RSA.CROB No. 100006 of 2015 · Karnataka High Court

SHRI VIMAL APPAYYA MARKAL SINCE DECEASED BY HIS LRS., 1A. SMT. KASTURI W/O. VIMAL MARKAL, AGE: 60 YEARS, OCC. AGRICULTURE, R/O. H.NO.359, BASTI GALLI, HALAGA-590020, TQ AND DIST. BELAGAVI. 1B. SHRI RAJENDRA S/O. VIMAL MARKAL, AGE: 41 YEARS, OCC. AGRICULTURE, R/O. H.NO.359, BASTI GALLI, HALAGA-590020, TQ AND DIST. BELAGAVI. 1C. SHRI MAHAVEER S/O. VIMAL MARKAL, AGE: 37 YEARS, OCC. AGRICULTURE, R/O. H.NO.359, BASTI GALLI, HALAGA-590020, TQ AND DIST. BELAGAVI. 1D. SMT. PADMASHREE W/O. VASUDEV BHAGANNAVAR, AGE: 36 YEARS, OCC. HOUSEHOLD WORK, R/O. H.NO.527, VIDYA NAGAR, BASTWAD(HALAGA)-590020, TQ AND DIST. BELAGAVI. 1E. SMT. GULABI W/O. SURESH GOUDRA, VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL 12:17:06 +0530 - 2 - NC: 2024:KHC-D:16192 RSA.CROB No. 100006 of 2015 AGE: 34 YEARS, OCC. AGRICULTURE, R/O. KASMALGI-590106, TQ. KHANAPUR, DIST. BELAGAVI. (BY SRI. ABHISHEK PATIL AND SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATES) … CROSS OBJECTORS AND: SMT. GULABI W/O. ARJUN INCHAL AND SMT.GULABI D/O. KUSHAPPA MARKAL, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: HALAGA, BELAGAVI. NOW R/O: C/O: BABU SATAGOUDA, BENDIGERI LANE, ANGOL, BELAGAVI-590006. (BY SRI. RAVIRAJ C PATIL AND SRI. SRIPRASAD J JOSHI, ADVOCATES) … RESPONDENT THIS RSA CROB IN RSAS NO.100166/2015 FILED U/O.41 RULE 22 OF CPC, 1908, R/W SEC.100 OF CPC, AGAINS THE JUDGMENT AND DECREE DATED 26.09.2014 PASSED IN R.A.NO.225/2007 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT III BELAGAVI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.12.2003 AND THE DECREE PASSED IN O.S.NO.588/1998 ON THE FILE OF (JR.DN) BELAGAVI, THE PRINCIPAL CIVIL DISMISSING THE SUIT FILED FOR DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION. JUDGE THIS PETITION, COMING ON FOR ORDERS, THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2024:KHC-D:16192 RSA.CROB No. 100006 of 2015 ORAL JUDGMENT (PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA) The matter is listed for admission along with RSA No.100166/2015. The Second Appeal is being admitted by this Court, the present Cross-Objection is heard on merits. The Cross-Objection is preferred by the defendant assailing the findings on issue Nos.4, 9 and additional issue No.1 recorded by the Courts below.

Heard the learned counsel appearing for the cross-objector and learned counsel appearing for the respondent.

Suit for declaration to declare that the plaintiff is the absolute owner of the suit land and for consequential relief of permanent injunction, restraining the defendant interfering with the plaintiff’s possession. The defendant contended that the deceased Bharma on

23.01.1978 executed a Will in his favor which was registered in the Sub-registrar office and the defendant - 4 - NC: 2024:KHC-D:16192 RSA.CROB No. 100006 of 2015 has become the absolute owner of suit land. The trial Court while answering issue No.2 held that the defendant has failed to produce the original Will and though the photostat copy of the Will is marked in evidence, the execution of the Will is not proved in accordance with Section 63 of the Indian Succession Act 1925 and Section 68 of the Indian Evidence Act 1872. The contention of defendant No.1-the legatee under the Will is that the original Will has been lost and marked the photostat copy of the original Will at Ex.D.5.

It is also relevant that while proving the document as envisaged under the said sections, the photocopy of the Will cannot be marked in evidence. Merely because a document is marked in evidence, it does not mean that the contents of the documents are been proved, the document marked at Ex.D5 is the photostat copy of the Will, the defendant has taken up a contention that the original Will is lost, it is relevant to note here that the trial Court while giving a finding on Will observed that - 5 - NC: 2024:KHC-D:16192 RSA.CROB No. 100006 of 2015 the defendant in his cross-examination categorically stated that he has given the Will to his counsel while preparing written statement, which is contrary to his own pleadings that Will, is lost. The Will has to be proved in accordance with law and it cannot be like any other document, Ex.D5 is the photostat copy, without accounting for loss of the original, though marked in evidence. When law mandates certain things to be done in particular manner. Secondary evidence should have to be received only on compliance of provisions of Section 65 of the Indian Evidence Act, 1925 (Section 60 of Bharatiya Sakshya Adhiniyam, 2023 ).

It is for the propounder of the Will to dispel all the suspicious circumstances surrounding the Will, the suspicious circumstances surrounded the Will testator was in sound disposing state of mind in executing the Will at the time of the execution of the Will. The law is well settled that the consonance of the Court must be satisfied that the Will in question is not only executed and attested in the manner required under the Indian Succession Act, - 6 - NC: 2024:KHC-D:16192 RSA.CROB No. 100006 of 2015 1925 but it also dispelled the suspicious circumstances. In the instant case, the defendant has not proved the very existence of the Will in the absence of producing the original Will before the Court. The Courts below have rightly arrived at a conclusion that the defendant has failed to prove the Will executed by the deceased Bharma in his favor, the finding of facts recorded on the Will against the defendant does not warrant any interference by this Court and this Court pass the following: ORDER i. The cross objection is hereby dismissed. ii. The judgment and decree insofar as the finding recorded on the Will stands confirmed. Sd/- (JUSTICE K.S.HEMALEKHA) PJ/AT LIST NO.: 2 SL NO.: 0