THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.2882 OF 2009 DATED: 24.11.2009 Between: Kondeti Laxminarayana … Petitioner And 1. Kondeti Chinna Rangamma (Died) And others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.2882 OF 2009 ORDER : This Civil Revision Petition is directed against the order dated 28.2.2009 in I.A.No.485 of 2007 in O.S.No.28 of 1999 on the file of the Court of the Additional Senior Civil Judge, Anantapur wherein the 2nd respondent herein has been recognized as the legal representative of the deceased plaintiff and was permitted to come on record as 2nd plaintiff to prosecute the suit. The 1st defendant in the suit is the Revision petitioner. The facts, in brief, are as under : O.S.No.28 of 1999 has been filed for partition of the suit schedule properties. The 1st respondent herein, who was the sole plaintiff, died on 25.9.2007 and thereafter the 2nd respondent filed I.A.No.485 of 2007 with a prayer to permit him to come on record as legal representative on the basis of a Registered Will dated 29.6.1976 said to have been executed by the deceased plaintiff. The said application was opposed by the Revision Petitioner / defendant No.1 disputing the will dated 29.6.1976. The Court below, while observing that it was premature to go into correctness of the will at that stage and that the said question would be decided in the main suit, allowed I.A.No.485 of 2007 by order dated 9.6.2008. Aggrieved by the same, the Revision petitioner / 1st defendant filed C.R.P.No.2864 of 2008. This Court by order dated 1.9.2008 set aside the order passed by the trial Court dated 9.6.2008 and remitted I.A.No.485 of 2007 for consideration afresh holding that as per Order 22 Rule 5 of C.P.C. the Court was bound to record a specific finding as to the genuineness of the will dated 29.6.1976 and to determine the question whether the 2nd respondent herein is or is not the legal representative of the deceased sole plaintiff. Pursuant thereto, I.A.No.485 of 2007 was taken up for fresh consideration. The 2nd respondent herein, to establish the genuineness of the Will dated 29.6.1976, got himself examined as P.W.1 and examined two other witnesses. On appreciation of the same, the Court below allowed I.A.No.485 of 2007 by order dated 28.02.2009 holding that the 2nd respondent had proved the execution of the will dated 29.6.1976 and that being a legatee he was entitled to come on record. The said order is under challenge in this Civil Revision Petition filed by the 1st defendant. I have heard the learned counsel for the petitioner as well as the learned Counsel appearing for the 2nd respondent and perused the material on record. As per Section 68 of the Indian Evidence Act, 1872, in order to prove the will it is mandatory to examine at least one of the attestors. However, in the present case, both the attestors of the disputed will dated 29.6.1976 had died. In the circumstances, the 2nd respondent got the sons of the attestors examined as P.Ws.2 and 3. P.Ws.2 and 3 have identified the signatures of the attestors on Ex.P-1 Will. Though P.Ws.2 and 3 were cross-examined at length by the 1st defendant/ Revision petitioner, nothing could be elicited to disbelieve their evidence. No other contra evidence could be adduced on behalf of the Revision petitioner/ 1st defendant and the fact that P.Ws.2 and 3 are the sons of the attestors of the will dated 29.6.1976 could not be disputed. In the circumstances, the Court below allowed I.A.No.485 of 2007 holding that the proposed legal representative had established the will dated 29.6.1976. The said order is assailed in this Revision Petition primarily on the ground that the oral evidence of P.Ws.2 and 3 is not sufficient to establish the will and in the absence of any document containing the handwriting / signatures of the deceased attestors, the Court below ought not to have believed the evidence of P.Ws.2 and 3. I do not find any substance in the said contention. Under Section 69 of the Indian Evidence Act, 1872, it is not mandatory to prove the attestation by producing the documents containing the signatures or the handwriting of the attestors. As per Section 69, it is only necessary to prove that the attestation was in the handwriting of at least one of the attestors. That has been successfully done by the 2nd respondent by examining the sons of the attestors. As could be seen from the material on record, the Court below has discussed the entire evidence and on proper application of mind to the facts and circumstances of the case arrived at a finding that the petitioner has proved the execution of the will dated 29.6.1976. Such a finding of fact does not warrant interference by this Court in exercise of Revisional jurisdiction. However, the learned counsel for the petitioner further contended that the will dated 29.6.1976 does not relate to the plaint schedule property and that the schedule properties of the will and the present suit are different. Admittedly such an objection was never raised before the Court below. Therefore it is not open to him to raise the said contention for the first time before this Court. However, this shall not preclude the Revision petitioner to raise such a plea and adduce necessary evidence in the main suit with the leave of the Court. If any such application is made, the same shall be considered in accordance with law. With the above observations, the Civil Revision Petition is dismissed. No costs. ____________ G. ROHINI,J. Dt. 24.11.2009 gbs