The validity of a will requires clear evidence of the testator's free will, especially in cases of joint family properties surrounded by suspicious circumstances.

JUDGMENT :

ASHOK S. KINAGI, J.

This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 13.08.2007, passed in R.A.No.5/2007, by the District Judge, Davanagere, confirming the judgment and decree dated 21.11.2006, passed in O.S.No.51/2005, by the Civil Judge (Sr.Dn.), Harihar.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the defendant Nos.7 to 9 and the respondent No.1 is the plaintiff and respondent Nos.2 to 7 are defendant Nos.1 to 6 before the trial Court.

3. The brief facts leading rise to filing of this appeal are as under:

The plaintiff had filed a suit for partition and separate possession of his 1/4^th share in the suit schedule properties, mesne profits and declaration that the Will dated 09.04.1991 alleged to have been executed by late Bevinahalli Siddappa is a concocted and sham document under which the defendant Nos.7, 8 and 9 derived no title and for cancellation of the same.

4. It is the case of the plaintiff that, one Bevinahalli Siddappa was the original propositus. The wife of the original propositus is defendant No.6 Smt.Rudramma. The plaintiff and defendant Nos.1 to 5 are the children of original propositus Bevinahalli Siddappa and Smt.Rudramma i.e., defendant No.6. The defendant Nos.7 to 9 are the children of cousin brother of the said Siddappa. The plaintiff and defendant Nos.1 to 6 constitute a joint family and there is no partition effected between plaintiff and defendant Nos.1 to 6 in respect of suit schedule properties. The suit schedule properties are the joint family properties of plaintiff and defendant Nos.1 to 6. The plaintiff demanded for partition and separate possession, but, defendant Nos.1 to 6 refused to effect the partition. Further it is contended that the suit schedule Item No.2 property stands in the name of defendant Nos.7 to 9 on the basis of the Will dated 09.04.1991 alleged to have been executed by Siddappa in favour of defendant Nos.7 to 9. It is contended that said Will is created and concocted, hence, defendant Nos.7 to 9 did not acquire any right, title over suit schedule Item No.2 property. Hence, prayed to decree the suit.

5. Defendant Nos.1 and 2 filed their written statement admitting the contents of the plaint.

6. The defendant No.7 filed her written statement, denying the averments made in the plaint and contended that the suit schedule Item No.2 property was self- acquired property of Siddappa and during his life time, he had executed a Will dated 09.04.1991 and the said Will was registered, bequeathing the suit schedule Item No.2 property in favour of defendant Nos.7 to 9. It is further contended that defendant Nos.7 to 9 have performed the last rites of late Siddappa and on the basis of registered Will, the katha of the suit schedule Item No.2 property was changed in the name of the defendant Nos.7 to 9. Hence, prayed to dismiss the suit.

7. The defendant Nos.8 and 9 have adopted the written statement filed by defendant No.7.

8. The trial Court on the basis of the above said pleadings, framed the following issues:

1) Whether plaintiff proves that the suit properties are Joint Family Properties of himself & defendants 1 to 6?

2) Whether plaintiff proves that the propositus Bevinahalli Siddappa has died on 24-8-02?

3) Whether plaintiff and defendants 1 to 6 are in Joint possession of suit properties?

4) Whether plaintiff proves that the Will dt.9-4-91 executed by Bevinahalli Siddappa in favour of defendants 7 to 9 is co