(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 22.08.2024 passed in R.A.No.18/2022 on the file of II Additional District and Sessions Judge, Shivamogga., dismissing the appeal and confirming the judgment and decree dated 30.11.2021 passed in O.S.No.116/2016 on the file of II Additional Senior Civil Judge and JMFC, Shivamogga.)

Oral Judgment

1. This matter is listed for admission. I have heard learned counsel for the appellant and learned counsel for the respondents.

2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of the case of the plaintiff before the Trial Court is that she is the wife of late B.S.Chandrashekhar Bhatt and all the defendants are the daughters of the plaintiff and she is entitled for 1/5th share in the suit schedule property and also sought for consequential relief of permanent injunction restraining the defendants from dispossessing her from RCC house situated in the suit schedule property and alienating the said property in favour of third parties. It is her case that her husband died on 12.08.2012 leaving behind her and also the defendants as her legal heirs. The schedule property consists of main house and an outhouse. The main house being RCC house is in the occupation and possession of the plaintiff. At the same time, the outhouse portion namely house with Mangalore tiled roof is in the occupation of defendant Nos.1 and 3. It is also her case that the defendants by colluding each other have got changed the khatha of RCC house in the name of defendant No.1 and outhouse in the name of defendant No.3. It is also her case that on 13.05.2016, the defendant No.1 along with her son attempted to dispossess her from said RCC house, but she could manage to thwart such attempts with the help of neighbours. It is also the case of the plaintiff that suit schedule property being the self-acquired property of her deceased husband B.S. Chandrashekhar Bhatt is in joint possession and enjoyment of plaintiff and defendants. The suit schedule property remains un-partitioned and the plaintiff is entitled for 1/5th share.

4. In response to the suit summons, defendant Nos.1 to 4 entered appearance through their respective counsel and filed written statement contesting the suit. In the written statement filed by defendant No.1, the relationship between the parties and the fact that suit schedule property was self- acquired property of deceased B.S. Chandrashekhar Bhatt are admitted. At the same time, she has denied rest of the allegations of plaintiff. Her specific case is that Chandrashekhar Bhatt, who is none other than her father executed registered Will dated 08.04.2009 bequeathing one portion of the suit schedule property which comprises RCC house in her favour and another portion consisting of house in favour of defendant No.3. In addition to that, various bank deposits belonging to him were bequeathed in favour of plaintiff Smt. Indiramma and defendant Nos.2 to 4. The property which the defendant No.1 claims to have acquired through Will is described in the written statement. Hence, contend that when the suit schedule property has already been disposed of through testamentary document i.e., Will and the plaintiff and defendant Nos.2 to 4 also have clear knowledge about the said fact. It is further contended that parties have also acted upon in terms of the Will. Hence, there cannot be any relief of partition.

5. The Trial Court having considered pleadings of the plaintiff and also the defendants, framed the issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence i.e., issue No.3 as well as Additional issue Nos.1 and 2 framed earlier, considered factual aspects and documentary evidence available on record and particularly taken note of evidence of P.W.1 as well as evidence of D.W.1. The evidence of D.W.1 and the documents are also discussed in paragraph No.15. The Trial Court taken note of the fact that original Will was not produced before the Court and only an attempt is made to produce the certified copy of the Will and also taken note of the fact that it is not the case of defendant No.1 that original Will is in the custody of the plaintiff and only during the course of argument, the said contention was taken and there was no pleading in the written statement as well as in the oral evidence of D.W.1 before the Court and even not suggested to D.W.1 that original Will is in the custody of the plaintiff. Having considered the material available on record, even though witnesses have been examined, not accepted the case of the defendants and granted the relief of 1/4th share each to the transposed plaintiff Nos.1 to 3 and defendant in the suit schedule property, though other daughters have been arrayed as defendants and subsequently, they transposed them as plaintiffs other than defendant No.1.

6. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.18/2022. The First Appellate Court having considered the grounds which have been urged in the appeal memo, formulated the point whether the Trial Court erred in decreeing the suit for partition and allotting 1/4th share each to transposed plaintiff Nos.2 to 4 and defendant and whether it requires interference. The First Appellate Court having considered both oral and documentary evidence and on re- appreciation of the same, confirmed the judgment of the Trial Court in coming to the conclusion that Trial Court has not committed any error and particularly taken note of evidence available on record and observed that on overall appreciation of evidence in no way substantiate that the father had left the Will with respect to the suit schedule property. The First Appellate Court also comes to the conclusion that defendant No.1 has utterly failed to prove that Exs.D2 and D3 have seen the light of the day in pursuance of the Will in question. The defendant No.1 also fails to produce the original Will, on the other hand claims that the original Will was with her mother and thereby taking inconsistent stand. Though P.W.2-Nagarathna admitted getting the amount from the bank, there is nothing to show that the said amount was got released by P.W.2 on the basis of the Will. Original plaintiff as well as P.W.2 have withstood the rigor of cross-examination. In other words, the defendant No.1 has failed to substantiate that the transposed plaintiff Nos.2 to 4 and the original plaintiff had the knowledge about the Will and all of them had acted upon the said Will after the death of the testator which has been discussed in paragraph No.27 and comes to the conclusion that contention of the appellant cannot be accepted.

