THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.2347 OF 1989 JUDGMENT:- The plaintiffs in O.S.No.26 of 1984 on the file of the court of Senior Civil Judge, Anakapalle are the appellants herein. The suit one was filed for partition of the suit schedule properties. According to the case of the plaintiffs, one K.Peda Veera Swamy has got three sons and two daughters and Satyanarayana is the eldest son and he had two wives. Varalahamma is the first wife and he has got one son by name Subba Rao through her. Defendant Nos.4 and 5 are daughters. The said Subba Rao died and defendant Nos.1, 3 and 6 are his legal heirs. According to the case of the plaintiffs, the suit schedule properties are absolute properties of the Satyanarayana who died in 1956 and the first plaintiff is the second wife of the deceased-Satayanarayana. After the death of Subba Rao, the eldest son of Satyanarayana-the first defendant assumed management and was not rendering any accounts and therefore the suit is filed by the first plaintiff for partition of the suit schedule properties. During the pendency of the suit, the first plaintiff died and second plaintiff came on record on the basis of the registered will dated 14-02-1983 said to have been executed by her. The first defendant filed a written statement contending that the suit schedule properties and other properties are the self acquired properties of Peda Veera Swamy and he executed a registered will on 22-08-1937 bequeathing 1/4th share to Subba Rao-the father of the first defendant and the will was acted upon and the properties were partitioned. Therefore, the suit schedule properties are the properties of Subba Rao and the late Satyanarayana and others have no interest in the property. The late Subba Rao has borrowed some amounts for the benefit of the family and in order to discharge the debts, the properties were sold. The defendant No.13 filed a written statement which was adopted by the other defendants contending that the first defendant as Manager of the family borrowed a sum of Rs.22,000/- from K.Appa Rao on 19-09- 1969 and sold the properties under the different sale deeds to defendant Nos.7 to 19. Defendant No.18 filed a written statement pleading that the will said to have been executed by the first plaintiff is not true and the 17th defendant further claimed that he has purchased some property from the first defendant. Defendant Nos.24 and 25 filed a written statement supporting the claim of the plaintiffs. On the basis of the above pleadings, necessary issues have been framed for trial. On behalf of the plaintiffs, PWs.1 to 3 are examined and marked Exs.A-1 to A-8. On behalf of the defendants, DWs.1 to 8 were examined and marked Exs.B-1 to B-41. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit of the plaintiffs and hence the appeal. Now the points that arise for consideration are:- 1. Whether the suit schedule properties are the self-acquired properties of Satyanarayana as claimed by the plaintiffs or whether they belonged to Peda Veera Swamy? 2. Whether the will executed by Peda Veera Swamy conveying the properties to father of first defendant on 22-08-1937 is true? 3. Whether the plaintiffs are entitled for partition of the properties? POINTS:- There is no dispute about the relationship between the parties and the lower court also considering the evidence on record found that the first plaintiff has executed a registered will in favour of the second plaintiff and therefore he represents the estate of the first plaintiff. The dispute between the parties depends upon the question as to whether the suit schedule properties are the self acquired properties of Satyanarayana as claimed by the plaintiffs or whether they are the self-acquired properties of Peda Veera Swamy who claims to have conveyed the property under Ex.B-14 to Subba Rao-son of the Satayanarayan through his first wife. So far as the factum of proof of the properties has been self-acquired properties of Satyanarayana is concerned, there is no document produced by the plaintiffs except relying upon Ex.A-5- a registered sale deed, whereunder she claims to have joined in execution of the sale deed along with first defendant and thereby claiming that if the property is not self-acquired property of Satyanarayana, there was no need to join in that document as an executant. Evidently, this contention was not accepted by the lower court holding that at the instance of the purchaser, she might have been asked to join in execution of the document. Evidently, in the earlier mortgage, she was not an executant. Therefore, the single circumstance will not in any way advance the case of the plaintiffs. On the other hand, Ex.B-15 Inam sale deed and Ex.B-16 patta standing in the name of late Peda Veera Swamy clearly goes to show that the properties are self acquired properties. In fact, the recitals in the sale deeds-Exs.B-20 and B-24 clearly proves that the property belongs to Peda Veera Swamy. When the plaintiffs having come to the court with a plea that the suit schedule properties are the self-acquired properties of Satyanarayana, fail to prove the same, then the various documents and the manner in which the property was dealt by Peda Veera Swamy clearly goes to show that the property belongs to Peda Veera Swamy. The learned counsel for the appellants tried to contend that even if the properties are not found to be the properties of Satyanarayana, still the will- Ex.B-14 was not properly proved and it is not seen the light of the day for several years and consequently Satyanarayana will be entitled to a share in the properties of his father. It was also further alternatively contended that if the properties are treated to be ancestral properties, then also Satyanarayana will have a share in the properties. It is to be mentioned that the plaintiffs having come to the Court with specific plea of the properties being self-acquired properties of Satayanrayana has to fall or stand on his own pleadings. There is no alterative plea of partition claimed. It was not even whispered that the properties are ancestral properties, if for any reasons the acquisition by Satyanarayana is not to be accepted. Further more, when the defendants have pleaded the will Ex.B-14, no rejoinder was filed by the plaintiffs disputing the same. If really the plaintiffs wanted to contend that the will is not true and Peda Veera Swamy has died intestate, then it is necessary for the plaintiffs to allege the above fact and establish the right. But, however, when the will was pleaded, no such claim was made. The only circumstance is that the will is said to have not seen the light of the day till the filing of the suit and the manner in which it was produced from the Registrar’s Office is suspicious. According to the counsel for the appellants, the cover in which the will was placed is not produced. But, however, the fact remains that the will was said to be in the own-handwriting of Peda Veera Swamy and consequently a presumption has to be drawn that it is a genuine one. The defendants have also examined the persons who were capable of identifying the signatures of the attestors and therefore it cannot be said that Ex.B-14 will was not proved. If really the plaintiffs wanted to challenge the will and claim a right for partition, then only the remedy is to sue for general partition of the entire properties of Peda Veera Swamy. But in this case, only the extent of the properties which were said to have been given to Subba Rao-the grand son of Peda Veera Swamy were shown. Therefore, even if the legal heirs of Peda Veera Swamy are parties to the suit, the question of granting any relief by virtue of intestate succession cannot be accepted. Though the learned counsel for the appellants contended that the sale deeds do not refer to the existence of the will, no document is filed before the Court to substantiate this contention. But, however, the fact remains that the parties are said to be enjoying the properties as per the will-Ex.B-14 relied on by the defendants and the suit schedule properties are the properties which were given to the branch of Satyanarayana in favour of his son Subba Rao by Peda Veera Swamy. Therefore, viewed from any angle, the plaintiffs have failed to establish any right for partition and the judgment and decree passed by the learned Senior Civil Judge does not call for any interference. Accordingly, the points are answered. Accordingly, the Appeal Suit is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 15-09-2011 TSNR