The execution of a Will must be proven beyond reasonable doubt, especially when suspicious circumstances exist, and mere compliance with legal formalities is insufficient.

JUDGMENT :

HANCHATE SANJEEVKUMAR, J.

1. This Regular Second Appeal is filed by defendant Nos. 1 to 3 challenging the judgment and decree dated 12.11.2009 passed in R.A. No. 2/2007 on the file of the Fast Track Court-I, Chikodi, (for short ‘the First Appellate Court’) by which the First Appellate Court reversed the judgment and decree dated 30.11.2006 passed in O.S. No. 105/2000 on the file of the Civil Judge (Senior Division), Chikodi (for short ‘the Trial Court’).

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

PLAINT:

3. The plaintiff filed the original suit for declaration and permanent injunction by pleading that the suit properties are agricultural lands bearing R.S. No. 571/3 measuring 7 acres 10 guntas to the extent of 1/3rd share and house property bearing V.P.C. No. 1117 of Bhoj Village. Originally the suit properties were standing in the name of Shivaputra Burji, who is brother-in-law of the plaintiff. In the family partition the said suit properties were allotted to the share of Shivaputra Burji. The defendant No. 1 is brother of Shivaputra Burji. Shivaputra Burji has acquired the suit property through family partition and accordingly, his name was mutated in the revenue records. Shivaputra Burji died at Sangali on 09.05.1996 leaving behind his wife Annapurna. Shivaputra Burji and Annapurna have no issues. After the death of Shivaputra Burji, name of Annapurna was entered in the revenue records and thus Annapura had become owner and was in possession of the suit property. The defendant Nos. 2 and 3 are sisters of deceased Shivaputra Burji, who were given in marriage about 30 years before. The plaintiff is brother of Annapurna, he is looking after the suit schedule land and also during her lifetime, he was looking after her health and was cultivating the land on her behalf. It is pleaded that relationship of Shivaputra Burji and Annapurna with defendant Nos. 1 to 3 were not cordial.

4. Smt. Annapurna during her lifetime was suffering from ill-health because of kidney problem, diabetes and Hyper-tension. Hence, she was admitted to Adhar Hospital at Sangali by the plaintiff. The plaintiff was looking after Smt. Annapurna, since Annapurna was not keeping good health. Therefore, she expressed to Will away the suit properties and accordingly on 19.07.2000 Annapurna executed her First and Last Will in Adhar Hospital at Sangali in the presence of attesting witnesses, Advocate and Notary bequeathing the properties in favour of the plaintiff. It is pleaded that at the time of executing the Will Annapurna was completely in conscious state of mind and she has accordingly, bequeathed the property through the Will.

5. On 26.07.2000 Annapurna died in Waneless Hospital at Miraj. Thereafter, after the death of Annapurna the plaintiff became absolute owner of the suit schedule lands.

6. The plaintiff had performed the last rites of Annapurna, according to the customs prevailing in the family. Therefore, plaintiff filed suit for declaration of his ownership to the suit lands, by virtue of the Will dated 19.07.2000 and for consequential relief of injunction.

WRITTEN STATEMENT:

7. Defendant Nos. 1 and 4 appeared before the Trial Court through their Advocate. Defendants Nos. 2, 3 and 5 have not appeared.

8. Defendant No. 1 filed written statement and denied the plaint averments. But admitted that suit properties were belonging to Shivaputra Burji. After the death of Shivaputra Burji, his wife Annapurna succeeded to the suit property. After the death of Annapurna defendant Nos. 1 to 3 have succeeded to the suit properties as legal heirs of Shivaputra Burji and Annapurna, as per Hindu Law. It is contended that defendant Nos. 1 to 3 are in possession and enjoyment of the properties. Defendant No. 1 denied execution of Will dated 19.07.2000 by Annapurna. It is contended that the said Will is created, concocted, forged and manipulated one. Therefore, prays to dismiss the suit.

9. The Trial