IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10^TH DAY OF FEBRUARY 2021

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

REGULAR SECOND APPEAL NO.1602 OF 2012

BETWEEN:

SRI. THIMMANAIKA

AGED ABOUT 72 YEARS,

S/O LATE CHIKKABETTANAIKA,

RESIDING AT: SINDHUVALLI VILLAGE,

JAIPURA HOBLI,

MYSORE TALUK, MYSORE-570 008.

...APPELLANT

(BY SRI. B S NAGARAJ, ADVOCATE)

AND:

1.

SRI SWAMY

AGED ABOUT 62 YEARS,

S/O LATE CHIKKABETTANAIKA

2.

SMT. THAYAMMA

AGED ABOUT 65 YEARS,

D/O LATE CHIKKABETTANAIKA

BOTH RESPONDENTS ARE RESIDING AT

SINDHUVALLI VILLAGE,

JAYAPURA HOBLI,

MYSORE TALUK, MYSORE -570 008. ….RESPONDENTS

(By Sri. JEEVAN K, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE

JUDGMENT

AND

DECREE

DATED

18.04.2012

PASSED

IN

R.A.NO.739/2009 ON THE FILE OF IV ADDITIONAL DISTRICT JUDGE,

MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT

AND DECREE DATED 27.07.2009 PASSED IN OS.NO.920/2005 ON THE

FILE OF I ADDITIONAL CIVIL JUDGE (SR. DVN.) MYSORE.

THIS RSA COMING ON FOR ORDERS, THIS DAY, THE COURT

DELIVERED THE FOLLOWING:-

J U D G M E N T

This is plaintiff’s second appeal challenging the judgment

and decree dated 18.04.2012 passed in R.A.No.739/2009 by the

IV Addl. District Judge, Mysore and the judgment and decree

dated 27.07.2009 passed in O.S.No.920/2005 by the I Additional

Civil Judge (Senior Division), Mysore, whereby the suit filed by

the plaintiff claiming half share in the suit schedule properties

has been dismissed on the ground that the plaint schedule

properties have been bequeathed under a Will to defendant No.2

by the propositor Chikkabettanaika.

2.

The appeal was admitted to consider the following

substantial questions of law viz:

1) Whether the courts below are justified in

dismissing the suit without considering whether the

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Will is proved as requited under Section 63 of the

Indian Succession Act and section 68 of the Evidence

Act?

2) Whether the Judgment and decree of both

the courts below are sustainable in law ignoring the

material facts and evidence of record?

For the sake of convenience, the parties are referred to in

this judgment in the same ranking as in the original suit.

3.

There is no dispute with regard to the relationship

between the parties. There is also no dispute that the plaint

schedule properties belonged to the father of the plaintiff and

defendants namely late Sri.Chikkabettanaika. The plaintiff

instituted the suit for partition on the ground that the deceased

Sri.Chikkabettanaika died intestate, and claimed half share in

the suit schedule properties. In the suit, he arrayed only two of

the legal heirs of late Sri.Chikkabettanaika as defendant Nos.1

and 2. Defendant No.2 put forth a Will said to have been

executed by the deceased Sri.Chikkabettanaika. During the

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course of trial, the original Will was produced as Ex.D1. In proof

of the said Will, defendant No.2 examined two attestors to the

said Will namely DW.2 and DW.3. Considering the said

evidence, the Trial Court upheld the execution of the Will and

consequently, dismissed the suit. Plaintiff challenged the said

judgment and decree in appeal and the first Appellate Court

dismissed the appeal, confirming the findings recorded by the

Trial Court.

Heard Sri.B.S.Nagaraj, learned counsel for appellant and

Sri.Jeevan K., learned counsel for respondents.

4.

The primary contention urged by the learned counsel

for appellant / plaintiff is that Ex.D1 – Will is not proved in

accordance with the provisions of section 68 of the Indian

Evidence Act. The execution of the said Will is surrounded by

suspicious circumstances. It did not bear the signature or LTM

of the deceased Chikkabettanaika on the facing sheet of the Will;

there is no evidence to the effect that the contents of the Will

have been read over to the executant and that he a