THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 273 OF 2010 Date: 09-04-2010 Between Mandapati Suseela …..Appellant And D.V.S.R.C. Murthy and another …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 273 OF 2010 ORDER: The appellant – third party to the suit filed a claim petition under Order 21 Rule 58 CPC in E.A No. 943 of 2007 in E.P No.61 of 2006 in O.S No.103 of 2003 on the file of the learned II Additional Senior Civil Judge, Kakinada claiming that she is the mother of the 2nd respondent who is the judgment debtor in the E.P and the absolute owner of the petition schedule property which was attached. The husband of the appellant and the father of the 2nd respondent Mandapati Nookaraju, executed Will dated 25-02-1995 bequeathing the petition schedule property in her favour for her life time and vested remainder in favour of her sons Rama Krishna, the 2nd respondent herein and Ramamohana Rao. She became absolute owner of the petition schedule property by virtue of Section 14 of the Hindu Succession Act and executed gift settlement deed on 11-06-2003 in favour of Mandapati Syamasundar and Mandapati Muralidhar, sons of the 2nd respondent and Mandapati Chaitanya, son of Ramamohana Rao reserving her life interest and that the 2nd respondent – judgment debtor has no right, title or interest in the petition schedule property. Hence, the above claim petition. The 1st respondent – decree holder filed a counter affidavit, whereas the 2nd respondent reported no counter. In his counter, the 1st respondent stated that he obtained a decree against the 2nd respondent in the suit and got attached the property of the 2nd respondent. To defeat his claim, the 2nd respondent in collusion with the claim petitioner created the gift settlement deed and that the husband of the claim petitioner is not having any right to execute a Will with regard to the joint family properties. After the decree, the decree holder filed the execution petition, sale notices were also served on the 2nd respondent – judgment debtor and he kept quiet and got filed the present E.A through his mother. To prove the claim of the appellant, she has examined PWs 1 and 2 and marked Ex.A-1 Will dated 25-02-1995. The respondent – decree holder examined himself as RW 1, but no documents were marked on his behalf. The learned executing Court after analysing the oral and documentary evidence held that as per Ex.A-1 Will, part of the petition schedule property is ancestral property acquired in 1958 and the remaining part is self-acquired property of the husband of the appellant in 1961 and both were blended which becomes the ancestral property to his family. Therefore, he cannot execute Ex.A-1 Will for the entire claim petition schedule property and the appellant has got only one-third undivided share in the property for her life only. It was further held that she failed to prove the Will by examining one of the attesting witnesses as contemplated under Section 68 of the Evidence Act and since Ex.A-1 is not proved under which she claims her title, no relief can be granted and accordingly dismissed the petition. On appeal being filed, the lower appellate Court after re- appreciation of the evidence held that there is nothing mentioned in Ex.A-1 that the property was given to the appellant towards her maintenance, whereas the recitals show that she can enjoy the property in her life time by receiving the rents derived from the property and after her death, the property will devolve upon her two sons Rama Krishna and Ramamohana Rao. She executed the gift settlement deed on 11-06-2003 in favour her grandchildren even though she did not acquire any title and though she is not entitled to the benefit of Section 14 of the Hindu Succession Act. Thus holding, the lower appellate Court dismissed the appeal. The learned counsel for the appellant contends that the trial Court gave a finding that the appellant is entitled to one-third share and if the judgment debtor is entitled to one-third share and the other son is entitled to one-third share, the claim petition should have been entertained. I see no force in the contention for the reason that the entire case set up by the appellant is under the Will dated 25-02-1995. The appellant never claimed that she had one-third claim in the petition schedule property, whereas the finding of the lower Court shows that her husband who is said to have executed the gift deed in her favour will have one-third share along with two sons. Therefore, the appellant, if at all, can claim only one-ninth in the petition schedule property subject to necessary pleadings to the said effect and proof. In the absence of the same, when the appellant failed to establish the execution of Ex.A-1 Will by examining the attestors under which she claimed title to the property, her claim was rightly negatived by the executing Court and confirmed by the lower appellate Court. No substantial question of law arises for consideration in this second appeal. It is accordingly dismissed. A. GOPAL REDDY, J 09-04-2010 ks