JUDGMENT : ASHOK S. KINAGI, J. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 12.02.2013 passed in R.A.Nos.3/2010 and 4/2010 by the learned District Judge, Madikeri, and the judgment and decree dated 08.12.2009 passed in O.S.No.5/1998 by the Civil Judge (Senior Division), Madikeri. 2. For convenience, the parties are referred to, based on their rankings before the Trial Court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the defendants for recovery of the money. It is the case of the plaintiff that the plaintiff and the deceased Kalappa are brothers. Kalappa died on 14.08.1991, and his wife, Smt. Boji Kalappa passed away on 14.05.1995. Defendant No.2 is the brother of Smt. Boji Kalappa. Smt. Boji Kalappa had deposited a certain amount in defendant No.1-Bank. She had shown defendant No.2 as her nominee. After her demise, defendant No.1-Bank disbursed the said amount in favour of defendant No.2, as he was a nominee. It is contended that the plaintiff, being the natural heir of Smt. Boji Kalappa, succeeded to her estate and though he submitted a representation to defendant No.1, not to disburse the amount in favour of anybody, defendant No.1, despite submitting a representation, disbursed the amount in favour of defendant No.2. Hence, the plaintiff requested defendant No.2 to pay the amount, but defendant No.2 refused to pay the amount. Hence, a cause of action arose for the plaintiff to file a suit for recovery of the money. Accordingly, prays to decree the suit of the plaintiff. 5. Defendant No.1 filed a written statement contending that Smt. Boji Kalappa had deposited a certain amount in defendant No.1-Bank, and defendant No.2 is shown as her nominee. After the demise of Smt. Boji Kalappa, the amount with accrued interest was disbursed in favour of defendant No.2, and it is contended that there was a valid payment, it is contended that defendant No.1 is unnecessarily arrayed as a party in the suit. Hence, prays to dismiss the suit against defendant No.1. 6. After the demise of Smt. Boji Kalappa, the amount with accrued interest was disbursed in favour of defendant No.2, and it is contended that there was a valid payment, it is contended that defendant No.1 is unnecessarily arrayed as a party in the suit. Hence, prays to dismiss the suit against defendant No.1. 6. Defendant No.2 filed a written statement contending that the amount deposited by Smt. Boji Kalappa in the Bank was her personal money and he is entitled to it not only as a nominee, but also by succession as Smt. Boji Kalappa had executed a Will dated 03.05.1995. Hence, on these grounds prays to dismiss the suit against defendant No.2. 8. The Trial Court, based on the above said pleadings, re-framed the following issues: 1. “Whether the plaintiff proves that he is the only heir and entitled to all the properties and assets left behind by Mrs. Boji Kalappa including fixed deposits with defendant No.1? 2. Whether defendant No.2 proves that late Smt. Boji Kalappa has appointed him as nominee and he is entitled to receive the suit property? 3. Whether defendant No.2 proves that, late Mrs. Boji Kalappa executed a ‘Will’ dated 3.5.1995, in his favour bequeathing all her assets and interests in his favour? 4. To what order or Decree?” 8. The plaintiff, to substantiate his case, examined himself as PW-1, and marked 25 documents as Exs.P-1 to P-25. Conversely, defendant No.2 was examined as DW-5, the officials of defendant No.1 were examined as DW-1 to DW-3, also examined one witness as DW-4, and marked 15 documents as Exs.D-1 to D-15. The Trial Court, after recording the evidence, hearing on both the sides, and on assessing the verbal and documentary evidence, answered issues No.1 in the Affirmative, issues No.2 and 3 in the Negative and issue No.4 as per the final order. The Trial Court decreed the suit of the plaintiff and judgment dated 08.12.2009. 9. Defendant No.1, aggrieved by the judgment and decree passed by the Trial Court, filed an appeal in R.A.No.4/2010, and the LR’s of defendant No.2, aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in R.A.No.3/2010. The First Appellate Court, clubbed both the appeals, and after hearing the learned counsels for the parties, framed the following points for determination: 1. "Whether the second defendant should have proved the Will in this suit? 2. The First Appellate Court, clubbed both the appeals, and after hearing the learned counsels for the parties, framed the following points for determination: 1. "Whether the second defendant should have proved the Will in this suit? 2. Whether it is necessary to permit the second defendant to amend the written statement as prayed for in I.A.III filed in this appeal? 3. Whether the defendants have proved that the second defendant was a nominee in respect of the deposits referred to in the plaint and therefore payment made to him is a valid payment? 4. Whether interference is called for in the judgment and decree of the trial court? 5. What Order?" 