IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No.3489 of 1992 Between: Atla Ramanaiah … Petitioner And Yellu Subbamma … Respondent This Court made the following: HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.3489 of 1992 ORDER:- Aggrieved by the Judgment in O.S.No.53 of 1986, dated 17.09.1992, passed by the Subordinate Judge, Gudur, in decreeing the suit of the plaintiff, the defendant filed the present appeal. The suit was filed for partition of the schedule properties into two equal shares and allotment of the same to the plaintiff and the defendant. According to the case of the plaintiff, the schedule properties belonged to their father Siddaiah and the defendant is her brother. Siddaiah died intestate 10 years back and his wife predeceased him. All the properties in item Nos.2 to 24 are self acquired properties of Siddaiah who has purchased them from the defendant’s wife Sarojinamma on 30.07.1954 and she got the properties from her husband under a gift deed. Item No.1 was purchased by Siddaiah from Ramanamma. Hence, the plaintiff filed the suit for partition of the schedule properties. The defendant filed a written statement admitting the relationship contending that the schedule property is not the self-acquired property of Siddaiah. It was further pleaded that the properties are joint family properties, which Siddaiah got from other sources, and consequently the plaintiff is not entitled for half share in the properties. The defendant also further pleaded that late Siddaiah has executed a Will on 15.09.1975 conveying the properties to the children of the defendant and, therefore, the plaintiff is not entitled to any of the reliefs. On the basis of the above pleadings, the following issues have been framed for trial:- 1. Whether the plaint schedule properties are not the self-acquired properties of the father of the parties? 2. Whether the Will, dated 15.09.1975, is true, valid and binding on the plaintiff? 3. Whether the court fees paid is not correct? 4. Whether the plaintiff is entitled to partition and separate possession as claimed? 5. To what relief? On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A4 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked. Exs.X1 and X2 were marked through the witness. Considering the evidence on record, the learned Subordinate Judge decreed the suit of the plaintiff granting half share and aggrieved by the said judgment, the present appeal is filed. The points for consideration were: 1. Whether the Will set up by the defendant is true? 2. Whether the plaintiff is entitled for half share in the plaint schedule properties? 3. Whether the judgment and decree passed by the learned Subordinate Judge is valid? 4. To what relief? Evidently when a Will has been set up by the defendant the burden is on the defendant when its execution was specifically denied. In order to prove the execution of the Will, the defendant has not examined any of the attestor or the scribe. The evidence of D.W.2 touching on this Will is not clear. The lower court has found that even by the date of the alleged execution of the Will, one of the beneficiaries mentioned therein was not born. Learned counsel for the appellant/defendant does not seriously dispute about the finding of the lower court and evidently the Will is not proved according to law. As such the finding of the lower court does not call for any interference. So far as the nature of the properties as joint family are concerned, even if they have to be held so as contended by the learned counsel for the respondent by virtue of the amendment to Hindu Succession Act, the plaintiff will also be a co-parcener along with the defendant-brother and as such her equal right cannot be denied. Therefore, in view of the above circumstances, viewed from any angle, the judgment of the lower court, does not call for any interference. Accordingly, the Appeal Suit is dismissed. There shall be no order as to costs. _________________________ N.R.L.NAGESWARA RAO, J lmv