JUDGMENT : 1. These two appeals are preferred against the common judgment and decree passed by the District Judge, Bagalkot in R.A.Nos.129/2001 and 130/2001 dated 08.07.2004. 2. The brief facts leading to the appeals are as follows: One Mukundappa was the propositus. He had two children by name Hanamant and Varewwa through his wife Santavva. Hanamant was married to one Sulochana and they had a daughter by name Mala. The said Hanamant had his second wife by name Isarabai. She had begotten a son by name Vitthal. 3. Original Suit No.248/1997 was filed by the aforesaid Santavva-the wife of late Mukundappa and her daughter Varewwa for declaration that the Will executed by Mukundappa in favour of defendant No.2, namely, Vitthal is outcome of fraud, undue influence and therefore the said Will is not binding on their share and for declaration that the suit schedule properties are the joint family properties and the plaintiffs are entitle to 2/3rd share therein. The other legal heirs of Mukundappa, who were arraigned as defendants No.1 to 4 resisted the suit and put forth a plea that the suit properties were the self-acquired properties of deceased Mukundappa. Mukundappa executed a Will on 22.06.1997 bequeathing the suit schedule properties to his grandson Vitthal (defendant No.2) and thus denied the right, title and interest of the plaintiffs over the suit schedule properties. 4. Based on the above pleadings, the following issues were framed by the trial Court in O.S.No.248/1997: “1. Whether the plaintiffs prove that the suit B-Schedule properties are the joint family ancestral properties of the parties? 2. Whether the plaintiff prove that Mukundappa purchased the suit B-schedule properties out of the funds from the sale of ancestral properties and other savings? 3. Whether the plaintiffs prove that the defendants No.1 and 2 have created bogus will deed in favour of defendant No.2 and it is outcome of fraud and undue influence? 4. Whether the plaintiffs prove that they have got 2/3rd share in the suit B-schedule properties? 5. Whether the defendants prove that the suit B-schedule properties are self-acquired properties of deceased Mukundappa? 6. Whether the defendants prove that Mukundappa executed a valid Will on 22.06.1997 and bequeathed the suit B-schedule properties to defendant No.2? 7. Whether the suit is barred by limitation? 8. Whether the valuation made and court fee paid is proper? 9. Whether the plaintiffs are entitled for the reliefs claimed? 10. 6. Whether the defendants prove that Mukundappa executed a valid Will on 22.06.1997 and bequeathed the suit B-schedule properties to defendant No.2? 7. Whether the suit is barred by limitation? 8. Whether the valuation made and court fee paid is proper? 9. Whether the plaintiffs are entitled for the reliefs claimed? 10. What order or decree?” 5. In respect of the very same properties, original Suit No.267/1997 was filed by the aforesaid Sulochana and Mala, namely, the wife and daughter of Hanamant seeking partition and separate possession of their 2/9th share and also for their respective share in the compensation amount. Even in the said suit, the contesting defendants put forth the Will said to have been executed by late Mukundappa and denied the claim of the plaintiffs therein for partition and separate possession. Based on these pleadings, the following issues were framed by the trial Court in O.S.No.267/1997: “1. Whether the plaintiff prove that the schedule-B properties are the joint family ancestral properties of the parties? 2. Whether the plaintiff No.1 prove that she is the legally wedded wife of defendant No.1 and plaintiff No.2 is their daughter? 3. Whether the plaintiffs prove that the will dated 22.06.1997 by Mukundappa is obtained by Isarabai by practsing fraud and undue influence? 4. Whether the plaintiffs prove that they are entitled for 2/9th share in the suit properties? 5. Whether the defendants No.1 and 2 prove that the suit properties are the self-acquired properties of deceased Mukundappa? 6. Whether the suit is barred by time? 7. Whether the valuation made for the purpose of jurisdiction is not correct? 8. Whether the plaintiffs are entitled for the reliefs claimed? 9. What order or decree?” 6. Both the suits were clubbed and common evidence was adduced. After considering the evidence, the leaned Civil Judge answered the above issues as under: In O.S.No.248/1997 “1. In the affirmative. 2. In the affirmative. 3. In the affirmative. 4. Partly in the affirmative. 5. In the negative. 6. In the negative. 7. In the negative. 8. In the affirmative. 9. In the affirmative. 10. As per final order.” In O.S.No.267/1997 “1. In the affirmative. 2. In the affirmative. 3. In the affirmative. 4. Partly in the affirmative. 5. In the negative. 