JUDGMENT :

1. The instant regular second appeal is filed by the first defendant challenging the judgment and decree dtd. 4/11/2016 passed by the court of Principal Senior Civil Judge, Davangere (for brevity "the first appellate court") in R.A.No.101/2015 wherein the judgment and decree dtd. 1/9/2015 passed in O.S.No.48/2010 by the court of Civil Judge and J.MF.C., Jagaluru ("the trial court") has been set aside and the suit of the plaintiff has been decreed declaring that the plaintiff is entitled for half share in the suit schedule property.

2. For the sake of convenience, the parties to the appeal are referred to by their rankings before the trial court.

3. Brief facts of the case that would be relevant for the purpose of disposal of this case are: The plaintiff had filed O.S.No.48/2010 before the trial court with a prayer to declare the Will dtd. 19/2/2010 said to have been executed by one Smt.Rudramma as null and void and not binding on the plaintiff and also for partition of the suit schedule property and mesne profits.

4. It is the case of the plaintiff that the plaintiff and defendant No.2 are brothers and defendant No.1 is the daughter-in-law of defendant No.2. There was a partition in the joint family properties between the brothers under a partition deed dtd. 4/5/1990 and under the said deed, the suit schedule property was given to the mother of the plaintiff and defendant No.2 for the sake of maintenance. It is the further case of the plaintiff that just prior to the death of his mother Smt.Rudramma, defendant No.2 forcibly got a Will executed in respect of the suit schedule property and it is under these circumstances, the plaintiff had filed O.S.No.48/2010 before the trial court.

5. After service of summons, the defendants appeared before the trial court and defendant No.1 filed detailed written statement denying the plaint averments while admitting the relationship between the parties. It is the specific case of the first defendant that the suit schedule property was acquired by her under the registered Will dtd. 19/2/2010, which was executed by late Rudramma in her favour. She has further submitted that she has made huge improvement in the suit schedule property and the plaintiff being jealous of her has filed a frivolous suit challenging the Will and also claiming partition in the suit schedule property. During the pendency of the suit, defendant No.2 had died and his legal representatives were brought on record and they have filed a separate written statement contending the same set of facts as stated in the written statement of defendant No.1.

6. On the basis of the rival pleadings, the trial court has framed the following issues:

<<<

"1) Whether plaintiff proves that, suspicious circumstances clouded while executing will by Smt. Rudramma in favour of defendant no.1 as pleaded in plaint?

2) Whether plaintiff proves that, will dtd:19/2/2010 is created and misguided to deceased Smt.Rudramma?

3) Whether defendant no.1 proves that Smt.Rudramma has executed Registered will in her favour on 19/2/2010?

4) Whether plaintiff proves that he is share in the suit schedule property?

5) Whether plaintiff is entitled for relief of declaration?

6) Whether plaintiff is entitled for mesne profit?

7) What decree or order?"

7. During the course of trial before the trial court, the plaintiff got himself examined as PW-1 and examined five other witnesses as PW-2 to PW-6 and got marked 7 documents as Exs.P1 to P7 in support of his case. Defendant No.1 got herself examined as DW-1 and examined eight witnesses as DW-2 to DW9 and got marked 12 documents as Exs.D1 to D12 and closed their side. Thereafterwards the arguments of both sides were heard by the trial court and by answering issue Nos.1, 2, 4 to 6 in the negative and issue No.3 in the affirmative, the trial court dismissed the suit. Being aggrieved by the same, the plaintiff had filed R.A.No.101/2015 before the first appellate court and the said appeal was allowed b

Click Here to Read the rest of this document