JUDGMENT : M.G. UMA, J. 1. Defendant No.3 in OS.No.220/2002 on the file of the learned Civil Judge (Jr.Dn.), Sagar (hereinafter referred to as 'the Trial Court') is impugning the judgment and decree dated 24.02.2006 decreeing the suit of the plaintiff for declaration of his title and for permanent injunction, which was confirmed in RA.No.59/2006 on the file of the learned Civil Judge (Sr.Dn.), Sagar (hereinafter referred to as 'the First Appellate Court') vide judgment dated 21.04.2009 by dismissing the appeal. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Facts of the case in brief are that, the plaintiff filed the suit OS.No.220/2002 before the Trial Court against defendant Nos.1 to 10 seeking declaration that he is the absolute owner in possession of the suit schedule property by virtue of a registered Will dated 28.04.1995 and for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the property and from dispossessing him. 4. The schedule attached to the plaint describes the garden land bearing No.88 of Benkatavalli village, Avinahalli Hobli, Sagar Taluk, measuring 17 guntas with the boundary stones. (herein after referred to as 'the schedule property'). It is the contention of the plaintiff that the plaintiff and defendant Nos.1 to 4 and 6 to 10 are the children of Manjappa of Benkatavalli Village and defendant No.5 is the wife of the brother of the plaintiff, who is no more. 5. It is contented that the schedule property belonged to Manjappa, the father of the plaintiff and defendants and it was his self-acquired property. He was the absolute owner in possession of the property. During his lifetime, he executed the Will dated 28.04.1995 registered on 29.04.1995 bequeathing it in favour of the plaintiff. Subsequently, he died on 01.01.1996. After death of his father, plaintiff by virtue of the Will, became the owner in possession of the schedule property. 6. He applied for change of khata but the revenue authority passed an order observing that the change of khata on the basis of the Will it is to be decided by the Civil Court. The defendants, who are the other children of late Manjappa, started interfering with the peaceful possession and enjoyment of the plaintiff and started denying the right of the plaintiff. The defendants, who are the other children of late Manjappa, started interfering with the peaceful possession and enjoyment of the plaintiff and started denying the right of the plaintiff. Therefore, the plaintiff filed the suit for declaration that he is the absolute owner in possession of the suit schedule property by virtue of the registered Will and for permanent injunction. 7. Defendant No.3 has appeared before the Trial Court and filed written statement denying the contentions taken by the plaintiff regarding execution of the Will by their father Majappa and none of the other defendants have contested the suit by filing the written statement. 8. It is contended that the day, on which, the Will stated to have been executed by deceased Manjappa, he was aged 97 years and was bedridden, as he was unable to move due to his old age and ill health. He was literally crawling to cover a short distance. His physical and mental health was not good. His hands were shaky and he was not in a position to talk. 9. It is also contented that the scribe of the Will is a good friend of the plaintiff. Therefore, the plaintiff conspired with the scribe and brought someone before the Sub-Registrar by impersonating Manjappa and got registered the Will. Therefore, it is the contention that Manjappa never came before the Sub-Register, nor he executed the Will as contented by the plaintiff. 10. It is contented that defendant No.3 is owning the garden land bearing Sy.No.9/2 of Benkatavalli village, of which, he is enjoying 3/4 th of the property since more than 30 years to the knowledge of the plaintiff. The same was accepted by his father Manjappa. The plaintiff was never in possession and enjoyment of the schedule property nor he acquired any title, as the Will is a fabricated document. Therefore, it is contented that there is no cause of action for the suit and prays for dismissal of the suit. 11. On the basis of these pleadings, the Trial Court framed the following issues for consideration: 12. The plaintiff examined PWs.1 to 3 got marked Ex.P1 to 4 in support of his contentions. Defendant No.3 examined himself as DW1 and examined DW2 and got marked Ex.D1 and Ex.D2 in support of his defence. 11. On the basis of these pleadings, the Trial Court framed the following issues for consideration: 12. The plaintiff examined PWs.1 to 3 got marked Ex.P1 to 4 in support of his contentions. Defendant No.3 examined himself as DW1 and examined DW2 and got marked Ex.D1 and Ex.D2 in support of his defence. The Trial Court after taking into consideration all these materials on record, answered Issue Nos.1 to 3 in the affirmative and decreed the suit of plaintiff as prayed for. 13. Being aggrieved by the same, defendant No.3 has preferred an appeal in RA No.59/2006. The First Appellate Court on re-appreciation of the materials on record concurred with the judgment and decree passed by the Trial Court, and dismissed the appeal. Being aggrieved by the same, defendant No.3 is before this Court. 