R1IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE15H DAY OF JUNE, 2021 PRESENT THE HON’BLE MR. JUSTICE R.DEVDAS AND THE HON’BLE MS. JUSTICE J.M.KHAZI R.F.A. NO.100167/2015 BETWEEN: SMT.RAMAMANI W/O. LATE ASHOK HULYALKAR, AGE:
62. YEARS, OCC. HOUSEWIFE, R/O. GOPALAKRISHNA DESHPANDE NAGAR, HUBLI58002, PRESENTLY RESIDING AT C/O. DR.M.RAGHUNATH, H.NO.5-80, STREET NO.4, BUDHA NAGAR, NEAR UPPAL BUS DEPOT, UPPAL P.O.HYDERABAD50003. …APPELLANT (BY SRI. RAVI S. BALIKAI, ADV.) AND:
1. SMT.SUDHA W/O. MOHANRAO SULIBHAVI, (SUDHA D/O. BAPURAO HULYALKAR), AGE:
70. YEARS, OCC. RETD. SERVICE, R/O.H.NO.5, 3RD CROSS, GOPALAKRISHNA DESHPANDE NAGAR, HUBBALLI58002, DIST. DHARWAD. 2
2. SMT. SNEHA W/O. SURENDRA KULKARNI, (SNEHA D/O. BAPURAO HULYALKAR), AGE:
60. YEARS, OCC. HOUSEWIFE, R/O. H.NO.5, 3RD CROSS, GOPALAKRISHNA DESHPANDE NAGAR, HUBBALLI58002, DIST. DHARWAD.
3. RAJANI D/O. BAPURAO HULYALKAR, AGE:
59. YEARS, OCC. HOUSEHOLD WORK, R/O. H.NO.5, 3RD CROSS, GOPALAKRISHNA DESHPANDE NAGAR, HUBBALLI58002, DIST. DHARWAD.
4. SMT.NANDLAXMI W/O. NAGARAJ BILAGI, (NANDA D/O. BAPURAO HULYALKAR), AGE:
54. YEARS, OCC. HOUSEWIFE, R/O. H.NO.5, 3RD CROSS, GOPALAKRISHNA DESHPANDE NAGAR, HUBBALLI58002, DIST. DHARWAD. …RESPONDENTS (BY SRI. SUNIL S. DESAI, ADV.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION96AGAINST THE
JUDGMENTAND DECREE DATED1202.2015 PASSED IN O.S.NO.52/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND PERMANENT INJUNCTION. THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:
3.
JUDGMENTR.DEVDAS J., (ORAL): This is a regular first appeal filed under Section 96 of the Code of Civil Procedure assailing the judgment dated 12.02.2015 passed by the III Additional Senior Civil Judge, Hubballi in O.S. No.52/2014.
2. The parties shall be referred to as per the rank they held before the Trial Court.
3. The plaintiff is the wife of Sri.Ashok Hulyalkar and the defendants are sisters of Sri.Ashok Hulyalkar. The plaintiff’s husband and the defendants are the children of Sri.Bapurao Hulyalkar. The suit is filed with a prayer seeking partition and separate possession of an immovable property which is a residential property consisting of a residential building and vacant area bearing CTS No.163/77A measuring 540, 2/9 square yards situated at Deshpande Nagar, Hubballi. The plaintiff has claimed 1/5th share in the suit schedule property. The plaintiff has stated that since her husband Sri.Ashok Hulyalkar was entitled for 1/5th share in the suit schedule property and he died leaving the plaintiff as 4 the sole legal heir, she was entitled for the share of the husband in the suit schedule property.
