HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.433 OF 1991 JUDGMENT: The plaintiff in O.S.No.105 of 1983 on the file of the Subordinate Judge at Nandyal, is the appellant herein. The suit was one filed for partition of the A-schedule properties. 2. The allegations in the plaint go to show that one Pedda Hanumantha Rao was the father of the plaintiff and defendants 1 and 2 and their mother was Chinnamma Bai. The plaint A-schedule properties in items 1 to 3 are self-acquired properties of late Hanumantha Rao and he has gifted them to his wife under a gift deed dated 30.09.1943, which was accepted by her. She was in enjoyment of the property and died possessed of the said properties leaving behind her husband and the other children. Pedda Hanumantha Rao died intestate owning item No.4 of the plaint A-schedule property and also his share in items 1 to 3 of the plaint A-schedule property. When the plaintiff demanded the defendants, the 1st defendant did not co- operate and the plaintiff came to know that in respect of item No.4 of the plaint A-schedule property nominally and clandestinely a sale deed was executed by the 1st defendant in favour of defendant No.3 to 10, which is not valid. Hence, the suit for partition and also for mesne profits. 3. The 1st defendant filed a written statement admitting the relationship. The allegation that late Hanumantha Rao executed a gift deed in favour of his wife is denied. Even if such a gift deed is there it is not valid since the properties are ancestral coparcenery properties. It was further pleaded that on 24.03.1966 two years prior to the death of Pedda Hanumantha Rao, he executed a Will in a sound and disposing state of mind in his own hand bequeathing all his properties to the 1st defendant. Therefore, by virtue of the above circumstances, the plaintiff or the 2nd defendant are not entitled for any rights in the property. Further, the sales are for valid consideration. The 1st defendant has obtained a succession certificate in O.P.No.2 of 1976 on the file of Principal District Munsiff Court, Nandyal, to collect the debts due to late Hanumantha Rao on the strength of the Will and therefore, the plaintiff or 2nd defendant cannot dispute the Will. Hence, the 1st defendant pleaded for dismissal of the suit. 4. The 2nd defendant filed a written statement supporting the claim of the plaintiff. The 4th defendant filed a written statement disputing the claim of the plaintiff for partition and claims to have purchased the properties from the 1st defendant in item No.4 for valuable consideration under different sale deed. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court, for trial: 1) Whether the gift deed relied on by plaintiff is true and valid and whether the plaintiff is entitled for partition and separate possession of one third share as prayed in the plaint? 2) Whether the Will relied on by the first defendant is true, valid and binding on the plaintiff? 3) To what relief? 6. On behalf of the plaintiff, PW.1 to 3 were examined and marked Ex.A.1. On behalf of the defendants, DWs.1 to 7 were examined and got marked Exs.B.1 to B.15. After considering the evidence on record, the learned Subordinate Judge, Nandyal dismissed the suit of the plaintiff. Aggrieved by the said judgment, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the gift deed alleged to have been executed by late Hanumantha Rao is true and valid and acted upon? 2) Whether the Will set up by the 1st defendant is true? 3) Whether the plaintiff is entitled for partition of the properties and if so, to what properties? 8. POINTS: Evidently, when the gift deed was said to have been executed on 30.09.1943, the original of it is not filed and only a copy of the same is filed as Ex.A.1. The lower Court did not accept this gift deed on the ground that Hanumantha Rao has no power to alienate the property as it was the coparcenery property. Further, the lower Court also took into consideration the fact that no possession of the properties was proved subsequent to the execution of the gift deed and no mutation has been effected in the revenue records and therefore, it is a case where even if the gift is to be true it is not acted upon. Further-more, the lower Court has taken into consideration the fact that after the alleged execution of the gift deed the father has alienated item No.3 of the plaint A- schedule property and therefore, it clearly goes to show that the father never intended to that gift deed shall be acted upon. In fact, none of the persons associated with the gift deed were examined. Therefore, the material on record is not sufficient to hold that the gift was acted upon. Therefore, it has to be held that the deceased Hanumantha Rao died possessed of the properties shown in the suit schedule except item No.3, which is said to have been already alienated. 