2025 Supreme(Online)(Kar) 34197

THE HIGH COURT OF KARNATAKA
Anant Ramanath Hegde, J
Chandre Gowda – Appellant
Versus
V S Mahanthe Gowda – Respondent
RSA No. 1773 of 2013 | RSA No. 1774 of 2013 | RSA No. 1775 of 2013

A Will can be proven valid under the Evidence Act via the scribe's testimony and the testator's own admissions in pleadings, even if attesting witnesses turn hostile. Concurrent findings of fact are subject to judicial review in second appeals if based on an incorrect appreciation of evidence or law.

Headnote:(A) Hindu Succession Act, 1956 - Section 8 - Indian Evidence Act, 1872 - Sections 70 and 71 - Code of Civil Procedure, 1908 - Section 100 - Dispute over inheritance and testamentary succession - Concurrent findings of lower courts - Validity of adoption and execution of Will - Principles of proof in second appeal.

(B) Proof of Will - Attesting witnesses - Where attesting witnesses turn hostile, the Will can be proved by the scribe's evidence or the testator’s own admissions in pleadings - Admission of a party to an attested document constitutes sufficient proof as per Section 70 of the Evidence Act.

(C) Second Appeal - Scope of jurisdiction - While normally concurrent findings of fact are not to be disturbed, the High Court has jurisdiction to interfere under Section 100 when lower courts ignore vital pleadings, applicable law, or evidence on record, constituting a substantial question of law. (Paras 41, 73, 74 and 83)

Facts of the case:
Multiple suits were filed concerning claims of inheritance and ownership of properties. The dispute centered on the validity of an adoption deed dated 1952 and a registered Will dated 1990 executed by a widow, which was challenged by alleged relatives. The trial and first appellate courts had dismissed the claims regarding the validity of the Will, noting the testimony of hostile attesting witnesses and lack of absolute ownership by the testator.

Findings of Court:
The Court held that the 30-year-old registered adoption deed carries a rebuttable presumption of validity which remained unchallenged. Regarding the Will, the Court observed that the testator had consistently asserted its execution in her own pleadings during her lifetime. The Court ruled that the lower courts erred in ignoring these vital pleadings and the provisions of the Evidence Act regarding proof where attesting witnesses deviate from their roles. The Will was declared valid to the extent of the testator’s share, and partition was ordered.

Issues: (1) Whether the lower courts were justified in rejecting the Will despite admissions in the testator’s pleadings and the availability of the scribe’s evidence. (2) Whether the lower courts erred in failing to acknowledge the presumption regarding the registered document of adoption. (3) Whether the High Court could interfere with concurrent findings in a second appeal.

Ratio Decidendi: Execution of a Will can be established under Section 71 of the Evidence Act through the scribe’s testimony if attesting witnesses fail to support it. Furthermore, pursuant to Section 70, the testator’s own admissions in pleadings regarding the Will constitute sufficient proof. Where courts fail to analyze these legal aspects and ignore critical pleadings, such findings suffer from a legal error warranting interference in the second appeal.

Result: Appeals allowed in part; Will declared valid to the extent of half share; decree for partition and separate possession passed.