JUDGMENT : M.G. Uma, J. The legal representatives of the original plaintiff in OS No.457 of 1992 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Sira (hereinafter referred to as 'the Trial Court' for short), are impugning the judgment and decree dated 01.08.2009 passed in RA No.205 of 2005 on the file of the learned Civil Judge (Sr.Dn.) at Sira (hereinafter referred to as 'the First Appellate Court' for short), allowing the appeal by setting aside the judgment and decree dated 30.09.1999 passed by the Trial Court and thereby dismissing the suit of the plaintiff for declaration of his title over suit schedule property and for permanent injunction. 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 original plaintiff filed the suit against the defendant. It was initially numbered OS No.12 of 1992, which was re-numbered as OS No.457 of 1992. It is the contention of the plaintiff that the property morefully described in the schedule i.e., land bearing Sy.No.32/2 measuring 14.10 guntas situated at Holakallu Village, Gowdagere Hobli, Sira Taluk with the boundaries mentioned therein was the ancestral property of Sri M R Boothaiah and Smt Lakkamma Bandappa along with Sy.Nos.129/3, 135/3, 129/2, 6/3 of Mosarakunte Village. 4. It is contended by the plaintiff that one Bandappa, the father of Lakkamma adopted one M Rangaiah and executed a Will dated 25.01.1956 out of love and affection bequeathing the schedule properties in his name. Thus, M Rangaiah was in possession and enjoyment of the schedule properties. He died about 15 years back earlier to filing the suit. After death of M Rangaiah, his son Boothaiah came in possession and enjoyment of the properties. Lakkamma, the daughter of Bandappa was given in marriage and she was residing at Adivala Village for morethan 40 years. She had no manner of right, title or interest over the schedule property. The plaintiff acquired the suit schedule property from Boothaiah for a valuable consideration under the registered sale deed dated 29.12.1987 and he came in possession of the same. The plaintiff started paying the land revenue and developed the land. Lakkamma - the married daughter of Bandappa started raising dispute and claimed the property by filing an application before Tahsildar to mutate her name in the revenue records. The plaintiff started paying the land revenue and developed the land. Lakkamma - the married daughter of Bandappa started raising dispute and claimed the property by filing an application before Tahsildar to mutate her name in the revenue records. She managed to mutate her name in the revenue records in collusion with the Tahsildar vide order dated 08.10.1991. The plaintiff challenged the said mutation entry before the Assistant Commissioner, which was pending consideration at the time of filing the suit. It is contended by the plaintiff that the said Lakkamma has fraudulently sold the schedule property in favour of the defendant even though she was not having any manner of right, title or interest. Hence, the plaintiff filed the suit for declaration of his title over the schedule property and for permanent injunction. 5. The defendant has appeared before the Trial Court and filed his written statement denying the contention taken by the plaintiff. It is denied that Bandappa had acquired interest in the ancestral properties or that he adopted his brother's son Rangaiah and that after death of Rangaiah, the property exclusively devolved on Boothaiah and the said Boothaiah sold the schedule property in favour of the plaintiff. It is specifically denied that Bandappa executed a Will dated 25.01.1956 in favour of Rangaiah and he was in possession of the property or that after the death of Rangaiah, his son Boothaiah was in possession and enjoyment of the schedule property. On the other hand, it is contended that Lakkamma, the daughter of Bandappa has been residing at Mosarakunte village and was enjoying the suit schedule property along with other properties belonging to her father. From the date of death of Bandappa, it was Lakkamma who was in exclusive possession and enjoyment of suit schedule property along with the other properties left behind by Bandappa. The defendant has also denied that the plaintiff has acquired title over the schedule property under the registered sale deed or that he was in possession and enjoyment of the property at the earlier point of time. It is admitted that the Tahsildar mutated the name of Lakkamma in respect of the suit schedule property and the same was challenged by the plaintiff by preferring an appeal before the Assistant Commissioner. It is contended that even the said appeal before the Assistant Commissioner was dismissed confirming the order of the Tahsildar. It is admitted that the Tahsildar mutated the name of Lakkamma in respect of the suit