AND

DECREE

DATED

28.07.2022

PASSED

IN

R.A.NO.2/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE

YELLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE

JUDGMENT AND DECREE DATED 23.12.2021 PASSED IN O.S.

NO.64/2014 ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL

MAGISTRATE FIRST CLASS, YALLAPUR, DECREEING THE SUIT FILED

FOR DECLARATION AND PERMANENT INJUNCTION.

ANNAPURNA

CHINNAPPA

DANDAGAL

Digitally

signed by

ANNAPURNA

CHINNAPPA

DANDAGAL

Location:

HIGH COURT

OF

KARNATAKA

DHARWAD

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

The defendant is before this Court assailing the

concurrent judgments rendered by the Courts below dated

28/07/2022 in R.A.No.2/2022 on the file of the Senior Civil

Judge, Yellapur, confirming the judgment and decree

dated 23/12/2021, in O.S.No.64/2014 on the file of the

Civil Judge and JMFC, Yellapur.

The parties herein are referred to as per their

ranking before the trial Court for the sake of convenience.

3.

The plaintiff filed the suit for the relief of

declaration and injunction in respect of the suit schedule

property stating that one Savithri Bai, who is the wife of

his uncle had executed a registered Will on 08/05/2013 in

favour

of

the

plaintiff

and

she

passed

away

on

25/01/2014. The said Savithri Bai was the absolute owner

of the suit schedule property having acquired right by way

of occupancy rights granted by the Land Tribunal,

Yellapur. When the plaintiff made an application to enter

his name on the basis of the registered Will, it was noticed

- 3 -

that the name of defendant Nos.1 and 2 have been

entered in the revenue records.

4.

Pursuant to the notice issued by the trial Court,

the defendants appeared and filed their written statement

admitting that the suit schedule property was acquired by

the deceased Savithri Bai as an absolute owner. However,

the defendant denied execution of the Will alleged to have

been executed by late Savithri Bai and contended that the

defendants are the close relatives and the plaintiff is no

way related to the deceased Savithri Bai.

5.

The trial Court, based on the pleadings,

material on record and on appreciating the evidence of

PW.1 and the documents marked on behalf of the plaintiff

at Exs.P-1 to P-10 and two witnesses who were examined

to prove the attestation and execution of the Will as PWs.2

and 3. The defendant examined himself as DW.1 and got

marked documents at Exs.D-1 t- D-5 and decreed the suit

holding that the plaintiff is the absolute owner of the suit

schedule property and execution and attestation of the Will

at Ex.P-9, the registered Will is proved in accordance with

law.

- 4 -

6.

Aggrieved by the judgment of the trial Court,

the appellant preferred the first appeal before the first

Appellate Court. The first Appellate Court, on re-

appreciation of the material on record, has affirmed the

judgment and decree of the trial Court.

7.

Considering that the instant appeal is a second

appeal arising under Section 100 of the Code of Civil

Procedure Code, the scope of interference would arise only

in the event there being a substantial question of law for

consideration. To appreciate this aspect of the matter,

this Court has heard learned counsel for the appellants-

defendants and learned counsel for the respondent and

perused the material on record.

8.

The fact that the suit schedule property

belonged to Savithri Bai having acquired the same by

occupancy rights is not in dispute. The defendants

contended that they are the Class II legal heirs of

deceased Savithri Bai and the plaintiff has no concern for

the deceased Savithri Bai. Ex.P-9 is the registered Will

executed by the deceased Savithri Bai in favour of the

plaintiff. The plaintiff, in order to prove the execution and

- 5 -

attestation of the Will in accordance with Section 63 of the

Indian Succession Act, 1925 and Section 68 of the Indian

Evidence Act, the plaintiff being the propounder of the

Will, was required to prove the said document. In tha