IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE ELEVENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2174 OF 2001 BETWEEN: Regulabanda Ramulu and another …APPELLANTS AND Kadilli Satyavathi and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 2174 OF 2001 JUDGMENT: The 4th and 5th defendants in O.S.No. 98 of 1995 on the file of Additional Senior Civil Judge, Rajahmundry, are the appellants herein. 2. The suit was filed for partition of the schedule properties. 3. According to the case of plaintiff, the plaintiff and 1st defendant are sisters and one Pedda Rathaiah was their father, who died intestate in 1974 leaving behind them as his legal heirs and also plaint A & B schedule properties. During the life time of the father, he has constructed a house in the plaint B-Schedule property. He has also purchased some agricultural land in the name of the 1st defendant and the plaintiff and they have been enjoying the same. The 1st defendant without consent and enjoyment of the plaintiff sold away Ac.0.22 cents of land to the 2nd defendant and Ac.0.25 cents to the 3rd defendant, who are in enjoyment of the said properties, which are items 2 and 3 of B-Schedule. As the defendants refused to co-operate for partition, a legal notice was issued and the reply was given in May, 1995 setting up a Will said to have been executed by their father in favour of the 4th defendant. Hence, the suit was filed for partition and separate possession of the property and profits. 4. The 1st defendant died and the legal representatives were brought on record, who are defendants 4 and 5. The 4th defendant filed a written statement disputing the several allegations made in the plaint. According to the 4th defendant on 06.02.1973 Pedda Rathaiah executed a Will bequeathing the properties in his favour and immediately after the death of his father-in-law, he became the owner of the property and the plaintiff aware of the above said Will. The allegation that the right of the plaintiff for partition is disputed. The plaintiff was out of possession of the plaint schedule property and there is no cause of action to file the suit and the suit was not properly valued. Defendants 2, 3 and 5 filed a memo adopting the written statement of 4th defendant. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiff is entitled to partition and separate possession as prayed for ? 2) Whether the Will dated 06.02.1973 is true and valid? 3) Whether the Court fee paid is correct? 4) Whether defendants are entitled to compensatory costs? 5) Whether plaintiff is entitled to future profits? 6) To what relief? 6. On behalf of the plaintiff, PW.1 was examined and marked Exs.A.1 to A.5. On behalf of the defendants, DWs.1 to 6 were examined and marked Exs.B-1 to B-4 and Ex.X.1. 7. After considering the evidence on record, the learned Additional Senior Civil Judge, Rajahmundry, did not accept the case of the 4th defendant with regard to the Will and accordingly decreed the suit of the plaintiff as against all the defendants except the 2nd defendant. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the Will dated 06.02.1973 set up by the 4th defendant is true and valid? 2) Whether the alienations made by 1st defendant in favour of 2nd and 3rd defendants are valid? 3) Whether the judgment and decree passed by the learned Additional Senior Civil Judge, Rajahmundry, is legal and sustainable? 9. POINTS: There is no dispute about the relationship between the parties and also about the fact that the properties originally belong to Pedda Rathaiah, who is said to be the father of the plaintiff and 1st defendant. The 4th defendant is the husband of 1st defendant and 5th defendant is the son of 4th defendant. The 1st defendant died during the pendency of the suit and without giving any evidence. Even the 4th defendant, who is the person that has propounded the Will did not go into box. It was only the 5th defendant, who is the son of 4th defendant, has gone into box. Evidently, the Will Ex.B.1 is unregistered Will. DWs. 2 and 3 are said to be the attesters on the Will who spoke about the alleged execution of the Will by Pedda Rathaiah. The lower Court while assessing the evidence of the defendants has taken into consideration Ex.A.5, which is a Caveat application filed by the 1st defendant during her life time as O.P.No.25 of 1995 on 08.05.1995 claiming that she has succeeded to the properties of her father. The lower Court took into consideration the fact in this Ex.A-5 during the life time the 1st defendant has not referred to the existence of the Will in favour of her husband. According to the plaintiff, this Will was fabricated by the 4th defendant. The scribe of the Will is no more and he could not be examined. Evidently, Pedda Rathaiah is said to have died shortly after the execution of the Will. The Will is an unregistered Will. There is no reason as to why the Will was not registered. Further-more, till 1995 for a period of two decades the Will has not seen the light of the day. It was not filed before any competent authorities or revenue authorities and no explanation is given. Further-more, when there are two daughters for Rathaiah and when they have two children, there is no reason as to why he should execute the Will in favour of the son-in-law excluding his daughters and grand children. This is a serious suspicious circumstance, which is not explained by the defendants. There is also no reason as to why the 1st defendant did not mention about this Will in her Caveat application Ex.A.5. If really a Will was executed by her father, it cannot be believed that the 1st defendant had no knowledge of the same. Whatever may the claim of the 1st defendant in the caveat about her rights over the property, the fact remains that the Will was not pleaded. Evidently, some part of the property was sold to the 3rd defendant and the sale deed was executed by the 1st defendant. If really the 4th defendant is the beneficiary under the Will, the possibility of the 1st defendant alienating the property to 3rd defendant does not arise. The learned Additional Senior Civil Judge has referred to the decisions as to the burden of proof and also the adverse inference to be drawn for non examination of the parties. It is needless to say that when a person is claiming rights in the immovable property, he should go into the box and in this case the 4th defendant is a better person to speak about the rights in the property rather than the 5th defendant, who is the son and might not be having much knowledge about the properties or the dispossessions. 10. Therefore, from all the above circumstances, it is quite clear that till the filing of the written statement by the 4th defendant setting up the Will, the document, has not seen the light of the day for about 22 years and no mutation was effected in his name. On the other hand, the 1st defendant asserted her title and right to the property and alienated the properties, which is clearly goes to show that the Will set up by the appellants is not true. The lower court has given sufficient reasons of the appreciation in the evidence of the parties and I have no hesitation in holding that the Will set up by the appellants is not true and valid and consequently they cannot derive any right or title to the property. There is also no material to show that the 1st defendant is the absolute owner of the properties shown in A and B schedule, which were evidently owned by their father. The lower Court has rightly excluded the item of the properties sold to the 2nd defendant and I find no merits in the appeal. Accordingly, points are answered. 11. In the result, the appeal is dismissed. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 11-04-2011. INL