6. In the negative. 7. In the negative. 8. In the affirmative. 9. As per final order.” 7. 7. In the negative. 8. In the affirmative. 9. In the affirmative. 10. As per final order.” In O.S.No.267/1997 “1. In the affirmative. 2. In the affirmative. 3. In the affirmative. 4. Partly in the affirmative. 5. In the negative. 6. In the negative. 7. In the negative. 8. In the affirmative. 9. As per final order.” 7. The trial Court held that the contesting defendants failed to prove the Will and consequently decreed both the suits directing partition of the suit schedule properties declaring that, plaintiff No.2 in O.S.No.248/1997 is entitled for 1/3rd share in the suit schedule properties and is also entitled to the compensation in respect of the lands acquired by the government. In O.S.No.267/1997 the plaintiffs No.1 and 2 were held entitled to 1/9th share each. 8. The defendants in both the suits carried the matter in appeals. The First Appellate Court was of the view that defendant No.2 has duly proved the Will and the said Will is free from any suspicious circumstances, consequently by the impugned judgment in R.A.Nos.129/2001 and 130/2001 dated 08.07.2004, the First Appellate Court partly allowed R.A.No.129/2001 holding that plaintiff No.2 in O.S.No.248/1997 is entitled for 1/3rd share in the suit schedule properties and also declared her right to receive the compensation in respect of the lands acquired by the government. The suit in O.S.No.248/1997 was dismissed. Likewise R.A.No.130/2001 was also allowed in part and the decree passed by the trial Court was set aside and resultantly suit in O.S.No.267/1997 was dismissed. Feeling aggrieved by the impugned judgment, these appeals are preferred. 9. I have heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondents. The appeal was admitted to hear the following substantial question of law: “1. Whether the finding of the first appellate court that the execution of the will Ex.D1 had been proved is perverse and arbitrary for non-consideration of the reasoning given by the trial court and for non-explanation of the suspicious circumstances surrounding execution of the will?” 10. Learned counsel appearing for the appellants contends that the suit schedule properties are the joint family properties of late Mukundappa. He was not entitled to execute any Will. The contesting defendants have failed to prove the said Will in accordance with law. Learned counsel appearing for the appellants contends that the suit schedule properties are the joint family properties of late Mukundappa. He was not entitled to execute any Will. The contesting defendants have failed to prove the said Will in accordance with law. Therefore, the findings recorded by the First Appellate Court holding that the Will as duly proved is contrary to the settled principles of law as well as the facts of the case. 11. Refuting the above argument, learned counsel, appearing for the respondents contends that the appellants themselves have admitted in their pleadings that the suit schedule properties were purchased by Mukundappa. Thus, the right and title of late Mukundappa is impliedly admitted by the appellants, and therefore, there was no basis for the appellants to seek division of the suit schedule properties. Further, he contends that the Will propounded by defendant No.2, Vitthal is duly proved. One of the attestor to the Will has been examined. He has spoken about the due execution of the Will. His evidence has not been discredited in the cross-examination. The First Appellate Court therefore was justified in upholding the plea of defendant No.2 based on the said Will. Hence, there is no reason to interfere with the impugned judgment. 12. I have considered the arguments advanced on behalf of the parties and have carefully scrutinised the evidence on record. 13. Insofar as the character of the properties is concerned, the trial Court has held that the suit properties were the joint family properties of late Mukundappa, whereas the First Appellate Court has reversed the said finding and has held that the properties were the self-acquired properties of late Mukundappa. Even on reconsideration of the pleadings and the evidence on record, I do not find any reason to differ with the findings recorded by the First Appellate Court on this issue. It is seen from the records that in both the suits, the plaintiffs have pleaded that the suit schedule properties were the joint family properties of late Mukundappa. There are no averments as to the manner in which the properties were acquired or inherited by late Mukundappa. On the other hand, it is stated that during the lifetime of Mukundappa, he sold the joint family properties and out of the proceeds thereof, he acquired the suit schedule properties. There