The burden of proof rests on the party asserting the validity of a Will, which must be established free from suspicious circumstances.

JUDGMENT :

H.P. SANDESH, J.

This matter is listed for admission and I have heard learned counsel for the appellant.

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

3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration, permanent injunction and alterative relief of possession is that the plaintiff and defendant Nos.2 and 3 are grand sons of late C.C. Laxmanappa, S/o. Chikkariyappa. The said Laxmanappa had five sons namely, C.L. Shekarappa, father of defendant Nos.2 and 3, C.L. Shadakshari defendant No.1, Smt. Rathnamma, C.L. Ananda father of plaintiff and C.L. Thimmappa. Shekarappa pre-deceased Laxmanappa. After demise of Shekarappa, his legal heirs defendant Nos.2 to 4, Laxmanappa and his remaining sons continued in joint family.

4. The plaintiff is working in a private company at Bengaluru. As such, he is not in a position to appear regularly before the Court. Hence, he has executed a GPA in favour of his mother Smt. Suma and suit is filed by his mother on behalf of the plaintiff. The suit schedule property is a joint family property of plaintiff and defendants. The defendant Nos.1 and 2 along with other children of Laxmanappa filed a suit for partition against Laxmanappa and his brother's son C.M. Nagaraju in O.S.No.217/2010. The said suit has ended in compromise on 13.10.2010. In the compromise, Laxmanappa was allotted suit schedule property and from the date of compromise in the suit, the joint family ceased and parties to the suit got their shares in the properties. It is contented that Laxmanappa became the absolute owner of the suit schedule property by enjoying the same. The said Laxmanappa executed Will in respect of the suit schedule property on 19.10.2011 in favour of plaintiff. The said Will was registered on 20.10.2011. The said Laxmanappa executed Will out of his free will and consent with sound state of mind and he lost his breath on 03.01.2012. After the death of Laxmanappa, the plaintiff has applied for change of khatha of the suit schedule property before the Tahsildar, Tarikere. The defendant Nos.1 and 2 have objected the same. The Tahsildar, Tarikere has passed an order on 04.08.2014 rejecting the claim of the plaintiff. The defendant Nos.1 and 2 have disputed the title of the plaintiff and execution of the Will. The defendants on one or other pretext are trying to dispossess the plaintiff and trying to pick up quarrel and reap areca and coconut fruits from the suit schedule property. The plaintiff and his GPA holder unable to resist the act of the defendants, filed the suit for the relief of declaration and permanent injunction.

5. The Court issued suit summons to the defendants, same was served on them and they appeared before the Court and filed the written statement. The defendant Nos.2 to 5 adopted the written statement of defendant No.1. In the written statement, defendants have admitted the relationship between themselves and plaintiff and filing of earlier suit is also not disputed. It is further stated that suit schedule property has fallen to the share of said Laxmanappa, however physical possession has not been delivered to him, as the suit schedule property already been fallen to the share of Shekarappa, defendant No.1, father of plaintiff and Thimmappa equally. It is true that in terms of the compromise petition, final decree was passed and Laxmanappa became the owner of the suit schedule property and he lost his breath on 03.01.2012. However contented that the very execution of the Will is disputed and contend that it is created.

6. Having considered the averments made in t