IMPORTANT POINT
Will has to be proved in accordance with section 68 of the Evidence Act.

JUDGMENT :

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal arises from the final judgment and order dated 20.09.2011 passed by the High Court of Karnataka at Bangalore in RFA No.1128 of 2008 whereby the High Court set aside the judgment of the Trial Court and decreed the suit filed by the plaintiff.

3. In order to appreciate the issues involved in the appeal, it is necessary to set out the relevant facts hereinbelow.

4. The appellants are defendant Nos. 2 and 3, whereas respondent No.1 is the plaintiff and respondent No. 2 is defendant No. 1 in the civil suit, out of which this appeal arises.

5. The dispute is essentially between the family members and it relates to certain immovable properties originally belonged to the Head of the family known as - Ramaiah. The family tree would be useful to appreciate the issues.     

6. Ramaiah Reddy had two wives, first–Smt. Hemavathi and the second-Smt Nirmala. Out of the wedlock with first wife–Smt. Hemavathi, one daughter-Sharmila (plaintiff) and a son-Umesh (defendant No.1) were born, whereas out of the wedlock with second wife-Nirmala, one son- Rakesh Babu (defendant No.3) was born. Hemavathi-the first wife died on 24.02.1989 and Ramaiah died on 26.11.1995.

7. On 11.10.1995, Umesh (defendant No.1) filed a civil suit being O.S. No.7266 of 1996 against Nirmala and Rakesh Babu. This suit was filed for partition of the properties owned by late Ramaiah Reddy. It was based on the Will dated 20.05.1995 said to have been executed by Ramaiah in favour of three parties to the suit.

8. The parties compromised the suit and accordingly the compromise decree was passed on 25.01.1997 without any contest on merits.

9. On 04.11.2000, Sharmila - daughter from first wife filed a civil suit being OS No.7592 of 2000 in the Court of City Civil Judge, Bangalore against Nirmala, Umesh and Rakesh Babu, out of which the present appeal arises. This suit was for a declaration that the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her; that she is the lawful owner of the properties specified in the schedule on the basis of the Will dated 12.03.1980 executed by Ramaiah in her favour.

10. The three defendants filed the written statement. They denied the Will dated 12.03.1980 set up by the plaintiff and supported the compromise decree obtained by them on 25.01.1997 in O.S. No.7266 of 1996. The Trial Court framed the issues. Parties adduced their evidence. The Trial Court, by its judgment and order dated 28.08.2008, dismissed the suit. It was held that the plaintiff having failed to prove the original Will dated 12.03.1980, the suit must fail. In other words, the Trial Court was of the view that it is not possible to hold, in the absence of sufficient evidence adduced by the plaintiff, that the Will dated 12.03.1980 is proved in accordance with law.

11. The plaintiff, felt aggrieved by the dismissal of her suit, filed first appeal before the High Court of Karnataka, out of which this appeal arises.

12. By the impugned judgment/decree, the High Court allowed the appeal, set aside the judgment/decree of the Trial Court and decreed the plaintiff's suit. The High Court held that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law with the evidence adduced by her and hence she was entitled for a declaration as claimed by her in the suit relating to the suit properties. Defendant Nos. 2 and 3 felt aggrieved by the impugned judgment of the High Court and filed this appeal by special leave in this Court.

13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no mer