14. As per order dated 07.11.2025, the following substantial questions of law were framed for consideration: 1. Whether respondent No.1/plaintiff has proved due execution of Will dated 28.04.1995 by the testator and registered the same on 29.04.1995 in accordance with law? 15. As per order dated 16.07.2013, the following substantial questions of law were framed for consideration: 2. Even if the propounder of the Will had proved that the Will was validly executed by the testator, will it confer the title on the beneficiary in the absence of proof that the testator had a marketable title to the property in question? 16. Heard Sri. Rajesh Mahale, learned Senior Advocate for Sri.Dayanand S Patil along with Sri. Parikshith Maliye, learned counsel for the appellant. Perused the materials including the Trial Court records. 17. It is the contention of learned Senior Advocate for the appellant that admittedly, the testator was aged 97 years at the time when the Will is said to have been executed as per Ex.P1. He was incapable of going to Sagar and get the document registered. The signatures found on Ex.P1 do not match with one another. The evidence on record disclose that the testator had signed the Will before the scribe and not before the Sub-Registrar. The shara found on Ex.P1 declaring that the testator is aged and his hands were shivering, while signing is not explained by anybody including the plaintiff, as to who made that shara, why and when the same was made. 18. The evidence on record disclose that the testator had signed the Will before the scribe and not before the Sub-Registrar. The shara found on Ex.P1 declaring that the testator is aged and his hands were shivering, while signing is not explained by anybody including the plaintiff, as to who made that shara, why and when the same was made. 18. Learned counsel submitted that PW2 is the granddaughter of deceased Manjappa, who states that it was she, who took the testator to Sagar for the purpose of execution and registration of the Will. She specifically states that the testator signed the Will in the office of typist, where it was prepared. She also states that she has signed it before the Sub-Registrar. According to PW2, about two days earlier, the draft was prepared and it was okayed by the testator. But, PW3 gives a different version, saying that the Will was prepared in the office of the scribe and it was okayed then and there and the same was signed by the testator. Therefore the evidence of PW2 and PW3 is inconsistent with regard to the due execution of the Will and hence, the contention of the plaintiff cannot be accepted. 19. Learned counsel submitted that defendant No.3 has produced additional document to contend that there was a partition in the year 1981 and again during 1988 between the family members. Under the registered partition of the year 1981, the schedule property was kept as a common property for the beneficial use and enjoyment of plaintiff and defendant No.3 as the adjacent land belongs to defendant No.3. That is the reason why the other defendants have not contested the matter. But the plaintiff concocted Ex.P1 to grab the property. The Trial Court and the First Appellate Court had committed an error in decreeing the suit of the plaintiff without taking into consideration the manner in which Ex.P1 was executed and the manner in which, the signatures of the testator were found on the same. Therefore, he prays for allowing the appeal and to dismiss the suit of the plaintiff. 20. Per contra, learned counsel for the respondent/plaintiff opposing the appeal submitted that the marketable title of the testator Manjappa was never disputed by defendant No.3 by filing the written statement. Therefore, he prays for allowing the appeal and to dismiss the suit of the plaintiff. 20. Per contra, learned counsel for the respondent/plaintiff opposing the appeal submitted that the marketable title of the testator Manjappa was never disputed by defendant No.3 by filing the written statement. Therefore, it is clear that the testator had the marketable title and he had the authority to execute the Will to bequeath the schedule property. Only contention raised by defendant No.3 was that the testator was not physically strong or fit, as he was aged 97 years. It was never the contention of defendant No.3 that his father was mentally not fit to execute the Will. There is no such cross-examination to any of the witnesses, including the plaintiff, who is examined as PW1. 21. Learned counsel contended that defendant No.3, who is examined himself as DW1, categorically admits that the testator Manjappa was residing with the plaintiff. It was the plaintiff, who was looking after the welfare of his father. He also admits that the schedule property is the self-acquired property of the testator. PW2 is the granddaughter of the testator, who categorically stated that she had taken her grandfather to Sagar, where the Will was drafted as per his direction and thereafter, he signed the Will. Since drafting the Will had taken sometime and it was in the evening, the same was registered on the next date. There is absolutely no cross-examination to substantiate the contentions raised by the appellant. 22. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Nazir Mohamed Vs. J. Kamala and others, (2020) 19 SCC 57 to contend that when defendant No.3 has not taken any specific defence in the pleadings regarding marketable title of the testator, he cannot be permitted to raise that issue for the first time before the Second Appellate Court and no substantial question of law could be raised on the same. 23. He also contended that the scope for enquiry under Section 100 of CPC is very limited. The Second Appellate Court cannot re-appreciate the evidence of the parties. The Trial Court and the First Appellate Court have recorded concurrent findings of facts. There is no scope for interference with the same and therefore, prays for dismissal of the appeal. 