4. After the defendants entered appearance, a written statement was filed by defendant No.1, who was the eldest daughter of Sri.Bapurao Hulyalkar. Thereafter, a memo dated 14.03.2014 was filed by the defendant Nos.2 to 4 seeking leave of the Court to adopt the written statement filed at the hands of defendant No.1. In the written statement, a contention was taken that Sri.Bapurao Hulyalkar had left behind a Will dated 29.05.1986 and as per the Will, the suit schedule property was bequeathed to the four daughters to the exclusion of the son. Defendant No.1 did not enter the witness box. Defendant No.2 entered the witness box and asserted the fact that their father had left behind a Will disinheriting the son and bequeathing the property to the four daughters. The defendants examined one Sri.Vasant Hulyalkar, who was one of the attesting witnesses to the Will. The attesting witness has stated that two or three days prior to the execution of the Will, Sri.Bapurao Hulyalkar had sent words to the attesting witness and the other attesting witness Sri.S.S.Hulyalkar who 5 was a retired Assistant Executive Engineer at Hubballi. The attesting witness has stated that on 29.05.1986 when he went to the house of Sri.Bapurao Hulyalkar, he had kept the Will typed and ready. He has stated that Sri.Bapurao Hulyalkar, though a Government Doctor, knew typing and therefore he himself had prepared the Will. The witness has stated that Sri.Bapurao Hulyalkar affixed his signature in the presence of the witness and in the presence of all the five children. The witness has also stated that all the five children including the son Ashok Hulyalkar has also affixed their signature to the Will and therefore they knew the contents of the Will.
5. The Trial Court formulated five issues. However, since it was not disputed at the hands of the plaintiff that the suit schedule property was the self acquired property of Sri.Bapurao Hulyalkar and the date of the death of Sri.Bapurao Hulyalkar and Sri.Ashok Hulyalkar was not disputed, it proceeded to examine the contention of the plaintiff regarding the genuinity of the Will. It was contended on behalf of the plaintiff that there were several suspicious circumstances surrounding the Will in question and therefore 6 the Trial Court proceeded to examine the contentions raised by the plaintiff. The Trial Court has noticed the requirement under law in the matter of proving a Will, namely Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. The Trial Court was satisfied that by examining one surviving attesting witness, the defendants have fulfilled the requirement under law. The Trial Court proceeded to hold that the witness has answered the queries put by the plaintiff during the cross-examination and the witness satisfactorily answered the questions. The Trial Court was satisfied that the testator being a Doctor by profession was educated and was in a fit condition, mentally and physically to execute the Will. The contention of the learned counsel for the plaintiff that there is nothing on record to show that the contents of the Will was read over to the testator and only thereafter he affixed his signature, was discounted on the ground that it is on record that the testator himself had prepared the Will. Consequently, the Trial Court proceeded to hold that since the suit schedule property is admittedly self acquired property of Sri.Bapurao Hulyalkar and he had left behind a Will bequeating the property to the four daughters to the 7 exclusion of the only son Sri.Ashok Hulyalkar, the plaintiff was not entitled for any share in the suit schedule property. Consequently the suit was dismissed.
6. Learned counsel Sri.Ravi S. Balikai appearing for the appellant – plaintiff submits that it is not sufficient if the Court is satisfied that the requirement under Section 68 of the Evidence Act and Section 63 of the Indian Succession Act is complied. The learned counsel places reliance on the following judgments to buttress his contention that whenever there is suspicious circumstances surrounding the Will, Court is required to satisfy itself regarding the genuinity of the Will;
1) JASWANT KAUR VS. AMRIT KAUR AND OTHERS (AIR1977SC74,
2) INDU BALA BOSE AND OTHERS VS. MANINDRA CHANDRA BOSE AND ANOTHER (AIR1982SC133,
3) VIDHYADHAR VS. MANKIKRAO (AIR1999SC1441,
4) J.T.SURAPPA VS. SATCHIDHANANADENDRA [2008(3) KCCR1484 &
5) SHARANABASAPPA AND OTHERS VS. SHIVAKUMAR AND OTHERS [2008(2) KCCR822.
