The central legal point established in the judgment is the requirement to prove due execution of a Will in accordance with law, the consideration of suspicious circumstances surrounding the Will, and the non-compliance with Section 63(c) of the Indian Succession Act.

JUDGMENT :

The captioned second appeal is filed by the plaintiffs questioning the divergent judgment and decree of the Courts below.

2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

3. The facts of the case are as under:

The family tree is culled out as under:

3(a) The plaintiffs have instituted a suit for declaration and injunction in O.S.No.3/2008. The plaintiffs claim that the propositus Devarajappa has bequeathed the suit schedule properties under Will dated 14.6.1971 in favour of deceased plaintiff No.1 and plaintiff No.2 creating life interest in favour of his wife namely Jayamma. Plaintiffs on the basis of the Will claim that they are the absolute owners of the suit schedule properties and prayed for perpetual injunction to restrain the defendants from interfering with their peaceful possession and enjoyment over the suit schedule properties.

3(b) Defendants on receipt of summons contested the proceedings and seriously disputed the Will set up by plaintiffs. Per contra, defendants 1, 4 and 5 set up a counter Will alleging that widow of Devarajappa namely Jayamma has bequeathed the suit schedule properties in favour of defendants 1,3,4 and 5 under the Will dated 27.5.1991.

3(c) The plaintiffs to substantiate their claim led oral and documentary evidence. The defendants to counter the case of the plaintiffs led oral and documentary evidence. The Trial Court having assessed the oral and documentary evidence decreed the suit holding that the plaintiffs have succeeded in proving the bequeath made by their father under the Will dated 14.6.1971. The Trial Court recorded a finding that the plaintiffs have succeeded in proving their lawful possession over the suit schedule properties.

3(d) Feeling aggrieved by the judgment and decree of the Trial Court, defendants 4 and 5 preferred an appeal before the Appellate Court. The Appellate Court having independently assessed the oral and documentary evidence however reversed the findings recorded by the Trial Court on the Will dated 14.6.1971. The Appellate Court being the final fact finding authority has meticulously examined the evidence relating to the Will set up by plaintiffs vide Ex.P4. While disbelieving the Will, the Appellate Court has taken note of several significant factors. The first and foremost aspect which was taken into consideration by the Appellate Court was the fact that the Will has not seen the light of the day for almost 23 years. The alleged bequeath by the propositus in favour of his two sons is dated 14.6.1971. The testator died on 24.10.1971. There were several litigations in the interregnum. The widow of Devarajappa namely Jayamma has meddled with the properties and P.W.2 who is shown to be attesting witness to the Will vide Ex.P4 has deposed in his evidence that he was present when Jayamma alienated some of the items of the suit schedule properties. Therefore, the Appellate Court was of the view that non production of the Will at the earliest point of time is one of the strongest circumstances indicating that the Will vide Ex.P4 is shrouded with suspicious circumstances. The Appel