schedule property and the same was challenged by the plaintiff by preferring an appeal before the Assistant Commissioner. It is contended that even the said appeal before the Assistant Commissioner was dismissed confirming the order of the Tahsildar. It is contended that the Lakkamma, who is the owner of schedule property sold the same in favour of the defendant under the registered sale deed dated 06.01.1992 for a valuable consideration and since then the defendant is in possession and enjoyment of the same. 6. It is also contended by the defendant that Bandappa died after commencement of Hindu Succession Act. At the time of his death, he left behind his daughter Lakkamma as class-I legal heir, who in turn, sold the property in favour of the defendant and under such circumstances, the plaintiff is not entitled for any relief and accordingly, prayed for dismissal of the suit. 7. On the basis of these pleadings, the Trial Court framed the following issues for consideration: "1. Whether the plaintiff proves that his title to the suit schedule land? 2. Whether the plaintiff proves that he is in lawful possession over the suit land on the date of the suit? 3. Whether the plaintiff proves that Smt Lakkamma was the daughter of Bandappa had no salable interest in the suit land? 4. Whether the plaintiff proves that the defendant interfered with his possession over the suit land? 5. Is plaintiff entitled for relief of declaration of title and permanent injunction? 6. What order or decree?" 8. The plaintiff examined PWs.1 to 6 and got marked Exs.P1 to P5 in support of his contention. The defendant examined DWs.1 to 6, got marked DWs.1 to 10 in support of his defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the plaintiff is the absolute owner in possession of the property and accordingly, decreed the suit of the plaintiff as prayed for. Being aggrieved by the same, the defendant has preferred an appeal in RA No.205 of 2005. The First Appellate Court on re- appreciation of the materials on record, allowed the appeal vide judgment and decree dated 01.08.2009 by setting aside the judgment and decree passed by the Trial Court. Being aggrieved by the same, the defendant has preferred an appeal in RA No.205 of 2005. The First Appellate Court on re- appreciation of the materials on record, allowed the appeal vide judgment and decree dated 01.08.2009 by setting aside the judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiff is before this Court. 9. Heard Sri. Hanumantharaya. D., learned counsel for the appellants and Sri. Harish H.V., learned counsel for the respondent. Perused the materials including the Trial Court records. 10. Learned counsel for the appellants contended that Bandappa was the owner of the schedule property. He had only two daughters. The first one is Lakkamma referred to by the plaintiff. The second daughter died unmarried. Therefore, Bandappa adopted his nephew by name Rangaiah and bequeathed the schedule property in his favour under the Will - Ex.P1. Rangaiah who came in possession of the schedule property left behind his son Boothaiah. The said Boothaiah in turn sold the property in favour of the plaintiff under the registered sale deed dated 29.12.1987. Thus, the plaintiff became the absolute owner in possession of the schedule property. Even though, Lakkamma the daughter of Bandappa raised revenue dispute for mutating the name of the plaintiff in the revenue records, the parties were directed to approach the Civil Court and accordingly, the plaintiff has filed the suit seeking declaration of his title and for permanent injunction. 11. Learned counsel contended that Ex.P1 is a 30 years old document and therefore, there is legal presumption about its genuineness. By mere producing Ex.P1, the plaintiff has proved the same in view of Section 90 of the Evidence Act. The plaintiff has also examined PWs.2 to 6. However, the attesting witnesses to the Will - Ex.P1 were not alive and therefore, PW2, the son of the scribe to Ex.P1, PW3, the son of one of the attesting witnesses and PW6, the grandson of one of the attesting witnesses were examined by the plaintiff to prove Ex.P1. Nothing has been elicited from them during cross examination. PWs.4 and 5 have also deposed in support of the case of the plaintiff. Nothing has been elicited from them during cross examination. PWs.4 and 5 have also deposed in support of the case of the plaintiff. Even though, the defendant examined himself as DW1 and Lakkamma, the daughter of Bandappa as DW2, and examined DWs.3 to 6 - the witnesses to prove his possession, the same are not helpful for the defendant to deny the right of the plaintiff. 