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2013 DIGILAW 851 (KAR)

PARAMA DEVARU HEGDE v. MAHADEVI

2013-07-26

N.KUMAR

body2013
JUDGMENT N. KUMAR, J.-This is a defendant's second appeal against the concurrent findings recorded by the Courts below, that the defendant has failed to establish the Will propounded by him and consequently decreeing the suit of the plaintiff for partition and separate possession. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is 19 items of the agricultural lands and one item of house property, which are more particularly described in the schedule to the plaint (which is hereinafter referred to as "schedule property"). One Venkataraman Hegde was the propositus. He died living behind two sons and three daughters by name Sambayya Hegde, Krishna, Mahadevi, Laxmi and Manji respectively. The daughter Mahadevi is the plaintiff in the suit. The daughter Laxami is the 6th defendant in the suit. Shambayya Hegde had two wives by name Ganapi and Subbi, they are arrayed as defendant Nos. 2 and 3. The daughter Manji is no more, she has left behind three sons by name Paramadevaru, Venkataramana and Shivarama, who are defendant Nos. 1, 4 and 5 respectively. The dispute between the parties is regarding succession to the property belonging to Krishna, the 2nd son of Venkataraman Hegde. Krishna's wife pre-deceased him, he died issue less. It is in this background his sister Mahadevi filed the suit for partition and separate possession of her 1/4th share in all the plaint schedule properties. It is her specific case that Krishna was age dabout 75 years on the date of his death. 7 to 8 years prior to his death, he was suffering from illness, she was also taking care of him. In fact, she took care of him on the last stage. After his death she got obsequies ceremonies performed by her elder brother Sambayya Hegde. The 1st defendant is her sister's son, he is smart. After the death of Krishna, he is claiming right to the schedule property on the basis of the Will. In collusion with the revenue officials, he has got the revenue entries made in his name in respect of the schedule properties. On coming to know the same she has filed her objections. The revenue authorities gave an endorsement to her to approach the Civil Court to agitate her rights. Krishna did not make any Will nor executed any Will. In collusion with the revenue officials, he has got the revenue entries made in his name in respect of the schedule properties. On coming to know the same she has filed her objections. The revenue authorities gave an endorsement to her to approach the Civil Court to agitate her rights. Krishna did not make any Will nor executed any Will. The 1st defendant claims the property under the Will dated 14.02.1970, which is obtained by fraud. The contents of the Will are totally false. The 1st defendant and his relatives have created the said document. The 1st defendant has not taken care of the deceased Krishna at any point of time nor he got any treatment. On 14.02.1970, Kirshna was not in a position to go to Honnavar at all. He was not in a sound state of mind to make a Will. In fact two months prior to his death, he had lost his senses. He had no intention to make any provision for his property. The Will dated 14.02.1970 is not executed by him. The 1st defendant with the active assistance of his relatives Laxminarayana Subbaraya Hegde, Manjunath Subbaraya Hegde and Seetaram Subraya Hegde have created this Will. The author of the Will is said to be one M.M. Sherasappa and N.D. Kamath. Under the Will, the 1st defendant acquired no right to the schedule property. After the death of Krishna, the said Will is registered by the 1st defendant. Merely because the document is registered i.e., not confer any right on him. According to Hindu Law, the property of the brother in the absence of his Class-1 legal heir devolves on his Class-II heirs i.e., brothers and sisters. Therefore, the plaintiff being the sister of deceased Krishna is entitled to 1/4th share. The defendant Nos. 2 and 3 had filed a suit for partition and separate possession in O.S. No. 73/1973, they colluding with 1st defendant withdrew the same, no enquiry was conducted in the said suit. In fact in the said suit all the legal heirs of Krishna was not included. Therefore, the suit came to be dismissed as withdrawn. The said order do not effect the right of the plaintiff to any extent whatsoever. Therefore, she sought for partition and separate possession of her 1/4th share in the plaint schedule property. In fact in the said suit all the legal heirs of Krishna was not included. Therefore, the suit came to be dismissed as withdrawn. The said order do not effect the right of the plaintiff to any extent whatsoever. Therefore, she sought for partition and separate possession of her 1/4th share in the plaint schedule property. She also wanted a declaration that the Will set up by the 1st defendant is obtained by fraud and concocted document. 