The suspicious execution of a Will and entitlement to share in properties under the Hindu Marriage Act were central to the court's decision.

V. GOPALA GOWDA, J.

( 1 ) THE appellants were defendants and respondents were plaintiffs in the Trial Court. For the sake of convenience, the parties are referred to as per their rank in the Trial Court.

( 2 ) THIS second appeal is filed by the defendants in O. S. No. 193/20 on the file of the Munsiff, Hirekerur, being aggrieved by the judgment and decree dated 15-7-2003 in R. A. No. 193 of 1992 reversing the judgment and decree dated 23-6-1992 passed by the Trial Court in the suit.

( 3 ) THE brief facts of the case are that the plaintiffs filed the suit for partition and separate possession of 6/13th share in the suit schedule properties and for mesne profits. The case of the plaintiffs is that the propositor Guddappa had two wives-2nd plaintiff and 6th defendant; that plaintiffs 1 and 3 to 6 are the children of 2nd plaintiff; that the 6th defendant is not the legally weeded wife of Guddappa; that after the death of Guddappa, the plaintiffs became the owners of the suit schedule properties; that the 6th defendant fraudulently concocted a Will and on the basis of the same the defendants got entered their names in the revenue records; that plaintiffs and defendants have got equal share and since the defendants failed to effect partition of the suit schedule properties, the plaintiffs filed the suit for partition. The first defendant filed written statements denying the plaint averments and the same was adopted by the other defendants. A specific stand is taken that the suit is barred by res judicata and justifying the execution of the Will in their favour, the defendants sought dismissal of the suit. On the basis of the pleadings, the Trial Court framed issues and went for trial. Parties adduced evidence and produced documents in support of their respective case. Upon consideration of the material brought on record, the Trial court partly decreed the suit holding that plaintiffs are jointly entitled to half share in Schedule B-2 properties and dismissed the suit in respect of other properties. In the appeal preferred against the judgment and decree of the Trial Court were set aside and the suit was decreed holding that plaintiffs together are entitled to half share and defendants except 6th defendant are also entitled to half share in Schedules A to D properties. Being aggrieved; by the same, the present second appeal is filed by the defendants.

( 4 ) IT is not in dispute that deceased propositor Guddappa had two wives-2nd plaintiff and 6th defendant. What the plaintiffs state is that 6th respondent is not the legally wedded wife of the propositor. Plaintiffs together claim half share in the suit schedule properties. It is thus clear that 6th defendant is not legally wedded wife but nevertheless the children born through her to Guddappa have got share as Class I heirs in the properties of Guddappa in view of Section 16 of the Hindu marriage Act.

( 5 ) THE Trial Court granted decree in favour of the plaintiffs only in respect of suit Schedule B-2 properties and dismissed the suit in respect of other properties on the ground that they are not available for partition in view of the Will said to have been executed by the propositor guddappa in favour of the defendants. The first Appellate Court reappreciated the inaterial on record insofar as the execution of the Will ex. D. 10 with reference to the decisions on the subject and suspected the genuineness of the Will. It has assigned valid and cogent reasons for its conclusion and the various factors and circumstances are mentioned for the same. One such strong circumstance is that defendants were not aware of execution of Will and according to the evidence of D. W. 1, he traced the Will 8 days after the death of his father. He further stated that during the lifetime of Guddappa they were not aware of the Will.

( 6 ) THOUGH the Trial Court accepted the execution of the Will by guddappa in favour of the defendants, the first Appellate Court found that the only reason assigned in the Wi

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