THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S. No. 2040 of 2001 Judgment: Challenging the part of the judgment and decree dated 19.07.2000 passed in O.S. No.27 of 1995 on the file of the Senior Civil Judge, Narsapur, the appellants herein, who are the plaintiffs in the said suit filed the present appeal. The parties will be referred to as they are arrayed before the trial Court for the sake of convenience. The plaintiffs filed the suit for partition of the plaint schedule properties into three equal shares and for allotment of one such share to each of the plaintiffs. The suit schedule properties consist of four items as shown in the plaint schedule properties. The plaintiffs case, in brief, is that the husband of the first plaintiff and father of the second plaintiff, namely Ande Venugopala Rao is the natural son of Ande Ramamurthy and Smt. A. Ranganayakamma and adopted son of the defendant Ande Anjamma and her husband Ande Brahmanna, who adopted Ande Venugopala Rao as per the Hindu Rites and Customs. The said adoption was also registered by way of adoption deed dated 06.05.1961. Since the date of adoption, Venugopala Rao and his adoptive parents altogether acquired plaint schedule properties along with other properties. It is also the case of the plaintiffs that after the death of Brahmanna, the defendant and Venugopala Rao enjoyed the plaint schedule properties and after the death of Venugopala Rao, the plaintiffs and the defendant have been enjoying the plaint schedule properties jointly as co-owners, but subsequently the defendant stopped paying profits and therefore the plaintiffs filed the suit for partition claiming that each of them are entitled to 1/3rd share in the suit schedule properties. The main case of the defendant is that Venugopala Rao was addicted to vices and the entire family suffered debts which could not be discharged even by the date of death of Venugopala Rao. It is also the case of the defendant that out of Ac.2- 30 cents of land shown as item No.3, one acre of land was sold to one Polineti Peda Satyam and his brother and that they are in possession of the lands as absolute owners. As seen from the pleadings of the parties the main dispute appears to be as to whether the plaint schedule properties are the self acquired properties of Brahmanna or their ancestral properties. The trial Court framed necessary issues and on behalf of the plaintiff the first plaintiff was examined as PW.1 and Ande Sri Ranga Kumari was examined as PW.2 and Exs.A1 and A2 were marked. On behalf of the defendant, the defendant herself was examined as DW.1 and one Rekapalli Lakshmana Swamy was examined as DW.2 and Exs.B1 to B94 have been marked. The learned Senior Civil Judge, Narsapur, on appreciation of oral and documentary evidence on record, came to the conclusion that the suit schedule properties are the self acquired properties of Brahmanna and therefore the plaintiffs are entitled to each 1/6th share in the plaint schedule properties except one acre of land in item No.3. Aggrieved by the part of the judgment and decree, that went against them, the plaintiffs have preferred this appeal. Since the findings of the lower Court appears to be based on proper appreciation of oral and documentary evidence and nothing was pointed out to say that there was any misreading of evidence or non-consideration of any material evidence on record, it appears that there is no need to disturb the findings of the lower Court on the issue that the suit schedule properties are the self acquired properties of Brahmanna. Therefore, that issue stands confirmed. However, admittedly, the defendant i.e., sole respondent herein died and the second respondent has been added as legal heir of the deceased defendant. The second respondent has been claiming the share of the defendant on the basis of the registered Will said to have been executed by the defendant. Therefore, now it is required to be examined whether the Will said to have been executed by the defendant is true, valid and binding. Similarly, the learned counsel for the appellants has also submitted that though the plaintiffs have claimed share in the profits from the date of the suit but the trial Court has not given any finding on such issue. Learned counsel for the respondent submitted that no such issue was framed by the lower Court and the plaintiffs did not raise their little finger when no such issue was framed by the lower Court, and therefore, they cannot claim share in the profits arising out of the suit schedule properties. It is settled law that there need not be any issue as far as sharing of profits are concerned. Learned counsel for the appellants has also submitted that the share of the plaintiffs has been denied in one acre of the land in item No.3 of the plaint schedule property only on the ground that the plaintiffs did not implead the purchaser, who has purchased the said extent of land prior to the filing of the suit. Learned counsel for the respondent submitted that the defendant has categorically stated in her written statement about the sale of this one acre of land in favour of third parties and in spite of taking a specific plea in the written statement the plaintiffs failed to implead the purchaser and the plaintiffs did not file any rejoinder claiming any share in that one acre of land. Since I am intending to remand the matter to the lower Court for a decision on this issue, I am not inclined to express any opinion on this issue. However, as agreed by both the counsel the matter is remanded to the lower Court for consideration of the issue as to whether the Will said to have been executed by the defendant in favour of the second respondent herein is true, valid and binding. Similarly, on the other points raised by the learned counsel for the appellants also, the parties, if advised, may file necessary applications or lead any further evidence, and in such a case, the lower Court, after giving reasonable opportunity to both the parties to adduce evidence, shall decide the matter in accordance with law. Accordingly, the appeal is disposed of. No costs. ______________________ B. CHANDRA KUMAR, J. Date: 23.08.2010 Nsr