The validity of a Will can be upheld over subsequent claims if substantiated by sufficient evidence, while ownership rights can be determined through established partition deeds.

JUDGMENT :

G Basavaraja, J.

This appeal is against the Judgment and decree dated 23^rd June, 2007 passed in OS No.88 of 2003 by the Civil Judge (Jr.Dn.), Haliyal (for short “the trial Court”), which is modified by the learned Senior Civil Judge, Yallapura sitting at Haliyal (for short “the appellate Court”) in RA No.98 of 2007 dated 28^th July, 2010, holding that the plaintiff and defendant No.1 are entitled for equal share in the suit house, excluding front portion of one room, which is standing in the name of defendant No.2, where the shop is situated. Being aggrieved by both the Judgments, the appellant has preferred this appeal.

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

3. Brief facts leading to this appeal are that the plaintiff-Smt. Rajani, d/o Shankar Balekundri, has filed Suit against the defendants for declaration, partition and separate possession in respect of the suit properties. It is stated in the plaint that the original owner of the suit property was one Kallappa Vaijappanavar who died in the year 1910 leaving behind his wife, Smt. Yellavva Kallappa Vaijappanavar who also died in the year 1940 leaving behind only daughter Smt. Balabai wife of Ramakrishna Baalekundri. The said Balabai had three sons, viz. Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri. During the lifetime, she executed Will dated 1^st November, 1936, in favour of the said Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri in respect of the House properties. The said Vishwanath Ramakrishna Balekundri has sold his house property to Ragate family of Thergaon and relocated to Haliyal. As per the Will, the names of respective persons were entered in the Panchayat records. The plaintiff and the defendant No.1 jointly acquired ownership, possession and title over the suit property after the death of their father-Shankar Ramakrishna Balekundri in the year 1977. Therefore, the plaintiff and defendant No.1 have only half share each in the suit property. The defendants have no right, title or interest whatsoever in the suit property and Manohar Ramakrishna Balekundri, his wife and defendant No.2, have illegally created documents with the help of Panchayat authorities in respect of the suit property, which is not binding on the plaintiff. The defendant No.2, without the consent of plaintiff, has published false public notice in “Vijaya Sandesh” Kannada Daily on 01^st October, 2003. Hence, the plaintiff is constrained to file the suit for declaration of her share in the suit property.

4. After issuance of summons, defendant No.1 has not chosen to appear before the Court and hence was placed ex parte. Defendant No.2 appeared through Counsel and filed written statement. The gist of written statement is that defendant No.2 has admitted the relationship between the plaintiff and defendant No.2 and categorically denied the Will dated 1^st November, 1936 alleged to have been executed by Yallavaa Kallappa Vaijappanagar in favour of Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri. While disputing the alleged Will, the defendant No.2 has stated that the said Will is created and concocted by the defendant No.1 only to file a false suit against defendant No.2. The defendant No.2 has denied the entire allegation made in the plaint. It is further contended that on 4^th April, 1965, partition has taken place between the father of the plaintiff and defendant No.1-Shankar Ramakrishna Balekundri; Vishwanath Ramakrishn