Plaintiffs are entitled to challenge the validity of an alleged Will regarding ancestral properties, which requires full trial instead of dismissal at preliminary stages.

JUDGMENT :

S.R. KRISHNA KUMAR, J.

1. This appeal by the plaintiffs in O.S.No.1239/2017 is directed against the impugned order passed on I.A.No.2 by the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby the said application filed by respondent No.2 - defendant No.2 under Order VII Rule 11 of the CPC for rejection of the plaint was allowed by the Trial Court, which rejected the plaint and consequently, dismissed the suit by passing the impugned order and judgment and decree, which are assailed in the present appeal.

2. Heard the learned counsel for the appellants and learned counsel for caveator/respondent No.2 - defendant No.2 and perused the material on record. For the order proposed, notice to remaining respondents is dispensed with.

3. A perusal of the material on record will indicate that the plaintiffs claim to be the children of one late Sri. Muniyappa and Smt. Lakkamma, while defendant No.1 is the brother. It is contended that the aforesaid Sri. Muniyappa, father of plaintiffs and defendant No.1 was the son of Bullappa and Muniyamma, who had one more daughter Ms. Hanumakka, who died unmarried leaving behind her brother Sri. Muniyappa and plaintiffs and defendant No.1 to succeed to his estate including the suit schedule properties.

4. It is also contended in the plaint that the suit schedule properties were ancestral joint family properties of Bullappa and Guddaiah and on account of demise of Bullappa, the suit schedule properties devolved upon the plaintiffs and defendant No.1, who became entitled to their legitimate share in the suit schedule properties. The plaintiffs further alleged that though defendant Nos.1 and 2 had propounded an alleged Will dated 13.11.1980, the said Will was illegal and invalid, which does not bind the plaintiffs, who are entitled to their legitimate share in the suit schedule properties and since defendant No.1 did not comply with the request made by the plaintiffs to effect, partition and separate possession of the suit schedule properties to the plaintiffs, they filed the instant suit seeking the aforesaid reliefs.

5. Defendant No.2, in addition to filing the written statement, also filed the instant application I.A.No.2 under Order VII Rule 11 of the CPC seeking rejection of the plaint. It was contended that though defendant No.2 was not a family member of the family of either Bullappa or Muniyappa, defendant No.2, along with defendant No.1 and husband of defendant No.3 were beneficiaries under the aforesaid alleged Will dated 13.11.1980 alleged to have been executed by the aforesaid Bullappa in their favour and in terms of the said Will, the plaintiffs did not have any right, title, interest or possession over the suit schedule properties and their claim for partition was liable to be rejected.

6. The said application I.A.No.2 filed by respondent No.2 - defendant No.2 having opposed by the appellants-plaintiffs, the Trial Court proceeded to pass the impugned order allowing I..A.No.2 and consequently, rejecting the plaint and dismissing the suit by passing the impugned order and judgment and decree, which are assailed in the present appeal.

7. A perusal of the impugned order passed by the Trial Court rejecting the plaint will indicate that the primary ground on which the Trial Court has proceeded to reject the plaint by coming to the conclusion that the suit schedule properties were separate and self acquired properties of the Bullappa and with the plaintiffs have no right to challenge the alleged Will said to have been executed by Bullappa and their efforts in this regard would remain fruitless. In this context, it is pertinent to