are no averments as to the manner in which the properties were acquired or inherited by late Mukundappa. On the other hand, it is stated that during the lifetime of Mukundappa, he sold the joint family properties and out of the proceeds thereof, he acquired the suit schedule properties. Even in this regard, there is no specific pleading as to when Mukundappa sold the lands and what was the extent of the lands held by the family and who constituted the joint family with the said Mukundappa. The pleadings of the parties are totally silent on these aspects Except contending that the suit schedule properties are the joint family properties of late Mukundappa, the plaintiffs have not produced any documents to substantiate the plea taken by them. 14. The RTC extracts produced in evidence mention that late Mukundappa was the owner of the suit schedule properties. Though the manner in which he acquired right to the said properties is not specified in the said RTC’s Exs.D.2 and D.3, yet, there is nothing in the said documents to indicate that the said properties were either inherited by late Mukundappa or that he held the said properties in his capacity as the head of the joint family. Even though it is contended that during his lifetime late Mukundappa sold the joint family properties, there is nothing on record to show that the plaintiffs herein challenged the said alienations either during the lifetime of Mukundappa or any time thereafter. There is absolutely no evidence even with regard to these alienations. All these circumstances lead to the inevitable conclusion that the deceased Mukundappa held the suit schedule properties in his individual capacity as absolute owner thereof. Merely because the parties were residing together, the properties do not assume the character of joint family properties. There is no such presumption. In the absence of any evidence to show that the suit properties were either inherited or enjoyed as joint family properties, in my view the finding recorded by the First Appellate Court in this regard does not warrant any interference. 15. In her evidence, PW.1, namely, the plaintiff No.2 in O.S.No.248/1997 has unequivocally admitted the suggestion that the suit schedule properties were purchased by late Mukundappa. 15. In her evidence, PW.1, namely, the plaintiff No.2 in O.S.No.248/1997 has unequivocally admitted the suggestion that the suit schedule properties were purchased by late Mukundappa. Though later she has tried to explain it saying that he was holding the said properties since the time of his father, yet, the documents referred above do not support the said assertion. Therefore, I do not find any reason to upset the finding recorded by the First Appellate Court on this issue and consequently I hold that the suit schedule properties are the absolute properties of late Mukundappa. 16. Defendant No.2, Sri. Vitthal has put forward a Will said to have been executed by late Mukundappa in respect of the suit schedule properties to lay a claim to the entire properties as a legatee under the Will. The said Will is produced in evidence as Ex.D.1. In proof of the said Will, defendant No.2 has examined one of the attestor to the said Will as DW.2 and the scribe of the Will as DW.3. On perusal of their evidence, I am of the view that the evidence of the attesting witnesses falls short of the requirement of Section 63 of the Indian Succession Act (for short the ‘Act’) 17. Section 63 of the Act reads as under: “63. Execution of unprivileged Wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules: (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 18. Learned counsel for respondent No.1 has referred to the authoritative decision of the Hon’ble Supreme Court on the proof Will in the case of H. Venkatachala Iyengar Vs. B.N.Thimmajamma and Others [1959 AIR (SC) 443] and with reference to para No.18 would contend that what is required under Section 63 of the Act is that the Will should be signed by the testator and he should understand the nature and effect of the dispositions made in the Will and it should be signed or executed in the presence of two attesting witnesses. If these requirements are satisfied, it has to be held that the Will is duly proved. It is the submission of the learned counsel that in the instant case, plaintiffs did not dispute the mental capacity of late Mukundappa to execute the said Will. On the other hand, the Will was sought to be disputed on the ground that the undue influence was exerted on the deceased. Having taken the said plea, the burden was on the plaintiffs to prove the said aspect. The plaintiffs have not adduced any evidence to show that either the legatees or any other persons have exerted undue influence on the mind of the