THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.911 OF 2011 Dated:17.10.2011 Between: Dangeti Suryanarayana .. Appellant And Dangeti Maridiyya Setti and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.911 OF 2011 JUDGMENT: The appellant (hereafter, the plaintiff) and respondents 1 to 3 (hereafter, the defendants 1 to 3) are the children of late Dangeti Narasimha Murthy. The fourth respondent (fourth defendant) is the lessee of agricultural wet land admeasuring Ac.0.37 cents in R.S.No.311/1. The plaintiff filed O.S.No.7 of 2004 on the file of the Court of the Senior Civil Judge, Amalapuram, for partition of Plaint A schedule (Items 1 to 6) and Plaint B schedule (agricultural land) properties into three equal shares by metes and bounds and allotment of one such share to him. The said suit was dismissed on 03.07.2008. The plaintiff was also unsuccessful in A.S.No.51 of 2008, which was dismissed on 24.02.2011. The case of the plaintiff is as follows. Except Item No.2 of Plaint – A schedule property, all the properties are ancestral properties of Narasimha Murthy. The plaintiff went to Pune in search of a job, where he stayed for a long time. He used to visit his parents now and then. After death of his father, defendants 1 and 2 (brothers) took possession of Plaint A and B schedule properties, in spite of demand for partition, they did not accept the same. Defendant No.3 (sister) and defendant No.4 (lessee) remained ex parte. Defendants 1 and 2 contested the suit. They denied that the suit schedule properties are the ancestral properties. While claiming that the properties were self acquired properties of Narasimha Murthy, contended that under Will, dated 16.07.1977, Narasimha Murthy bequeathed his properties to them. As per the Will, an extent of Acs.0.02 cents, out of Acs.0.05 cents in R.S.No.341/8 situated in Thanelanka Village was given to plaintiff. The said property has been handed over to the plaintiff even before father executed the Will. After death of the father, defendant 1 and 2 took possession of the property and enjoying the same. Item No.2 is the property of the mother who also executed the Will dated 20.08.1997 bequeathing the property by the defendants 1 and 2. During the course of trial, five issues were framed. The plaintiff examined himself as P.W.1 and marked Exs.A1 to A4. He also examined P.Ws.2 to 4. The defendants examined eight witnesses and marked Exs.B1 to B5. After considering the evidence, the trial Court believed the defendants 1 and 2 and came to the conclusion that the suit schedule properties are not ancestral properties and that the Will – Ex.B5 executed by the father is duly proved. The suit was accordingly dismissed. The appellate Court framed five points for consideration. On appreciation of the evidence, the first appellate Court came to the conclusion that Plaint A and B schedule properties are self acquired property of Narasimha Murthy. It is submitted before this Court that Ex.B5 - Will was not proved properly and therefore the trial Court erred in holding that the property was self acquired property. The submission cannot be accepted. It is well settled that when a member of the Hindu Joint Family alleges that the property is joint family property, the burden is on such person to prove the same. In this case, the plaintiff failed to prove that it is the joint family property. Secondly, as observed by the Courts below, as the original attestors are no more, their children identified the signatures of attestors on Ex.B5 which is valid proof under Section 69 of the Indian Evidence Act, 1872. The findings of fact therefore do not warrant any interference. The Second Appeal is misconceived and is accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S. RAO, J) 17.10.2011 KH