HON’BLE SRI JUSTICE A. GOPAL REDDY S.A.M.P.No.2149 of 2010 and SECOND APPEAL No.969 of 2010 Dated: 01-10-2010 Between: Yegi Surya Kantham …Appellant AND Nethala Kanakalakshmi & Others Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY S.A.M.P.No.2149 of 2010 and SECOND APPEAL No.969 of 2010 JUDGMENT: This is a second appeal by the defendant aggrieved by the judgment and decree, dated 17.2.2010 dismissing A.S.No.94 of 2007 by the I Additional District Judge, East Godavari at Rajahmundry confirming the judgment and decreed passed by the I Additional Senior Civil Judge, Rajahmundry in O.S.No.202 of 1999, dated 18.8.2005 decreeing the suit filed by the plaintiffs for partition of items 1 and 2 of suit schedule properties into four equal shares and allotting one such share each to the plaintiffs and the defendant. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. There is no dispute that the suit schedule property was acquired by late Nagayya. Said Nagayya had three daughters (plaintiffs) and a son-Veera Ragahava Rao, the husband of the defendant. Nagayya died intestate and subsequently, his wife-Naga Ratnam died. Veera Raghava Rao, son of Nagayya and husband of the defendant died on 16.2.1998. According to the plaintiffs their brother-Veera Raghava Rao did not effect partition in spite of repeated demands during his lifetime and postponed the same, and subsequently after issuance of legal notice, when the defendant, who is in possession of the schedule property has not responded, the plaintiffs filed the present suit seeking partition of the suit schedule properties. The defendant filed a written statement contending that her father-in-law late Nagayya, who is the father of the plaintiffs executed an unregistered will, dated 16.8.1985 bequeathing the landed property to his son and a house property to his daughters and that Veera Raghava Rao, her husband was in possession and enjoyment of the landed property in his own right and later, he bequeathed the said property in favour of herself and her daughters by executing a registered will, dated 21.3.1997 and the plaintiffs are not entitled for partition of the plaint schedule property. Basing on the above pleadings, the trial Court settled the following issues for trial: “1. Whether the plaint schedule properties are the joint family or absolute properties of late Veera Raghava Rao? 2. Whether Veera Raghava Rao executed will on 21.3.1997 bequeathing plaint schedule properties in favour of defendant and his daughters Durga and Kakana Lakshmi, if so, whether the said will is binding on the plaintiffs? 3. Whether the valuation and the Court fee paid on plaint is proper? 4. Whether the plaintiffs are entitled to seek the relief of partition of plaint schedule properties and for allotment of 3 separate shares? 5. Whether the plaintiffs are entitled to claim profits from the date of the suit at the rate of Rs.25,000/- p.a.? 6. To what other relief?” On issue No.1, the trial Court held that the Xerox copy of the will under Ex.B.1, dated 16.8.1985 has not been proved by the defendant in the manner prescribed under law and that if the same is taken out of consideration, upon the death of Nagayya, the original owner of the plaint schedule properties, the plaintiffs and their brother late Veera Raghava Rao became entitled to the schedule properties as class-I legal heirs of the deceased Nagayya. Accordingly, it was held that the plaint schedule properties are the joint family properties of the plaintiffs and their brother Veera Ragahva Rao and not the absolute properties of late Veera Raghava Rao alone. On issue No.2, it was held that though it is the contention of the defendant that her husband late Veera Raghava Rao had executed a will under Ex.B.2 on 21.3.1997, she did not examine either the attestors or the scribe or any other witnesses connected to the will under Ex.B.2, and that she failed to prove the said will according to law and accordingly answered the issue against the defendant. Consequent to the same, issue Nos.3 and 4 were also answered against the defendant. On issue No.5 with regard to mesne profits, it was held that the said aspect can be decided in the final decree proceedings and thus it was left open. In view of the findings reached on the said issues, the trial Court decreed the suit for partition as prayed for. Aggrieved by the same, the defendant carried the matter in appeal. The lower appellate Court after considering the evidence held that it is not the case of the defendant that the attestors and the scribe of Ex.B.1 are not available or not alive, but she did not make any endeavour to examine them to prove the will under Ex.B.1. It was observed that if Ex.B.1 original is genuine document and available, the defendant could have filed a petition to receive the original of the same under Order 41 Rule 27 C.P.C. and to adduce additional evidence, but no such attempt was made and therefore, an inference is to be drawn against the defendant. When the plaint schedule property is the joint family property held by Nagayya, the plaintiffs and the husband of the defendant are entitled to equal shares being class-I heirs, and therefore, it is unnecessary to consider Ex.B.2 will said to be executed by Veera Raghava Rao in favour of the defendant and her children. Even otherwise, the will-Ex.B.2 is confined only to the share of Veera Raghava Rao and holding so, dismissed the appeal confirming the judgment and decree passed by the trial Court. Pending the Second Appeal, the appellant-defendant filed an application in S.A.M.P.no.2149 of 2010 under Order 41 Rule 27 C.P.C. to receive the original of Ex.B.1 as additional evidence. But, as rightly observed by the lower appellate Court, no such endeavour was made by the appellant-defendant either before the trial Court or before the lower appellate Court. In the affidavit filed in support of the application, it is stated that on closure of the evidence of the defendant, she filed I.A.No.414 of 2005 before the trial Court to reopen the suit for the purpose of adducing further evidence on her behalf, but as the same was dismissed, she could not take steps for producing the original of Ex.B.1 will. It is stated that during the pendency of the appeal, the counsel did not advise her to produce the original of Ex.B.1 as additional evidence, and therefore, she could not file the same even in the appeal before the lower appellate Court. Order 41 Rule 27 C.P.C. provides for production of additional evidence, whether oral or documentary, in the appellate Court, provided the Court from whose decree the appeal is preferred has refused to admit the evidence which ought to have been admitted. But no such explanation is offered by the defendant how the original under Ex.B.1 ought to have been admitted by the lower appellate Court when it was produced. When the application filed by the defendant for reopening the evidence on her behalf has been dismissed, when Ex.B.1 was so crucial to her case, at least, she could have filed a petition to adduce additional evidence along with the appeal before the lower appellate Court. Further I.A.No.414 of 2005 was filed only for the purpose of reopening the suit to adduce further evidence, but it was not the case of the defendant that on such production of Ex.B.1, the trial Court refused to receive the said document. The appellant-defendant has not established that notwithstanding the exercise of due diligence such evidence was not within her knowledge or could not, after the exercise of due diligence, be produced by her at the time when the decree appealed against was passed. Therefore, the same cannot be received in additional evidence and accordingly, S.A.M.P.no.2149 of 2010 is dismissed. In view of the above, when the appellant-defendant miserably failed to establish the will-Ex.B.1 by producing the original and examining the witnesses connected to it in the manner prescribed for proof of will, it is obvious that upon the death of late Nagayya, succession opens. Therefore, the plaintiffs, who are the daughters of Nagayya and the husband of defendant who is the son, being the class-I legal heirs are entitled to equal share in the suit schedule property left by Nagayya. The concurrent findings reached by the Courts below are on appreciation of evidence in proper perspective. No question of law much less any substantial question of law arises for consideration in this second appeal. The Second Appeal fails and the same is accordingly dismissed at the stage of admission. No order as to costs. ________________ A. GOPAL REDDY, J. OCTOBER 01, 2010 Tsr.