JUDGMENT :

M.M. SUNDRESH, J.

BACKGROUND FACTS:

1. The Suit Property originally belonged to one Ms. Jessie Jayalakshmi (since deceased). The deceased Ms. Jessie Jayalakshmi, a spinster, was the maternal aunt of the Appellant/Plaintiff. Mr. Vijay Kumar and Ms. Kantha Lakshmi were his brother and sister, respectively. It is the case of the Appellant that the deceased, Ms. Jessie Jayalakshmi adopted him as her son and that he took care of her when she suffered an attack of paralysis.

2. A registered Will under Exhibit P4 was executed by Ms. Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by Mr. Vijay Kumar, brother of the Appellant, who has also been examined as PW2. Ms. Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Ms. Kantha Lakshmi.

3. The relationship between Ms. Kantha Lakshmi and her husband, who has been arrayed as Respondent No. 1 got strained. She consequently filed a petition for divorce in MC No. 879 of 1987 before the Family Court of Principal Judge, Bangalore and obtained a divorce decree on 26.03.1988. It is the further case of the Appellant that Respondent No. 1 was permitted to reside in the Suit Property. Respondent No. 2 is the son of Respondent No. 1. As the Respondent No. 1 refused to vacate the Suit Property, which is a residential house, for which the Appellant is stated to have paid all the statutory dues, a suit for declaration and for possession was filed in O.S. No. 51 of 1992 which was decreed on 11.12.2003.

4. The Defendants/Respondents while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Ms. Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1). It is their case that Exhibit P4 has been replaced by Exhibit D1. Exhibit D1 also speaks of a mortgage in favour of Respondent No.1 on payment of Rs. 31,000/-in favor of deceased, Ms. Jessie Jayalakshmi. Thus, the Respondent did not seriously dispute the execution of Exhibit P4 but set up a plea for the dismissal of the suit by taking umbrage under Exhibit D1 and on the basis of the alleged mortgage. There was also a denial of the averment of the Appellant regarding permissive occupation. While accepting the decree for divorce it is contended by the 1st Respondent that it has not been given effect to.

5. The Trial Court framed the following issues for consideration:

“1. Does the Plaintiff prove to have acquired title to the suit property by virtue of the Will 04.09.1985 executed by late Jessie Jayalakshmi?

2. Does he prove that the Will dated 16.08.1996 executed by Jessie Jayalakshmi is fabricated and forged document?

3. Does he prove that the Defendant is in occupation of the schedule property as licensee free of charges?

4. Whether the Plaintiff has the cause of action for the suit?

5. Is the suit barred by limitation?

6. What order or decree the parties are entitled to?”

6. The Appellant examined himself as PW1 with his brother as PW2. The second attesting witness was examined as PW3 being an independent one. On behalf of the Respondents, Respondent No.1 examined himself as DW1, with the attesting witness, Manish as DW2.

7. The Trial Court decreed the suit upon satisfying itself that the parameters as required under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act have been duly complied with in proving Exhibit P4. On Exhibit D1, exhaustive reasoning was rendered for doubting its genuineness. The reasoning would include the thumb impression, signature, the nature of recitals, the manner in which it was written, and the evidence given by DW2, who did not know anything about the deceased, Ms. Jessie Jayalakshmi, other than being a person known to DW1. It found that the thumb impression in Exhibit D1 was smudged and the scribe of Exhibit D1 has not been examined. Further, the stamp on Exhibit D1 bearing date of 15.08.1986 and bearing the seal of the treas