The captioned Regular Second Appeal is filed by the

unsuccessful

defendants

who

are

questioning

the

concurrent judgment and decree passed by the courts

below

in

decreeing

the

suit

filed

by

respondent

No.1/plaintiff

declaring

that

respondent/plaintiff

as

absolute owner to an extent of 1/3^rd share of Smt.Basavva

in the suit schedule property, pursuant to Will executed by

Smt.Basavva in plaintiff’s favour on 02.05.1985 and further

declaration is also granted declaring that plaintiff has

acquired

right

to

execute

the

decree

obtained

in

O.S.No.38/1979 and to take possession of deceased

Basavva’s 1/3^rd share in the suit schedule properties.

2.

The brief facts of the case are that, respondent

No.1/plaintiff filed a suit for declaration and consequential

relief of injunction by claiming that her mother-in-law

Basavva bequeathed her 1/3^rd share in the suit schedule

property under registered Will dated 02.05.1985 thereby

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bequeathing her 1/3^rd share in favour of respondent

No.1/plaintiff. Respondent No.1/plaintiff also contended

that, on the basis of the Will dated 02.06.1985, she has

also acquired right to execute decree obtained in

O.S.No.38/1979.

Hence,

filed

the

present

suit

for

declaration and consequential relief of injunction.

3.

The present appellants/defendants on receipt of

summons contested the proceedings by filing written

statement denying the entire averments made in the

plaint. Appellants/defendants also seriously disputed the

status of respondent No.1/plaintiff with Bailappa. Both the

parties in support of their claim led in evidence and also

produced documentary evidence. The trial court having

assessed oral and documentary evidence answered issue

Nos.1 and 2 in the affirmative and issue No.5 partly in the

affirmative, thereby decreed the suit by holding that

respondent No.1/plaintiff has succeeded in proving due

execution of the Will by her mother-in-law Basavva in her

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favour and therefore, granted further declaration to the

effect that respondent No.1/plaintiff based on the Will

dated 02.05.1985 is entitled to execute decree passed in

O.S.No.38/1979. Therefore, respondent No.1/plaintiff being

the legate is entitled to take possession of deceased’s

Basavva’s 1/3^rd share.

4.

Feeling aggrieved by the judgment and decree

of the trial court, the present appellants preferred an

appeal before the first appellate court in R.A.No.40/2011.

The first appellate court having independently assessed

oral evidence has meticulously examined the ocular

evidence of P.W.1 and the evidence of P.Ws.2 and 3 who

are attesting witness and scribe respectively. On re-

appreciation, the first appellate court was of the view that

Will as per Ex.P6 executed by testator Basavva in favour of

her daughter-in-law i.e., present respondent No.1/plaintiff

is not shrouded with any suspicious circumstance and

respondent No.1/plaintiff has succeeded in proving the due

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execution of the Will as per Ex.P6, thereby the first

appellate court concurred with the finding and conclusion

arrived at by the trial court. On these set of reasoning, the

first appellate court has dismissed the appeal filed by the

appellants/defendants.

5.

It is against these concurrent findings of the

courts below, the appellants/defendants are before this

court.

6.

Heard the learned counsel for the appellants and

learned

counsel

for

the

respondents.

Perused

the

judgments under challenge.

7.

Respondent No.1/plaintiff to establish her right

under the Will vide Ex.P6 has examined attesting witness

as P.W.2 and scribe as P.W.3. Both the courts below having

meticulously examined ocular and documentary evidence

on record have come to the conclusion that respondent

No.1/plaintiff has succeeded in proving that deceased

Basavva has executed a registered Will dated 02.05.1985

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bequeathing her 1/3^rd share in the suit schedule property.

Both the courts have concurrently held that though

attesting witness and scribe were exhaustively cross-

examined, nothing material contradictions are elicited