The present appeal filed under Section 100, C.P.C. is directed against the divergent judgment and decree passed by the first appellate court, i.e. Civil Judge (Senior Divn.) and Addl. CJM at Arsikere, in R.A.76/03. Appellants herein were defendants 3 and 4 in an original suit in O.S.187/94 filed by the 3rd respondent herein as plaintiff for the reliefs of declaration and possession.

2. Sheik Majar was the 1st defendant in O.S.187/94 and he died during the pendency of the suit. Hence his legal representatives were brought on record. The 2nd respondent herein was the 3rd defendant in the said suit and the 3rd respondent herein was the sole plaintiff represented by his paternal grandmother-Rukiyabi as he was a minor.

3. Parties will be referred to as plaintiff and defendants as per their ranking before the trial court. The facts leading to the filing of the present appeal are as follows:

a) A person by name Dharvesh Mohiddin was a Sunni Muslim and a resident of Banavara town. He had 4 sons namely, Syed Mohiddin, Sheik Majar (deceased 1st defendant), Jaleel Ahmed and Fida Hussain, and four daughters namely, Ashabi, Meerabi, Ameenabi, Rafeerjan. He was in possession of a total extent of 19.09 acres and two houses in Banawara Town. His second son-Sheik Majar was a vagabond and did not have good habits, though he was married.

b) Dharvesh Mohiddin bequeathed 2.38 acres of land in Survey No.2/2 of Banavara town and a house bearing Municipal No.390 of Banavara town in favour of his first son-Syed Mohiddin, an extent of 1.38 acres of Survey No.209 and 1.38 acres in Survey No.151 of Banavara Town and a house bearing Municipal No.55 in Banavara Town in favour of Jaleel Ahmed (3rd son), an extent of 2.36 acres in Survey No.211 and 1.19 acres in Survey No.242 of Banavara Town to Fida Hussain (4th son). The remaining extent of 3.24 acres was earmarked for his first daughter-Ashabi and her husband to be equally divided amongst the daughters.

c) No property was bequeathed in favour of his second son-Sheik Majar (deceased 1st defendant). On the other hand, property bearing No.179 along with backyard, land measuring 2.07 acres in Survey No.209 of Surveykoppalu village and land measuring 2.08 acres in Survey No.85/1 of Agrahara village were bequeathed in favour of Ashraff Hussain @ Ilyas Ahmed who was the son of Sheik Majar.

d) The above bequests were made through a registered will dated 12.5.1958. A suit was filed by Syed Tousif, son of Ashraff-legatee represented by Rukiyabi, w/o Sheik Majar for the reliefs of declaration to the effect that the 1st defendant-Sheik Majar had no right to alienate the properties in favour of defendants 2 to 4 and that the alienation so made does not bind the plaintiff, and for possession of the same.

e) Only defendants 3 and 4 chose to file written statement denying all material averments. The plaintiff was called upon to prove execution of the will dated 27.5.1958 and the same being acted upon and legatee being in possession of the schedule property. According to them, the property in question fell to the share of Sheik Majar in the year 1975 and he was in lawful possession of the same as the absolute owner and sold the same in favour of the 2nd defendant and they have purchased the same from defendant No.2 through a registered sale deed. According to them, the will dated 27.5.1958 is a got-up document.

f) Ashraf Hussain died on 1.7.1997. According to the defendants, Dharavesh Mohiddin was a Sunni Muslim and he had no right to execute the will excluding his son-Sheik Majar and grandson is not an heir as per Muslim Law. Therefore, the will has no legal entity. The other sons and daughters of Dharavesh Mohiddin are necessary parties, is the averment. It is further averred that they have purchased the schedule property from Siddappa (2nd defendant) who in turn purchased the same from Sheikh Majar through a sale deed. It is averred that the suit is not maintainable either on facts or in law and therefore, they had r