24. 23. He also contended that the scope for enquiry under Section 100 of CPC is very limited. The Second Appellate Court cannot re-appreciate the evidence of the parties. The Trial Court and the First Appellate Court have recorded concurrent findings of facts. There is no scope for interference with the same and therefore, prays for dismissal of the appeal. 24. During the pendency of appeal, the appellants have filed IA No.1/2025 under Order 41 Rule 27 R/w Section 151 of CPC seeking permission to produce additional document, which is one in number: 9. In view of the above, apart from the substantial questions of law framed, the following point is framed for consideration: "(a) Whether the application i.e., IA.1/2025 filed under Order 41 Rule 27 of CPC is liable to be allowed?" 25. Learned Senior Advocate for the appellant contends that the application is filed seeking to produce additional document, i.e, the registered partition deed of the year 1981. As per Ex.D2 dated 22.09.1988, which is an unregistered partition deed, the father entered into a partition with his sons. Defendant No.3 is referred to as party No.2, whereas, plaintiff and his father are referred to as party No.1. Except the suit schedule property, all other properties were divided as per the recitals in Ex.D2. These facts are not in dispute. Therefore, even if the additional documents are taken into consideration, the same may not help the plaintiff/respondent, or the appellant/defendant No.3 in any manner. Therefore, allowing the application IA No.1/2025 will not serve any purpose. Hence, the same is liable to be set-aside. 26. Moreover, no reasons are assigned by the plaintiff with regard to the additional document as to why the same was not produced before the Trial court, nor there is any pleadings to that effect. Under such circumstances, I am of the opinion that the application IA No.1/2025 seeking to produce additional document is liable to be dismissed. 27. According to the plaintiff, his father, who was aged 97 years had bequeathed the schedule property in favour of the plaintiff by executing the Will Ex.P1. The plaintiff apart from producing Ex.P1 examined PW2 - the granddaughter of the testator and PW3 - one of the attesting witnesses to the Will. As per Ex.P1 - Will, the testator was aged about 96 years. The plaintiff apart from producing Ex.P1 examined PW2 - the granddaughter of the testator and PW3 - one of the attesting witnesses to the Will. As per Ex.P1 - Will, the testator was aged about 96 years. He stated that he is physically weak by reason of his age and wanted to dispose of the schedule property as per his wish and will. He refers to the schedule property as his self-acquired property. The Will also states that the testator was residing with the plaintiff and that he is being looked after by the plaintiff and his wife very well. Therefore, he bequeathed the schedule property in favour of the plaintiff. 28. At the end of Ex.P1, the shara is written that the hands of the testator were shivering and therefore, his signatures are not very clear. It is the contention of the learned Senior Advocate for the appellant that there is no explanation with regard to this shara as to who had written the same. But strangely, there is no such cross-examination either to PW2 or PW3 in that regard. 29. The other contention taken by the learned Senior Advocate for the appellant is that Ex.P1 -Will was got prepared by one Narayanaswami advocate, who is the brother-in-law of the plaintiff. The said suggestion put to PW1 was denied. There is no further cross-examination in that regard. Strangely, defendant No.3, who examined himself as DW1 never spoken anything about the same. 30. PW2 is the granddaughter of the testator. She stated that during April, 1995, her grandfather asked her to take him to the house of his daughter. Accordingly, he was taken to Sagar, where his daughter Varamahalakshmi was residing. There, he expressed his willingness of executing the Will. Accordingly, he was taken to the office of the scribe. Her grandfather explained the scribe about his willingness and accordingly, the Will was drafted. Within 2 days, the draft Will was prepared and her grandfather okayed the same and asked the scribe to finalize the Will. On 28.04.1995, the grandfather signed the Will. The attesters have also signed the Will. By the time as it was late in the evening, it was registered on the next date i.e. on 29.04.1995. She stated that she has also signed the Will in the presence of Sub-Registrar, identifying the executant of the Will. 31. On 28.04.1995, the grandfather signed the Will. The attesters have also signed the Will. By the time as it was late in the evening, it was registered on the next date i.e. on 29.04.1995. She stated that she has also signed the Will in the presence of Sub-Registrar, identifying the executant of the Will. 31. During cross-examination, it is elicited from DW.2 that the hands of the testrator were shivering due to old age. By the time the Will was prepared, it was 06.30 p.m. However, she states that she is not aware of the contents of the Will. Strangely, it is suggested to PW2 that the testator was knowing the contents of the Will. Thereby, admitting that the father of the plaintiff after knowing the contents, executed the Will. It is also pertinent to note that, it is suggested to PW2 that the testator had signed the document in the presence of the scribe. Thereby, defendant No.3 admits that the signatures found on Ex.P1 are that of the father of the plaintiff. 