4. After service of summons, the 1st defendant filed his written statement. He did not deny the relationship between the parties, which is set up by the plaintiff. It is his specific case that the deceased Krishna Hegde executed the Will on 14.02.1970 bequeathing his entire schedule property in his favour. Under the Will he became the absolute owner. He denied all the allegations made in the plaint. It is his further case that when his father died as his maternal uncles Sambayya Hegde and Krishna had no children, they took care of them. As he is the eldest son of his mother, he was fostered by them. He took care of both Sambayya Hegde and Krishna Hegde, when they were in difficulties. Therefore, Krishna Hegde because of love and affection he had towards 1st defendant executed the Will dated 14.02.1970, the possession of the schedule property is with him, he is cultivating the lands. The revenue records, record of rights are all standing in his name. Though the plaintiff and defendant Nos. 2 and 3 raised objections for mutation entries, they were overruled and the mutation entries were made in their name. Therefore, the allegation that the deceased Krishna had not made any Will during his life time and the contents of the Will dated 14.02.1970 are false and that the Krishna was not in a position to go to Honnavar to execute the Will, he was not in a sound state of mind, on the day the said Will was executed and that the 1st defendant has created the document with the assistance of his relatives are all false. In fact the suit came to be filed for partition and separate possession in O.S. No. 73/1973 by defendant Nos. 2 and 3. After coming to know that they committed a mistake in filing the suit, the said suit came to be withdrawn. The suit is barred by time. In fact the suit came to be filed for partition and separate possession in O.S. No. 73/1973 by defendant Nos. 2 and 3. After coming to know that they committed a mistake in filing the suit, the said suit came to be withdrawn. The suit is barred by time. The suit is also barred by doctrine of res judicata, estoppel and Order 2, Rule 2 of CPC. Therefore, he sought for dismissal of the suit. The other defendants did not choose to file any written statement. 5. On the aforesaid pleadings, the trail Court framed the following issues: 1. Whether the plaintiff proves that she is entitled to a share in the properties of the deceased Krishna Hegde as alleged in the plaint? 2. Whether the plaintiff proves that she looked after Krishna Hegde during his illness prior to his death and after his death she got the obsequies done through Shambayya Hegde? 3. Whether the first defendant proves that the Will dated 14.02.1970 as executed by the deceased Krishna Hegde when he was in a disposing state of mind. 4. Whether the plaintiff proves that the alleged Will dated 14.02.70 is fraudulent and not genuine and the deceased Krishna Hegde was not in a disposing state of mind? 5. Whether the suit is barred by res judicata, estoppel and Order 2, Rule 2 CPC? 6. Whether the plaintiff is entitled to any and what mesne profits? 7. To what reliefs is the plaintiff entitled? Addl. Issues: 1. Whether Rama Ishwar Hegde as L.R. of the deceased plaintiff is entitled for half share in the suit schedule properties as alleged in the plaint? 2. Whether the suit is bad for non-joinder of the parties stated in the additional written statement of the first defendant? 3. Whether defendant No. 3 a is entitled for 1/4th share in the suit schedule properties and he is entitled for separate possession of the same? 6. When the case was ready for trial, the origional plaintiff died, her son was brought on record. He was examined as PW1. He was examined one witness by name Timmanna Madhav Hegde as PW2 and also examined handwriting expert by name Smt. C.V. Jayadevi as PW3. The plaintiff produced in all 26 documents, which are came to be marked as Exs.P1 to P26. He was examined as PW1. He was examined one witness by name Timmanna Madhav Hegde as PW2 and also examined handwriting expert by name Smt. C.V. Jayadevi as PW3. The plaintiff produced in all 26 documents, which are came to be marked as Exs.P1 to P26. On behalf of the defendants, the defendant was examined as DW1, Manjunath Subraya Bhat the attesting witness to the Will was examined as DW2 and also examined Mahasbaleshwar Ganapayya Shetty as DW3. The defendants also produced 19 documents, which are came to be marked as Exs.D1 to D19. 7. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the Will set up by the 1st defendant is not proved. The testator was not in a sound disposing state of mind. The Will has come into existence under suspicious circumstances and the propounder of the Will has not removed those suspicions. Therefore, the claim of the 1st defendant under the Will in respect of the schedule property was not up held. In the absence of the Will and in view of the admitted relationship between the parties, the trial Court held that the plaintiff has established that she is entitled to 1/4th share in all the plaint schedule properties and also the suit is not barred by res judicata, estopel and Order 2, Rule 2 of CPC. It also answered the additional issue in favour of the plaintiff. 8. Aggrieved by the said judgment and decree of the trial Court, the 1st defendant preferred a regular appeal in R.A. No. 26/2001. Rama Ishwar Hegde, who claims to be the L.R. of Laxmi also preferred an appeal in R.A. No. 25/2001. Both the appeals were heard together. After hearing the parties, the lower appellate Court framed the following points for its consideration. 