RAGHU KUMAR Vs. PARVATHI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree in O.S.No.16802/2001 dated 14/6/2007 on the file of the 28th Additional City Civil Judge, Mayo Hall, Bangalore. The first and second respondents were the plaintiffs in the suit. The appellant and respondent No.3 were the defendants. For the sake of convenience, the parties are referred to by their respective ranking before the Court below.

(2.) Brief facts of the case are as under: The first plaintiff is the wife of M.C. Raju. The second plaintiff and the second defendant are his daughters and the first defendant is his son. M.C. Raju had executed a Will dated 16.4.1999 bequeathing his properties in favour of his children equally subject to the life interest of his wife. The first defendant was residing separately since 1982. It is contended that the plaintiffs contributed their hard earned money for construction of the building in the property in question. The second plaintiff was deserted by her husband and she is residing with her children along with the first plaintiff. The first defendant was appointed as the executor of the said Will. In the month of December, 1999, M.C. Raju (hereinafter referred to as 'the testator') fell from the staircase, as a result of which, his left hip joint was dislocated. He was under treatment of a Masseur. In the last week of December, 1999, he was totally bed ridden and was unable to take care of himself. On 24/12/1999, the first defendant came to the plaintiffs house and took the testator on the pretext of providing him medical treatment and got executed the Will dated 24.12.1999 by playing fraud. The testator was seriously ill and was not in a sound state of mind at the time of execution of the said Will. He did not know how to read and write Kannada. The first defendant got executed the said Will in Kannada language with an ulterior motive to knock-off the entire property. Subsequently, the first defendant brought back the testator to the plaintiffs' house. On 8/2/2000, the testator passed away. It is contended that the Will dated 24.12.1999 is a fabricated document created by the first defendant, which came to her knowledge through her tenants. Immediately, the first plaintiff sent a legal notice to the first defendant dated 13.4.2000. Though the first defendant acknowledged the receipt of the same, he did not send a reply. Therefore, plaintiffs have filed the above suit for a declaration that the Will dated 24/12/1999 executed by the testator registered in the office of the Sub-Registrar, Gandhinagar, Bangalore, is null and void and not binding on them.

(3.) The first defendant has filed his written statement denying the plaint averments. He has denied the execution of the Will dated 16/4/1999 by the testator bequeathing life interest in favour of the first plaintiff. It is contended that the testator being the absolute owner of the property, has rightly cancelled the Will dated 16/4/1999 and has executed the last Will dated 24/12/1999. He has denied that the plaintiffs have contributed funds for construction of the building in the property in question as they do not have any source of income. He has denied that in the month of December 1999, his father fell from the staircase, as a result of which, his left hip joint was dislocated and that he was under treatment of a Masseur. He has also denied that in the last week of December, 1999, the testator was bed ridden and unable to take care of himself. It is denied that on 24.12.1999 he went to the house of the plaintiffs and took the testator in the pretext of providing him medical treatment. It is contended that the Will executed by the testator dated 24.12.1999 was by his free will and consent. As per the Will dated 24.12.1999, except him no other person or persons are entitled to succeed to the estate of the testator. He has sought for dismissal of the suit.