H B SIDDARAMAPPA Vs. B ESHWARAPPA

JUDGEMENT

(1.) DEFENDANT No.2 in OS No.9/1989 on the file of the Civil Judge [Sr. Dn.,], Tarikere, aggrieved by the Judgment and decree dated 17.9.2009 in RA No.419/2006 on the file of the Additional District Judge at Chikmagalur, confirming the Judgment and decree dated 17.4.2006 of the trial court, declaring that the plaintiff and Defendant No.1 are entitled to 1/4th share each in the suit schedule properties and reversing the finding of the trial court over proof of execution of Will Ex.P17 by the 1st defendant, since deceased, and sequentially declaring that the 2nd plaintiff and 4th defendant the legatees under the Will, are entitled to equal share from out of 1/4th share of the deceased 1st defendant, has presented this second appeal.

(2.) THE 1st and 2nd respondents jointly instituted OS No.9/1989 arraigning the 3rd respondent as 1st defendant, the appellant as 2nd defendant and respondents 4 and 5 as Defendants 3 and 4, respectively, for declaration, partition and separate possession. The suit was opposed by filing written statement of the appellant 2nd defendant, advancing a plea of prior partition by way of a memorandum of partition, reduced into writing. That suit, in the first instance, was decreed, declaring that the plaintiff was entitled to 1/4th share which when carried in RA No.61/1991, the Judgment and decree of the trial court was set aside and proceeding remitted for fresh consideration. It appears that the 1st defendant when reported to have died, testate, during the pendency of the appeal, on remand, the 2nd plaintiff amended the plaint seeking additional relief as a legatee under the Will of 1st defendant.

(3.) IN the additional written statement filed by the 2nd defendant appellant, it was contended that the Will was fraught with fraud and undue influence on the Testator. The trial court framed additional issues over the validity of the Will, whereafterwards, parties let in additional evidence, whence, the 1st plaintiff was further examined as PW.1 and three other witnesses as PWs. 2 to 4, none other than two attesting witnesses to the Will and the Scribe respectively and marked the Will as Ex.P17 while Ex.P1 to P16 were marked earlier, before the remand of the suit. For the defendants, 2nd defendant was examined as DW.1 and three other witnesses as DWs 2 to 4 and marked Ex.D1 to D13.