The burden of proof for the genuineness of a Will lies solely on the propounder, who must remove all suspicious circumstances and mandatorily examine an attesting witness to satisfy the requirements of Sections 63 and 68 of the Indian Succession Act and the Indian Evidence Act.

THIS R.F.A. IS FILED UNDER SECTION 96 R/W O XLI OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.9.2008 PASSED IN OS.NO.472/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC, DEVANAHALLI, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND ETC.

THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 15.10.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE H.P.SANDESH

CAV JUDGMENT

1. This Regular First Appeal is filed challenging the judgment and decree dated 20.09.2008 at Annexure-A and A1 passed in O.S.No.472/2006 by the Civil Judge (Sr. Dn.) and JMFC, Devanahalli.

2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respective respondents.

3. The factual matrix of the case of the plaintiff/appellant before the Trial Court that he is the propounder of registered last Will and testament dated 27.03.1993 which is marked as Ex.P8 executed by his paternal grandfather Doddahanumappa. The executant passed away on 14.02.1994. Based on the said Will, mutation and RTC came to be transferred by the revenue authorities into the name of the propounder in the year 1995-96. When the respondents confronted with the right and title of the appellant over the suit schedule property in the year 2004, he was forced to file a suit in O.S.No.85/2004 against the respondents before the Principal Civil Judge (Sr. Dn.), Bangalore Rural District, Bangalore for the relief of declaration and perpetual injunction in respect of suit schedule property. It is his case that the suit schedule property was the self acquired property of the testator for having acquired through grant by the State Government on 04.07.1960 by issuance of Saguvali Chit at Ex.P2. The original grantee that is executant was in possession of the property and entire revenue records are standing in his name. The testator at his old age was deserted by his sons i.e., respondent No.1 and his elder brother Munikempaiah and the appellant was looked after by him working in a private concern till his death. The appellant is the eldest son of respondent No.1 and eldest grandson of the testator and Will was executed out of love and affection as he has taken care of the testator. It is contended that when the eldest son of the testator namely Munikempaiah and his three sons had questioned him about his right and title over the suit schedule property on the basis of Ex.P8, a similar suit in O.S.No.727/1995 was filed by the appellant earlier and the same came to be decreed through the judgment and decree dated 11.09.1997 in terms of Ex.P23 and P24 and it has reached its finality. It is also contention of the appellant that respondent No.1 is his father and respondent No.2 is his younger brother. Respondent Nos.3 and 4 are his step-brothers.

4. The respondents, on service of notice and summons, appeared through their counsel and filed their written statement denying the plaint averments. They disputed the authenticity and genuineness of the registered Will but they did not set up any specific defence or counter claim.

5. It is the contention of the appellant before this Court that the Trial Court taking into note of the pleadings and written statement, framed six Issues and allowed the parties to examine the witnesses and documents were also marked on both sides but without considering the material available on record in a proper perspective, dismissed the suit. Hence, the present appeal is filed before this Court.

6. The main contention of the learned counsel appearing for the appellant in this appeal is that there is no disp