THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.345 OF 2011 30.09.2011 Between: Inti Bhaskaramani (died) And others. …. Appellants AND Ranganadham Adiraju @ Ammaji … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.345 OF 2011 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) The plaintiffs are the appellants. The second appeal is filed against reversing Judgment dated 17.01.2007 in A.S.No.158 of 2003 passed by the Court of the VII Additional District Judge, Kakinada. The first appeal was filed against the Judgment and decree in O.S.No.133 of 1995 by the first respondent herein against the Judgment and Decree dated 04.07.2003 of the Court of the Additional Senior Civil Judge, Kakinada directing partition of suit schedule property into three equal shares, allotment of one share each to the plaintiffs 1 and 2 and the sole defendant. Inti Bhaskara Mani – first plaintiff is the sister of sole defendant. The second plaintiff is the wife of one Basava Gangadhara Rao, another brother of first plaintiff. The case of the plaintiff is that Basava Suryakantham – the mother of first plaintiff and the defendant acquired immovable properties under a Gift Deed dated 05.01.1959 executed by her mother-in-law Ammaji. After her death, the defendant managed the property as the plaintiffs were residing at distant places. The defendant filed O.S.No.70 of 2000 (originally O.S.No.359 of 1993 on the file of the Court of the I Additional District Judge, Kakinada) for permanent injunction against the plaintiff, her husband and son. In the suit, she alleged that Suryakantam executed Will in her favour bequeathing plaint schedule properties. The first plaintiff alleged that the widow of her deceased brother and the defendant have equal shares in the property, and therefore, filed the suit for partition, being O.S.No.133 of 1995 (hereafter called, the partition suit). The suit was opposed by the sole defendant claiming exclusive rights over the property. The partition suit was tried along with the injunction suit, being O.S.No.70 of 2000, in which evidence was recorded. The trial Court framed six issues. The plaintiffs examined D.W.1 to D.W.3 and marked Exs.B.1 to B.5 and defendants examined P.W.1 to P.W.3 and marked seven documents. On consideration of the evidence, the trial Court recorded a finding that unregistered Will Ex.A.1 is not proved by the defendant and therefore, the property is available for partition. The injunction suit filed by the defendants was dismissed and the partition suit was allowed passing a preliminary decree. The defendant filed A.S.No.157 of 2003 against injunction suit and A.S.No.158 of 2003 was filed against partition suit. The Court of VII Additional District Judge, Kakinada, framed four points for consideration. On the point as to whether the Will dated 21.02.1981 was true, considering the evidence of attestors P.W.2 and P.W.3, the appellate Court came to the conclusion that Ex.A.1 Will is true and genuine and that the same was executed by Basava Suryakantam. Accordingly, by a common Judgment, the injunction suit was decreed and partition suit was dismissed. Be it noted, during the pendency of the appeal, the first plaintiff died and her legal representatives – respondents 3 to 9 were brought on record. The counsel for appellant/plaintiff attacked the findings of the appellate Court on Ex.A.1 Will. Appreciation of evidence adduced in proof of Will is essentially one relating to appreciation of facts. In addition to examining herself as P.W.1, the propounder of the Will examined P.W.2 and P.W.3, who deposed that they saw Suryakantam signing the Will and then attested the same. There were no strong reasons to disbelieve their evidence nor the plaintiff could point out any suspicious circumstance. Therefore, in this second appeal, no interference is called for. The second appeal is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 30.09.2011 Pln