THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S. No.1876 OF 2000 AND A.S.No.725 OF 2001 COMMON JUDGMENT: Both appeals arise out of the common judgment in O.S.No.8 of 1994 on the file of the court of Senior Civil Judge, Narsapur. The suit one was filed for declaration of title of the plaintiffs over the suit schedule property and for recovery of possession of the same with mesne profits. The allegations in the pliant goes to show that the plaintiffs are own brothers and son of late Viswanadharaju of Pydava hamlet of Gummuluru village. The defendant is the step mother of the plaintiffs who was married in 1972 by their father after the death of their mother Surya- kantamma. The father of the plaintiffs died on 02-06- 1993. The paternal grand father of the plaintiffs by name Suryanarayana Raju during his life time executed a registered will on 04-08-1970 and subsequently executed another will on 24-12-1981, which was his last will cancelling the earlier will. By virtue of the earlier will, the properties were given to the father of the plaintiffs but however by virtue of the will dated 24-12-1981 with regard to item Nos.1, 2 and 5 of the suit schedule property life estate was given to their father and vested reminder was given to the plaintiffs. The reason was that the father of the plaintiffs married the defendant and the plaintiffs will be deprived of their rights in the properties. The grand-father died on 20- 08-1982 and thereafter the plaintiffs’ father took possession of the item Nos.1, 2 and 5 of the suit schedule property and enjoyed them till his death and immediately thereafter the first plaintiff took possession of the property. The defendant being fully aware of the rights of the plaintiffs filed a caveat petition claiming rights of the property and stating that she has got possession over the properties. She also caused obstruction to the enjoyment of the property and also trespassed into the properties. She also claimed that the father of the plaintiffs executed a settlement deed dated 03-06-1987 and another settlement deed dated 26-06-1992 with regard to land in Sy.No.33/2. She also claims that her husband executed a will on 13-12-1972 bequeathing all his properties. Those documents are not valid. During the life time, the father of the plaintiffs settled Ac.2.00 of land in favour of the plaintiffs out of Ac.2.66 cents in Sy.No.33/1. The plaintiffs’ paternal grand-mother Seetayamma gave Ac.0.66 cents in Sy.No.29 of Gumuluru village which is shown as item No.4 to the plaintiffs’ father and it is the ancestral property of the plaintiffs. As the defendant has unlawfully trespassed into the properties on 20-06-1993, the suit was filed. The defendant filed a written statement denying several of the allegations in the plaint. The contention of the defendant in brief is that the alleged will dated 24-12-1981 relied on by the plaintiffs is not true. It was her further plea that her husband has got absolute rights over the items 1, 2 and 5 of the suit schedule property by virtue of the will dated 02-08-1970. There was no need to cancel the said will. She also stated that her husband executed a will on 13-12-1976 bequeathing all his properties. She also pleaded that he executed a settlement deed on 26-06-1992 in respect of item No.1 of the suit schedule property which was accepted. He also gave Ac.2.00 of land under a registered settlement deed dated 12-12-1973 and the remaining Ac.0.66 cents in item No.3 was purchased by her under a registered sale deed dated 26-06-1992. The said property is self-acquired property of her husband and as a legatee under will she took possession of the item No.4 of the suit schedule property. The defendant has been in continuous possession and enjoyment of the properties and paying the taxes etc., The plaintiffs are not entitled to the relief of declaration or consequential injunction prayed for. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the will dated 24-12-1981 is true, valid and binding on the defendant? 2. Whether the plaintiffs’ father executed a will dated 13-12- 1976 and if so, is it true, valid and acted upon? 3. Whether the settlement deeds dated 03-06-1987, 26-06- 1992 are true, valid and binding on the plaintiffs? 4. Whether the plaintiffs are entitled to the relief of declaration and possession as prayed for? 5. Whether the plaintiffs are entitled to past and future profits as prayed for? 6. To what relief? On behalf of the plaintiffs PWs.1 to 3 were examined and marked Exs.A-1 to A-14. On behalf of the defendant, DWs.1 to 5 were examined and marked Exs.B-1 to B-10. The expert was examined as CW.1 and marked EXs.C-1 to C-5. After considering the evidence and material papers on record, the court below found that the will propounded by the plaintiffs and the defendant is not true. The settlement deed and sale deed in favour of the defendant are found to be true, but, however the suit being one for declaration of title only and there being no relief of partition, the suit was dismissed. Aggrieved by the said judgment, A.S.No.1876 of 2000 was filed by the plaintiffs and A.S.No.725 of 2001 was filed by the defendant. Now the points that arise for consideration are:- 1. Whether the will dated 24-12-1981 which is marked as Ex.A-8 pleaded by the plaintiffs is true? 2. Whether the will dated 30-12-1976 which is marked as Ex.B-10 pleaded by the defendant is true? 3. Whether the plaintiffs are entitled for partition of the suit schedule property in the alternative of refusal of relief of declaration of title the property? 