7. With reference to the decision in Jaswant Kaur & Others Vs Amrit Kaur & Others (AIR1977SC74, 8 learned counsel submits that there could be several suspicious circumstances surrounding the Will like, unnatural and unfair distribution, disinheriting some of the natural legal heirs, while carving out unequal share to a particular legal heir to the exclusion of others etc. It is submitted that under such circumstances, it is duty of the court to satisfy itself that the propounder of the Will satisfies the conscience of the Court, clearing the doubts surrounding the Will. Learned counsel would draw the attention of this court to the five steps suggested in the case of Sri.J.T.Surappa and Another Vs Sri.Satchidhananadendra Saraswathi Swamiji Public Charitable Trust and Others (2008 (3) KCCR1484, by a learned single Judge of this court. It was held in the said case that, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consist of five steps “Pancha Padi”. The path of enquiry and steps to be traversed are as under: i) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?. 9 ii) Whether the natural heirs have been disinherited?. If so, what is the reason?. iii) Whether the testator was in a sound state of mind at the time of executing the Will?. iv) Whether any suspicious circumstances exist surrounding the execution of the Will?. v) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, r/w Section 68 of the Evidence Act?.
8. Learned counsel for the appellant would further draw the attention of this court to the fact that the marriage of Sri.Ashok Hulyalkar, the only son of Bapurao was conducted on 26.06.1986. The Will is said to have been prepared and executed on 29.05.1986, less then one month before the marriage of the son. The wife of Sri.Bapurao died on 08.11.1986, a few months after the son’s marriage and the alleged execution of the Will. Learned counsel submits that it is very unnatural that a person would execute a Will before all the children are married. Admittedly, only the first daughter i.e., defendant No.1 was married as on the date of the execution of the Will. The Will does not disclose the reason as to why the testator felt it necessary to make the 10 Will at that point of time when admittedly four children were yet to be married. Learned counsel would submit that although it is stated in the Will that the testator says that he has spent about `74,000/- towards education of his son and that the son is practicing and does not need any help from the father, it is but natural that every parent takes care of the education of the children. Merely because he has spent for the education of the son, it does not mean that son or the children born to the son are not entitled for any share in the property of the father/grandfather.
9. There are other suspicious circumstances which are not properly explained by the defendants. Learned counsel draws the attention of this court to the proceedings initiated at the hands of the defendants in P & SC No.17/2010, which is also stated in the plaint. Learned counsel submits that defendants have filed the P & SC case seeking issuance of succession certificate in respect of medical claim, vehicle claim, amount of `12,819.89 in respect of motorcycle bearing Reg.No.KA-25/ED-1895 and to permit the transfer of the registration in respect of two wheeler in favour of the petitioners, in view of the death of 11 their brother Sri.Ashok Hulyalkar. Learned counsel submits that the conduct of the defendants in claiming that their brother Sri.Ashok Hulyalkar died on 13.04.2010 in his residence at Deshpande Nagar, Hubballi, being unmarried, bears a testimony to the desperate attempt on the part of the defendants to deprive the plaintiff of her legitimate entitlement and greed of the defendants. Learned counsel submits that this itself is sufficient to prove that defendants have acted to the detriment of the widow of Sri.Ashok Hulyalkar, only to knockoff the share which she would inherit through her husband. It is another matter that in respect of the claim made in P & SC case that, being legally wedded wife, the plaintiff being the only Class-I heir of Sri.Ashok Hulyalkar, she would alone inherit all the benefits which are claimed in P & SC case. The fact that the defendants have made a false claim that their brother Shri Ashok Hulyalkar was not married and they are the only legal heirs, would necessarily prove that defendants herein have made all attempts to knockoff the property belonging to the plaintiff.
10. Learned counsel would further submit that the Will in question never saw the light of the day although 12 Sri.Bapurao died on 08.02.1998. Nothing is said about the Will in P & SC case. Further, the plaintiff has produced a copy of the extract from the property register card wherein as per the ‘varadi’ made by the defendants herein, on 13.04.2011 the Katha of the suit schedule property has been mutated in the name of the defendants, based on the order passed in P & SC No.17/2010. Learned counsel submits that here too, it can be inferred that the defendants have not asserted that their father had left behind a Will and based on the said Will, they have inherited the suit schedule property and therefore, in terms of the Will the Katha has to be mutated in their names. Learned counsel would submit that although all these aspects were brought to the notice of the trial court, the trial court has not examined the evidence on record and the appreciation of the Will is not in accordance with the established principles of law.
