Registered Wills have superior evidential value over unregistered ones; proper evidentiary standards must be met for claims of partition.

JUDGMENT :

H.P. SANDESH, J.

This matter is listed for admission. I have heard learned counsel for the appellant and learned counsel for caveator-respondent No.17.

2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of case of the plaintiff while seeking the relief of partition and separate possession is that suit schedule properties are joint family properties of herself and the defendants.

4. The defendants appeared and filed the written statement contending that defendant No.1 claims that Narayanappa has executed a registered Will in her favour on 23.02.2006. It is also the contention of defendant No.1 that he has sold item No.1 for family benefit and legal necessity in favour of defendant No.6 and in turn, defendant No.6 sold the property in favour of defendant No.9. The Trial Court taking note of pleadings of defendant No.9 also framed additional issue that defendant No.1 executed sale deed in favour of defendant No.6 on 22.03.2013. Thereafter, defendant Nos.6 to 8 have sold item No.2 in his favour on 14.12.2015 and thus, he is a bonafide purchaser of item No.2 and considering the written statement of defendant No.9 also framed an issue that item No.2 is the self-acquired property of Narayanappa and Mulubagilamma.

5. The trial Court having considered the pleadings and also the issues, allowed the parties to lead evidence. The plaintiff, in order to prove the case, examined herself as P.W.1 and examined four witnesses as P.W.2 to P.W.5 and got marked the documents Exs.P1 to P12 and unregistered Will dated 31.12.2005 as Ex.P13. On the other hand, defendant No.1, in support of her contention examined herself as D.W.1 and also examined in total 5 witnesses as D.W.2 to D.W.6 and got marked the documents as Exs.D1 to D27 original registered Will, mutation, RTC extracts, original SPA deed, Encumbrance Certificates, certified copy of the registered sale deed three in numbers as Exs.D15 to 17, mutations, hissa tippani, survey atlas, Akar Bandh and RTC Extracts.

6. The Trial Court considering both oral and documentary evidence accepted the case of the defendants and not accepted the case of the plaintiff and answered issue No.1 as ‘negative’ and issue No.2 as ‘affirmative’ that there was a registered Will and the same is proved by examining the witnesses and dismissed the suit.

7. Being aggrieved by the judgment and decree of the Trial Court, the First Appellate Court also having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court has not appreciated both oral and documentary evidence in a proper manner and whether it requires interference and also framed a point whether the appellant has made out a ground to consider I.A.No.1 filed under Order 41, Rule 27 read with Section 151 of CPC and answered point Nos.1 and 2 as ‘negative’ and point No.3 as ‘affirmative’ in coming to the conclusion that Trial Court is justified in dismissing the suit of the plaintiff accepting the case of defendants i.e., original registered Will Ex.D1 and not believed the document of Ex.P13. While doing so, particularly, taken note of the evidence of witnesses in paragraph Nos.28 to 31 and confirmed the judgment of the Trial Court.

8. The main contention of learned counsel appearing for the appellant before this Court is that both the Courts have committed an error in relying upon document of Ex.D1 and ignored the document of Ex.P13 executed by Narayanappa at an undisputed point of time, dividing the schedule properties equally among the plaintiff and the defendants. The counsel would vehemently contend that no reasons are assigned for disinheriting the other family members and also cou