THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.1485 OF 1992 JUDGMENT: The plaintiffs in O.S.No.6 of 1984 on the file of the Court of Subordinate Judge, Rajam are the appellants herein. The suit one was filed for partition of plaint A, B and C schedule properties into 80 equal shares and for separate possession of 27 such shares to the plaintiffs. The allegations in the plaint go to show that one Venkunaidu had four brothers and three daughters and only one son by name Appalanaidu. He had ancestral properties. All his brothers died and therefore he succeeded to the properties. The first daughter is Kanakamma who had two sons and four daughters One of the daughters is Pedtchaymma died issueless. Her first son was Sanyasappadu. Defendant Nos.6 and 10 are the other daughters. After the death of Venkunaidu his son got half share in the suit schedule property and daughters also got share in the properties of their father. Defendant Nos.2 and 3 are sons of another daughter Papamma. Defendant No.4 is the third daughter of Venkunaidu. Appalanaidu used to manage the properties and executed Ex.B-1 will bequeathing all his properties to the plaintiffs who are daughters of his first daughter and half to the first defendant who is the second daughter and wife of second defendant. He died on 21-01-1981 and his wife pre-deceased him. After the life time of Appalanaidu, the first defendant and her husband-second defendant are managing the properties and therefore the suit was filed for partition of the properties on the basis of the will and also on the basis of the succession. The defendant Nos.1 and 2 filed a written statement denying the allegations in the plaint that Appalanaidu executed a will on 08-01-1981 and that the plaintiffs, defendant Nos.3 to 10 have got rights in the property. According to them, late Appalanaidu executed a will on 13-11- 1980 in a sound and disposing state of mind in the presence of the first plaintiff and it was registered. He also gave some property to one Konari Appalaraju, who was working as servant-maid in his house. He conveyed all the properties to first and second defendants. Therefore, they have rights in the property. The second plaintiff is in the custody of defendant Nos.1 and 2. All the properties are self-acquired properties of late Appalanaidu and nobody has got share or interest and the suit is vexatious. The third defendant supported the claim of defendant Nos.1 and 2. On the basis of the above pleadings, the following issues have been framed for trial:- 1. Whether the will dated 08-01-1981 of late Appalanaidu pleaded by the plaintiffs is true, valid and binding on the defendants? 2. Whether the registered will dt.13-11-1980 is not true and valid? 3. Whether the plaintiffs are entitled for partition? If so to what share and in what properties? 4. Whether the plaint schedule properties are the exclusive properties of late Appalanaidu as pleaded by the defendants? 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether the court fee paid is not correct? 7. To what relief? On behalf of the plaintiffs Pws.1 to 3 are examined and marked Ex.A-1. On behalf of the defendants Dws.1 to 4 were examined and marked Exs.B-1 to B-8. After considering the evidence on record, the lower court dismissed the suit of the plaintiffs. Aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the will set up by the plaintiffs is true? 2. Whether the will pleaded by the defendant Nos.1 and 2 is true? 3. Whether the properties are liable for partition? 4. To what relief? POINTS:- A genealogy has been filed along with the plaint, which goes to show that Venkunaidu has got one son by name Appalanaidu and three daughters by name 1)Kanakamma, 2) Rupamma and 3) Lakshmamma. Kanakamma had two sons by name Sanyasappadu and 5th defendant. She has four daughters and they are including defendant Nos.6 and 10. Defendant Nos.7 to 9 are the children of one of her daughter and another died unmarried issueless. Defendant Nos.2 and 3 are the sons of Papamma. 4th defendant is the third daughter of Venkunaidu. Appalanaidu had two daughters, the mother of the plaintiffs Venkataratnam and first defendant. The plaintiffs 1 and 2 are daughters of Venkataratnam who was married to Sanyasappadu who was the son of Kanakamma. The dispute between the parties is based on two wills and also based on general law of succession. According to them, Venkunaidu succeeded to all properties after the death of his brothers and his half share is succeeded by his daughters along with Appalanaidu as per the Hindu Succession Act,1956 ( for short “the Act”). It was also pleaded that Appalanaidu was managing the property and he executed a will on 08- 01-1981 in a sound and disposing state of mind; whereas the defendants contend that Ex.A-1 will relied on by the plaintiffs is not true and the provisions of the Act for the purpose of partition are not applicable. According to them, Venkunaidu died long prior to enforcement of the Act and therefore the daughters have no right in the property. Hence the first point to be considered is as to whether irrespective of the wills, whether the daughters of Venkunaidu have succeeded to his share. This evidently depends upon the date of death of Venkunaidu. In