THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.726 of 2011 JUDGMENT: This Second Appeal arises out of concurrent judgments rendered by the Court of Additional Senior Civil Judge, Ongole, in O.S.No.114 of 1994, and the Court of I Additional District Judge, Ongole, in A.S.No.96 of 2006. The defendant Nos.3, 4, 5 and 6 are the appellants herein. The 1st respondent is the plaintiff; the 2nd respondent is the 7th defendant, and deceased-respondents 3 and 4 were defendants 1 and 2, respectively. The 1st defendant is the husband of the 7th defendant. The 2nd defendant is the sister of the 1st defendant. During the pendency of the suit, the 2nd defendant died, and defendants 3, 4, 5 and 6 are her legal heirs. For the sake of convenience, the parties herein are referred to, as arrayed in the suit. The plaintiff filed the suit for partition of the suit schedule property, claiming to be the only son of the 1st defendant and the 7th defendant. Initially, he filed the suit as an indigent person, through his mother, the 7th defendant. The trial Court accorded permission, after conducting enquiry, and the suit was numbered. After he attained the age of majority, he figured as an independent party. According to the plaintiff, his father, the 1st defendant, inherited some ancestral properties and with the nucleus thereof, the latter acquired other items of the suit schedule. It was pleaded that the 1st defendant neglected to maintain his wife, the 7th defendant, and the son, the plaintiff, and has made attempts to pass on the property to his sister, the 2nd defendant. The suit was contested by defendants 1 and 2. The 1st defendant admitted his marriage with the 7th defendant. He stated that hardly there was any cordial relation between them. He has also stated that the plaintiff is not his son. Other facts pleaded by the plaintiff was also denied. The 2nd defendant, during her lifetime, and her legal representatives, after her death, pleaded certain facts, claiming independent rights over the property. The trial Court passed a preliminary decree through judgment dated 30-11-2005. Aggrieved thereby, the defendants 3, 4, 5 and 6 filed A.S.No.96 of 2006 in the Court of I Additional District Judge, Ongole. The appeal was dismissed on 07-09-2019. Hence this Second Appeal. Heard Sri Jayanti S.C. Sekhar, learned counsel for the appellants, and Sri M. Sudheer Kumar, learned counsel for the respondents 1 and 2. The trial Court framed the following issues for its consideration in the suit: 1 . Whether the plaintiff is entitled to partition and separate possession of 3/4th share in the schedule properties? 2 . Whether the plaintiff is entitled for the profits as prayed for? 3. Whether D2 is the absolute owner of Item 5 of A schedule property? Additional Issues: 1. Whether the plaintiff is the son of the 1st defendant? 2. Whether items 1 to 4 and 6 are the self acquired properties of 1st defendant and as such they are liable for partition? On behalf of the plaintiff, PWs 1 to 6 were examined and Exs.A- 1 and A-2 are filed. On behalf of the defendants DWs 1 to 7 were examined and Exs.B-1 to B-11 were filed. Exs.X-1 to X-4 were also taken on record. The partition was prayed for, in respect of 6 items. The trial Court passed a preliminary decree, directing partition of all the suit schedule properties, except item No.5, into four shares, and allowed three shares to the plaintiff, and one such to the 7th defendant, in view of the fact that the 1st defendant died during the pendency of the suit, and that there did not exist any other Class-I heirs to him. The Will, marked as Ex.B-9, relied upon by the defendants, was held not proved. In A.S.No.96 of 2006, the lower Appellate Court framed the following points for consideration: 1. Whether the plaintiff proved that he is the son of the 1st defendant? 2. Whether the plaintiff proved that the plaint schedule properties are ancestral properties of the 1st defendant? 3. Whether defendants 3 to 5 proved that the 1st defendant executed Ex.B9, Will? and ultimately dismissed the appeal. The marriage between the defendants 1 and 7 is not disputed. However, several proceedings ensued between them, and the relationship was hardly cordial. The 1st defendant took the plea that the plaintiff is not his son, at all. That gave rise to framing of a specific issue, on that aspect. On a consideration of oral and documentary evidence, the trial Court negatived the contention of the 1st defendant, and held that the plaintiff is his son. With that, the right of the plaintiff to seek partition remains established. The next question is, about the nature of properties held by the 1st defendant and their availability for partition. It may be true that he acquired some items during his lifetime. The fact, however, remains that he inherited some properties from his ancestors. A specific plea was raised by the plaintiff, that other items were acquired with the nucleus of the ancestral property. The 1st defendant was not able to demonstrate that he had any other independent income, apart from the one, of ancestral properties, through which, he purchased the other items. Item No.5, admittedly, was sold in the course of execution of a decree. The trial Court and the lower Appellate Court have rightly held that the said item is not available for partition, nor did the plaintiff file any appeal or cross- objections, in relation thereto. The defendants, no doubt, relied upon Ex.B-9, Will, dated 31-03-1997. Several improbabilities and deficiencies were proved, as regards the execution thereof. There was serious inconsistency between the evidence of the attestors, on the one hand, and scribe, on the other hand. Further, all of them are closely associated with the 2nd defendant. The defendants/appellants are not able to point out any serious defect in the finding arrived at by the trial Court and the lower Appellate Court, on the Will. This Court is not inclined to interfere with the concurrent findings recorded by both the Courts below. No substantial question of law arises for consideration. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.05-09-2011. KO