4. To what relief? POINTS:- There is no dispute about the relationship between the parties. It is also not in dispute that the properties, which were shown in the suit schedule properties are the properties belonging to Suryanarayna Raju-the grand father of the plaintiffs and who is said to have conveyed absolute rights to the father of the plaintiffs under the will dated 04-08-1970. It is also not in dispute that the suit does not relate to any of the properties of the joint family in which the father of the plaintiffs has got rights. It is not in dispute that the evidence of plaintiffs clearly shows that their father has given some property during his life time and evidently those properties are the properties that he got in a partition along with his father. The execution of the will-Ex.B-8 by Suryanarayana Raju in 1920 is not in dispute. It is also not in dispute that earlier he has executed a registered will and cancelled it. As per the will dt.4-8-1970- Ex.B-8 plaintiffs father was given absolute rights in the suit schedule property after his death. But, however, he changed his mind after he got married to defendant and to protect the interest of the plaintiffs another will was said to have been executed on 24-12-1981 which is Ex.A-8 according to the plaintiffs. The plaintiffs having propounded the will have to prove the same. It is to be noted that Surayanarayana Raju was in the habit of writing the will in his own hand and getting it registered. The present will Ex.A-8 relied on by the plaintiffs is un- registered will. No reason is given as to why the will was not registered. Even other wise, this will was not filed before any authorities. It is to be clarified that the will executed by Suryanarayana Raju relates to items 1, 2 and 5 of the suit schedule property and whereas item No.4 is said to be the property which the father of the plaintiffs got through his mother. It is to be noted Suraynarayana Raju died on 20-08-1982 and Viswanadha Raju died on 02-06-1993. The marriage of the defendant with Viswanadha Raju was in the year 1972. There is no material on record to show that the father of the plaintiffs was acting against the interest of the plaintiffs or ignored them. In fact from the evidence of PWs.1 and 2, it is quite clear that during the life time of their father they were given some properties. Merely because their father executed a settlement deed Ex.B-5 on 12- 12-1973 in favour of the defendant, it cannot be taken as a cause for their grand father to change his mind and execute the disputed will Ex.A-8. Evidently, at the time when the said will Ex.A-8 was executed, PWs.1 and 2 are not present and it was said to have handed over to them in 1982. If such is the case, the plaintiffs would not have kept quite and mutation would not have taken place in the name of their father as owner of the properties subsequently. In fact the will itself is said to have been handed over by the grand-father. Therefore, if the grand-father of the plaintiffs was so conscious that a will should be executed to protect the interest of the plaintiffs, he would have not have kept it in secrecy and would have registered it. There cannot be any secrecy in the said will when the plaintiffs themselves claim that it was attested by their father Viswanadha Raju. Therefore, in such circumstances, the failure to register the Ex.A-8 will is against the conduct of the executant of the will and the reasons given by the plaintiffs cannot be accepted. Further more, even during the life time of the father of the plaintiffs, they never questioned about his rights in item Nos.1, 2 and 5 of the suit schedule property. The attester on will is examined as PW.3 and his evidence does not clearly disclose a close acquaintance with Suryanarayana Raju and it also does not show as to the execution of the will to the dictation of Suryanarayna Raju. He is not even the native of the place to which the parties belongs. Even the evidence of PW.3 goes to show that he never met Suryanarayana Raju prior to the date of the alleged will. He is also not able to say the family particulars of the Suryanarayana Raju. There is no special reason for him to be sent by Suryanarayana Raju for attesting the will Ex.A-8. Therefore, the evidence of PW.3 appears to be artificial and to remove the suspicions about the genuineness of the will, the evidence on the side of the plaintiffs is not sufficient since PWs.1 and 2 are not present at the time of alleged will and as the evidence of PW.3 is not credible and there being no other corroborative evidence, it is not safe to rely upon the solitary evidence of PW.3. It is also to be particularly mentioned that the plaintiffs got the will Ex.A-8 examined by the hand- writing expert-CW.1 and she stated that the will is not genuine. Therefore, in view of the above