12. Learned counsel contended that the suit of the plaintiff was decreed as per judgment and decree dated 30.09.1999. However, the defendant has preferred appeal in the year 2005. In the meantime, 'B' and 'C' files were destroyed by the Trial Court. There was reconstruction of the file. Hence, the original Will - Ex.P1 is not before the Court. But the copy of same supports the contention of the plaintiff. The recitals found in Ex.P1 which is dated 26.01.1950 clearly discloses that Bandappa had only two daughters. Lakkamma, examined as DW2 is the married daughter residing in her matrimonial house. The second daughter of Bandappa had died unmarried. Under such circumstances, he adopted his nephew Rangaiah. The vendor of the plaintiff Boothaiah is the son of Rangaiah who acquired title over the schedule property after the death of his father. 13. Learned counsel contended that PWs.2, 3 and 6 have categorically identified the signatures of Bandappa found in Ex.P1 and thereby, the requirement of Section 69 of the Evidence Act is satisfied. Thus, the plaintiff is entitled for a decree in his favour as prayed for. He further submitted that the endorsement made by the brothers of Bandappa is attached to Ex.P1. The said endorsement is dated 24.04.1956. As per this endorsement, the brothers of Bandappa accepted bequeathing the properties in favour of Rangaiah and they never claimed any right over the property. Even Lakkamma had also not claimed any right over the property either during the lifetime of Bandappa or after his death. She started claiming right over the property only after 1987-88 when the sale deed was executed in favour of the plaintiff. The Trial Court on proper appreciation of the materials on record decreed the suit of the plaintiff, but the First Appellate Court without taking into consideration Section 90 of the Evidence Act proceeded to dismiss the suit by allowing the appeal. The judgment and decree passed by the First Appellate Court is erroneous and against the materials on record. The Trial Court on proper appreciation of the materials on record decreed the suit of the plaintiff, but the First Appellate Court without taking into consideration Section 90 of the Evidence Act proceeded to dismiss the suit by allowing the appeal. The judgment and decree passed by the First Appellate Court is erroneous and against the materials on record. It is passed against the settled proposition of law and without raising the presumption as required under Section 90 of Evidence Act. Hence, the appeal is liable to be allowed. 14. Per contra, learned counsel for the respondent opposing the appeal submitted that even according to the plaintiff, the schedule property along with other properties were the ancestral properties of Bandappa. Under such circumstances, Bandappa could not have bequeathed the property in favour of Rangaiah during the life time of his daughter Lakkamma. According to the plaintiff, the Will is dated 25.01.1956. There is no reference to the Will dated 26.01.1950 as now tried to be canvassed. Ex.P1 is dated 26.01.1950. The so called endorsement is never marked by the plaintiff as a document. Definitely it is not part of Ex.P1 as it is dated 24.04.1956. There is no pleading with regard to Ex.P1 dated 26.01.1950 or the endorsement dated 24.04.1956. Under such circumstances, the suit of the plaintiff is liable to be dismissed. 15. Learned counsel contended that as per Ex.P1 there are atleast 5 attesting witnesses by name Pandith Ramanna, Marulappa, K Hanumanthappa, Mudda Rangaiah, Boothaiah. The scribe is by name M H Range Gowda. Either in the plaint or in the evidence, the plaintiff never contended that all these attesting witnesses and the scribe have died. PW3 is said to be the son of Marulappa and PW6 is said to be the grandson of Pandith Ramanna and PW2 is said to be the son of scribe Range Gowda. But there is no reference to the other attesting witnesses named above. Under such circumstances, the plaintiff cannot invoke Section 69 of the Indian Evidence Act. 16. Learned counsel further submitted that even though PWs.2, 3 and 6 are examined, none of the witnesses have identified the left thumb impression (LTM) of Bandappa. All these witnesses refer to the signature of Bandappa, which was not found in Ex.P1. None of these witnesses have identified such signatures referred to by them. 16. Learned counsel further submitted that even though PWs.2, 3 and 6 are examined, none of the witnesses have identified the left thumb impression (LTM) of Bandappa. All these witnesses refer to the signature of Bandappa, which was not found in Ex.P1. None of these witnesses have identified such signatures referred to by them. PW2 states that he was hardly studying first standard when his father died. Under such circumstances, he could not have identified the signature of his father. The witness has never identified the handwriting of his father. The evidence of PWs.3 and 6 is in similar lines and it will not help the plaintiff in proving Ex.P1. There is absolutely no reason as to why the other attesting witnesses referred to above are not examined. Admittedly, Boothaiah who is also one of the signatory to Ex.P1 according to the plaintiff, was very much alive, but he was never examined to prove the Will. The endorsement said to be dated 24.04.1956 which was never pleaded nor proved is also signed by various witnesses and none of them are examined by the plaintiff. Even the plaintiff has not spoken to about the said document. 