THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.1223 OF 1991 JUDGMENT:- The plaintiff in O.S.No.41 of 1984 on the file of the Court of Principal Senior Civil Judge, Visakhapatnam is the appellant herein. The suit one was filed for recovery of possession of the property and for an injunction against the defendant from constructing a wall between items 1 and 2 of suit schedule properties and for damages. The allegations in the pliant goes to show that the plaintiff, defendant and one Boddu Subba Rao are the children of Atchutaramarao Gupta and their mother was Seetharatnam and they have got a sister by name Ratnakumari. The mother Seetharatnam died on 02-08-1983 executing a will with regard to suit schedule property in favour of the plaintiff. The defendant was permitted to do business by her as a licensee. There was also other ancestral property which was divided. Item No.1 of the suit schedule property is the property which the plaintiff has got under a will and in part 2 the defendant is in occupation. The defendant has not vacated the premises in spite of repeated demands and hence the suit. Subsequently by virtue of an amendment, it was pleaded that after demise of the original Advocate Sri T.Balram, the plaintiff has engaged Sri L.Venkateswarlu as his Advocate and as per his advice, he made searches in the house and he could find a lease deed dated 28-08-1960 executed by the defendant in favour of the mother of the plaintiff. Therefore, it clearly goes to show that the defendant is only a tenant. The defendant is also trying to make construction of a wall between items 1 and 2 so as to force him to vacate half of item 2 of the suit schedule property. The defendant has filed a written statement disputing that the mother has executed a will and that he was a tenant of the premises. The further allegation that a lease deed was traced subsequently is also denied. According to him, Seetharatnam is not the owner and it was purchased for the benefit of the family and consequently she cannot convey the property. The defendant has been in possession and enjoyment in his own right and doing business and perfected his title by adverse possession. So far as item 2 is concerned, the property was already divided and he has got right to make construction of the partition wall. It was further pleaded by the defendant that Seetharatnam was given Rs.2,500/- at the time of partition and she did not claim any rights in the property. The defendant is not liable to pay any damages. Subsequently defendant Nos.2 and 3 were added as parties who are other brother and sister of the plaintiff and second defendant filed a written statement disputing the will and the right of the plaintiff. On the basis of the above pleadings, necessary issues have been framed and on behalf of the plaintiff PWs.1 to 3 were examined and marked Exs.A-1 to A-10. On behalf of the defendants, Dws.1 to 4 were examined and marked Exs.B-1 to B-12 and Exs.X-1 to X-5. After considering the material evidence on record, the lower court did not believe the will and granted a decree for partition of the item No. 1 of the plaint schedule property into four shares and for allotment of one share to the plaintiff and one share each to the defendants 1 to 3. Aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the will Ex.A-1 dated 26-05-1983 set up by the plaintiff is true and valid? 2. Whether the first defendant has got any absolute right in the suit schedule property? 3. Whether the decree of partition granted by the learned Senior Civil Judge is legal and sustainable? POINTS:- This being a suit for title based on a will said to have been executed by the mother, naturally the burden is on the plaintiff to prove the truthfulness of the said will. The material evidence on record clearly goes to show that the property was in the name of the mother- Seetharatnam. The defendant has taken a plea that a sum of Rs.2,500/- was given to the mother and she has no right in item No.1 of the suit schedule property. To prove this fact, there is absolutely no material evidence. The mother executed a will in 1983 and after her death only the right of partition was open. The learned counsel for the appellant contends that the suit is based on title and the lower court has given a decree for partition which is not proper and the will has been proved by the evidence of Pws.1 to 3 and consequently the plaintiff has become entitled to the entire property. The lower court has rightly found that in case the will is not proved and if the plea of absolute right of the defendant is not believed, then naturally all the children of Seetharatnam will be entitled to a share and consequently a decree for partition was passed as all the parties were on record. The court has moulded the relief in the interest of the parties and there cannot be said to be any objection for any of the parties and if no such relief is granted, the other sharers will be losers and at any rate the defendant has not preferred appeal questioning the decree of partition. The mother is said to have died on 02-08-1983. The question before the court is whether the will Ex.A-1 is true? It is stated that the will is said to have been executed in the own hand writing of Seetharatnam. Naturally, if a will is in the handwriting of a testator, a presumption carries that it shall be taken as true but in this case it has to be seen as to whether Seetharatnam was capable of executing a will Ex.A-1 and as to whether it was really in her own handwriting. Evidently, the plaintiff has not made any effort to show by comparison of the handwriting of Seetharatnam with any of her other writings