S. R. BANNURMATH, J.

( 1 ) THIS appeal is filed by defendant challenging the judgment and decree dated 12-9-2001 passed by the Learned Single Judge, senior Division, Koppal in O. S. No. 56/1994 decreeing the suit of the plaintiffs.

( 2 ) THE facts of the case as per the pleadings are as follows: sangappa Shettar of Koppal was the owner of the suit schedule properties-A to D. Schedule-A consists of lands and schedule-B, C and D consists of shops and houses. According to the plaintiffs, all these 'a' to 'd' schedule properties were owned and possessed by the said Sangappa Shettar and it is pleaded that even though Schedule-A lands i. e. , Sy. No. 631 and 632 were in the name of the wife of Sangappa Shettar by name Mahantamma, the said lands belonged to Sangappa only, as the same was purchased by him and out of love and affection towards his wife, he had purchased the same nominally in her name. As such, though the name of Mahantamma appears in all relevant records, in respect of these two lands, it was the Sangappa, who was the owner, enjoying the same and mahantamma never exercised her right or title over these lands.

( 3 ) IT is not much in dispute that Sangappa Shettar and his wife smt. Mahanthamma met with a car accident on 20-9-1994 and both died on the spot. It is also not in dispute that even though this couple had a male and female child born out of the wedlock, both children died in infancy and subsequently, they did not have any children. As such on the date of death of Sangappa and Mahanthamma, they were issue less.

( 4 ) IN Order to appreciate the rival contentions, it is also necessary to note the interse relationship of plaintiffs, defendants and said Sangappa and his wife, whose properties are the subject matter of the suit and the appeal.

( 5 ) DEFENDANT No. 1 is the younger brother and defendant Nos. 2 and 3 are sisters of the deceased Sangappa. It is not in dispute that he had two more brothers by name Siddappa and Basanna, who predeceased Sangappa. Defendant No. 4 is one of the sons of said basanna and defendant No. 5 is the son of defendant No. 3 Siddamma. Plaintiffs-1 to 3 are full brothers and grand nephew of Mahantamma. In the sense, plaintiffs' mother Mahanthamma was the daughter of one sangamma.

( 6 ) ACCORDING to the plaintiffs, as Sangappa and his wife mahantamma had no children of their own, out of love and affection, they had brought up the plaintiffs and infact, they were staying along with said Sangappa. It is the case of the plaintiffs that the marriage of the plaintiffs' father was also performed by Sangappa.

( 7 ) ACCORDING to the plaintiffs, Sangappa was a shrewd business man and had flourishing commission agency, grocery and cracker business. Since, he was alone and could not manage the business affairs, he took the help of the plaintiffs' father Basetteppa (P. W. 1) to run the business. It is alleged that the deceased had executed a will in the year 1974 in favour of his relatives but due to disillution by their attitude and disbehaviour, he revoked / cancelled the will on 26-9-1990. According to the plaintiffs, the deceased Sangappa had philanthropic outlook and was a devotee of Sri Gavisiddeshwara swamiji, Koppal. The deceased was also the Chairman of sri Gavisiddeshwara V. V Trust, Koppal.

( 8 ) ACCORDING to the plaintiffs on 20-5-1991, Sangappa executed another will bequeathing his properties-A to D to the plaintiffs and some more to be kept for charitable purpose. It is alleged that, after the execution of the will, in pursuance of his well wishers, he gave the same in a sealed condition to his confident one Sri Bhusnoormath, advocate - P. W. 8 with instructions to open the cover after his death only in the presence of Sri Gavisiddeshwara Swamiji. According to the plaintiffs, after the sudden death of Sangappa and his wife mahantamma, the will was opened and read over on 29-4-1994 in the presence of Sri Gavisiddeshwara Swamiji.

( 9 ) IT is alleged that, after coming to know of t

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