The captioned regular second appeal is filed by

unsuccessful

plaintiff

who

is

questioning

the

concurrent judgment and decree of the Courts below,

wherein the suit filed by the appellant-plaintiff seeking

relief of declaration on the basis of the Will dated

02.02.2004 is negatived by both the Courts below and

consequently suit is dismissed.

Facts leading to the above said matter are

as follows:

The appellant-plaintiff claims that his brother

Ramachandra was the absolute owner of the suit

property and out of love and affection he has

bequeathed the suit property under a Will dated

02.02.2004. The appellant-plaintiff has specifically

pleaded that insofar as ancestral properties are

concerned there was already partition. After severance

in the family, they have jointly purchased the land in

Sy.No.32/5 measuring 4 acres 15 guntas by equally

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contributing which is subject matter of present suit.

The appellant-plaintiff contends that since he has

contributed to purchase the suit property, he has half

share. Whereas the deceased Ramachandra was

owner to the extent of half share and it was his self

acquired property.

The

appellant-plaintiff

further

contended that pursuant to the Will dated 02.02.2004

he was become absolute owner on account of death of

his brother Ramachandra on 28.10.2004.

On receipt of summons the respondent-

defendants tendered appearance and filed written

statement. Respondent-defendant admitted that there

was partition in the family. The respondent-defendant

also admitted that the suit property was jointly

purchased

by

appellant-plaintiff

and

deceased

Ramachandra. However, the claim of appellant-

plaintiff that he has succeeded to the remaining half

share in the suit schedule property on the basis of the

Will executed by deceased Ramachandra was seriously

5

disputed

by

respondents-defendants.

The

respondents-defendants specifically contended that

the

appellant-plaintiff

is

permanent

resident

of

Laxmeshwar.

Whereas

the

husband

of

the

1^st

respondent was residing at Jallapur village and

therefore

the

claim

of

appellant-plaintiff

that

Ramachandra was looked after by appellant-defendant

does not arise. They also seriously disputed that the

alleged signature on the Will. Respondent-defendant

has also contended that the husband of the 1^st

respondent was suffering from serious illness and he

was bedridden for a period of 5 to 6 years prior to his

death. Respondents-defendants contended that that

he was not in sound disposing state of mind and on

these set of defences, the Will was seriously disputed

by respondents-defendants.

Trial Court having assessed oral and

documentary evidence answered Issue No.1 to 3 in

the negative by holding that the Will set up by

6

appellant-plaintiff

is

shrouded

with

suspicious

circumstances and the rebuttal evidence would clearly

demonstrate that the testator was not in a sound

state of mind. Therefore, the Trial Court has

proceeded to answer Issue No.1 & 3 in the negative

and thereby recorded a categorical finding that the

appellant-plaintiff has failed to establish the due

execution of Will in his favour.

The Appellate Court on re-appreciation of

oral and documentary evidence has concurred with

the reasons and conclusions arrived at by the Trial

Court. The First Appellate Court has also examined the

rebuttal evidence. The First Appellate Court while

examining Ex.D.1 found that if the appellant-plaintiff

and his brother Ramachandra had jointly sold vacant

site and if Ramachandra had received excess sale

consideration, then it was open for appellant-plaintiff

to file a suit for specific performance of contract. The

First Appellate Court having examined the Will at

7

Ex.P.2 and Ex.D.2 has also come to conclusion that

Ramachandra was not in a sound disposing state of

mind as he was bedridden.

6.

Both the Courts have concurrently held

that the Will is absolutely silent in regard to the widow

and his children. There is absolutely no reference to

respondent No.1 who is the widow of deceased

Ramacha