SHANTAMMA Vs. YELLAMMA AND ANOTHER

JUDGEMENT

(1.) The plaintiff instituted the suit at 0 S. No. 78 of 1972 on the file of the Munsiff, Chitradurga for declaration of title and for possession of the suit schedule properties along with mesne profits from the defendants. The plaintiff and defendant 1 are sisters. The plaintiff claims title to the suit properties on the basis of a will executed by her father on 4-4-1939. The suit was resisted by the defendants. According to them, the will was not genuine, the testator was not in a sound and disposing state of mind, he was suffering from illness for three months before his death, he had no intention of executing a will and so they denied the execution of the will. The learned Munsiff framed an issue as under:

(2.) The defendants gave an application at I.A.No IX submitting to the Court that the issue as framed was not correct and the burden of proving the will should be cast on the propounder and the learned Munsiff, by his order dated 23-11-1977, allowed the said application holding that the burden of proving the will was on the propounder i e., the plaintiff in the case. Aggrieved by the said order, the plaintiff has come up in revision before this Court.

(3.) The learned Counsel appearing for the revision petitioner invited my attention to the fact that the will was more than thirty years old at the time when the suit was instituted in the year 1972 and that it was produced from proper custody i.e. from the plaintiff, and hence, the court should have raised a presumption as contained in S. 90 of the Indian Evidence Act and, as such, the issue as already framed was legal and proper.