The court upheld that the valid execution of a Will and distinction between self-acquired and ancestral property were critical to the suit's outcome, determining testamentary intentions of the deceased.

JUDGMENT :

UMESH M. ADIGA, J.

1. The plaintiff has preferred this appeal challenging the judgment and decree dated 31.01.2019 passed in O.S.No.52/2017 on the file of I Additional Senior Civil Judge, Hubballi.

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

3. Brief facts of the case of both the parties before the trial Court are as under:

It is the case of the plaintiff that suit schedule properties are self acquired properties of her father Ramanath S/o Yellappa Kalaburagi. His wife Smt. Lakshmi Bai predeceased him during the year 2003. From the said wed-lock, he has three sons and one daughter, i.e., parties to the present suit. The said Ramanath died on 29.01.2017, leaving behind plaintiff and defendants and they succeeded to his properties. After the death of Ramanath, the plaintiff requested the defendants to effect a partition and separate possession of her share in the suit properties. The defendants refused to do so. Therefore, she was constrained to file the suit. With these reasons, she prayed for the decree of partition and separate portion of her 1/4^th share in the suit schedule properties.

4. The defendants admit the genealogy and that the property was self-acquired property of Ramanath. Their contentions are that Ramanath during his lifetime, in a sound state of mind, executed a Will on 06.10.2016, bequeathing the suit properties in favour of defendant Nos.1 to 3. After his death, they succeeded to the suit properties by virtue of Will executed by Ramanath. The deceased Ramanath had a valuable property at Bengaluru and during his life time he gifted the same in favour of plaintiff by a registered gift deed dated 22.02.2016. This fact is also noted in the registered Will. The deceased Ramanath was hale and healthy till his death. The defendants were looking after him and out of love and affection, he executed the said Will. With these reasons, they prayed to dismiss the suit.

5. The trial Court framed following issues :

1. Whether plaintiff proves that suit schedule property is a joint family property of plaintiff and defendants as pleaded in the plaint?

2. Whether defendants prove that suit is not maintainable?

3. Whether defendant prove that valuation of the suit property and Court fee paid by the plaintiff is not correct?

4. Whether plaintiff is entitled for the relief as sought for?

5. What order or decree?

ADDITIONAL ISSUE DATED 29.01.2019:

1. Whether the defendants prove that their father Ramanath Yallappa Kalburgi has executed a Will dated 06.10.2016 in favour of defendants in respect of the suit schedule property as per law?

6. The plaintiff in support of her case examined herself as PW1 and marked Exs.P1 to P15. The defendants examined as DW.1 and 2 and marked Exs.D1 to D13.

7. After hearing both the parties and appreciating the pleadings and evidence available on record, the trial Court answered issue No.1 and 2 partly in the affirmative and issue No.4 and additional issue No.1 in the affirmative and issue No.3 in the Negative and dismissed the suit vide impugned judgment dated 31.01.2019. The trial Court held that the suit properties were self acquired properties of late Ramanath and out of sound disposing state of mind he executed the Will, in favour of defendants.

8. We have heard the arguments of learned counsels appearing for both the sides.

9. Learned counsel for the plaintiff would submit that the suit properties were ancestral properties and in a partition they were succeeded by late Ramanath and after his death plaintiff