A will must be executed in accordance with the provisions of the Indian Succession Act, and the burden of proof lies on the propounder to establish its validity, especially in the presence of suspicious circumstances.

JUDGMENT

ASHOK S. KINAGI, J.

This appeal is filed by the appellant challenging the judgment and preliminary decree dtd. 31/1/2015 passed in O.S. No.7/2008 by the learned Senior Civil Judge and JMFC, Raibag.

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

3. The appellant is defendant No.1. Respondent Nos.1 to 3 are the plaintiffs. Respondent Nos.4 to 18 are the defendants. The plaintiffs filed a suit for partition and separate possession in respect of lands bearing R.S. No.112/5 measuring 4 acres, Sy.No. 146/3 measuring 4 acres 7 guntas and R.S. No.147/3 measuring 5 acres 6 guntas and all situate at Mantoor village, Raibag taluk are the suit properties. It is the case of the plaintiffs that the original propositus was one Sri. Parasappa. He has two sons namely Kallappa and Yallappa and two daughters Yallawwa and Tangewwa. Kallappa died issueless. Yallappa died leaving behind the plaintiffs and defendant Nos.1 to 10. Yallawwa is defendant No.11/daughter of original propositus. Tangewwa died leaving behind defendant Nos.12 to 16. It is contended that the suit schedule properties are standing in the name of the original propositus Parasapa. After his demise, his two sons namely Kallappa and Yallappa got their names entered in the record of rights over the suit schedule properties. The suit schedule properties are the ancestral properties of the plaintiffs and the defendants. The plaintiffs and the defendants are cultivating the suit properties jointly. On 13/11/2006 defendant Nos.1 to 3 created an alleged illegal Will in the name of defendant No.1 just to dupe the valuable shares of the plaintiffs over the suit properties. The plaintiffs demanded for partition and separate possession but the defendants refused to effect a partition. Hence, cause of action arose to the plaintiffs to file a suit for partition and separate possession.

4. Defendant Nos.1 to 3 filed written statement contending that the suit filed by the plaintiffs is not maintainable for non-joinder of necessary parties. It is contended that after the demise of the original propositus Parasappa, his sons Kallappa and Yallappa got their names entered in the record of rights in respect of the suit properties who have got equal half share in the suit properties. It is contended that the plaintiffs and the defendants are jointly cultivating the suit properties and there is no partition and separate possession by metes and bounds in the suit properties. It is denied that on 13/11/2006, defendant Nos.1 to 3 created alleged illegal deed in favour of defendant No.1. It is contended that, uncle of defendant No.3 namely Kallappa had no issues. The said Kallappa was aged about 85 years. During the old age, defendant Nos.2 and 3 have looked after Kallappa peacefully and provided treatment whenever he fell sick. Hence, Kallappa had special love and affection towards his brother Yallappa i.e. defendant No.3 namely Parashuram @ Ajjappa i.e., defendant No.3 and his wife Lata. During his life time, on 13/11/2006 executed his last will bequeathing half share in all the suit properties in favour of defendant No.1. Since he was a minor, he was represented by his mother defendant No.2. Kallappa died on 14/1/2007. After his demise, the said Will was registered before the SubRegistrar, Raibag. As per the registered Will executed by Kallappa, defendant Nos.1 to 3 submitted an application to enter their names. Accordingly, name of defendant No.1 was entered in the revenue records. The plaintiffs have no right, title or interest over the half share of Kallappa. Hence, prayed to dismiss the suit.

5. Defendant Nos.5 and 6 filed written statement and made counter claim that suit be decreed and they are also entitled for share in the suit properties.

6. Defendant No.9 filed written statement making counter claim for partition and separate possession.

7. Defendant No.10 also filed written statement praying to decree the suit of the plaintiffs