HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1360 OF 2010 DATED 20th OCTOBER, 2011 BETWEEN Anumakonda Parvarvathi Devi and anr …….Appellants and Manchineella Ome Nagaprasad ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1360 OF 2010 JUDGMENT: The appellants herein are the plaintiffs. They filed the suit in O.S.no. 1264 of 2002 on the file of the learned Junior Civil Judge, Eluru, West Godavari District against the respondent/defendant seeking a declaration that they are the absolute owners of the plaint schedule property and a consequential direction for payment of damages at the rate of Rs.5000/- per month from the date of the suit till the delivery thereof. The trail Court upon consideration of the oral and documentary evidence dismissed the said suit by its judgment and decree dated 15.09.2005 holding that the appellants/plaintiffs failed to establish their title in respect of the plaint schedule property by proving the execution of the registered Will dated 29.07.1985 in their favour. Aggrieved by the same, the appellants/plaintiffs preferred an appeal in AS.No. 125 of 2007 on the file of the learned District Judge, West Godavari District. The lower appellate Court, upon reappriciation of the evidence on record, concurred with the findings of the trial Court and dismissed the appeal. Hence, the second appeal. Heard the learned Counsel appearing on either side. Perused the grounds raised in the Memorandum of Grounds of appeal as well as the substantial questions of law sought to be raised in the second appeal. The appellants/plaintiffs and the respondent/defendant are the sisters and brother respectively each other and they are all the children of one late Manchinella Venkaeswara Rao. It was the case of the appellants/plaintiffs that their father, out of free will and volition, executed a registered Will dated 29.07.1985 in a sound and disposing state of mind in respect of the plaint schedule property, with equal and absolute rights by giving life interest to his wife, Smt. Devagiramma; and that it was the last Will and testament of their father who died on 10.12.1999. It was their case that as the defendant who is the only son of their father never looked after his parents during their life time and his business and as he addicted to bad vices, their father out of love and affection executed the aforesaid Will and as such they are the absolute owners of the plaint schedule property. To prove their claim, before the trial Court, P.Ws. 1 to 3 were examined on their behalf and Exs.A.1 to A.9 were got marked. On the other hand, it was the case of the respondent/defendant that his father voluntarily and out of his free will and volition had executed his last Will dated 2.12.1999 bequeathing all his movable and immovable properties to him with absolute rights and the said Will came into force after his death and pursuant thereto, he became the absolute owner and he has been in peaceful possession and enjoyment of the plaint schedule property. To prove his claim, D.Ws. 1 to 3 were examined on his behalf and Exs.B.1 to 10 were got marked. The appellants/plaintiffs who were examined as P.Ws.1 and 2, did not file the original of Ex.A.1-Will dated 29.7.1985 stating that the original of the same was in the custody of the defendant. Admittedly no steps had been taken by them for obtaining the original of Ex.A.1 from the custody of the respondent/defendant as alleged. Even they did not mention the said aspect in their legal notices, Exs.A.2 and A.3. It was the case of the appellants/plaintiffs that their father hated the respondent/defendant as he addicted to bad vices during his life time and as such, as they looked after him during his last days, out of love and affection, he executed Ex.A.1 in their favour. If that be the case, normally the original of Ex.A.1 could have been in their custody. However, they failed to establish as to how it went to the custody of the defendant. The second appellant/second plaintiff who was examined as P.W.2 deposed in her evidence that her mother, father and sister-in-law never issued any notice to his brother who is respondent/defendant stating that he was not looking after his family members. She admitted that by the date of death of her father, her brother, respondent/defendant was in possession and enjoyment of the suit schedule property. Further, in the cross-examination of P.Ws. 1 and 2 they admitted that they were not present and did not witness the making and execution of Ex.A.1. During the trial, they did not examine the attestors and scribe of the said Will to substantiate the same. It is settled principle of law that it is the duty of the propounder of the Will to prove its due execution and valid attestation of the Will. Even if it is presumed that Late Manchinella Venkageswara Rao executed the alleged Will dated 29.7.1985, the same could have been revoked as he was stated to have executed another Will dated 2.12.1999 in respect of the plaint schedule property. It was the case of the appellants/plaintiffs that the respondent/defendant admitted the execution of original Ex.A.1 Will and hence the same is proved. Relevant to note, mere admission of Ex.A.1 by the defendant cannot be considered that the appellants/plaintiffs case was proved. The pathetic situation of the case is that the appellants/plaintiffs did not disclose as to why they did not take necessary steps to examine the attestors and Scribe of Ex.A.1 to prove its execution. Section 68 of the Indian Evidence Act stipulates that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness. The said provision further provides that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act unless its execution by the person by whom it purports to have been executed is specifically denied. As such, at least one witness has to be examined in court to prove a Will. Apropos the execution of Ex.A.1, for the sake of argument but not otherwise, even if the execution of Ex.A.1 was accepted to be proved, the subsequent execution of Ex.B.1 dated 02.12.1999 by the late father of the parties to the lis would tantamount to revocation of the of Ex.A.1, dated 29.07.1985. Per contra, it was the case of the respondent/defendant that his father had also referred about the earlier Will--Ex.A.1 executed by him in favour of appellants/plaintiffs and also the reasons in Ex.B.1 Will that his daughters played fraud against him and obtained the same in their favour by making unchaste allegations against the respondent/defendant. In support of his case, the respondent/defendant examined D.Ws. 2 and 3, who are the scribe and attestors of Ex.B.1 executed by his late father in his favour and their evidence strengthens and supports the case of the respondent/defendant. In as much as both the Courts below concurrently and rightly held that the appellants/plaintiffs failed to prove the execution of Will dated 29.7.1995 and therefore they are not the absolute owners of the plaint schedule property, and that it is not necessary for the Court to embark upon the title and possession of the respondent/defendant over the plaint schedule property. For the foregoing discussion, I do not see any question of law, much less a substantial question of law involved in the second appeal warranting interference with the concurrent judgments and decrees of the Courts below. In the result, the Second Appeal fails and is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 20th OCTOBER, 2011. Msnro