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7. Whether the plaintiff is entitled for 1/6th share in the suit schedule properties?

8. What decree or order?

10. The plaintiff, in support of his case examined himself as P.W.1, examined P.W.2/attesting witness to Ex.D32-First Will executed by defendant No.1 and also examined P.W.3 scribe of first Will-Ex.D32, apart from marking Ex.P1 to Ex.P37. Whereas, defendants examined D.W.1 to D.W.8. Defendant No.5, defendant No.2, defendant No.4, defendant No.3(A) examined themselves as D.W.1, D.W.2, D.W.3 and D.W.4 respectively. Whereas, they examined D.W.5 attesting witness to Ex.D9, last Will of the first defendant; D.W.6 scribe of Ex.D9-last Will; D.W.7-

17. Learned counsel Sri.Ashwin Kumar strongly denies the allegation of the plaintiff that Ex.D9 Will dated 12.01.1999 is executed in suspicious circumstances and also denies the allegation that it is doubtful that defendant No.1 attended the Sub-Registrar Office as on the date of its registration. Learned counsel would submit that both the Wills at Ex.D9 and Ex.D32 dated 12.01.1999 and 26.03.1997 respectively are registered Wills. Though the plaintiff was aware of both the Wills, he has not mentioned in the plaint with regard to both the Wills. Refuting the allegation of plaintiff to the effect that defendant No.1 was not able to speak and has lost worldly knowledge, submits that in that circumstances plaintiff then ought to have filed application under Order 32 of CPC and non-filing of such application itself establishes that the allegation of plaintiff are false. With regard to allegation of plaintiff that the attesting witness as well as DW7 - doctor were brought by father-in-law of son of defendant No.2, he submits that only persons known to the family or trusted person would normally be called as witnesses or to get the Will scribed. He submits that no stranger could be called to scribe the Will or to sign as witness. Learned counsel specifically draws attention of this Court to evidence of PW1 and submits that in his examination-in-chief as well as in his cross- examination, plaintiff has admitted that the plaint schedule properties are the self-acquired properties of father - defendant No.1 and he has also admitted that he had no independent source of income. Learned counsel would also submit that plaintiff has also admitted that he knows the details of the properties that have been allotted to him by his father - defendant No.1 under Ex.D9 Will dated 12.01.1999. Further, learned counsel dispelling the allegation of execution of Will under suspicious circumstances would submit that, it is a registered Will and as required under Section 63 of the Indian Succession Act, one of the attesting witness is examined as DW5 and the Scribe is also examined as DW6. Further, learned counsel would submit that DW6 - Scribe of the Will has deposed that he assisted Channigapa to affix LTM on the Will and further deposed that he went to Sub- Registrar office along with other children of Channigappa. Learned counsel referring to Ex.D49 - Cancellation Deed would submit that Ex.D49 was prepared by him and he was examined as DW8 before the Court. He would submit that there was no necessity to execute Ex.D49 - Cancellation Deed and on execution of Ex.D9, earlier Will at Ex.D32 would automatically stands cancelled.

39. Section 63 of the Indian Succession Act requires examination of attesting witness to prove the Will. DW5 is the attesting witness and DW6 is the Scribe of Ex.D9 Will dated 12.01.1999. DW5 - attesting witness in his examination-in-chief has stated that he was the first attesting witness to the Will dated 12.01.1999 executed by Sri.Chikkagangappa and the Will came to be registered in the office of the Sub-Registrar, Basavanagudi, Bengaluru on 31.07.1999. He also deposed that Will contains LTM of Chikkagangappa at the bottom of pages 1 to 11 and at page 12 where the contents of the Will end, he identified the LTM of Chikkagangappa in the Ex.D9, Will dated 12.01.1999. He has also deposed that Will was executed in his presence and in the presence of another witness Sri.Anantha.M., Scribe Sri.K.Panduranga (DW6) and Dr.Anandappa N.S. (DW7) who certified on the last page of the Will dated 12.011999 (Ex.D9). He has also stated that he could identify the signatures of those persons. In his cross-examination, he has stated that he was present when Chikkagangappa gave instructions to K.Panduranga (DW6) - Scribe. It is pertinent to state here that attesting witnesses need not be present when testator instructs the Scribe while preparing the Will. The attesting witnesses shall be present when the testator puts his signature or mark on the Will. The testator shall put his signature or mark in the presence of attesting Witnesses. Further, DW5 states that Chikkagangappa - testator has affixed his LTM to Ex.D9.

40. DW6 - Scribe, K.Panduranga has deposed that DW1 - testator, Chikkagangappa executed Will in the presence of two witnesses i.e., Shiva Kumar V. Appa - DW1 and Sri.M.Anantha and Dr.Anandappa.N.S., (DW7), all being present at the same time. He has further deposed that Ex.D9 document was scribed by him. The executant of the Will - Chikkagangappa was identified by him before the Sub-Registrar at the time of registration. He has also stated that he affixed his signature as a person identifying the said executant. His signature is marked as Ex.D9(c). He has also stated that he attested the LTM of Chikkagangappa on Ex.D9 and his signature for having attested the LTM of Chikkagangappa is marked as Ex.D9(d). He has further stated that all writings made around the LTMs on each page as LTM of Chikkagangappa in Kannada language are his hand writings. Further in his cross- examination, he has stated that DW7 - Doctor read what he had scribed in the Will to Chikkagangappa in Kannada and sometimes he used words in Telugu. He has also stated that he assisted Chikkagangappa to affix his LTM on the Will.