S.K. SHYAMARAJU Vs. SUBRAMANI

JUDGEMENT

(1.) THIS appeal is filed by the unsuccessful plaintiff against the Judgment and decree passed in O.S. No. 9826/1998 by 14th Additional City Civil Judge (CCH -28). The parties will be referred as per the ranking before the trial Court:

(2.) SHRI Adi Krishnaiah Shetty is the father of the plaintiff and defendant. Adi Krishnaiah Shetty has got three sons and two daughters including the plaintiff and defendant. The name of the first son is S.K. Satyanarayana. He is not a party to the suit. The second son of Adi Krishnaiah Shetty is Mr. Shamaraju (plaintiff), Mr. Subramani (defendant) is third son. The case of the plaintiff is that his father Adi Krishnaiah Shetty executed a Will(Ex. P5) on 4.2.1994 which came to be registered bequeathing the suit schedule property. The executant of the Will -father of the parties expired In the year 1996 thereafter, plaintiff started enjoying the property as his own. Since the defendant; started denying the title of the plaintiff, he filed the present suit for declaration and injunction in respect of the suit schedule property. The case of the defendant is that his father did not execute the Will in favour of the plaintiff, as alleged by the plaintiff. The defendant himself has contributed major portion of the amount for the purposes of purchasing the suit property since the date of purchase, the defendant alone is living in the property in question; alleged Will Ex. P5 dated 4.2.1994 was got registered by the plaintiff fraudulently; that executant of the Will executed another Will as per Ex. D.1 dated 10.4.1995 in favour of the defendant. Hence, the defendant alone is the owner of the property.

(3.) LEARNED Advocate for the appellant/plaintiff submits that the attestor of the Will -P.W.2 has clearlydeposed that he went to the house of the executant on the invitation of the executant and thereafter, the Will was prepared by an Advocate. Both the attestors put their signatures in the presence of the executant and thereafter, all of them went to Sub -Registrar's office for the purposes of getting the Will - Ex. P5 registered. According to the plaintiffs Counsel, since the Will -Ex. P5 is duly proved in accordance with law, as there are no suspicious circumstances surrounding the Will -Ex. P5, the trial Court is not justified in dismissing the suit. The learned Advocate for the respondent - defendant opposes the appeal by submitting that the trial Court is justified in concluding that Will - Ex. PS is surrounded with suspicious circumstances and thus, the -same is unreliable; that the evidence of P.W.2 is totally unbelievable inasmuch as he is total stranger to the family and executant and the act of getting the Will attested by P.W.2 is against the natural human conduct; that the family was having ancestral property and Shri Adi Krishnaiah Shetty was admittedly the manager of the family; the suit property was purchased with the help of the joint family funds and not by Adi Krishnaiah Shetty's personal earnings; since the family has remained joint till this day, every member of the family will get their respective shares. On these among other grounds, he argues for dismissal of the appeal.