JUDGMENT

Challenging judgment and decree dated 15.12.2012 passed by Presiding Officer, Fast Track Court, Chikkamagaluru in R.A.no.32/2011 and decree dated 03.01.2011 passed by Additional Senior Civil Judge, Chikkamagaluru in O.S.no.210/2004, this appeal is filed.

2. Appellants herein were plaintiffs, while respondent herein were defendant and will be referred to as such herein.

3. O.S.no.210/2004 was filed seeking for declaration about alleged Will executed by Smt.Ramamma on 28.07.1988 as null and void; to declare plaintiffs as absolute owners in possession of suit schedule properties and for permanent injunction restraining defendant from interfering with plaintiffs possession over suit schedule properties etc.

4. In plaint, it was stated that one Kenchaiah of Lakya village had four sons i.e. Palaraiah, Siddaiah, Krishnappa and Adavaiah. Amongst them, Palaraiah and Adavaiah died earlier issueless. Even Late Siddaiah's only son Gowraiah died unmarried and issueless. Whereas, plaintiffs no.1 to 3 were daughters of Krishnappa through first wife - Smt.Sannamma. He had also married Smt.Ramamma, who died issueless on 15.08.2003. It was further stated that lands bearing Sy.no.124 measuring 01 acre 26 guntas standing in name of Gowraiah son of Siddaiah and Sy.no.119, measuring 39 guntas standing in name of Palaraiah were ancestral properties ('suit properties' for short). After death of Krishnappa, both his wives were entitled for maintenance, hence, their names were entered in revenue records. And though items 1 and 2 of suit properties were in name of Smt.Ramamma, neither of them were owned by her.

5. It was stated that Smt.Ramamma was residing with plaintiff no.2 and Smt.Sannamma at Lakya village until her death on 15.08.2003. Thereafter, when they gave application to Tahsildar for change of khata, they realized that it was mutated in name of defendant under alleged Will dated 20.07.1988. It was claimed that said Will was result of fraud, coercion and undue influence and to knowledge of plaintiffs Smt.Ramamma had not executed any document either Will or Gift. They claimed she had no right of bequeathal. Tahsildar, Chikmagaluru ordered that only Civil Court could decide validity of Will. It was stated after Assistant Commissioner granted interim order of stay, defendant tried to interfere with plaintiffs possession over suit properties. On said cause of action, as defendant was trying to interfere in suit properties, cause of action arose for plaintiffs to file suit.

6. On service of suit summons, defendant filed written statement admitting relationship as stated by plaintiffs and denying all other assertions. It was stated that Krishnappa married Smt.Ramamma as second wife, during lifetime of first wife Smt.Sannamma, as she did not have male issues. After death of Krishnappa, khata of his properties were mutated in names of Smt.Sannamma and Smt.Ramamma, who were residing together. As per partition between them, khata of item no.1 and 2 were transferred in name of Smt.Ramamma. When she felt neglected, she left house of plaintiffs and began residing with defendant, who was her nephew. He took good care of her. On said consideration, she executed registered Will in his favour. After her death, he performed her obsequies which were not attended by plaintiffs. Thereafter, his application before Tahsildar for mutation was allowed, but challenged by plaintiffs before Assistant Commissioner and same was pending. Denying plaintiffs’ claim of possession of suit properties, defendant sought dismissal of suit.

7. Based on pleading, trial Court framed following issues and additional issues:

ISSUES (1) Whether plaintiffs prove that the khata of plaint schedule properties was changed in the names of Sannamma and Ramamma for their maintenance?

(2) Whether plaintiffs prove that plaint schedule properties are the ancestral properties of Gowraiah and Palaraiah?

(3) Whether the plaintiffs prove that Ramamma had no right to bequeath the plaint schedule proper