32. It is pertinent to note that in the entire cross-examination to PW1 to PW3, the mental condition of the testator was never questioned. When it is specifically suggested to PW2 that the testator was knowing about the contents of the Will and he signed the Will in the presence of the scribe, it is to be held that the plaintiff is successful in proving due execution of the Will. 33. PW3 is one of the attesting witnesses to the Will. He states that the testator had called him and asked to sign as an attesting witness. Accordingly he signed the Will after the testator signing the same. This witness was also cross examined at length, where, it is elicited that the hands of the testator were shaking, while subscribing the signature. But strangely, there is no cross-examination to either PW2 or PW3 about the shara found on Ex.P1. 34. Learned Senior Advocate for the appellant contended that as per PW2, she does not know the contents of the Will. Therefore, obviously the Will was not read over in her presence. PW3 also states that the Will was not read in his presence and he does not know the contents. Under such circumstance, it cannot be held that the Will is proved. Therefore, obviously the Will was not read over in her presence. PW3 also states that the Will was not read in his presence and he does not know the contents. Under such circumstance, it cannot be held that the Will is proved. When execution of the Will itself is not disputed by defendant No.3, the mental status of the testator was never questioned. When it is admitted during cross-examination that it was the testator who subscribed the signatures to the Will, stray sentences found in the evidence of PW2 and PW3 cannot be the basis to discard the contention of the plaintiff. 35. When admittedly the testator was aged 97 years, naturally there will be some shivering in the hand while writing. When it is not the contention of defendant No.3 that his father was not mentally fit to give instructions and to get the Will drafted, when it is not the contention of defendant No.3 that the plaintiff has taken advantage of the old age of his father for the purpose of executing the Will, I do not find any substance in the contention taken by the learned Senior Advocate for the appellant. 36. It is a matter of fact that it is only defendant No.3, who is one of the son's of late Manjappa, who contested the suit by filing the written statement. On going through the written statement filed by defendant No.3, it is found that the defendant has taken the defence, that there was impersonation in getting the Will executed. But strangely, there is no such cross-examination to that effect to any of the witnesses. In the entire written statement, the marketable title of the testator was never challenged. 37. Defendant No.3 got examined himself as DW1. During cross-examination, he specifically states that even till death of his father, his mental condition was very good. He was looked after by the plaintiff, as they were residing together. He also admits that the property belonging to his father was being looked after by the plaintiff. Witness admits that the schedule property is a self-acquired property of the testator. When such candid admissions are made by DW1, I do not find any substance in the contention raised on behalf of defendant No.3. He also admits that the property belonging to his father was being looked after by the plaintiff. Witness admits that the schedule property is a self-acquired property of the testator. When such candid admissions are made by DW1, I do not find any substance in the contention raised on behalf of defendant No.3. The marketable title referred to in a substantial question of law referred to above, was never challenged in the written statement, nor there is any cross-examination to any of the witnesses. Under such circumstances, I am of the opinion that the plaintiff has proved due execution of the Will dated 28.04.1995. It was registered on 29.04.1995 in accordance with law. The plaintiff has acquired absolute right, title and interest over the schedule property by virtue of deed as the testator had the marketable title to the property in question. 38. The decision relied on by the learned counsel for respondent highlights the principles regarding scope of Section 100 CPC and the principles in forming the substantial question of law. Unless there is a foundation that is laid in their pleadings, and there is evidence to that effect, no substantial question of law regarding marketable title of testator over the Schedule Property can be released. 39. I have gone through the impugned judgment and decree passed by the Trial Court and judgment of The First Appellate Court. Both the Courts have considered the materials on record in a proper perspective and have arrived at a right conclusion. Therefore, I do not find any reason to interfere with the same. In view of the discussions held above, I answer substantial questions in favour of the plaintiff/respondent and against defendant No.3/ appellant and the point for consideration is in the negative. 40. Hence the following: ORDER: The appeal is dismissed with cost. Consequently, IA.1/2025 filed for production of additional document is also dismissed. Registry is directed to send back the Trial Court records along with copy of this Judgment.