11. Per contra, learned counsel Sri.Sunil S. Desai appearing for the respondents-defendants submits that as per the requirement of law, the defendants have done everything prescribed by law, to the satisfaction of the court to prove the execution of the Will in question, in terms of 13 Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. As regards other suspicious circumstances and suggestions put to the witnesses of the defendants in the witness box, both witnesses have answered the questions put by the learned counsel for the plaintiff and the trial court is satisfied that there cannot be any doubt regarding genuinity of the Will. Learned counsel places reliance on two decisions of the Hon’ble Supreme Court in the case of Pentakota Satyanarayana and Others Vs Pentakota Seetharatnam and Others ((2005) 8 SCC67 and in the case of Gurdev Kaur and Others Vs Kaki and Others ((2007) 1 SCC546 to buttress his contention that, when once the requirement of Section 63 of the Indian Succession Act r/w Section 68 of the Evidence Act is satisfied, there is no harm in the court accepting the genuinity of the Will. It is pointed out that, in the case of Pentakota (supra), the trial court had noted down the suspicious circumstances which are very similar to the case on hand. In that case, there was exclusion of Krishna Bhagavan from the Will and the bequest of a major portion in favour of the appellants. The appellants therein were not the 14 children of the testator and the properties were ancestral in nature. There was contradiction between the evidence of D.W.5 the testator and D.W.6 the scribe with regard to the presence of D.W.4 and the husband of D.W.5. There was no evidence to state that the draft of the Will was prepared based on the instructions given by the testator. The Will had incorrect recitals. Based on these suspicious circumstances, the trial court as well as High Court had given a finding that propounder of the Will failed to prove the execution of the Will in terms of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. However, the Hon’ble Supreme Court held that the trial court wrongly recorded a finding that the Will was not revocable overlooking the fact that in the very paragraph the testator reserved his right to cancel the Will and execute another Will. It was held that Section 68 of the Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the court and capable of giving evidence, he must be called to prove 15 execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. It was held that, it is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. In Gurudev Kaur’s case (supra), it was held that the court does not sit in appeal over the right or wrong of the testator’s decision. The court’s role is limited to examining whether instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the court looks into the nature of the bequest. The court does not substitute its own opinion for what was the testator’s Will or intention as manifested from a reading of the written statement. After all, a Will is meant to be an expression of 16 his desire and therefore, may result in disinheritance of some and grant to another.
12. Learned counsel would therefore, submit that just because the only son has been disinherited, it cannot be contended that it is unnatural or unfair. Moreover, it is submitted that the testator has explained the reasons for disinheriting his son. Therefore, the court cannot go beyond the desire of the testator and hold that there is no sufficient explanation for disinheriting the only son of a share in the suit schedule property.
13. As regards the statement made in P & SC case, learned counsel for the respondents would submit that question of stating regarding the Will executed by the father would not arise in that case, since P & SC case was in respect of movable properties of Sri.Ashok Hulyalkar, who is brother of the defendants. As regards the varadi and non-disclosure of the Will in the report of the officer who entered the varadi in the official records, learned counsel would submit that the defendants had in fact stated in their petition/application that their father had left behind a Will dated 29.05.1986 and 17 accordingly, they had sought for entry of their names in the Katha register. However, admittedly, a copy of the petition/application which is sought to be read out by the learned counsel before this court, has not been produced before the trial court.
14. Most importantly, it is contended that Shri Ashok Hulyalkar himself has affixed his signature to the Will, which shows that he accepted the intention and desire of his father in not giving him any share in his property and moreover before the death of Shri Ashok Hulyalkar, he has not raised any contention in this regard.