fact, there is absolutely no documentary evidence filed on behalf of the plaintiffs as to what was the exact date of death of Venkunaidu. The lower court has taken into consideration the averments in the wills relied on by the parties and came to a conclusion that the deceased-Venkunaidu might have died long prior to the enforcement of the Act, conferring rights of succession to the daughters. In the Ex.A-1 will by the date of execution of it, the age of the executant was shown as “70 years” and it refers to the succession from his father and also some properties as self-acquired properties. The evidence of PW.2 shows that the deceased might have died 30 or 40 years prior to his giving evidence and this evidently takes prior to the enforcement of the Act. Even the will-Ex.B-1 relied on by the defendants is silent about the date of death of Venkunaidu. In fact when the defendants have denied about the right of succession under the Act, it is for them to prove as to when exactly Venkunaidu died. Therefore, in view of the above circumstances, the finding of the lower court that the evidence on record does not establish that Venkunaidu died after coming into force of the Act cannot be faulted and the burden which is on the plaintiffs has not been discharged by any positive evidence. In fact, PW.1 or PW.2 could not say anything about it. Even when defendants were examined, there is no material to show that as to when Venkunaidu died. The next question for consideration is whether the will Ex.A-1 which is unregistered set up by the plaintiffs is true or whether the registered will Ex.B-1 pleaded by the defendants is true. Evidently, the plaintiffs having set up a will which is unregistered and subsequent to the execution of the registered will, the burden is very heavy on them to prove the same. Ex.B-4 notice was said to have been issued on 22-09-1984 by the plaintiffs 1 and 2 and if really will was in existence nobody would have failed to mention the same in this notice and it would have been a basis for the notice. The lower court observed that the evidence of PW.2 shows that as if he has signed on Ex.A-1 will whereas in his deposition he has affixed his thumb mark and there is no explanation on this. The evidence of PW.2 also goes to show that by that date he went, the will was already executed and PW.3 came there when he was about to leave and attested the document Ex.A-1. Therefore, this clearly goes to show that the will was not written in the presence of the attestors and to the dictation of the attestors in their presence which is essential for a valid proof of the same. The evidence of PW.3 is also inconsistent with the evidence of PW.2. On the other hand, the evidence of PWs.2 and 3 clearly shows that the deceased-Appalanaidu was not hale and healthy whereas a counter statement is given by PW.1. There is absolutely no reason as to why the will was not registered. There is also no mention as to why an earlier registered will was executed and was sought to be cancelled. In fact Pw.1 herself was a witness and was hardly aged 30 years by the time of the alleged will Ex.A-1. Therefore, the will is not proved according to law and the lower court rightly rejected their evidence and the reasons for non-examination of the scribe are not clear. When the mother of the plaintiffs and father are available there is no reason as to why Appalanaidu should call PW.1 and handover the will. Evidently, the will was not seen in the light of the day for several years and it was only in the rejoinder notice the theory of the will has been set up as can be seen from the evidence of PW.1 and therefore in view of the above circumstances the unregistered will set up by the plaintiffs is rightly discarded by the lower court. So far as the Ex.B-1 will set up by the defendants is concerned, it is a registered will and to support the execution of the said will, the attestors DWs.2 and 3 are examined and scribe DW.4 was examined and their evidence clearly goes to show that the will was executed by Appalanaidu and even the evidence of PW.1 does not show any doubt about the credibility of the DWs.2 and 3. There is no material also to show about the will was registered against the intention of Appalanaidu. It is quite clear that Appalanaidu was a Village Munsif and if really he has no intention to execute the will, nobody could have pressurized him. The evidence of DW.1 goes to show that the second plaintiff was with the first defendant and they are educating. It was also further stated that the first plaintiff and her husband even did not attend after the death of Appalanaidu and Appalanaidu was taken care by DWs.1 and 2 alone. Therefore, in view of the above circumstances, the lower court has rightly accepted the Ex.B-1 will and dismissed the suit of the plaintiffs and no serious infirmities are brought on record to discard the evidence of DWs.1 to 4 or the registered Ex.B-1 will and therefore the judgment and decree passed by the learned Subordinate Judge does not call for any interference and accordingly the appeal is liable to be dismissed. The points are therefore answered. Accordingly, the Appeal Suit is dismissed. No costs. _______________________ N.R.L.NAGESWARA RAO,J 17-08-2011 TSNR