1. Whether defendant No. 1 has proved that the deceased Krishna Venkataraman Hegde has bequeathed the suit properties in his favour by executing a legal and valid Will dated 14.02.1970? 2. Whether the plaintiff is entitled for partition and separate possession of half share in the suit properties? 3. Whether the judgment and decree under appeal suffers for any illegality and liable to be set aside or modified? 4. What order? 9. 2. Whether the plaintiff is entitled for partition and separate possession of half share in the suit properties? 3. Whether the judgment and decree under appeal suffers for any illegality and liable to be set aside or modified? 4. What order? 9. The lower appellate Court on re-appreciation of the entire oral and documentary evidence on record held that the propounder of the Will namely the 1st defendant has failed to prove the due execution of the Will dated 14.02.1970. It further held that the plaintiff is entitled to only 1/4th share in the plaint schedule property and it found no good ground to interfere with the judgment and decree of the trial Court. 10. Aggrieved by the judgment and decree of the Courts below, the 1st defendant has preferred this second appeal before this Court. 11. This appeal came to be admitted on 18.03.2004 to consider the following substantial questions of law: (1) Whether the suit filed by the plaintiff was maintainable when he has failed to pursue his counter claim in O.S. No. 93/73 on the file of the Munsiff at Honnavar? (2) Whether the appreciation of evidence in regard to the suspicious circumstances alleged by the plaintiff to disprove the Will of Krishna Venkatraman Hegde is perverse? 12. The learned counsel appearing for the parties fairly submitted that the suit in O.S. No. 73/1973, the plaintiff herein was defendant No. 2 and he has sought for his legitimate 1/4th share. He had not put forth any counter claim. He had supported the case of the plaintiff. Therefore, the plaintiff withdrew the suit. It was open to him to transpose himself as plaintiff and prosecute the suit or after its withdrawal he had every right to file an independent suit. That is how after the withdrawal of the said suit, the present suit is filed. In those circumstances, the 1st substantial question of law is framed that whether the present suit filed by the plaintiff was maintainable, when he has failed to pursue his counter claim in O.S. No. 93/1973 on the file of Munsiff Court at Honnavar do not arise for consideration. Accordingly, the said substantial question of law is deleted. 13. Now the only question that is to be gone into in this appeal is whether the concurrent finding recorded by the Courts below that the Will is not duly proved requires interference. 14. Accordingly, the said substantial question of law is deleted. 13. Now the only question that is to be gone into in this appeal is whether the concurrent finding recorded by the Courts below that the Will is not duly proved requires interference. 14. Now the facts are not in dispute. The schedule property belongs to Krishna Venkataraman Hedge. He was married. His wife died about 20 years prior to his death. Admittedly, he had no issues. He died living behind his elder brother-Sambayya Hedge and three sisters by name Mahadevi, Laxmi and Manji. On the date of his death, as he did not have any Class-I heirs, the schedule property, which belonged to him devloves on his Class-II heirs, who are his brothers and sisters. Therefore, the plaintiff being the sister of the deceased, Krishna Venkataraman Hedge is entitled to equal share with the other brothers and sisters. Therefore, she is entitled to 1/4th share. The only way the said right could be denied to her is, if the deceased Krishna Venkataraman Hegde during his lifetime has bequeathed his property in favour of any other persons. It is the case of the 1st defendant that the deceased Venkataraman Hegde executed a Will on 14.02.1970 bequeathing the schedule property in his favour exclusively and therefore his other class-II legal heirs stand excluded. Therefore if the Will set up by the 1st defendant is proved, the suit is to be dismissed, if the will is not proved, the suit is to be decreed. 15. It is in this background, let us examine the proof of Will. Though the Will is executed on 14.02.1970, the Krishna Venkataraman Hegde died on 17.03.1970. In other words, he has lived for 31 days after the execution of the Will. The Will is not registered. It is on a plain white paper. The recital of the Will itself shows that the testator was not in a sound state of health. He was suffering from various deceases, which are enumerated in the Will. It is also stated that it is the 1st defendant, who is assisting him in taking treatment for the illness. Therefore, there is intrinsic evidence to show that the testator was not keeping good health on the day the said Will has come into existence. He was suffering from various deceases, which are enumerated in the Will. It is also stated that it is the 1st defendant, who is assisting him in taking treatment for the illness. Therefore, there is intrinsic evidence to show that the testator was not keeping good health on the day the said Will has come into existence. In fact, the evidence on record