15. Heard the learned counsels and perused the judgment of the trial Court and trial Court records.
16. We find from the contentions raised at the bar that in the present case, the contentions or issues revolve around the proof of the Will propounded by defendant No.1, the eldest daughter of Shri Bapu Rao. Although, contentions were raised at the hands of the learned counsel for the appellant that merely because the defendants 2 to 4 were permitted to adopt the written statement filed on behalf of 18 defendant No.1, defendants 2 to 4 cannot be permitted to contend that they have made pleadings in accordance with law and they should not be permitted to agitate that they have made the averments in the plaint because they have not filed independent written statement, we do not agree with the contention of the learned counsel for the appellant. The learned counsel has further stated that though defendant No.1 is the propounder of the Will, she did not enter the witness box and on the contrary defendant No.2 entered the witness box and therefore, she cannot be considered as the propounder of the Will. This submission was made with reference to a decision of the Hon’ble Supreme Court in the case of G.M.SIDDESHWAR Vs. PRASANNA KUMAR reported in [2013 (4) SCC776 wherein the requirement under law having regard to Order VI Rule 15 of the Code of Civil Procedure was examined. Rule 15 of Order VI speaks of verification of pleadings. It was contended by the learned counsel that since mere adoption of the pleadings of a co- defendant was permitted by the Court, it does not satisfy the requirement under Rule 15 of Order VI of the CPC and therefore, when there was no pleadings by defendant No.2 19 who entered the witness box and admittedly the Will was propounded by defendant No.1 alongwith her written statement, the trial Court has not noticed this aspect and accepted the deposition of defendant No.2 recording its satisfaction, does not appeal to this Court. The case referred to by the learned counsel for the appellant arises in an election petition which stands on a different footing. When it was contended by the learned counsel for the defendants/respondents that all of them were present on the day when the Will was executed, including their brother and that they have affixed their signature which shows that all of them have consented to the Will executed by their father, would satisfy the requirement of a primary witness who has seen the attestation of the Will and was capable of answering the questions surrounding the execution of the Will. In this regard, the contention of the learned counsel for the appellant cannot be accepted.
17. However, as regards the suspicious circumstances which are pointed out by the learned counsel for the appellant, we are of the opinion that there is a need to closely examine the circumstances in a chronological 20 order. In consideration of the submissions at the bar, this Court finds that the following are the suspicious circumstances which surround the execution of the Will; i) The Will is said to be executed on 29.05.1986, when admittedly only the eldest daughter of Shri Bapu Rao, was married and the marriage of the only son Shri Ashok Hulyalkar took place on 26.06.1986, i.e., within a few days after the execution of the Will. There is no mention about the impending marriage of the son, ii) Four out of the five children were unmarried and the grave need for making a Will at that point of time has not been clearly stated, iii) Merely because the father has spent `74,000/- on the education of the son, it would not be sufficient reason for disinheriting the only son. Moreover, it is quite natural that parents would give a better share to the son when compared to the daughters. iv) Shri Bapu Rao died on 08.02.1998. Shri Ashok Hulyalkar died on 13.04.2010. Thereafter, in terms of the Wardi dated 13.04.2011, the khata in respect of the suit schedule properties is mutated in the name of 21 the defendants, whereby, there is no mention of the Will. On the other hand, there is reference to the order passed in P and S.C.No.17/2010, v) Neither in the written statement nor in the deposition, it is stated as to who had the custody of the Will, vi) For the first time, it is stated in the written statement about the Will. The written statement was filed on 14.03.2014, vii) Another important aspect noticed by this Court is that nothing has been stated regarding the wife of the testator, when admittedly as on the date of the Will, the wife of the testator was alive. It has been brought on record that the wife of the testator, Smt.Malathi Bai, died on 08.11.1996 i.e., about six months after the execution of the alleged Will.