deceased. Therefore, in the light of the evidence adduced by the attesting witnesses and the scribe of the document, it has to be held that the Will has been duly proved. Learned counsel has also referred to another decision of this Court in the case of Veerabhadrayya and Another Vs. Therefore, in the light of the evidence adduced by the attesting witnesses and the scribe of the document, it has to be held that the Will has been duly proved. Learned counsel has also referred to another decision of this Court in the case of Veerabhadrayya and Another Vs. Mytra Bai [ 2017 (4) KCCR 3428 ] and would contend that the above provisions do not contemplate proof with mathematical certainty. The evidence of DW.2 itself is sufficient in proof of the ingredients contemplated in Section 63 of the Act and Section 68 of the Evidence Act. Therefore, he contends that the Will in question may be accepted as duly proved. 19. I have gone through the evidence of DW.2 and DW.3 as well as the recitals of Will Ex.D.1. The attesting witness DW.2 has deposed in his evidence that he knows Hanamant Kore as well as the father of Hanamant Kore late Mukundappa. The house of late Mukundappa and his house is situate in the same lane and therefore he knew late Mukundappa. The English translation of the further evidence of DW.2 reads as follows: “Mukundappa has executed a document. He has executed a Will. That Will is executed in favour of his grandson Vitthal. Vitthal is the son of Hanamant. He has signed the said Will. He has read the said Will. I can identify his signature. It bears his signature. At the time of execution of the said Will the deceased Mukundappa was in fit condition. At that time he was knowing as to what he was doing. Having fully understood the same, he executed the Will. No one exerted any undue influence on him at the time of execution of the Will. Another witness by name Shindhe was present. The Will was drafted by Aravind Kulkarni. After reading over the said Will I have signed it. The late Mukundappa has affixed his LTM on the Will. Now I identify it as Ex.D.1b” In the cross-examination, it is elicited that earlier thereto, Mukundappa did not call DW.2 at any time to his house and he did not inform him about his intention to execute the said document any time earlier to the date of execution of the Will. He further admitted that he does not know how many days after the execution of the said Will Mukundappa died. He further admitted that he does not know how many days after the execution of the said Will Mukundappa died. Mukundappa was aged about 72-75 years at the time of the execution of the said Will. Prior to the said date he did not visit the house of late Mukundappa at any time. At the time of execution of the Will, a boy aged about 25 years by name Raju and defendant No.1 Hanamant were present. Deceased himself gave instructions to prepare the Will. The bond paper was purchased by Mukundappa at the time of executing the Will Ex.D.1. Deceased Mukundappa did not tell them that he has going to revoke the earlier Will executed by him. It is further elicited that on the date of execution of the Will he did not go to the registration office. On the following day also he did not go to the registration office. But in the further cross-examination, he admitted that Hanamant namely defendant No.1 was present in the Sub-Registrar office. 20. DW.3 the scribe of the document has deposed that he is a deed writer. On the instructions of Mukundappa he drafted Ex.D.1 and thereafter read over the same to the executant and obtained his signature in his presence. He further stated that A.D. Hullikeri and R.T. Shindhe have also signed the said document Ex.D.1. 21. Section 63 of the Act requires the Will to be executed by the testator being in sound state of mind in the presence of two witnesses. Section 63(a) of the Act requires that both the witnesses must affix their signature in the presence of the testator and the testator in turn must subscribe his signature or any identifying mark on the Will in the presence of the attesting witnesses. It is not required that both the attesting witnesses should subscribe signatures simultaneously. In the instant case DW.2 has nowhere stated in his evidence that he subscribed his signature in the presence of the testator nor has he stated that the other witness has subscribed his signature in the presence of the testator. Though he has stated that another attesting witness was present, he has nowhere stated that another attesting witness has subscribed his signature to the said Will. Even DW.3 has not stated that the testator subscribed his signature or affixed his LTM in the presence of the attesting witnesses. Though he has stated that another attesting witness was present, he has nowhere