11. The First Appellate Court, on re-assessing the verbal and documentary evidence, answered point Nos.1 and 2 in the Negative, point No.3-does not arise, point No.4 in the Affirmative and point No.5 as per the final orders. The appeals were allowed, and the judgment and decree dated 08.12.2009 passed in O.S.No.5/1998 by the Civil Judge (Senior Division), Madikeri, was set aside, and consequently, the suit of the plaintiff was dismissed, and it was also made clear that despite the dismissal of the suit, in the event the second defendant fails to establish a Will in the probate proceedings, it would be open to the plaintiff to claim the money which is the subject matter of this suit from the defendant No.2 in accordance with the law of the intestate succession. 11. The plaintiff, aggrieved by the common judgment and decree passed in R.A.Nos.3/2010 and 4/2010, filed this regular second appeal. 12. Heard the arguments of learned counsels for the plaintiff, and the defendants. 13. Learned counsel for the plaintiff submits that defendant No.2 has not proved a Will by examining the attesting witnesses as contemplated under Section 68 of the Indian Evidence Act, 1872. He further submits that the Will is the subject matter of P & SC No.2/1996. When defendant No.2 has failed to establish that the execution of a Will by Smt. Boji Kalappa is in favour of defendant No.2. Therefore, the question of disbursing the amount by defendant No.1 in favour of defendant No.2 does not arise. He also submits that defendant No.2, by playing a fraud on the plaintiff, got released the amount in his favour. Therefore, the question of disbursing the amount by defendant No.1 in favour of defendant No.2 does not arise. He also submits that defendant No.2, by playing a fraud on the plaintiff, got released the amount in his favour. Hence, he submits that the Trial Court was justified in decreeing the suit and the First Appellate Court have committed an error in passing the impugned judgment. He also submits that the officials of defendant No.1 have committed a serious error in disbursing the amount in favour of defendant No.2. Hence, he pray on these grounds to allow the appeal. 14. Per contra, the learned counsels for defendant Nos.1 and 2 supported the judgment passed by the First Appellate Court. Learned counsel for defendant No.2 submits that so far as the validity of the Will is concerned, the matter is pending before the learned District Judge, he further submits that the suit filed by the plaintiff is premature. The First Appellate Court has rightly passed the impugned judgment, and he also submits that the First Appellate Court has reserved the liberty to the plaintiff to recover the said amount in the event defendant No.2 fails to establish a Will in the probate proceedings. Hence, the suit filed by the plaintiff is premature, and the judgment and decree passed by the First Appellate Court is just and proper, and it does not call for any interference. Hence, on these grounds pray to dismiss the appeal. 15. This Court, vide order dated 09.08.2016, framed the following substantial questions of law: a) Whether the Lower Appellate Court is justified in setting aside the judgment and decree made in O.S.No.5/1998, without taking into consideration Section 15 (2)(b) of Hindu Succession Act? b) Whether the Lower Appellate Court has erred in law in not framing relevant points for consideration touching upon the validity of the Will, the right to inherit the properties left behind by Smt. Boji Kalappa and as regards proof of nomination pleaded by defendants 1 and 2 and not giving findings on the three relevant issues framed by the trial Court? c) Whether the Lower Appellate Court has erred in law in holding that suit filed by the plaintiff in OS No.5 of 1998 is mis-conceived and the plaintiff should await the probate proceedings relating to Will in P and SC 2 of 1996 which was renumbered OS No.1 of 1997, in the light of established position of law that even a nominee is liable to refund the money received by him to the real heir and the nominee receives amount only as a trustee to the real heir?" Reg. Substantial question of law (a): 16. It is the case of the plaintiff that the plaintiff and the deceased Kalappa are brothers. Kalappa died on 14.08.1991, leaving behind his wife, Smt. Boji Kalappa. Smt. Boji Kalappa, the wife of deceased Kalappa, died on 14.05.1995. During her lifetime, she had deposited a certain amount in defendant No.1-Bank making defendant No.2, her nominee. Defendant No.2, is brother of Smt. Boji Kalappa. After the demise of Smt. Boji Kalappa, the plaintiff succeeded to the said amount. The plaintiff submitted a representation to defendant No.1-Bank not to disburse the amount in favour of anybody. Despite submitting a representation, defendant No.1 disbursed the said amount in favour of defendant No.2. The plaintiff requested defendant No.2 to return the said amount to the plaintiff, but defendant No.2 refused to return the said amount. The plaintiff, to prove his case, examined himself as PW.1. He reiterated the plaint averments in his examination in chief and also produced 25 documents. During the course of cross-examination, it was suggested to PW-1 that probate proceedings are pending regarding the alleged Will executed by Smt. Boji Kalappa in favour of defendant No.2. PW.1 admitted the said fact. 17. Conversely, defendant No.1 examined its officials as DW.1 to DW.3, and they deposed that Smt. Boji Kalappa deposited a certain amount in defendant No.1-Bank, and as per the records, defendant No.2 was the nominee. Defendant No.1, after verifying the documents, disbursed the amount with accrued interest in favour of defendant No.2. There is no negligence or irregularity on the part of defendant No.1 in disbursing the said amount. Nothing has been elicited from the mouth of these witnesses in the course of cross-examination to disbelieve their evidence. 