17. Learned counsel contended that there are serious suspicious circumstances surrounding Ex.P1. The plaintiff never pleaded or proved the sound disposing state of mind of Bandappa to bequeath the property in favour of Rangaiah. The adoption of Rangaiah is also not proved in accordance with law. There is no reason assigned by Bandappa to exclude his daughter Lakkamma. There is also no reason to exclude the unmarried daughter to succeed in the property. The LTM of Bandappa was not found either in the first or second page of Ex.P1. Under such circumstances, the requirements to prove Ex.P1 as per Section 68 of Indian Evidence Act or Section 63 of Indian Succession Act are not complied with. 18. Learned counsel contended that even though the nomenclature to Ex.P1 is referred to as Will, the recitals found therein clearly demonstrates that it is not a Will to be come into force after the death of Bandappa. The recitals therein disclose that on the date of the document itself, the properties were given to Rangaiah. Under such circumstances, the document cannot be termed as Will. The recitals therein disclose that on the date of the document itself, the properties were given to Rangaiah. Under such circumstances, the document cannot be termed as Will. If at all, it is a document under which Bandappa relinquished his right over the property in favour of Rangaiah, the same is not written on a stamp paper nor it is registered. Under such circumstances, the plaintiff cannot claim any right over the property. 19. Learned counsel contended that Ex.P1 according to the plaintiff is a Will. Under such circumstances, the presumption under Section 90 of the Evidence Act cannot be relied on by the plaintiff in proof of the Will. He placed reliance on the decision of Hon'ble Apex Court in M B Ramesh (Dead) by Lrs. Vs K M Veeraje Urs (Dead) by Lrs. and Others, (2013) 7 SCC 490 and in Bharpur Singh and Others Vs Shamsher Singh , (2009) 3 SCC 687 in support of his contention. 20. Learned counsel for the respondent placing reliance on these decisions contended that the First Appellate Court has taken into consideration all these materials on record and held that Ex.P1 is not a Will and the same will not confer any right over Rangaiah. It has also held that Section 90 of Evidence Act has no application to Ex.P1. The said findings recorded by the First Appellate Court was in accordance with law. It is a well reasoned judgment. There are no reasons to interfere with the same. Accordingly, he prays for dismissal of the appeal. 21. In reply, learned counsel for the appellants submitted that the recitals in Ex.P1 clearly discloses that it is a Will, whereunder, Bandappa bequeathed various properties including the schedule property in favour of M Rangaiah, who was in-fact adopted by Bandappa. There is recitals in Ex.P1 to support such contention as the testator - Bandappa categorically stated that, he was having only two daughters. First daughter being Lakkamma, who is already married and residing in her matrimonial house. Second daughter is not good looking and she was good for nothing. She was not married. The wife of testator had already died. It was M Rangaiah, who is the son of Mudda Ranganna, who is none other than the brother of the testator Bandappa, was looking after Bandappa and his second daughter. Second daughter is not good looking and she was good for nothing. She was not married. The wife of testator had already died. It was M Rangaiah, who is the son of Mudda Ranganna, who is none other than the brother of the testator Bandappa, was looking after Bandappa and his second daughter. Therefore, he is appointed as successor to the testator and bequeathed the schedule properties. 22. Learned counsel for the appellants produced the typed copy of Ex.P1 - Will to contend that the schedule property i.e., Sy.No.32/2 measuring 14.10 guntas situated at Holakallu village, Gowdagere Hobli, Sira Taluk, was specifically bequeathed in favour of M Rangaiah. Therefore, the defendant cannot claim any right over the schedule property. Since Ex.P1 - the Will is proved by the plaintiff, he is entitled for declaration as prayed for and for permanent injunction against the defendant. 