shows that the 1st defendant took the testator to Honnavar for the Hospital to treatment. After taking him to Honnavar, he was made to stay in the house of one Kamath. After execution of the Will, he took him to the Hospital and then he brought him back. He was aged 75 years on the date of execution the Will. With this evidence on record, which clearly demonstrates that the testator was not in a sound state of health, the greater burden is on the propounder to prove that he was in a sound state of mind when he executed the Will. In this regard, we do not have any medical evidence on record. It is the epsy dipsy of 1st defendant and his witness DW2. The said evidence does not prove that he was in a sound state of mind. Further the recitals of the Will makes it clear that the testator had expressed his fear that his end may come at any time. Further he says that he wants the Will to be registered. But on the day he executed the Will, his health did not permit him to go to the Sub-Registrar Office and get it registered. If his health improved he intends to get the Will registered. The evidence on record discloses that the Will was not executed in his village in his house. The 1st defendant brought him from his village Kannimane to the taluka headquarters, Honnavar to the house of Kamath, who is the village accountant. Yet another village accountant is said to be the scribe of the Will. If the testator could travel from his village to Taluka headquarters and execute the Will and he is unable to go to Sub-Registrar Office to get it registered because of his health conditions, the case of the plaintiff that the testator was not in a sound state of mind on the day of the alleged execution of the Will clearly stands proved. The 1st defendant, the propounder has miserably failed to prove that the testator was in a sound state of mind at the time of execution of the Will. That is precisely the finding recorded by both the Courts below, which is based on the legal evidence. 16. The evidence on record shows that the testator was dependent on 1st defendant for every thing. He was frequently visiting, attending to his requirements and attending to his medical aid. According to the evidence of DW2 there was no other person on whom he could rely. In fact on 14.02.1970, the 1st defendant did not know the mind of the testator. As usual he went to take him to the hospital at Honnavar. It is only after he reached Honnavar and went to Kamath's House, he asked the 1st defendant to fetch some persons from his village by his known persons. The 1st defendant did not know why he needed those persons. However, he brought them. Then he also brought the scribe. The Will was written in the house of Kamath. Then the persons who were brought by him have affixed their signatures to the document as attesting witnesses, one of them being the scribe. Thereafter, he took him to the hospital and brought him back to the house. 17. At every stage, we could see the hand of the 1st defendant. Therefore, the contention that the 1st defendant has not taken any active part in the preparation and execution of the Will cannot be believed. This is another finding recorded by the Courts below, which is again based on the legal evidence. 18. Then it is not in dispute that the 1st defendant is not the only son of his mother. His mother had another two sons by name Venkataraman & Shivarama. Krishna died living behind three sisters and brothers. Subbaiah Hegde had two wives by name Ganapi and Subbi. It is nobody's case that the relationship between the family members was strained. The plaintiff says that she took care of Krishna for nearly 6 to 7 years, when he was not well and also two months before his death. On his death she got obsequies ceremonies performed by her elder brother, Sambayya Hegde. The 1st defendant contends that as he lost his father at a young age, both Krishna and Sambayya Hegde who are his maternal uncles, took care of them. On his death she got obsequies ceremonies performed by her elder brother, Sambayya Hegde. The 1st defendant contends that as he lost his father at a young age, both Krishna and Sambayya Hegde who are his maternal uncles, took care of them. He in turn was closely associated with both of them. In fact Krishna treated him as foster son. The evidence on record do not disclose that 1st defendant lived with Krishna at any point of time. On the contrary, the contents of the Will and his evidence shows that he was going to Krishna's house, whenever there was need. In these circumstances, the reason for inheriting the near relatives is not forth coming from the contents of the Will. It is argued that the reasons are given why 1st defendant was preferred. That is sufficient and there is no need to give any reason why other near relatives were excluded. 