18. Defendant No.2 was examined as DW-5, he deposed that the plaintiff, and the deceased Kalappa are brothers. There is no negligence or irregularity on the part of defendant No.1 in disbursing the said amount. Nothing has been elicited from the mouth of these witnesses in the course of cross-examination to disbelieve their evidence. 18. Defendant No.2 was examined as DW-5, he deposed that the plaintiff, and the deceased Kalappa are brothers. Kalappa died on 14.08.1991, leaving behind his wife, Smt. Boji Kalappa. During her lifetime, she had deposited a certain amount in defendant No.1-Bank, showing defendant No.2 as her nominee, and she had executed a Will dated 03.05.1995 bequeathing the suit amount and the other properties. 19. The defendants produced 15 documents as Ex-D.5-Ex.D.15 in support of their defense. Insofar as the validity of a Will is concerned, the matter is pending before the First Additional District Judge, Madikeri, in the probate proceedings in P & SC No.2/1996, and the said probate proceedings was converted into an original suit and numbered as O.S.No.1/1997 (presently as O.S.No.7/2006) and defendant No.2 has produced the documents, i.e., a Will marked as Ex.D-10 executed on 03.05.1995 which discloses that Smt. Boji Kalappa executed a Will bequeathing the suit amount and other properties in favour of defendant No.2. The matter is pending before the jurisdictional court. 20. As in the present case, defendant No.2 is claiming to be the owner of the suit amount and other properties based on the Will at Ex.D-10 and as already observed above, the validity of the Will is pending before the appropriate forum. 21. It is not proper on the part of this court to go into the validity of the Will in view of the pendency of the probate proceedings before the I Additional District Judge, Madikeri. Defendant No.1 has produced records that disclose that defendant No.2 was a nominee, and based on the Will, defendant No.2 withdraw the said amount from defendant No.1-Bank. Withdrawal of the amount by defendant No.2 shall be subject to the outcome of the suit in O.S.No.7/2006. Defendant No.1 has produced records that disclose that defendant No.2 was a nominee, and based on the Will, defendant No.2 withdraw the said amount from defendant No.1-Bank. Withdrawal of the amount by defendant No.2 shall be subject to the outcome of the suit in O.S.No.7/2006. The First Appellate Court, considering the entire evidence on record, has rightly passed the impugned judgment and also made it very clear that, despite the dismissal of the suit, in the event, the second defendant fails to establish the Will in the probate proceedings, it would be open to the plaintiff to claim the money which is the subject matter of this suit from the second defendant in accordance with law of the intestate succession. The First Appellate Court considered the applicability of Section 15 (2) (b) of The Hindu Succession Act, 1956 and passed the impugned Judgment. I do not find any error in the findings recorded by the First Appellate Court in the impugned Judgment. 22. In view of the above discussion, I answer substantial question No.(a) in the Negative. Reg. Substantial questions of law (b) and (c): 23. The substantial question Nos.(b) and (c) are pertaining to the validity of the Will, and as observed above, that is the subject matter in O.S.No.7/2006. In view of the pendency of the suit in O.S.No.7/2006, the substantial question Nos.(b) and (c) does not arise for consideration. 24. Learned counsel for the plaintiff submits that the First Appellate Court has committed an error in imposing the cost on the plaintiff. He further submits that when the First Appellate Court has reserved the liberty to the plaintiff to claim the money in accordance with law subject to the outcome of the probate proceedings, the First Appellate Court could not have imposed the cost on the plaintiff. Hence, he prays to set aside the portion of the judgment passed by the First Appellate Court imposing the cost. 25. As rightly pointed out by the learned counsel for the plaintiff, that when the First Appellate Court reserved the liberty to the plaintiff to recover the same after the disposal of probate proceedings. The First Appellate Court could not have imposed a cost on the plaintiff. The First Appellate Court committed an error in imposing cost. The judgment and decree is liable to set aside only to the extent of imposing cost. The First Appellate Court could not have imposed a cost on the plaintiff. The First Appellate Court committed an error in imposing cost. The judgment and decree is liable to set aside only to the extent of imposing cost. Accordingly, in view of the above discussion, I proceed to pass the following, ORDER (i) The appeal is allowed-in-part. (ii) The portion of the judgment passed by the District Judge, Madikeri, in R.A.No.3/2010 and 4/2010, regarding imposing the cost on the plaintiff is set aside. The rest of the judgment passed by the District Judge, Madikeri, in R.A.Nos.3/2010 and 4/2010 is maintained.