9. Evidently, the property, which was in the suit, is the coparcenery property, which means that was the ancestral property of the deceased Hanumantha Rao and the 1st defendant. The 1st defendant contends that during the life time of Hanumantha Rao he has executed a Will, which is marked as Ex.B.3 in his own handwriting and by virtue of the said Will, he became entitled to the entire properties. The said Will was disputed by the plaintiff. It is necessary for the 1st defendant to dispel the suspicious circumstances surrounding the Will. As can be seen from Ex.B.3 Hanumantha Rao intended to give some property to his wife. In order to exclude the plaintiff or the 2nd defendant from succession to the property, no specific reason was given. Evidently, it is an unregistered Will. Therefore, the burden of proof is on the 1st defendant to prove the genuineness of the Will. According to the evidence of DW.1, he was present when the Will was executed and the attestors died. According to him, on the basis of the said Will, he obtained the Succession Certificate Ex.B.4, he admits that item No.4 of the suit schedule property is about 15.25 cents, which was the self-acquired property of his father and he alienated the same to defendants 3 to 10. His evidence also shows that item No.3 of the plaint schedule property was sold away during the life time of his father. When the attestors associated with the Will are not available the defendant has not taken steps to send the Will to an expert. Though he claims that in the Succession Certificate he has added the plaintiff and the 2nd defendant as parties, the record does not disclose the same. The evidence of DW.2 identifying the signature of his father, who was an attesting witness, is of no use. The suit was filed in 1983 and the succession O.P. Ex.B.4 is said to have been filed in the year, 1976, which is ten years after the alleged execution of the Will. The copy of the O.P.No.2 of 1976 under Ex.B.4 is not filed and the allegation on the basis of which the Succession Certificate was obtained is also not mentioned. Ex.B.4 does not show that on the basis of the Will, the application was made and the Succession Certificate was granted in favour of the 1st defendant. Ex.B.4 does not show that the plaintiff or the 2nd defendant are the parties to the proceedings. In the absence of such material, the learned Subordinate Judge should not have relied upon this Ex.B.4 as a knowledge or admission of the Will on behalf of the plaintiff or the 2nd defendant. If really this Will was in existence in 1966, there is no reason as to why it was not filed before the competent authorities and mutation was not effected on the basis of the said Will. There is no comparative material to show that the handwriting in this Will is that of late Hanumantha Rao. No witness has identified the writings in Ex.B.3 as that of late Hanumantha Rao. The mere assertion of the 1st defendant that it was in the own handwriting of deceased Hanumantha Rao cannot be taken as true or proof of the contention of the 1st defendant. Therefore, there is absolutely no evidence on behalf of the 1st defendant to prove the Will Ex.B.3. In the absence of the Will, the rights of the plaintiff and the 2nd defendant to succeed to the share of his father cannot be denied. The lower Court has not properly appreciated the evidence in a right perspective and reliance on Ex.B.4 there being proof that the plaintiff or 2nd defendant are parties to those proceedings is an error. Therefore, the Judgment and decree of the lower Court dismissing the suit of the plaintiff cannot be upheld and it has to be held that the plaintiff is entitled for share in the share of the properties of her father. Since admittedly item No.3 is said to have been alienated during the life time of the father, which was accepted by the lower Court, is not disputed. The properties that are liable for partition will be item Nos.1, 2 and 4. Out of the said properties, the 1st defendant will be entitled to half share and remaining half share shall be allotted to the share of Hanumantha Rao notionally and from his share, the plaintiff and defendants 1 and 2 will be entitled to 1/3rd share each. The alienations, which were said to have been made by the 1st defendant, cannot bind the plaintiff since there was no proof that the said alienation was for their benefit or done with their consent. The defendants Nos.3 to 10, who were the purchasers from the 1st defendant, can only be entitled for the equities. Therefore, the points are answered accordingly. 10. In the result, the appeal is allowed setting aside the judgment and decree of the lower Court and the suit of the plaintiff is decreed for partition of the schedule properties in items 1, 2 and 4 into two shares and allotment of one share to the 1st defendant and the notional allotment of other half share to late Hanumantha Rao and from that half share, the plaintiff, defendants 1 and 2 will be entitled to 1/3rd share each. The alienees from the 1st defendant are entitled for equities. Each party shall bear their own costs. _________________________ N.R.L. NAGESWARA RAO, J Date: 26.08.2011 INL