7. The main contention of learned counsel appearing for the appellant in this second appeal is that both the Courts have committed an error in not considering the secondary evidence i.e., the certified copy of the Will produced by Sub- registrar by way of summoning the document which has the characteristics of a public document under Section 74 of the Indian Evidence Act, 1872. The counsel also would vehemently contend that both the Courts erred in not giving much credence to the evidence of the scribe who clearly deposed that Will was signed by the executor and the witnesses in his presence and counsel would vehemently contend that both the Courts erred in ignoring the fact that beneficiaries under the Will have received the benefits conferred upon them under the Will, which includes receipt of the amount kept in Fixed Deposit and getting the khatha executed in relation to the property in their favour and both the Courts failed to consider the material available on record in a proper perspective.

8. Per contra, learned counsel appearing for the respondents would vehemently contend that when the defendant contend that there was a Will, ought to have produced the Will before the Trial Court and the same is not produced and marked before the Trial Court. The counsel would vehemently contend that though it is contended during the course of argument that Will is in the custody of the mother, but not summoned the same from the mother by causing any notice. Apart from that, in the written statement as well as in the oral evidence, no such pleading is taken and when the Will is propounded, ought to have proved the same by summoning the document. Even if it is not within the custody of the defendant, ought to have given notice to the person, who is in custody of the same and the same is not done. Hence, the very contention of the appellant cannot be accepted.

9. Having heard learned counsel for the appellant and also learned counsel for the respondents, there is no dispute with regard to relationship between the parties. It is also not in dispute that plaintiff herself categorically pleaded in the plaint that suit schedule property belongs to B.S.Chandrashekhar. It is also not in dispute that B.S.Chandrashekhar died leaving behind wife and 4 children. The plaintiff is the wife of B.S.Chandrashekhar and defendant Nos.1 to 4 are the daughters of said B.S.Chandrashekhar. No doubt, the plaintiff while filing the suit, arrayed all the daughters as defendants, but defendant No.1 contested the matter by filing written statement and propounded the Will. It has to be noted that Will is not marked before the Trial Court and also it is contended that Will is in the custody of mother. But, no such pleading in the written statement or in the chief evidence and no suggestion was made to P.W.1 during the evidence that Will is in custody of the plaintiff and no effort was made for production and marking the secondary evidence and not complied the procedure for marking the secondary evidence and unless the same is not proved and no effort was put by the defendant to mark the certified copy of the Will, the contention of the defendant was not accepted. Even though two witnesses were examined as D.Ws.2 and 3, in the absence of Will, their evidence cannot be looked into.

10. Even Trial Court also in detail discussed in paragraph No.16 and extracted cross-examination of P.W.1, wherein suggestion was made and P.W.1 specifically admitted that she took the amount of Rs.50,000/-, but not on the basis of the Will and when such denial is made and nothing is elicited from the mouth of P.W.1 regarding very execution of the Will and there is no unequivocal admission on the part of P.W.1 with regard to the Will is concerned and the same is not proved, I do not find any error on the part of the Trial Court as well as the First Appellate Court in considering both oral and documentary evidence as well as the re-appreciation made by the First Appellate Court. The First Appellate Court also considered issue Nos.1 and 2 with regard to admission of the parties that the suit schedule property was self-acquired property and no error can be found with the said order of the Trial Court and the same is observed in paragraph No.26. Apart from that with regard to the Will is concerned, detailed discussion is made in paragraph No.27 and also taken note of the fact that P.W.2- Nagarathna admitted getting the amount from the bank. There is nothing to show that the said amount was got released by P.W.2 on the basis of the Will and even for taking that amount also, even if the plaintiff taken the money based on the Will, the defendant ought to have made effort to summon those documents and the same is also not placed before the Court. When there is no material with regard to the Will is concerned, I do not find any error on the part of Trial Court and the First Appellate Court in appreciating both oral and documentary evidence. Hence I do not find any ground to invoke Section 100 of CPC.

11. In view of the discussion made above, I pass the following:

ORDER

The regular second appeal is dismissed.

In view of disposal of the second appeal, question of considering pending I.A. does not arise.