19. The law on the point is well settled. If the testator excludes the natural legal heirs and confers the benefits of on any one of them, it is a suspicious circumstance. Then the propounder of the Will has to clarify and to remove the suspicious circumstances. The only reason given by the propounder of the Will in this case is that he was looking after the deceased Krishna. Krishna was treating him as foster son and therefore, the properties were bequeathed in his favour. If after the death of the 1st defendant's father, these two metarnal uncles took care of 1st defendant, they have not only taken care of the 1st defendant but also his two other brothers. If really they have taken care of them all these years, there is no justification to deny their own sistersof their properties. There is no evidence on record to show that the 1st defendant was assisting Krishna in any other manner till his death. On the contrary the evidence on record shows that he was ill for more than 6 to 7 years. The only evidence on record is that the 1st defendant has taken Krishna to Honnavar for treatment to the Hospital, which is also not substantiated by any acceptable evidence. In the absence of any acceptable evidence or the reasons for disinheriting the legal heirs, the 1st defendant has failed to establish the justification for that disinheriting. The only evidence on record is that the 1st defendant has taken Krishna to Honnavar for treatment to the Hospital, which is also not substantiated by any acceptable evidence. In the absence of any acceptable evidence or the reasons for disinheriting the legal heirs, the 1st defendant has failed to establish the justification for that disinheriting. Therefore, the said suspicious circumstances continue to exist and it has not been cleared. That is yet another reason given by the Court below for disbelieving the Will. 20. Now coming to the due execution of the Will, the Will is in a white paper. Now the evidence on record shows that one M.M. Sherasappa, village accountant was brought to the house of Kamath for the purpose of drafting the Will as he was specialist in that field, the person, whom the Krishna did not know. It is the 1stdefendant who knew him. Admittedly no draft of the Will is prepared. It is nobody's case that any particulars of the land is furnished to the scribe. The Will is in three pages and in white paper. In the first sheet, on both sides it is written till the bottom. We do not find signature of the testator. The alleged signature of the testator has fond a place only in third page. A bare perusal of the signature shows that what is written there is Krishna Venkata Hana Hegade ruju. His name is Krishna Venkataramana Hegade. We have on record, the two documents, which contains the admitted signature of the testator, which are Exs.P22 and P22(a). No doubt these documents have been executed in the year 1931-32. A bare comparison of these admitted signatures with the disputed signature would show that they do not tally each other. It was contended that nearly there is a gap of 40 years and that explains the discrepancy. No doubt the signature of 1930 cannot be the same as that of 1970. There could be a variation in the way of signature is to be put. But in the subsequent signatures if the executant is in a sound state of mind, the word will not be missing. In Exs.P22 and P22(a) the signature shows that he has affixed the signature as Venkataramana Hegde ruju. In the disputed signature we find the signature Krishna Venkata Hana Hegde. Absolutely there is no similarity between the two signatures. But in the subsequent signatures if the executant is in a sound state of mind, the word will not be missing. In Exs.P22 and P22(a) the signature shows that he has affixed the signature as Venkataramana Hegde ruju. In the disputed signature we find the signature Krishna Venkata Hana Hegde. Absolutely there is no similarity between the two signatures. The fact that the signature is not found in each page and it finds a place only at one page and it is not the full name of the testator, coupled with the fact that he was not keeping good health, he was not in a sound state of mind, then it does not amount to due execution of the sale deed because he was not in a position to give his consent or he was not conscious enough to know what he was doing and therefore, it cannot be said he has executed the will consciously. The contents of the Will do not constitute any intention of bequeathing the property in favour of the defendant. 21. Now we have the evidence of the attesting witnesses, which makes an interesting reading. In the examination-in-chief this PW2 has stated that after the testator affixed the signature accepting the contents of the same, he and other witness have affixed the signature at the time of executing the Will. The testator was in a sound state of mind. In the cross-examination it has been elicited that PW2 became the chairman of Mugva Co-operative Society and the 1st defendant's son is Secretary of the said society. One of the attesting witnesses is Laxminarayana Subbaraya Hegde. His daughter is given in marriage to the 1st defendant's son. Though initially he denied that 1st defendant and Laxminarayana Subbaraya Hegde is not related, subsequently he admitted that they are related prior to this execution of the Will. Krishna Venkataraman Hegde has not sent for him at any point of time. He had gone to Honnavar to purchase cloth and there he met the 1st defendant. When he called him to come to Kamath's house, he did not enquire why Krishna Hegde is calling him. The 1st defendant did not tell the purpose. He admits that Krishna Venkataraman Hegde died after a month of the execution of the Will. After the Execution of