(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and Decree dated 29.08.2024 passed in R.A.No.5043/2017 on the III Additional District and Sessions Judge, Mandya (Sitting At Srirangapatna), dismissing the appeal and confirming the judgement and decree dated 16.03.2017 passed in O.S.No.31/2009 on the file of Prl. Senior Civil Judge and JMFC, Srirangapatna.)

Oral Judgment

1. This matter is listed for admission. Heard The learned counsel for appellant.

2. This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff before the Trial Court that suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant Nos.1, to 3 and 5 and hence, claimed that she is entitled for partition and separate possession of 1/6th share as claimed in her claim in all the suit schedule properties. The defendant appeared and filed written statement contending that there was already a partition had taken place between the father of the plaintiff late Ningegowda and his sons defendant Nos.1, 2, 3 and 5 under a palupanchayat parikathi dated 08.04.2001 and the properties mentioned in paragraph No.4 of the written statement fell into the share of the parties respectively and so also took the contention that a Will was executed by the father in respect of the property which was allotted in his favour on 03.06.2002 and also contended that at the time of marriage, they have given Rs.3,00,000/-. The defendant No.6 taken specific defense in the written statement that in the family partition, Item No.1 of the suit schedule property was allotted to the share of defendant No.2. The defendant No.6 also contended that he is the bonafide purchaser of Item No.1 of the suit schedule property under registered sale date dated 08.02.2008. Further contended that suit is filed for partial partition without excluding all the family properties and suit is also barred by limitation. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that already there was a partition and also comes to the conclusion that plaintiff is entitled for a share in the property belongs to the father and Additional Issue No.1 and 2 also answered that already there was a partition and properties are allotted to the 2nd defendant and 2nd defendant inturn sold the property in favour of the 6th defendant and hence, the Trial Court partly decreed the suit by granting the relief of 1/6th share only in respect of particular survey number of 3 items of the suit schedule property i.e., Sy.No.167/P4 measuring 11 guntas, Sy.No.168/2 measuring 23 guntas situated at M.Shettihalli village and Sy.No.105 measuring 16 guntas situated at Ganangoor Village and in one Ankana of residential house situated at Ganangoor village left behind by deceased Ningegowda son of Puttegowda in respect of other property is concerned, dismissed the same. The plaintiffs have not filed any appeal. But, the defendant No.2/appellant filed an appeal before the First Appellate Court in R.A.No.5043/2017. The Appellate Court even allowed the appellant to lead evidence with regard to the Will is concerned. The D.W.1 to D.W.3 are also examined before the First Appellate Court.

3. The First Appellate Court having considered both oral and documentary evidence, comes to the conclusion that though the appellant/defendant No.2 propounded the Will and the same has not been proved and with regard to the proving of the Will is concerned, detailed reasons are given in paragraph No.47, 48 and 49 considering the evidence of D.W.2 and Will has not been proved and comes to the conclusion that Ex.D4 was got executed by Bommegowda when his father was not in a sound state of mind and when the document Ex.D4 was not established, defendant has failed to prove that he is an absolute owner of these particular three survey numbers and hence, confirmed the judgment of the Trial Court.

4. Being aggrieved by the same, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant that inspite of D.W.2 and D.W.3 have been examined to prove the document of Ex.D4, First Appellate Court committed an error in not accepting the case of the appellant and hence, this Court has to admit and frame substantive question of law.

5. Having heard the learned counsel for appellant and also considering the material available on record, the Trial Court granted the relief only in respect of the property which was left by the father and already comes to the conclusion that there was a division between the father and sons before filing the suit itself and though appellant pleaded that there was a Will in his favour, but he did not produce the Will in favour of him which was executed by the father. But, an attempt is made before the First Appellate Court and produced the same and examined two witnesses D.W.2 and D.W.3. The First Appellate Court having perused both oral and documentary evidence, comes to the conclusion that the evidence of D.W.2 and D.W.3 is not credible and not inspires the confidence of the Court to prove the Will. The very execution of document Ex.D4 was got executed by appellant when his father was not in a sound state of mind and the said conclusion is given based on the evidence of D.W.2 and D.W.3 and not accepted the case of the appellant. When such being case, when the First Appellate Court considered both oral and documentary evidence, particularly the evidence of D.W.2 and D.W.3 and his evidence not inspires the confidence of the Court with regard to the very sound state of mind of the deceased. Hence, I do not find any ground to admit and frame substantive question of law and hence, not a case to invoke Section 100 of CPC.

6. In view of the discussions made above, I pass the following:

ORDER

          i) Second appeal is dismissed.

          ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.