stated that another attesting witness has subscribed his signature to the said Will. Even DW.3 has not stated that the testator subscribed his signature or affixed his LTM in the presence of the attesting witnesses. He has merely stated that both the witnesses have attested the Will. It is not forthcoming in the evidence of either DW.2 or DW.3 as to the place where the Will was executed or whether in a single session the testator had affixed his LTM in the presence of the attesting witnesses or that the attesting witnesses have subscribed their signature at different time and place. The above evidence, in my view, is not in inconformity with the requirements of Section 63 of the Act. 22. Though the learned counsel appearing for respondent No.2 has vehemently argued that proof with mathematical certainty is not required in a case of Will and it suffices for the purpose of Section 63 of the Act that the Will is executed in the presence of the attesting witnesses and the attesting witnesses subscribe their signature to the said Will, but on analysing the over all evidence of DW.2, I find the very presence of DW.2 during the execution of the Will is doubtful. As already extracted above, DW.2 admits in the cross-examination that even though he was residing in the same lane, he was not a regular visitor to the house of the deceased. He has cautiously avoided to state that on the date of subscribing his signature he had been to the house of the testator. He has specifically denied that he has gone to the registration office. From his evidence, it can be gathered without any fear of contradiction that PW.2 had neither gone to the house of Mukundappa nor has he gone to the Registration Office on the date of purported execution of the Will. This evidence alone is sufficient to discard the evidence of PW.2 as unworthy of belief. The case of the defendant No.2 is that Will in question was executed in the Registration Office. But PW.2 is very categorical that he did not go to the Registration Office either on the date shown in Ex.D.1 or on the following day. 23. This evidence alone is sufficient to discard the evidence of PW.2 as unworthy of belief. The case of the defendant No.2 is that Will in question was executed in the Registration Office. But PW.2 is very categorical that he did not go to the Registration Office either on the date shown in Ex.D.1 or on the following day. 23. It is not forthcoming from the evidence of either DW.2 or DW.3 as to the place where the Will in question was executed. A perusal of the Will indicates that this Will was tendered for registration on 23.06.1997, whereas the date of execution of the Will is mentioned as 22.06.1997, which goes to show that the document was not tendered for registration on the date of its execution. The document does not bear the signature or LTM of the attesting witnesses for having identified the testator before the Sub-Registrar, which goes to show that none of the attesting witnesses were present when the Will was tendered for registration. There is no whisper in the entire evidence or the pleadings that on 23.06.1997 the testator had been to the Registration Office on his own. This is another circumstance which throws serious doubt on the genuiness of the Will propounded by defendant No.2. 24. DW.2 has categorically stated that the testator did not state in his presence that he intended to revoke the earlier Will executed by him. But contrary to this evidence, the Will contains a specific recital that the earlier Will executed by him on 17.06.1997 has been revoked. Further, DW.2 as well as DW.3 have stated that at the time of giving instructions to the scribe, the testator had not furnished any documents of the properties to the scribe. But interestingly in Ex.D.1 the properties are described with reference to their survey number, extent and boundaries. All these circumstances lead to the inference that the Will has not come into existence as stated by DW.2 and DW.3. No doubt it bears the LTM which is identified by DW.2 as that of the deceased but in the light of the facts and circumstances discussed above in my opinion mere signature without the proof of the other requirements as specified in Section 63 of the Act, does not render the Will valid in the eye of law. No doubt it bears the LTM which is identified by DW.2 as that of the deceased but in the light of the facts and circumstances discussed above in my opinion mere signature without the proof of the other requirements as specified in Section 63 of the Act, does not render the Will valid in the eye of law. Apart from failing to prove the due execution of the said Will, the Will propounded by defendant No.2 is also surrounded by the above suspicious circumstances. 