23. This Court vide order dated 03.02.2012, framed the following substantial question of law: "Whether the lower appellate Court had erred in law in holding that Sec.90 of the Evidence Act did not apply to Ex.P1?" 24. The substantial question of law refers to applicability of Section 90 of the Evidence Act to Ex.P1 - the Will. Ex.P1 is referred to by the plaintiff as Will. Admittedly, it is a compulsorily attestable document. 25. Learned counsel for the appellants drawn the attention of the Court to the recitals in Ex.P1. He has referred to the copy of Will now available in record as Ex.P1, as it is stated that original Will is already taken back by replacing its copy. He has also produced the original Will for perusal of the Court from his file. He has also produced typed copy of Ex.P1. Even after reading the Will several times, learned counsel for the appellants could not comprehend the recitals made therein as there is reference to the schedule property i.e., Sy.No.32 measuring 12.20 acre situated at Holakallu village, Gowdagere Hobli, with the boundaries mentioned therein. There is also reference to a house measuring 9 Ankana with khaneshumari No.17 situated at Mosarakunte village, Gowdagere Hobli with boundaries mentioned therein and the movable properties including the pair of oxen, white bullock and house hold articles, which were bequeathed in favour of Boothaiah to be enjoyed by him exclusively. He was also made liable to repay the loan, which was incurred by the testator Bandappa. 26. He was also made liable to repay the loan, which was incurred by the testator Bandappa. 26. Learned counsel for the appellants could not explain about these specific recitals found in Ex.P1 and how the plaintiff claimed declaration of his title based on this document, when the schedule property is specifically bequeathed along with a house property, movables and livestock's in favour of Boothaiah, who is none other than grandson of Bandappa. 27. Plaintiff refers to Ex.D1 - the sale deed dated 06.01.1992 executed by Lakkamma, the first daughter of Bandappa selling the property in favour of defendant. Admittedly, the plaintiff has not sought for any relief with regard to the sale deed of the year 1992, as the same is not binding on the plaintiff. The declaration sought is only with regard to Ex.P1 - Will said to have been executed by Bandappa dated 26.01.1950. When admittedly, Lakkamma, the daughter of Bandappa alienated the schedule property under the registered sale deed dated 06.01.1992, the plaintiff should have sought for declaration that even the said sale deed is binding on him in view of the Will-Ex.P1 relied on by the plaintiff. 28. Section 90 of the Evidence Act is not applicable to the Will as it is a compulsorily attestable document and the same is to be proved in accordance with law, by examining atleast one attesting witness. This position of law is very well settled in M B Ramesh (supra). The Hon'ble Apex Court categorically held that the presumption regarding a 30 years old document as provided under Section 90 of the Evidence Act, does not apply to a Will, as the same is to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. 29. The Hon'ble Apex Court in Bharpur Singh (supra) considering its earlier decisions had reiterated this position of law and held that Will must be proved in terms of provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872 and therefore, held that the provisions of Section 90 of the Evidence Act cannot be made applicable to proof of Will in view of the nature of proof required to prove the document. Thus, the position of law is very well settled and there cannot be any dispute about the same. 30. Thus, the position of law is very well settled and there cannot be any dispute about the same. 30. When the presumption under Section 90 of the Evidence Act cannot be made applicable to Ex.P1 relied on by the plaintiff, he has to prove the document in accordance with law. In view of the above, the plaintiff is not entitled for declaration as sought for. The plaintiff has not sought for declaration that the sale deed dated 06.01.1992 executed by Smt. Lakkamma is not binding on him. On this count also, the suit is liable to be dismissed as the plaintiff cannot avoid the said registered sale deed without seeking any relief about the same. 31. The Trial Court has not taken into consideration any of these facts and proceeded to decree the suit. The First Appellate Court on re-appreciation of the materials on record, arrived at a right conclusion. I do not find any reason to interfere with the same. 32. In view of the discussions held above, the substantial question of law referred to above is held in the favour of the defendant and against the plaintiff. 33. Hence, I proceed to pass the following: ORDER The appeal is dismissed. Registry is directed to send back the Trial Court records along with copy of this judgment.