ex.P.4 and also the admission, considered both oral and
documentary evidence placed on record and also taken note of
the evidence of P.W.2, who is an attesting witness to the Will.
P.W.2 categorically deposed that in his presence only the said
Hirianna Shetty has executed the Will. The very contention of
the defendants that the Will is forged and created is not
substantiated by placing any documentary evidence except the
oral evidence of D.W.1. The oral evidence of D.W.1 also
supports the case of the plaintiffs and he has given categorical
admission and the same is extracted in paragraph No.29 of
judgment of the Trial Court. The First Appellate Court also
while re-appreciating the evidence available on record, taken
note of admission of D.W.1 in paragraph No.20 and considering
the reading of the deposition of the said D.W.1, it shows that
he clearly admitted that the possession of the suit schedule
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property was with their father up to his death, but he did not
deny the suggestion to the effect that the plaintiffs are not in
possession and he categorically admitted that possession is
with the plaintiffs also. When such being the case, I do not find
any ground to admit the appeal and frame any substantial
question of law and there is no any perversity in the finding of
the Trial Court as well as the First Appellate Court and hence no
substantial question of law arises for consideration.
8. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
