THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.640 OF 2000 JUDGMENT: Third respondent is the wife of the fourth respondent and respondents 1 and 2 are their children. Respondents 1 to 3 filed O.S.No.203 of 1989 in the Court of the Senior Civil Judge, Gudivada, against the fourth respondent for maintenance and recovery of marriage expenses of the first respondent. In the suit, they filed I.A.No.786 of 1989 under Order XXXVIII Rules 1 and 2 of the Code of Civil Procedure, 1908 {“CPC” for brevity} for attachment of two items of property, before judgment. The trial Court ordered the same. These two items were bequeathed by one Smt.Chalasani Sowbhagyamma, the maternal grand mother, through a registered Will dated 02.02.1989. The appellant, who is the mother of the fourth respondent, filed I.A.No.1196 of 1989 under Order XXXVIII Rule 8 CPC with a prayer to raise attachment. She pleaded that subsequent to the Will executed in favour of the fourth respondent, her mother executed a Will dated 30.04.1989 in her favour in respect of those two items of property. The application was opposed by respondents 1 to 3. The I.A. was dismissed by the trial Court on 01.12.1999. Hence, this Civil Miscellaneous Appeal. Sri M.V.Durga Prasad, learned counsel for the appellant, submits that the trial Court made certain observations contrary to settled principles of law. He contends that the Will in favour of the appellant was proved by examining the scribe and attestors and hardly, there existed any suspicious circumstances surrounding the Will. He submits that the appellant is none other than the daughter of the testatrix and the mere fact that there existed a prior Will in favour of the fourth respondent, does not make any difference. Learned counsel for respondents 1 and 2, on the other hand, submits that hardly, there existed justification for execution of a second Will in favour of the appellant by Smt.Chalasani Sowbhagyamma, when she has executed a Will in favour of the fourth respondent. He contends that one of the most important suspicious circumstances is that the actual beneficiary under the first Will, i.e., the fourth respondent did not depose as a witness in the I.A. The appellant is a third party to O.S.No.203 of 1989. Her grievance was only about an order of attachment passed by the trial Court under order XXXVIII Rules 1 and 2 CPC in respect of the two items of property. It is a matter of record that the properties were bequeathed in favour of the fourth respondent, the son of the appellant herein, by Smt.Chalasani Sowbhagyamma through the first Will. Respondents 1 to 3 sought attachment of the property on that basis, since the fourth respondent became absolute owner of the property on account of death of Smt.Chalasani Sowbhagyamma. The appellant came forward with the plea that the subsequent Will dated 30.04.1989 was executed in her favour. To prove her case, the appellant examined P.Ws.1 to 5, which included two attesting witnesses and the scribe and filed Exs.A1 to A9. On behalf of the respondents, R.Ws.1 and 2 were examined and no documentary evidence was adduced. The application filed under Order XXXVIII Rule 8 CPC deserves to be considered almost on par with the one filed under Order XXI Rule 58 CPC. That is the reason why the trial Court framed points and recorded oral and documentary evidence. If it is a case of mere consideration of the Will relied upon by the petitioner marked as Ex.A2, the point must be answered in favour of the appellant. The reason is that two attestors and the scribe were examined and nothing was elicited to discredit their evidence. However, there exists a strong suspicious circumstance vis-à-vis Ex.A2. A registered Will was executed in favour of the fourth respondent, by the original owner of the property. It may be true that even a registered Will can be set at naught by a subsequent unregistered Will. At the same time, the subsequent Will must be justified, be it from the point of view of the consanguity of the parties or the developments that have taken place, subsequent to the execution of the first Will. The beneficiary under the first Will is the fourth respondent. In case, any subsequent Will is executed, he is the immediately affected party. In the normal course of things, he is expected to oppose the subsequent Will. The very fact that remained silent and did not utter word in the course of enquiry in the I.A. discloses that he has colluded with the appellant, to defeat the claims of his children and wife, respondents 1 to 3. The trial Court has taken into account, the relevant factors and dismissed the I.A. This Court is not inclined to take a different view. The Civil Miscellaneous Appeal is, accordingly, dismissed. There shall be no order as to costs. _____________________ (L.NARASIMHA REDDY, J) 22nd July 2010 RRB