to prove that the writing, in fact, belongs to Seetharatnam. PW.1 is said to be a witness who has attested the will and according to him, the deceased Seetharatnam she knows to him and the family members are also known to him and she sent a word to him and he went about 10.00 A.M and PW.2 was present. According to him, she has read a draft will and she herself scribed the will and signed on the will and he also attested on it. According to him, by the time of the execution of the will, Seetharatnam was having good health and freely moving and at the time of execution of Ex.A-1 will none of her relatives were present. He claims that he was operated earlier and was not able to move and he was examined on commission. He could not say when he was operated. According to him, after the death of Seetharatnam he did not go to see or to console the family members. According to him, she did not suffer due to throat cancer two years prior to her death, but, few months prior to her death she went to Madras or not he does not know. He does not know the cause of the death of the deceased. He did not see the documents of title of Seetharatnam. Though in the cross- examination, he stated that second son was present but later he has corrected himself. According to him, by the time he went there Seetharatnam has made all preparations to write the will. PW.2 is said to be aged 61 years and he knows the deceased- Seetharatnam and he was also examined on commission. According to him, she is the wife of the maternal uncle and by the date of will she is aged about 65. According to him, she read over a will, she draft the will and if they say that it is proper, she will write the fair. He along with PW.1 claims to have attested the will. The way in which the evidence of the witness is recorded is in a question and answer form in stead of asking continuous examination-in-chief. In cross examination, he stated from 1983 she was having throat pain and she was treated by Dr.Viswanadham and she was said to have been treated in Madras Cancer Hospital and he denied that she has no voice prior to her death. The evidence of PW.3 who is the plaintiff and the son of late Seetharatnam goes to show that his mother died on 02-08-1983 and PW.2 informed him that his mother executed a will and he read over the contents of the will in the presence of all the family members. PW.2 said to have kept the will with him. PW.2 claims that the will was kept with him. But the evidence of pW.2 does not show that in the presence of all the family members the will was read over. He states that Dr.Viswanadham, who is his brother-in-law, treated his mother for throat cancer and she did not take any food and she was only given liquids through the tube and in June-1983 he claims to have known about the throat cancer of his mother. He admits that a partition deed Ex.B-7 was executed with regard to other properties. He claims that his mother wrote a letter in 1983 that she was suffering from throat pain. According to him, he was working elsewhere in Gowhati and he received telex message in the last week of June-1983 about the serious illness of his mother. In fact, his own admission clearly goes to show that his mother wrote the letters informing him that she was suffering from throat pain and she was not even to swallow food and she was said to have been treated at Adayar Hospital during July. He denied that she was taken to Madras even in April-1983. He denied the suggestion that Dr.Viswanadham informed him even in the early part of 1983 that his mother is suffering with cancer. Therefore, from the above material evidence on record, prior to the death i.e., 02-08-1983 Seetharatnam was taken to Madras and treated for cancer. The will Ex.A-1 is said to be dated 26-05-1983. For any person with little experience and knowledge, it is difficult to expect that a woman who died of throat cancer in August,1983 would have drafted a will by herself and called PWs.1 and 2 and read over the contents of it and scribed a fresh will like Ex.A-1. If really Ex.A-1 will was really written by Seetharatnam and handed over to PW.2, there is no reason as to why the original sale deed in favour of the said Seetharatnam with regard to item No.1 of the suit schedule property was not handed over to him. Evidently, PWs.1 and 2 though they claim acquaintance with Seetharatnam and claim to be the attesters on the will are not able to say that by the date of Ex.A-1, the deceased was having throat cancer. There was no reason as to why Seetharatnam should execute the will exclusively for the benefit of the plaintiff, who was employed elsewhere when the premises is fit for business and the defendant was already doing business there. Therefore, there are suspicious circumstances surrounding the will and the manner in which the lease deed is introduced by the plaintiff speaks about the capability to bring into existence the unreliable document and the lower court has rightly appreciated the evidence and found that the will is not true. Further more, no reason was given as to why the will was not registered and as to why the will should be kept as a secret without the knowledge of the family members. Therefore, it has to be held that the plaintiff is not entitled to the exclusive right and after the death of the mother, all the children are entitled for equal shares and the order of the learned Senior Civil Judge is just and equitable and it does not call for any interference. There are absolutely no merits in the appeal and the appeal is liable to be dismissed. Accordingly, the Appeal Suit is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 09-11-2011 TSNR