25. For the above reasons, I hold that the finding recorded by the First Appellate Court holding the Will as duly proved is perverse and contrary to the evidence on record. The First Appellate Court has failed to advert its mind to the legal provisions and the requirements prescribed in Section 63 of the Act. It has also failed to take into consideration the suspicious circumstances surrounding the execution of the Will and the predominant role played by the second defendant in obtaining the bequests in his favour. The said finding is liable to be set aside. Accordingly, it is held that the Will dated 22.06.1997 propounded by defendant No.2 is not valid and not binding on the plaintiffs/appellants in O.S.No.248/1997. The substantial question of law is accordingly answered in favour of the appellants. 26. From the above conclusion, it follows that the deceased Mukundappa is deemed to have died intestate and the properties held by him are liable to be partitioned among his legal heirs in accordance with the provisions of the Hindu Succession Act, 1956. There is no dispute with regard to the inter se relationship between the parties. Deceased Mukundappa had a son and daughter by name Hanamant and Varewwa. Plaintiff Nos.1 and 2 in O.S.No.248/1997 are the wife and daughter of Mukundappa. Plaintiff Nos.1 and 2 in O.S.No.267/1997 are the wife and daughter of Hanamant. Defendant No.1 is the son of deceased Mukundappa. Defendant No.2 is the grandson of deceased Mukundappa. Since the wife of deceased Mukundappa died intestate, by virtue of Section 8 of the Act, the right of Mukundappa and his wife Santavva devolves on his two children in equal shares. As a result, original plaintiff No.2Varewwa becomes entitled to ½ share and her brother, defendant No.1 in O.S.No.267/1997 becomes entitled to the remaining ½ share. Since the wife of deceased Mukundappa died intestate, by virtue of Section 8 of the Act, the right of Mukundappa and his wife Santavva devolves on his two children in equal shares. As a result, original plaintiff No.2Varewwa becomes entitled to ½ share and her brother, defendant No.1 in O.S.No.267/1997 becomes entitled to the remaining ½ share. The plaintiffs in O.S.No.267/1997 are not entitled for any share in the suit schedule ‘A’ and ‘B’ properties during the life of defendant No.1. Hence, the suit filed by them in O.S.No.267/1997 is liable to be dismissed. 27. In view of the dismissal of the above suit, the injunction order passed by the trial Court on I.A. Nos. II & III dated 15.07.1998 is also liable to be set aside. It is not in dispute that during the pendency of the suit, in spite of the injunction order issued by the trial Court, defendant No.1 received the entire compensation in respect of the suit ‘B’ schedule properties which were acquired by the Government. The said order was passed at the instance of the plaintiffs in O.S.No.267/1997. But the said suit itself having been dismissed and defendant No.1 is held entitled to ½ share in the suit schedule properties, it is just and proper to set aside the said order dated 15.07.1998. The defendant No.1 has undertaken to hand over the ½ share of the compensation amount to the original plaintiff No.2Smt.Varewwa without driving her to take recourse to execution thereof to recover the said amount. For the said reason, the order passed by the trial Court dated 15.07.1998 on I.A. Nos. II & III filed under Order 39 Rules 1 and 2 of CPC is set aside. 28. Accordingly, I proceed to pass the following: ORDER RSA No.949/2004 is dismissed and RSA No.948/2004 is allowed. O.S.No.267/1997 is dismissed and O.S.No.248/1997 is partly decreed. It is held that original plaintiff No.2Smt.Varewwa is entitled to ½ share in the suit schedule properties as well as in the compensation amount in respect of ‘B’ schedule properties acquired by the Government. Defendant No.1Sri.Hanamant is held entitled to ½ share in the suit schedule properties including ½ share in the compensation amount in respect of ‘B’ schedule properties. It is held that original plaintiff No.2Smt.Varewwa is entitled to ½ share in the suit schedule properties as well as in the compensation amount in respect of ‘B’ schedule properties acquired by the Government. Defendant No.1Sri.Hanamant is held entitled to ½ share in the suit schedule properties including ½ share in the compensation amount in respect of ‘B’ schedule properties. Defendant No.1 shall hand over 50% of the compensation amount received by him to the original plaintiff No.2Smt.Varewwa within four weeks from the date of this order, failing which, plaintiff No.2 shall be entitled to recover the said amount from defendant No.1 with interest thereon at the rate of 12% p.a. from the date of the receipt of the said compensation by defendant No.1 from the Government.