DECREE

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29.03.2006 PASSED IN OS NO. 325/2002 ON THE FILE OF THE

PRL. CIVIL JUDGE (SR.DN.) AT BIJAPUR AND DISMISS THE

SUIT FILED BY THE PLAINTIFF.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

This is an appeal by the defendants.

Kallappa instituted a suit for a declaration that he

was the exclusive owner of the suit property bearing

CTS.No.1804/C-2 measuring 209 sq. yards situate at ward

No.1 of Bijapur against his siblings. He claimed the said

declaration on the basis of a registered Will executed by

his mother Nagawwa on 03.01.2001. He also sought for a

decree of injunction to restrain his siblings i.e., defendants

from interfering with his possession and also for a

direction to the authorities to delete the name of his

siblings from the municipal records in respect of the suit

property.

Kallappa contended that his mother Nagawwa, who

was in actual possession of the suit property, had

executed a registered Will in his favour. He stated that his

mother was suffering from leprosy and was being looked

after by him alone. He stated that his siblings did not like

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his mother due to her ailment and they had neglected to

take care of her and as a result, his mother Nagawwa was

living all along with him till her last breath. He stated that

having regard to his relationship and also having regard to

the fact that he was financially helping his mother, she

had executed a registered Will in the presence of attesting

witnesses on 03.01.2001 and at the time of execution of

the Will, she was having the testamentary capacity to

execute the Will. He submitted that his mother died on

05.01.2001 and as a consequence, the Will came into

effect and he had succeeded to the property as its legatee.

However, since objections had been raised by his siblings

for mutation of the suit property, he was constrained to

file the suit.

Kallappa’s siblings contested the suit by filing a

written statement. They denied the execution of the Will.

In the written statement, it was denied that Nagawwa was

being looked after by Kallappa and more importantly, it

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was contended that Nagawwa was not in sound physical

and mental health to execute the Will.

5.

It was contended that for more than a year, prior to

her death, she was bed ridden and she was neither in a

position to read, write, nor move about and therefore, it

was clear that the Will had been created. It was also

alleged that Nagawwa had suffered a paralytic stroke a

long time ago and towards her end, she was unconscious

and not in a position to execute any document. Thus, the

plea set up was that Nagawwa was bed ridden, paralytic

and was not conscious and hence, she could not have

executed the Will.

6.

The Trial Court, on consideration of the evidence

adduced before it, came to the conclusion that Kallappa

had successfully proved that his mother Nagawwa had

executed the registered Will on 03.01.2001 and she was

having the testamentary capacity at that point of time to

execute the Will. It also held that Kallappa’s siblings had

failed to prove that Nagawwa was bed ridden for a period

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of one year prior to the execution of the Will and that they

were looking after Nagawwa. The Trial Court accordingly

decreed the suit and declared that Kallappa was the owner

of the property bearing CTS.No.1804/C-2 and it also

restrained his siblings from interfering with his possession.

7.

Being aggrieved, the siblings of Kallappa preferred an

appeal.

8.

The

Appellate

Court,

after

re-appreciating

the

evidence, came to the conclusion that the findings

recorded by the Trial Court was just and proper and did

not warrant interference. It accordingly dismissed the

appeal and hence this second appeal.

9.

This second appeal was admitted to consider the

following substantial question of law:

“Whether the Courts below are justified in

holding that the execution of Ex.P1 - Will is not

surrounded with suspicious circumstances?”

10.

Learned

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