B. KRISHNA MURTHY Vs. KALYANAM NAGESHWAR RAO

JUDGEMENT

(1.) Defendant No.1 in O.S. No. 2/2006 on the file of the learned District Judge at Koppal (hereinafter referred to as the trial Court), is impugning the judgment and decree dtd. 28/11/2011, decreeing the suit in part and holding that the plaintiff is entitled for Probate of the Will dtd. 14/2/2000 marked as Ex.P.3, while rejecting the claim of the plaintiff for issuance of probate in respect of the fixed deposit for Rs.25,000.00 kept in Margadarshi Financiers, Hyderabad, as the same was not pressed by the plaintiff. Parties shall be referred to as per their ranks before the trial Court.

(2.) Brief facts of the case are that the plaintiff filed P&SC No. 1/2004 before the trial Court seeking grant of probate u/s 276 of the Indian Succession Act, 1925. When the citation was published in the newspaper, defendant no.1 appeared before the Probate Court and filed his objections. Therefore, the Probate proceedings was registered as a suit and numbered as O.S. No. 2/206. It is the contention of the plaintiff that Smt. Burugapalli Bullemma wife of Gangaraju of Gangavati is the owner of 4 acres of land in Sy. No. 43/A3 situated at Jangamara Kalgudi village, Gangavati. She was also having fixed deposit of Rs.25,000.00 with Margadarshi Financiers, Hyderabad. She executed the registered Will dtd. 14/2/2000, appointing the plaintiff as the executor. Therefore, he sought for grant of Probate in his name. The defendant filed his written statement denying the contentions of the plaintiff. The contentions of the plaintiff that Smt. Burugapalli Bullemma has executed the Will in respect of the property mentioned therein is denied. It is contended that Sy. No. 43/A3 of Jangamara Kalgudi village belongs to defendant no.1. The testator Smt. Burugapalli Bullemma is the mother of defendant no.1 and it is the defendant who purchased 4 acres of land in Sy. No. 43/A3 by paying consideration. However, out of love and affection the sale deed was registered in the name of Smt. Burugapalli Bullemma. Therefore, she had no right to execute the Will bequeathing the said property in favour of others. It is the first defendant who is in possession and enjoyment of the property. It is also contended that the plaintiff has not sought as to who is the beneficiary under the Will said to have been executed by Smt. Burugapalli Bullemma. The property was never bequeathed in favour of the plaintiff. Under such circumstances, he is not entitled for any claim. Accordingly, prays for dismissal of the suit.

(3.) On the basis of these pleadings, the trial Court framed the following issues and additional issues: