THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.928 OF 2011 19.10.2011 Between: Pesingi Mahalakshmi Rao …Appellant AND Pesingi Sivaramakrishna And another. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.928 OF 2011 JUDGMENT: The plaintiff is the appellant. He filed the suit for partition of X, Y, X1 and Y1 marked portion of plaint plan admeasuring Acs.0.10 cents situated at Battelanka Village of Malkipuram Mandal of East Godavari District. The suit being O.S.No.58 of 1999 on the file of the Court of the Principal Junior Civil Judge, Razole was dismissed on 07.03.2006. His appeal being A.S.No.12 of 2006 on the file of the Senior Civil Judge, Razole, was also dismissed on 21.04.2009. Aggrieved by which, he filed the instant appeal under Section 100 of Code of Civil Procedure, 1908 (CPC). Pesingi Narayanaswami and his wife Rathamma had two sons, namely, Chalamaiah and Venkataratnam. Their two daughters are Kanakamma and Mangamma. Venkatratnam left the village long ago and Kanakamma came back to Battelanka after the death of her husband. She had no children. Chalamaiah had two sons, namely, Mahalakshmi Rao (the plaintiff), Sampada Rao (father of defendants 1 and 2) and one daughter Suryavathi. Mangamma had two sons Deva Sikhamani and Sri Anjaneyulu. The case of the plaintiff Mahalakshmi Rao is that the suit schedule property is Stridhana property of Rathamma (grandmother), after her death, the same devolved on her children; Kanakamma acquired Acs.0.50 cents shown as ‘P’ marked portion in the plaint plan and constructed house thereon and that she died in 1976. Sampada Rao, plaintiff’s brother, set up a Will allegedly executed by Kanakamma in favour of defendants 1 and 2 (son and daughter of Sampada Rao) alleging that Narayanaswami and Rathamma gave the suit schedule land by way of Pasupu Kunkuma gift at the time of her marriage. Mangamma’s children set up another will claiming Acs.0.50 cents. Due to conflicting claims, there was a family settlement and ‘A’ marked house portion and a joint right in ‘B’ marked portion as well as entire site on the north was given to the plaintiff. When there was interference from the defendants, plaintiff filed O.S.No.127 of 1990 and withdrew the same and later filed the suit for partition. The first defendant filed a written statement which was adopted by second defendant. Their case is that the suit schedule property was given as Pasupu Kunkuma gift to Kanakamma, later she purchased another extent of Acs.0.50 cents which does not form part of suit schedule property and raised a thatched house; she permitted the second defendant to construct pucca house in Acs.0.10 cents of land which was constructed; she executed a will dated 15.02.1976 bequeathing Acs.0.50 cents in favour of sons of Mangamma and Acs.0.10 cents in favour of first defendant’s father with life interest to him and vested remainder to the first defendant and his brother Venkatanarayana, who died intestate. Therefore, the plaintiff has no right to claim partition. The trial Court framed nine issues. These mainly concerned with the question whether Rathamma was exclusive owner of the property, whether Pasupu Kunkuma gift in favour of Kanakamma was true and whether defendants perfected their right by adverse possession. The plaintiff examined three witnesses and marked two documents. Defendants examined seven witnesses as D.W.1 to D.W.7 and marked Exs.B.1 to B.16. In addition, X.1 to X.7 were also marked. Considering the evidence of D.W.1, D.W.4, D.W.6 and D.W.7 who are the children of attestors of Ex.B.15 will executed by Kanakamma, the trial Court held that the will executed by Kanakamma is not true and valid. Nextly, the plea of plaintiff that the suit schedule property belongs to Rathamma was rejected, accepting the Pasupu Kunkuma gift by Narayanaswamy in favour of his elder daughter Kanakamma. Accordingly, the trial Court held that the plaintiff failed to prove that the suit schedule property is liable to be partitioned and accordingly dismissed the suit. The appellate Court framed appropriate points for consideration. Insofar as Ex.B.15 registered will executed by Kanakamma in favour of his brother Sampada Rao is concerned, the first appellate Court came to the conclusion that Ex.B.15 will is true and valid, that the admission made by P.W.2 in Ex.B.1, which is certified copy of the deposition in O.S.No.127 of 1990 proves that the suit schedule property is in possession of the defendants alone and therefore, is not a property which can be partitioned. The appeal was accordingly dismissed. The counsel for appellant/plaintiff submits that unless and until Pasupu Kunkuma gift in favour of Kanakamma as pleaded is proved, it cannot be surmised that Narayanaswamy settled the property in her favour; and that the Will, Ex.B.15 executed by Kanakamma in favour of Sampada Rao, the father of defendants 1 and 2, cannot take away the right of the plaintiff for partition. The Courts below on appreciation of evidence came to the conclusion that the property was given by Narayanaswamy and Rathamma to their elder daughter Kanakamma at the time of their marriage, she executed Ex.B.15 will in favour of Sampada Rao and that it is only the defendants who are in possession of the suit schedule property as admitted by P.W.2 in Ex.B.2. The civil Court has to examine the probabilities of the case based on the evidence. In family disputes, there are bound to be rival versions and each party would try to improve the case at the time of leading evidence. A broader view has to be taken. When there is no serious dispute that Kanakamma purchased Acs.0.50 cents of land on her own adjacent to plaint schedule property and gave the same to sons of Mangamma, it is quite probable that she also gave some other property to the children of Sampada Rao. This property cannot be anything else than the one covered by Ex.B.15, which is suit schedule property given to her as Pasupu Kunkuma gift. D.W.1 (second defendant) deposed that suit schedule property was given to Kanakamma by her father at the time of marriage as Pasupu Kunkuma gift, this statement remained uncontroverted and Ex.B.1 deposition of Smt Suryavati (DW.2) the sister of the plaintiff contains clear admission that the Will was executed by Kanakamma. Reading all the documents together, the high probability favours the defendants. Whether the gift was by father to Kanakamma and whether such will is proved or not are matters in the realm of factual dispute. Considering the entire evidence on record, both the Courts below after giving convincing reasons held in favour of the defendants. In the considered opinion of this Court, the question of law much less substantial question of law would not arise. The second appeal fails and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 19.10.2011 Pln