The validity of a will governs property rights, determining ownership scope, which in this case was confined to 29.5 cents while highlighting that registered wills have presumptive evidentiary value.

JUDGMENT :

C M JOSHI, J.

This second appeal is filed by defendant No.1 who suffered the decree of the Trial Court as well as the First Appellate Court in O.S.No.278/1997 by the learned Civil Judge, Junior Division and Civil Judge, Senior Division, Kudligi respectively.

2. The factual matrix that is necessary for the purpose of this appeal is as below:

a) The suit schedule property happens to be in the rickyard situated at Alur Village in Kudligi Taluk, in Sy.No.334/A, measuring 54 cents, bounded by road on the East and the properties of others on the remaining three sides.

b) The plaintiff Dodda Anjaneya contended that he is the absolute owner of the plaint schedule property and he derived the title to the said property through a registered Will dated 13.01.1970 executed by one Gangamma wife of Giddappa. He contended that she was in possession and enjoyment of the rickyard and defendant No.1 has no right, title or interest in the same in whatsoever manner.

c) While the plaintiff was working in the rickyard on 08.10.1987, defendant No.1 came and obstructed the possession of the plaintiff and tried to take a foundation. The defendant also denied the title of plaintiff. Therefore, the plaintiff was constrained to file this suit for declaration of his title and for consequential relief of injunction.

3. On service of summons, defendant No.1 appeared through his learned counsel and filed a written statement.

a) The defendant contended that the suit schedule property is not the exclusive property of the plaintiff. He contended that he happens to be the son of one Yerrappa. The said Yerrappa had a brother by name Dodda Thimmanna. He had only a son by name Giddappa and his wife is Gangamma. It is contended that the said Yerrappa and Dodda Thimmanna had divided their properties during their lifetime long back under a oral partition and the plaint schedule property was divided into two equal shares and the Western portion measuring 29.5 cents had fallen to the share of Dodda Thimmanna and the remaining half on the Eastern side had fallen to the share of Yerrappa. It is contended that the said Gangamma, who allegedly executed a Will in favour of the plaintiff could only bequeath 29.5 cents under the Will.

b) It was further contended that Yerrappa had three sons i.e. Defendant Nos.1, Dodda Thimmanna and Sanna Thimmanna. The rickyard measuring 29.5 cents which was allotted to Yerrappa was divided between defendant No.1 and Sanna Thimmanna, (who later is impleaded as defendant No.2 in the suit) and each of them got 14.75 cents. The Eastern half was belonging to defendant No.1 and the Western part, which adjoins the rickyard bequeathed by Gangamma to plaintiff was belonging to defendant No.2. Therefore, it was contended that the suit schedule property contains three portions measuring 14.75 cents, belonging to the defendant No.1, 14.75 cents belonging to defendant No.2 and 29.5 cents belonging to the plaintiff.

c) He further contended that the property fallen to the share of the defendant was mortgaged under a registered mortgage deed dated 26.04.1967 in favour of one Gopalareddy. At the time of the mortgage, the plaintiff had consented for the same by a consent agreement dated 05.08.1984. Therefore, it is contended that the plaintiff is not in exclusive possession of the entire 54 cents of the suit schedule property and therefore, the suit is not maintainable.

d) It is contended that defendant No.1 has dug a pit for laying foundation with an intention to construct a cattle shed which was objected by the plaintiff. Hence, d