THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1187 OF 2009 Date: 01-07-2011 Between Arepalli Kotiratnam and another …..Appellants And Arepalli Koteswara Rao and another …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1187 OF 2009 ORDER: The unsuccessful 1st defendant in the Courts below filed this second appeal against the judgment and decree dated 29-06-2009 passed by the learned VII Additional District and Sessions Judge (Fast Track Court), Vijayawada in A.S No.8 of 2008 wherein the appeal preferred by him has been dismissed confirming the judgment and decree dated 14-12-2007 passed by the learned III Additional Senior Civil Judge, Vijayawada in suit O.S No. 511 of 2005. The respondent – plaintiff filed the above suit for partition stating that the suit schedule property was originally owned by his grandfather Arepalli Parasuramulu and during his life time, partition was affected partitioning Acs.3.60 cents of land in R.S No. 116 into three equal shares. The suit schedule property of an extent of Ac.1.20 cents fell to the share of the plaintiff’s father A. Balakotaiah who will not have any absolute right to deal with the property. The father of the plaintiff was blessed with four daughters and two sons through the 1st defendant and during his lifetime, he performed the marriages of four daughters and arranged properties to them towards pasupukumkuma. The father of the plaintiff, his wife and two sons lived under one roof. While the things stood thus, the father of the plaintiff died intestate leaving behind his wife and two sons as his legal heirs and since then the plaintiff had developed the joint family property as an elder son. The Mandal Revenue Officer issued patta certificate in favour of the 1st defendant. According to the plaintiff, he reliably came to know that the defendants are trying to alienate the suit schedule property without his consent and that as they are not absolute owners, they cannot sell away his one-third share. Hence the suit for partition and to allot one- third share to the plaintiff. The 1st defendant filed a written statement, which was adopted by the 2nd defendant, stating that Ac.1.20 cents of land was purchased by her husband out of which he sold 50 cents to one Sk. Mastan in the year 1979 vide document No.4638/79, who in turn sold the same to one Danejula Raja Rao, son of Satyanarayana vide registered document No.3373/93, dated 24-06-1993. The said Danejula Raja Rao out of the said land sold an extent of 12 guntas in favour of four persons. According to the 1st defendant, the remaining extent of the property was bequeathed in her favour by Will dated 17-07-1980 vide registered document No.181/80 and in pursuance of the said Will, she got possession of 71 cents of land out of the plaint schedule property out of which she executed settlement deed for an extent of 40 cents in favour of her daughters namely K. Subbamma, P. Koteswaramma, K. Dhanalakshmi and M. Nagendram vide registered document No.300/94. As per the recitals of the said settlement deed, the 1st defendant is entitled to enjoy the income of 40 cents out of 71 cents. After the death, the transferees of the said settlement deed are entitled to enjoy the said 40 cents of land with absolute rights. The said K. Dhanalakshmi, one of the daughters of the 1st defendant died intestate leaving behind her husband, her son K. Rosaiah and daughter Palagani P. Vani as her legal heirs. After the death of K. Dhanalakshmi, the 1st defendant and the daughter of K. Dhanalakshmi sold an extent of 415.5 square yards of land out of 40 cents in favour of one Y. Rambabu, son of Veerabhadrarao on 31- 07-2003 vide registered document No.2724/2003. Later, the 1st defendant executed gift deed for an extent of 415.5 square yards in favour of K. Subbamma on 13-07-2003 vide registered document No.275/03. She along with the beneficiaries under settlement deed No.300/94 sold an extent of 415 square yards of site in favour of one R. Basava Suryanarayana, son of late Kutumbaiah on 07-06-2004. It is also stated that in the year 1992, the 1st defendant settled an extent of 30 cents out of 70 cents in favour of one K. Anjaiah, son of Venkateswarlu vide registered document No.659/92 but later she had cancelled the same on 30-06-2004 vide registered document No.2252/05. Finally, she had sold away 30 cents of land in favour of one M. Srinivasarao, son of Radhakrishnaiah who obtained pattadar passbook for the said extent of land. Hence, the defendant has nothing to do with the said piece of land and as there is no cause of action for the plaintiff to file the suit, the same may be dismissed. On the basis of the above pleadings, necessary issues were settled by the trial Court and on a consideration of the entire material available on record, the trial Court found that when the defendants stated that the husband of the 1st defendant executed a registered Will in her favour bequeathing 70 cents, the burden lies on the defendants to prove the existence of the Will. The defendants have not produced the original or the certified copy of the Will and no reasonable explanation was given as to what happened to the original Will. Thus, non production of the original Will deed by the 1st defendant gives a presumption that because the contents of the Will deed are not in her favour, she has not produced the original Will. The 1st defendant filed a certificate issued by the District Registrar stating that the deed could not be issued. The endorsement on the copy application was marked as Ex.B-3 and the photocopy of the Will was marked as Ex.B-4. According to the trial Court, on the face of the document itself, it does not appear to be genuine and it is the duty of the 1st defendant to explain as to how she could get photocopy which itself shows that the original Will deed is available which is within her knowledge. When the defendants failed to prove execution of the Will deed, the 1st defendant will not get any right over the property. Therefore, settlement deed Ex.B-11 dated 31-01-1994 executed by the 1st defendant in favour of her daughters will not bind the plaintiff. Holding thus, the trial Court decreed the suit. The same has been confirmed by the lower appellant Court, but in the cause title, it is wrongly mentioned as if the plaintiff himself has filed the appeal. Learned counsel for the appellant – 1st defendant maintained that under Ex.B-1 certified copy of the sale deed, the plaintiff himself purchased the property from the 1st defendant which corroborates that the appellant – 1st defendant has absolute rights under the said Will and even otherwise, there is no question of the plaintiff sustaining the property. No such plea has been taken by the appellant in the Courts below with regard to the plaintiff purchasing the property from the 1st defendant nor was any issue to the said effect is framed by the trial Court. In the absence of the same, the appellant cannot put forth any contention basing on the same. Further, both the Courts below concurrently held that the defendants failed to establish bequeathing of the property in favour of the appellant – 1st defendant through Will. The concurrent findings of fact arrived at by the Courts below do not give rise to any substantial question of law. The second appeal is accordingly dismissed. A. GOPAL REDDY, J 01-07-2010 ks