The party propounding a Will must satisfactorily prove its legitimacy and dispel any suspicious circumstances for it to be accepted as valid, particularly when contested by other heirs.

CAV JUDGMENT

Challenging judgment and decree dated 17.04.2012 passed by Addl. Sessions Judge (Fast Track Court), Chitradurga, in R.A.no.39/2010, this appeal is filed.

2. Brief facts are that appellants were defendants no.1 and 2 in O.S.no.205/1998 filed by respondents/plaintiffs for declaration of Will dated 09.03.1981 registered on 18.03.1981 and executed by their father - MH Junjappa in respect of suit properties as null and void; to declare plaintiffs are entitled for 1/10^th share of suit properties; for partition and separate possession of plaintiffs’ 1/10^th share in eastern portion measuring 01 Acre 9¹/ guntas out of total extent of 02 Acres 19 guntas in land bearing Sy.no.5/1 and eastern portion measuring 01 Acre 3¹/ guntas out of 02 Acres 07 guntas in 2 Sy.no.5/2, both situated at Kelagote village, Kasaba Hobli, Chitradurga Taluk (‘suit properties' for short); to enter name of plaintiffs in revenue records in respect of their 1/10^th share in suit properties and to appoint Commissioner to divide share of plaintiffs by metes and bounds etc.

3. In plaint, it was stated, plaintiffs and defendants were children of MH Junjappa. In partition between his brothers, he received several movables/immovable properties yielding substantial income, with which he purchased other properties in 1962. In Oral partition between Junjappa and his sons, suit properties were given as share for maintenance of Junjappa and his wife Hosuramma. Even properties in said share yielded very good income providing for their needs.

4. Hanumakka died on 23.12.1981. At that time, Junjappa was residing with defendants. And when Omkaramma, his daughter became widow, she also joined Junjappa and resided with defendants. Due to death of his wife and son-in-law, Junjappa suffered depression and ill-health. By restricting Omkaramma from prohibiting and without properly taking care of Junjappa’s health, defendants had made Junjappa their puppet. With ill-intention to knock off properties, defendants fraudulently got him to execute Will dated 09.03.1981 registered on 18.03.1981.

5. Plaintiffs also stated that Junjappa in frustration, went to Madakaripura on 05.10.1982 for performing pooja.

There, he confided with elders and well-wishers about fraud played by defendants and intended to nullify same. He also intended to fulfill wishes of his wife that all his children should get equal share in his properties. Therefore, he executed Will dated 06.10.1982, cancelling earlier Will dated 19.03.1981. But for various reasons said Will was not registered. Therefore, after death of Junjappa on 25.03.1984, all his children became entitled for equal share as per Will dated 06.10.1982. But as defendants had got their names entered in revenue records and were in hurry to sell away properties worth 7 to 8 lakhs of rupees for mere 2 to 2½ lakhs of rupees, contrary to subsequent Will dated 06.10.1982 and right of plaintiffs for 1/10^th share each. Hence, suit was filed.

6. Upon appearance, defendants no.1 and 2 filed written statement admitting relationship between plaintiffs and defendants and oral partition in year 1969 and stated that said partition was confirmed by registration partition deed dated 04.06.1979, wherein suit properties were allotted to Junjappa. They stated that after partition, parents were residing with defendants no.1 and 2.

7. They also stated that suit properties were garden lands irrigated by Well and pump-set. After partition, there was depletion of water in Well due to borewells nearby. After death of Junjappa, when they could not make alternative arrangement, garden withered away. They admitted Hanumakka, their mother died on 25.01.1985 and later Omkaramma their sister lost her husband and began residing with them. They however stated that she was employed at Dharmapura and was residing there since 8 years. The