the Will, the 1st defendant took Krishna Venkataraman Hegde to his house. When he called him to come to Kamath's house, he did not enquire why Krishna Hegde is calling him. The 1st defendant did not tell the purpose. He admits that Krishna Venkataraman Hegde died after a month of the execution of the Will. After the Execution of the Will, the 1st defendant took Krishna Venkataraman Hegde to his house. From this it is clear that the Will is written in the house of the village accountant. The scribe of the Will is also a village accountant. One of the attesting witnesses is a person, who has given his daughter to his 1st defendant's son. PW2 is the President of the Society and 1st defendant's son is the Secretary. Therefore, it is clear that all the persons who have actually involved in the preparation, execution and attestation of the Will are all closely inter related and are very much interested in execution of the Will. Therefore, their evidence cannot be taken on its face value. 22. It is in this background, the evidence of handwriting expert assumes importance. Though the expert's evidence is not binding on the Courts, in the light of the evidence on record, the Courts below have given some weightage to the expert evidence, which cannot be found fault with. It is in this background, the 1st defendant has not discharged the burden of proving that the signature found on the Exs.D4 and D4(a) is the signature of the testator. This is preciously what both the Court have held. 23. Therefore, from the aforesaid discussions, it is clear that the testator was not in a sound state of mind. He was not in sound state of health. He has not given any reason why he has disinherited his near relatives. The intrinsic evidence available from the Will itself shows that he was not having good physical health condition. He was not able to go to the Sub-Registrar's Office. He was not able to go to Honnavar for execution of the Will. On that day also he went to Honnavar for medical checkup and he was not having good health for nearly 6 to 7 years and he died a month after the execution of the Will. The signature does not tally with the admitted signatures. The signature does not contain his full name. On that day also he went to Honnavar for medical checkup and he was not having good health for nearly 6 to 7 years and he died a month after the execution of the Will. The signature does not tally with the admitted signatures. The signature does not contain his full name. Therefore, the finding recorded by Courts below that the 1st defendant has failed to establish the Will and the Will has come into existence under suspicious circumstances and the same is not removed by the 1st defendant and that the 1st defendant has taken active part in the preparation, execution of the Will is supported by legal evidence on record and do not suffer from any legal infirmity, which calls for interference by this Court. 24. Though that is the only substantial question of law, which was argued by the learned counsel for the appellant, it was argued that the suit is hit by doctrine of res judicata, estoppel. O.S. No. 73/1973 was filed by Ganapi and Subbi, in which the plaintiff was the 2nd defendant, where she also put forth his claim for 1/4th share. When the suit was dismissed as withdrawn, the judgment therein do not operates as res judicata, estoppel. The case was not heard and decided. The order dismissing the suit as not pressed or withdrawn would not operate either as res judicata or estoppel. 25. It was contended that the suit is barred by law of limitation. The argument is that the plaintiff was aware of the Will. When she filed her objections in the mutation proceedings, when she is seeking that Will is void, unenforceable, the said suit ought to be filed within three years from the date of knowledge of the execution of the Will. Admittedly, the suit is filed beyond three years. Though the said plea was taken, no issues were framed and no finding is recorded. For this approach, we cannot find fault with because the suit is for partition and separate possession. Merely because the plaintiff has referred the Will set up by the 1st defendant and contended that the said Will is fraudulent and void, there is no legal obligation cast on her to seek such a declaration. It is the 1st defendant, who has propounded the Will. If he succeeds in proving the Will, the plaintiff's right to 1/4th share cannot be granted. It is the 1st defendant, who has propounded the Will. If he succeeds in proving the Will, the plaintiff's right to 1/4th share cannot be granted. If the Will fails, she is entitled to a decree. Merely because it was contended that it is obtained by fraud and collusion, the burden of proving the Will will not shift to the plaintiff. The burden of proving the Will lies with the propounder of the Will and either he should succeed or lose on the strength of his case. In the instant case, he has miserably failed to prove the execution of the Will and therefore the suit for partition is to be decreed. Therefore, I do not see any merit in the contention that the suit is barred by law of limitation. For the aforesaid reasons, I do not see any merit in this appeal. Accordingly, the appeal is dismissed. Parties to bear their own costs.