Court ruled that intestate rights prevail when Will proof fails; established principles regarding burden of proving Wills and heirs' rights under succession laws.

CAV JUDGMENT

(PER: THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM)

These two captioned Regular First Appeals arise out of the judgment and decree rendered by the trial court in O.S.No.160/2010.

2. RFA No.100320/2019 is filed by the plaintiffs and RFA No.100210/2020 is filed by defendant No.1.

3. For the sake of convenience, the parties are referred to as per their ranking before the trial court.

4. Before we proceed to examine the claim of the plaintiffs and defendant No.1, we deem it appropriate to extract the family tree, which is as under:

5. The plaintiffs who represent the branch of Sangappa have filed a suit for declaration seeking declaration of title and permanent injunction in O.S.No.160/2010. The subject matter of the suit is agricultural lands bearing Sy.No.156/1+2 measuring 2 acres 30 guntas and Sy.No.150/2A measuring 4 acres 27 guntas. It is not in dispute that these lands are originally owned by Channappa Satteppa Ganiger. While the plaintiffs are asserting that said Channappa has bequeathed the suit schedule properties under Will dated 23.05.1988, defendant No.1 who is Shingavva’s nephew (Shingavva’s brother’s son) is also asserting that the said Shingavva after the death of Channappa, acquired absolute title and she has bequeathed the properties in his favour under Will dated 23.05.1988. While defendant No.2 claiming to be Shingavva’s sister’s daughter also asserted that during the lifetime of Shingavva, there was an oral partition and petition properties were allotted to her share and mutation is also effected. Therefore, defendant No.2 is also asserting title.

6. The plaintiff and defendant No.1 to substantiate their respective Will, let in oral and documentary evidence. The trial court held that the plaintiff and defendant No.1 both have failed to prove that Will is in their favour. Consequently, the suit is dismissed. Hence, these two appeals are filed by the plaintiffs and defendant No.1.

7. Defendant No.2 has not set up any counter claim and no appeal is filed by defendant No.2.

8. We have heard the learned counsel appearing for the plaintiffs and learned counsel for defendant Nos.1 and 2.

9. We have given our anxious consideration to the pleadings, oral and documentary evidence let in by the respective parties. The following points would arise for our consideration;

1) Whether the trial court erred in holding that the plaintiffs have failed to substantiate that propositus Channappa bequeathed the suit schedule properties in their favour under Will dated 23.05.1988, and erred in dismissing the suit having held that defendant No.1 is also failed to substantiate the Will?

2) Whether the finding of the trial court that defendant No.1 failed to substantiate that widow of Channappa namely, Shingavva has bequeathed the suit schedule properties in his favour under registered Will dated 25.02.2004 in respect of entire Sy.No.156/1+2 measuring 2 acres 30 guntas in R.S.No.150/2 is perverse and palpably erroneous?

3) Whether the finding of the trial court that defendant No.1 has failed to substantiate his possession over the suit lands suffers from perversity and warrants interference?

10. The finding on point No.2 would have a direct bearing on the plaintiffs’ entitlement over the suit schedule properties irrespective of the result of the other Will alleged to have been obtained by the plaintiffs. We deem it appropriate to first answer point No.2.

Finding on point No.2.

11. Defendant No.1 having set up a registered Will in his favour alleged to have been executed by widow of Channappa namely, Shingavva, was called upon t