The main legal point established in the judgment is the proper proof of the execution of the will dated 9-1-1985, as per the Indian Succession Act, 1925, Section 63.

Headnote:
Will - Property Partition - 9-1-1985 - [Indian Succession Act, 1925, Section 63] - The court discussed the genuineness of the will dated 9-1-1985 and its execution. The appellant claimed to be the sole legatee under the will, while the respondent sought one half share over the property. The court found that the execution of the will was properly proved by the appellant, and thus, the appellant was entitled to the property, and the respondent was not entitled to a share. The decree and judgment of the court below were set aside, and the appeal was allowed, and the suit was dismissed.
Fact of the Case:

The plaintiff filed a suit for partition and separate possession over a property originally belonging to the late Sugandha, mother of the plaintiff and defendant. The defendant claimed exclusive ownership based on a registered will dated 9-1-1985. The trial court passed a decree for partition, which the defendant appealed.
Finding of the Court:

The court found that the execution of the will was properly proved by the appellant, and thus, the appellant was entitled to the property, and the respondent was not entitled to a share.
Issues: The main issue was the genuineness of the will dated 9-1-1985 and the entitlement of the parties to the property.
Ratio Decidendi: The crucial question was whether the testator had a disposing state of mind at the time of execution of the will and whether it was executed voluntarily. The court found that the execution of the will was properly proved by the appellant, leading to the dismissal of the suit for partition.
Final Decision: The decree and judgment of the court below were set aside, and the appeal was allowed, and the suit was dismissed.

Judgment :-

Aggrieved by the judgment and decree in O.S.No. 92/1992 on the file of the Sub Court, Kasaragod, this appeal is filed by the defendant. The respondent as plaintiff filed the suit for partition and separate possession over the plaint schedule property. Plaint A schedule property originally belonged to late Sugandha, mother of plaintiff and defendant who passed away in March 1992. On her death, A schedule property devolved on the defendant and plaintiff and both of them are entitled to ½ right over the property. A schedule consists of the residential building in the occupation of the defendant and 4 other shop rooms in the possession of monthly tenants. The annual income of the property would fetch Rs.14,200/-. Defendant is collecting the entire income and appropriation the same without paying anything to the plaintiff. Notice was issued on 28-5-1992 and again on 30.5.1992. The second notice sent was received by the defendant to which she sent false reply. Even after acceptance of notice, the defendant was not amenable for partition and hence the suit.

2. The defendant filed written statement contending that late Suganda bequeathed A schedule property to her as per registered will dated 9-1-1985. On the death of Suganda, the will has come into effect and now A schedule property exclusively belongs to the defendant. The plaintiff has no manner of right and she is not entitled to any partition and separate possession. The defendant has obtained purchase certificate from the Land Tribunal with respect to A schedule property. He received only one notice to which he sent a reply. He has effected valuable improvements in the suit properties. She has electrified the house and did plastering work, constructed iron gate to the compound and effected other improvements spending about Rs.35,000/-. In equity, the defendant is entitled to value of improvements and allotment of the residential house in case of partition.

3. On the basis of the pleadings, the trial court framed six issues. No oral evidence was adduced by the plaintiff. Ex.A1 to A4 were marked on her side. The defendant was examined as DWs.1 and 2 and independent witnesses were examined as DWs. 2 and 3. Exts.B1 to B8 were marked. The court below after appreciation of the evidence passed a decree for partition. Against the said judgment and decree, this appeal is filed by the defendant.

4. The question to be considered is whether the decree and judgment passed by the court below are liable to be set aside. Admittedly the property originally belonged to Suganda. She died in March 1992. The case of the respondent is that after the death of the mother, she is entitled to one half share over the plaint schedule properties. There are buildings in the plaint schedule properties and the plaintiff is residing were rented out to the tenants. The appellate is collecting the entire income and appropriating the same without paying her due share. So the suit is filed for partition and separate possession.

5. The contention of the appellant is that during the lifetime of the mother, she has registered Ext.B1 will dated 9-1-1985 bequeathing the entire plaint schedule property to him. Ext.B3 is the certificate of death of Suganda. As per the appellant, on the death of Suganda, he became the sole legatee under the will and accordingly he is in absolute possession and enjoyment of the same. Ext.B2 is the tax receipt. The execution of will is denied by the respondent. In order to prove the execution and attestation of the will, the defendant has cited and examined DWs. 2 and 3. DW2 is the second attestor to Ext.B1 and DW3 is the scribe. The first attestor of the Will according to the appellant, is not in a disposing state of mind evidenced by ExtB4 certificate. So the entire question rests with the genuineness of the will. DW1 gave evidence that Ext. B1 Will is executed by his mother bequeathing her property to him. It is her free will and testament. The attesting witness deposed before cou

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