circumstances, the claim of the plaintiffs based on Ex.A-8 that their father has got only limited interest in the suit schedule property cannot be accepted and the lower court has given sufficient reasons to discard the claim of the plaintiffs. In this case, it is the claim of the defendant that during the life time of Viswanadha Raju-her husband, he executed a Ex.B-10 will on 13-12-1976 and therefore, she became entitled to his properties exclusively. It is to be mentioned that in 1972 the marriage of the defendant is said to have been performed with Viswanadha Raju and at that time he was hardly aged 55 years and there is no reason as to why a will should be executed at that time when he is comfortable in marrying the defendant after the death of his first wife. Probably, it may be with an intention to keep him under check, the said will might have been demanded by the defendant and may not be one intended to be acted upon. In fact, if really such a will was executed by Viswanadha Raju and wanted to be final, there is no reason as to why the settlement deed under Ex.B-4 and the sale deed Ex.B-6 shall be executed in 1992 without even referring to the alleged will. Merely because the will was registered, it cannot be taken as a proof of its genuineness nor intention of the executant to act upon it. The defendant having propounded the will, the burden is on her side to prove the same. The defendant has examined the brother of Viswanadha Raju as DW.2 who spoke about the will executed by his father but he did not speak anything about the Ex.B-10 will. DW.5 is said to be an attestor who is very much aged and he was examined on commission. A reading of his evidence clearly goes to show that he attested the will executed by Viswanadha Raju and he cannot give the name of the other attestors and he cannot also give the name of the scribe. It does not show that the will was scribed to the dictation of the deceased-Viswanadha Raju. Evidently, he is not a resident of the village of Viswanadha Raju. His evidence also clearly goes to show that when the will was scribed, he was not present there and he was outside. His evidence also goes to show that Viswanadha Raju did not sign in his presence and he did not see the signature of the executant of the will nor the executant of the will saw his signatures. The evidence of this witness is therefore wholly insufficient to accept that there is proper proof of the execution of the will by the defendant. The learned counsel for the defendant relied upon the following decisions in order to substantiate that all suspicious circumstances are not relevant and merely because the attesters belongs to another village, it is not a ground to discard the evidence and the court has to take into consideration the only probabilities. 1. Atma Ram Vs. Smt Parsini and others([1]) 2. Rabindra Nath Mukherjee and another Vs. Panchanam Banerjee(dead) by L.Rs and others ([2]) 3. Venkatachala Iyengar Vs. B.N.Thimmajamma and others([3]) 4. Karri Nookaraju Vs. Putra Venkatarao and others ([4]) 5. D.Padmanabha Reddy (Died) Per L.Rs. Vs. G.Anasuya ([5]) In this case, apart from the insufficient evidence, the circumstances clearly goes to show that there was no need for Viswanadha Raju to execute the will and even if it was executed, it was never intended to be acted and was never acted upon. Therefore, the lower court has rightly rejected the said will and found that the defendant will not succeed to the properties of Viswanadha Raju as a sole heir. Further more, the will executed by Viswanadha Raju under Ex.B-10 is with regard to properties in which he has no subsisting title. Evidently, the suit schedule properties are the properties of the father of the late Viswanadha Raju and he would get title only after his death. It is not a confirmed title and the possibility of his father changing will- Ex.B-8 cannot be ruled out. The learned counsel for the appellant contends that the principles of spes successionis and also feeding the grant by estoppel are valid in this case and therefore the will is not defective. He relied upon the following decisions. 1. Tilakdhari Lal and another Vs. Khedan Lal and others ([6]) 2. Shiv Dass and others Vs. Smt.Devki and others ([7]) 3. Renu Devi Vs. Mahendra Singh and others ([8]) 4. Ram Piari and another Vs. Ram Nath and oithers([9]) 5. Pavitri Devi and another Vs. Darbari Singh and others([10]) In this case, evidently it is not a case of the spes successionis or feeding the grant by estoppel. It is not a case where the alienation is effected, without title and thereafter the person getting the title to the property. So also the expectation of succession to the property particularly from his father is not a certain event and in fact the will itself does not show that he got rights in certain properties from his father and therefore intends to convey the same. If such recitals are there in Ex.B-10 referring to Ex.B-8 will then there may be some foundation for the arguments raised by the defendant. But in this case, there is no such recital. Therefore, viewed from any angle, the will set up by the defendant has to be rejected and was rightly rejected. It is an admitted fact that