RANGAPPA Vs. JAYAMMA

JUDGEMENT

(1.) This appeal by the plaintiff is preferred against the judgment and decree dated 24-10-1986 passed by the learned Additional Civil Judge, Shimoga in O. S. No. 10/1985 declaring that the plaintiff is the owner of one half of the suit properties and refusing to grant an injunction as prayed for and also further refusing to pass a decree for Rs. 8000/-. The trial court has held that the plaintiff and the defendant are the owners of the suit properties and each of them is entitled to share them equally.

(2.) Having regard to the contentions urged, only two points arise for consideration. They are :

(3.) The will Ex. P. 1 as per the case of the plaintiff was executed by Smt. Nagamma on 10-7-1980 in favour of the plaintiff-appellant. It is unregistered. Ae per the terms of the will, it is the case of the plaintiff that he is entitled to be declared as owner of the suit properties to the extent of 3/4 share. The trial court has held that the will Ex. P.1 is not genuine and it is not free from suspicious circumstances. Accordingly it has rejected the will. It is very relevant to notice that subsequent to the death of Nagamma - the testator - and prior to filing of the present suit, there was a suit - O.S. 14/1984- filed by the defendant against the plaintiff claiming title to the suit properties. If really there was a will executed by Smt. Nagamma as per Ex. P. 1, the very first defence in that suit would have been the will itself. This will was not made a defence in 0. S. No. 14/1984 by the present plaintiff who was the defendant in that suit. This conduct of the plaintiff being inconsistent with the existence of the will, as rightly held by the trial court, creates a great suspicion about the execution of the will by Smt. Nagamma. In addition to -this, learned trial judge has also referred to number of suspicious circumstances such as the plaintiff himself taking an active part in getting the document-Ex. P. 1 - executed by Nagamma, and further there being no circumstance to show that the late Smt. Nagamma was in any way illdisposed towards the defendant. As far as the plaintiff and defendant are concerned, both are great grand step-children of Smt. Nagamma. Therefore, there was no reason whatsoever to Smt. Nagamma to exclude or deprive the defendant from her legitimate share in the suit properties. The evidence of the attestors to the will is also in variance. They have given different versions. Hence taking into consideration the relevant evidence on record, we are satisfied that the finding recorded by the trial court that the plaintiff has failed to establish due execution of the will by Smt. Nagamma is correct and it does not call for interference. Accordingly Point No. 1, is answered in the affirmative.