18. The Constitutional Bench of the Supreme Court of India in the case of SHASHI KUMAR Vs. SUBODH KUMAR reported in AIR1964SC529 while dealing with Section 63 of the Indian Succession Act, held that the principles which govern the proving of a Will and mode of proving a Will does 22 not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. It was held that in such a case, the Court would 23 naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
19. Therefore, normally it may be sufficient for the propounder of a Will to satisfy the requirements of Section 63 of the Indian Succession Act r/w Section 68 of the Evidence Act to discharge the onus in the matter of proving a Will. However, when there are suspicious circumstances, the court is bound to examine each and every suspicious circumstance and unless the court is satisfied with the explanation offered by the propounder of the Will, and the cloud of suspicion is cleared, the courts should not put its seal of approval on the propounded Will. The onus is therefore on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. 24
20. Having regard to the law laid down by the Hon’ble Supreme Court, when we examine the contentions raised on behalf of the plaintiff and the evidence on record, we find that some of the suspicious circumstances are not satisfactorily answered by the defendants or the propounder of the Will. In the considered opinion of this Court, non- mentioning of the wife by the testator in the Will and not providing for her maintenance is a clear indication that all is not well with the propounded Will. The conduct of the defendants stating in the P and S.C. case that their brother Shri Ashok Hulyalkar died unmarried, is another aspect which would lend credence to the suspicion regarding the genuinity of the Will. The P and S.C. case was filed in the year 2010 i.e., after the death of Shri Ashok Hulyalkar. No amount of explanation at the hands of learned counsel for the respondents regarding the statement made by the defendants in the P and S.C. case that their brother Ashok Hulyalkar was unmarried, is worthy of acceptance. The fact that the defendants have got the khatha transferred in their names in the year 2011, after the order was passed in the P and S.C. case and there being no mention of the Will, is 25 another aspect which would further strengthen the case of the plaintiff regarding the genuinity of the Will. The explanation sought to be offered by the learned counsel for the respondents that the defendants had in fact mentioned about the Will in their application by seeking transfer of khatha is not supported by the note prepared by the Officer while accepting the application for transfer of khatha. Moreover, the said application where according to the defendants there is a mention about the Will, has not been produced before the Court and therefore, the contents of the same cannot be examined or accepted by this Court. During the course of argument, the learned counsel for the respondent had submitted that the plaintiff left the matrimonial home two months after the marriage and for all practical purposes she was not a part of the family and therefore, there was nothing wrong in the defendants filing the P and S.C. case seeking the movable assets of their brother, is something which cannot be accepted or countenanced. Whether they like it or not, the defendants should have arrayed their sister-in-law, the plaintiff as a party/respondent to the P and S.C. proceedings, when 26 admittedly their brother was not judicially separated from his wife. Having regard to all these circumstances, when we look at the averments made by the plaintiff and contentions raised regarding the suspicious circumstances surrounding the Will, this Court would not hesitate to hold that the defendants, especially, the propounder of the Will has failed to satisfy to the conscience of this Court, the genuinity of the propounded Will.
21. When once this Court has come to a conclusion that the defendants have failed to prove that their father Shri Bapu Rao had executed any Will and more particularly, the Will dated 29.05.1986, Ex.D.1, the plaintiff should succeed. After all, the plaintiff is seeking a legitimate share of 1/5th of the suit schedule properties. In the opinion of this Court, the trial Court has failed to appreciate the evidence on record having regard to the settled principles of law governing the proof of Will.
22. The defendants having admitted the fact that the plaintiff was married to their brother Shri Ashok Hulyalkar on 26.06.1986 and there being no contention regarding the judicial separation of the two, the plaintiff becomes the sole 27 legal heir of Shri Ashok Hulyalkar. There is no mention about any children being born out of the wedlock between Shri Ashok Hulyalkar and the plaintiff. Therefore, the plaintiff becomes the sole Class-I heir to the estate of Shri Ashok Hulyalkar.
23. Consequently, the appeal is allowed. The impugned judgment and decree dated 12.02.2015 passed in O.S.No.52/2014 on the file of the III Addl. Senior Civil Judge, Hubballi, is hereby quashed and set aside. The suit of the plaintiff is decreed. The plaintiff is entitled for 1/5th share in the suit schedule properties. Ordered accordingly. (Sd/-) JUDGE (Sd/-) JUDGE Rsh-Paragraph 1 to 6, Mbs-paragraph 7 to 12 Jm-paragraph 13 to till end