THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.967 of 2011 JUDGMENT: The appellants herein are the legal representatives of the sole plaintiff in O.S.No.456 of 2004 on the file of the Principal Junior Civil Judge, Ongole. They filed this second appeal against the decree, dated 06.04.2011, passed by the Court of the II Additional District Judge, Ongole in A.S.No.135 of 2009, which arose out of the suit. For the sake of convenience, the parties are referred to as arrayed in the suit. The plaintiff and defendant No.1 are the sons of late Kotaiah. They had a sister, by name Lakshmi Kanthamma (defendant No.2). Defendant Nos.3 and 4 are the sons of defendant No.1. A partition among the family members took place on 30.08.1976 under Ex.A1. The brothers were already allotted independent shares in the property. The parents were allotted “A” and “B” schedule properties towards their share. Out of that, the properties in “A” schedule were allotted with absolute rights, whereas those in “B” schedule were allotted with life interest. Kotaiah died on 06.05.1997 and his wife Subbamma died on 26.11.2003. The plaintiff filed the suit for partition of “A” schedule properties (for short ‘the suit schedule property”) under Ex.A1 and for allotment of one-third share to him. The suit was opposed by defendant Nos.1, 3 and 4 (for short ‘the defendants”) (respondent Nos.1 to 3 herein) by pressing into service, a Will, dated 18.01.1999, said to have been executed by Subbamma. The trial Court disbelieved the Will and passed a preliminary decree directing division of the property into three parts and allotment of one part, to the plaintiff. The defendants filed A.S.No.135 of 2009 against the preliminary decree. The lower appellate Court held that the Will is proved and has set aside the preliminary decree passed by the trial Court. Hence, this second appeal. Sri M.Sudheer Kumar, learned counsel for the plaintiff, submits that the lower appellate Court was not justified in reversing the finding of the trial Court on the validity of the Will, B1. He contends that the defendants failed to prove the Will as required under law. The learned counsel further submits that even assuming that Ex.B1 is proved, that would hold good only in respect of half of “A” schedule property under Ex.A1 and not in respect of the entire property. Sri L.Prabhakar Reddy, learned counsel for the defendants, on the other hand, submits that Ex.B1 was proved to the satisfaction of the Court by examining the scribe and attestor and the trial Court erred in holding that the Will was not proved. The learned counsel further submits that under Ex.A1, “A” schedule properties were allotted jointly to Kotaiah and his wife Subbamma and it cannot be said that they are entitled for any individual shares as such. Learned counsel further submits that on the death of Kotaiah, the entire property has devolved upon Subbamma and that she has every right to execute a Will in respect of the entire property. The contest was mainly between the plaintiff on the one hand and defendant Nos.1, 3 and 4 on the other. The trial Court framed the following issues for its consideration: (1) Whether the Will dated 18.01.1999 is true, valid and binding on the plaintiff? (2) Whether the plaintiff is entitled for partition and separate possession of the share claimed? (3) Whether the plaintiff is entitled for mesne profits? On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A3 were filed. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B5 were filed. The finger print expert who tendered opinion on the documents sent to him, was examined as C.W.1 and the relevant record was marked as Exs.C1 and C2. The trial Court disbelieved the Will and passed a preliminary decree. In the appeal preferred by the defendants, the lower appellate Court framed the points, which are similar to the issues framed in the suit and rendered a judgment, reversing the preliminary decree passed by the trial Court. Though the learned counsel for the plaintiff had made extensive submissions, touching upon the validity of the Will, this Court is of the view that the defendants proved it to the satisfaction of the Court. The attestor and the scribe were examined. Incidentally, Subbamma has not only signed upon the Will, Ex.B1, but also put her thumb impression upon it. An undisputed document executed by her, marked as Ex.B3, dated 31.08.1984, was available and both the documents were compared by C.W.1. He opined that the thumb impressions on both the documents are of one and the same person. With that, there exists a clinching evidence to prove Ex.B1. There did not exist any suspicious circumstances. The text of the Will is self explanatory and the legatees are not strangers Therefore, the finding of the lower appellate Court on Ex.B1 does not warrant any interference. The next question that arises would be as to whether Subbamma was entitled to execute a Will in respect of the entire suit schedule property. It is not in dispute that the suit schedule property has been allotted to Kotaiah and Subbamma under Ex.A1, with absolute rights. Though their respective shares are not mentioned, it is difficult to assume that on the death of Kotaiah, his share would exclusively in favour of his wife Subbamma. A notional partition as to the shares between two spouses has to be presumed and each one of them would be entitled for half share each. On the death of Kotaiah, his share of the property would devolve according to law of succession. The plaintiff, defendant No.1 and Subbamma are Class-I heirs and each one of them would get one- third share, out of 50% of the suit schedule property. Subbamma could, at the most have executed a Will in respect of her 50% of share in “A” schedule properties and one-third of the remaining 50%. The remaining two parts of one-third each, would devolve upon the plaintiff and defendant No.1 respectively. The legal representatives (defendant Nos.5 to 7) of defendant No.2 did not prefer any appeal when the trial Court passed a preliminary decree directing division of the suit schedule property into three parts. Hence, no share was allotted to them. Therefore, second appeal is partly allowed directing that: (a) the Will, Ex.B1, would cover half of the suit schedule property, and one-third of the remaining half; and (b) a preliminary decree is passed directing that one-third of the property left by Kotaiah (which would come to one-sixth of the suit schedule property) be allotted to the share of the appellants herein and another share of equal extent shall be allotted to defendant No.1. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:31.10.2011. kdl