The judgment emphasizes the importance of credible evidence in establishing the validity of a Will and entitlement to property shares under Hindu Mitakshara Law.

JUDGMENT/ORDER

1. This appeal is filed challenging the judgment and decree of dismissal of the suit dtd. 22/12/2006, filed by the plaintiff seeking the relief of declaration, partition and separate possession in O.S.No.183/2001 on the file of the Civil Judge (Sr.Dn.), Honavar.

2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

3. The factual matrix of the case of the plaintiff before the Trial Court is that defendant No.4 is his father, defendant Nos.1 to 3 are uncles and defendant No.5 is the aunt of the plaintiff and defendant No.6 is the sister of defendant Nos.1 to 4. It is contended that Hindu Mitakshara Law governs the plaintiff and the defendants. The Land Tribunal, Honavar granted the occupancy rights in respect of suit schedule properties in favour of defendant Nos.1 to 4 and their mother by name, Smt.Gulabi w/o Vishnu Poojari. In pursuance of the said order, Form No.10 came to be issued on 14/3/1983. Accordingly, mutation entry No.979 came to be certified. It is his contention that all of them jointly enjoyed the suit properties, but subsequently they started cultivation of the suit properties separately as per arrangement made among them orally. The said Smt. Gulabi was separately cultivating the suit properties. The suit 'A' schedule property was allotted to her share. Due to differences between her children and herself, she took the minor plaintiff with her and was cultivating the suit 'A' schedule properties fallen to her share with the assistance of the plaintiff. Due to love and affection towards the plaintiff, she executed a registered Will dtd. 29/9/1983, thereby bequeathed the suit land Survey No.68/1 along with house therein and shed situated in Survey No.68/2 and other immovable properties belonging to her in favour of the plaintiff. The said Smt. Gulabi died on 20/12/1994. Thereafter, the plaintiff has succeeded to the properties of the deceased Smt. Gulabi as per the Will. The plaintiff has continued his possession and cultivation of the suit 'A' schedule property. The names of defendant Nos.1 to 4 came to be entered in the revenue records as legal heirs of deceased through mutation entry No.1477. The plaintiff challenged the said order before the Assistant Commissioner, Bhatkal and the said appeal came to be dismissed. It is the contention of the plaintiff that defendant Nos.1 to 3 threatened to dispossess the plaintiff from suit 'A' schedule properties in view of the said order. Hence, the plaintiff filed O.S.No.84/1996 in the Court of Civil Judge (Jr.Dn.) Honavar against defendant Nos.1 to 4. The defendant Nos.1 to 3 filed their written statement. As the other joint family properties were not included in the said suit and on account of pecuniary jurisdiction, the plaintiff withdrew the said suit with permission to file fresh suit on same cause of action. Hence, the plaintiff was constrained to file the suit for the relief of declaration of his right by way of Will and partition and separate possession of the share of deceased Smt. Gulabi over the suit properties and prayed to decree the suit.

4. In pursuance of the suit filed by the plaintiff, the suit summons were issued and defendant Nos.1, 4 and 5 appeared through their learned respective counsel and defendant Nos.2, 3 and 6 remained exparte. The defendant No.1 filed the written statement denying all the averments. However, admitted the relationship between the parties and also admitted that the Land Tribunal granted the land. It is contended that the suit schedule properties are joint family properties and are in joint possession and cultivation of the defendants and their mother. The mother of the defendants was never in possession and enjoyment of the suit schedule properties separately, as contend by the plaintiff and the defendants are enjoying their common right over the suit schedule properties separately. There was no oral partition or arrangement