the plaintiffs are claiming declaration of title to the suit schedule properties. So far as the items 1, 2 and 5 are concerned, this is the property which Viswanadha Raju got from his father and item No.4 is the property which his father got from his mother under will Ex.B-9. The fact that item No.3 belongs to the mother cannot be disputed. It is also not in dispute that Viswanadha Raju has executed a settlement deed on 26-06-1992 which is marked as Ex.B-4 regarding item No.1 of the suit schedule properties. Therefore, the settlement being not challenged and being accepted by the plaintiffs and when once their father is the absolute owner of the property, item No.1 cannot be taken into consideration for partition and the defendant gets absolute rights in item No.1. So far as the item Nos.2 and 5 are concerned, the claim of the defendant is that she has succeeded to the property exclusively under the will of her husband and the said will is not believed and therefore the property itself be taken that Viswanadha Raju died intestate and the plaintiffs and defendant being legal heirs will be entitled to partition of the same. So far as the item No.3 is concerned, this is also the property which Viswanadha Raju got from his mother under Ex.B9 and the total extent is Ac.2.66 cents and out of it he settled Ac.2.00 under the settlement deed dated 12-12-1973 marked as Ex.B-5, which is not the subject matter of the suit and the remaining extent of Ac.0.66 cents was sold to the defendant for a consideration of Rs.32,000/- under the sale deed Ex.B-6. Therefore, she became absolute owner of the property. The question as to whether the defendant has paid the consideration or not is not relevant since the plaintiffs have not questioned the said alienation and their father was the absolute owner of the property. Therefore this item No.3 of the property also has to be excluded. So far as item No.4 is concerned, it is the contention of the defendant that by virtue of the will Ex.B-10 relied on by her she is entitled to the entire item of the property. But, however, the will set up by the defendant is not believed and when once the father of the plaintiffs is the owner of the property and it is held that he died intestate, the plaintiffs and defendant will be entitled to equal shares as Class.I heirs. Therefore, as matter stands, item Nos.1 and 3 of the suit schedule properties are the absolute properties of the defendant and item Nos.2, 4 and 5 are only available for partition. The learned Senior Civil Judge dismissed the suit of the plaintiffs on the ground that since the suit one being for declaration of title and there being no relief for partition, the suit is to be dismissed. However, the learned counsel for the appellant relied on a decision reported in Pendyala Narasimham Vs. Pendyala Venkata Narasimha Rao([11]) whereunder the Division Bench of this Court held that even without an amendment in a suit for possession of certain property with the sole and exclusive rights therein, a declaration for partition can be granted notwithstanding the absence of an alterative prayer provided such a relief would not result in prejudice or injustice to the other side. Therefore, the point for consideration will be a decree for partition of items, 2 4 and 5 will cause any prejudice to the defendant. Evidently, the defendant has also not come forward with true case and the will set up by her was found to be not genuine. Further more, she was given sufficient properties by her husband and there is no reason as to why the plaintiffs shall be denied the right of partition of the remaining properties of their father. A denial of any right of partition would cause injustice rather than any prejudice to the defendant. Therefore, in view of the above circumstances it is held that the plaintiffs will be entitled to partition of items 2, 4 and 5 into three equal shares and one such share each shall be allotted to plaintiffs 1 and 2 and other share shall be allotted to the defendant. Accordingly, a preliminary decree is passed for division of items 2, 4 and 5 into three equal shares and allotment of one share each to plaintiffs and one share to defendant and the plaintiffs will be entitled for mesne profits from the date of decree of this court till the date of delivery which shall be determined separately. Accordingly the points are answered. In the result, A.S.No.725 of 2001 is dismissed and A.S.No.1876 of 2000 is partly allowed and a preliminary decree is passed and the plaintiffs will be entitled to partition of items 2, 4 and 5 into three equal shares and one such share each shall be allotted to plaintiffs 1 and 2 and other share shall be allotted to the defendant. Further the plaintiffs are also entitled for mesne profits from the date of decree of this court till delivery. Each party is directed to bear its own costs. _______________________ N.R.L.NAGESWARA RAO,J 08-08-2011 TSNR [1] AIR 1979 PUNJAB & HARYANA 234 [2] AIR S.C. 1684 [3] AIR S.C. 443(1) [4] AIR 1974 A.P. 13 [5] 2004(2) ALT 418 [6] AIR 1921 PRIVY COUNCIL 112 [7] AIR 1978 PANJAB & HARYANA 285 [8] AIR 2003 S.C. 1608 [9] AIR 1963 ALLAHABAD 599 [10] (1993) 4 SCC 392 [11] 1962(1) ALT 425