A Will is a legal declaration of the intention of the testator with respect to his property which he desires to be carried out into effect after his death. A Will can be executed by every sound person who is not a minor. If the making of the Will or any part of it is caused by fraud or coercion or if the making of it is clouded by such importunity so as to take away the free agency of the testator, the same would be void. A Will may be revoked or altered by the testator at any time when he is competent to dispose of his property by a Will. A Will can also be revoked by burning or tearing or by destroying it by the testator or by some person in his presence and under his direction with the intention to revoke the Will.

JUDGMENT :

N.S. Sanjay Gowda, J. –

1. This appeal is by the plaintiffs who are aggrieved by dismissal of their suit O.S.No.1721/2005 in which they had sought for partition of two agricultural properties and herein after referred to as Schedule A and B properties.

2. For the sake of convenience, the parties are referred to by their ranks in the Trial Court.

3. The plaintiffs are the sisters of defendant No.1, who is their only brother.

4. The admitted relationship of the parties are as follows:

5. Plaintiffs, the five daughters of Kempaiah, namely Hanumamma (plaintiff No.1), Lakshmamma (plaintiff No.2), Jayamma (plaintiff No.3), Chandramma (plaintiff No.4) and Savithri (plaintiff No.5) initially filed the suit against their brother B.K.Ramaiah (defendant No.1) seeking for partition of two agricultural properties. Subsequently, Kalpana (daughter of Kempamma, the third daughter of Kempaiah) was impleaded as defendant No.2.

6. Since Lakshmamma, the second daughter of Kempaiah died during the pendency of the suit, her children came to be impleaded as plaintiffs 2 (a) to (d). Lakshmamma s another daughter Shakuntala was impleaded as defendant No.3.

7. The plaintiffs stated that they are the daughters of Late Kempaiah and Lingamma and Defendant No.1, their brother, was the only son of late Kempaiah and Lingamma. They stated that all of them together constituted a joint Hindu family. The plaintiffs further stated that their father, Kempaiah, during his life time, had settled all the properties in favour of the plaintiffs and defendant No. 1 and everyone had taken their respective shares and were enjoying the same.

8. They stated that their father Kempaiah had executed a registered Will dated 22.02.1984 bequeathing two properties i.e., a house property in Chinnayyanapalya where he was residing and an agricultural property bearing Sy.No.45/12 measuring 4 acres situated in Parappana Agrahara (schedule-A property), in favour of their mother Lingamma. It was stated that Lingamma after the demise of Kempaiah enjoyed the properties as an absolute owner and she thereafter settled the house property in favour of Jayamma (plaintiff No.3) and Savithri (plaintiff No.5) under a registered Partition Deed dated 02.02.1989.

9. They stated that under aforesaid Partition, Lingamma chose to retain the property measuring 4 acres (schedule-A property) for herself and Lingamma had thereafter executed a registered Will dated 16.01.1998 whereby she bequeathed schedule A property in favour of both the plaintiffs and defendant No.1 equally. They, thus, stated that all the children of Kempaiah have equal share in schedule-A property.

10. They stated that on the death of Lingamma on 09.05.1998, all of them had succeeded to the property of Lingamma in equal proportions. It was also stated that the plaintiffs request to their brother defendant No.1 to divide schedule-A property equally was not acceded to and on the other hand, he had proceeded to make an application to the revenue department for mutating katha in his individual name and had also got the revenue entries made over to his name by furnishing false information. It was further stated that on the basis of said revenue entries, he was trying to dispose of schedule-A property so as to deprive the legitimate share of the plaintiffs.

11. A further plea was raised by the plaintiffs that Kempaiah during his life time had acquired another property bearing Sy.No.45/18 measuring 4 acres situated at Parappana Agrahara under a registered Sale Deed dated 31.01.1985 (schedule-B property) and on his demise intestate plaintiffs and defendant had succeeded to Schedule B property and as such plaintiffs were therefore entitled to an equal share in schedule- B property.

12. It was stated that plaintiffs had approached the revenue authorities to get the entries changed in their names, but were informed that their names could not be ent