HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2754 of 2008 Date: October 19, 2011 Between: Anne Sesha Ratnam … Petitioner And 1. Lavu Venkata Subbamma & 4 others … Respondents * * * HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2754 of 2008 O R D E R: Petitioner was the first respondent in O.P. No.3 of 2002 on the file of the Junior Civil Judge, Nuzvid. The parties are referred to as arrayed in O.P. No.3 of 2002. The said O.P. was filed under Section 376 of Indian Succession Act, 1925, by the widow and two children of the deceased Lavu Venkataramaiah for grant of succession certificate, particularly with reference to Life Insurance Policy of Rs.50,000/-. The first respondent who is the sister of late Venkataramaiah contested the said application. She opposed the grant of succession certificate by contending that late Venkataramaiah died testate leaving behind Will (Ex.R-2) dated 15.3.2002 executed in her favour, as neither the widow nor the children, who are now seeking succession certificate, have taken care of Venkataramaiah during his ill-health and old age and it is the first respondent who looked after him. It was also claimed by the first respondent that the Will was attested by R.W.2 and as such the first respondent claimed that the petitioners’ application for succession certificate is liable to be dismissed. 2. The trial court, however, decided the said succession O.P. in favour of the petitioners under its judgment dated 13.9.2005 by recording a finding that the evidence of R.W.2 as attestor is not believable nor there is any circumstance or evidence to establish that the deceased was in fit mental condition to execute the Will. Consequently, not being satisfied with the Will propounded by the first respondent in the O.P., the said O.P. was allowed. Questioning the judgment of the trial court, an appeal was preferred by the first respondent before the appellate court, which has also confirmed the order of the trial court. Questioning the said primary and appellate orders, this revision is preferred. 3. Heard the learned counsel for the petitioner who has vehemently contended that in the evidence of R.W.2 there is not even a suggestion in the cross-examination about the mental fitness of the deceased. He also submits that R.W.2, the attestor, is the elder brother of the deceased and as such his evidence ought to have been accepted by the court below when he has categorically stated that the Will was attested by him and by another attestor Syed Ameer R.W.3. According to the learned counsel, the evidence of both the attestors as R.Ws.2 and 3 ought to have satisfied the courts below that Ex.B-1 Will is duly proved. 4. The chief-examination affidavit of R.W.2 does not conform to the requirements of Section 68 of the Succession Act read with Section 3 of Transfer of Property Act, as the said attestor does not speak of the attestor executing the Will as witnessed by the attestors and signing of the Will as attestor thereof. In his cross- examination he states that the said document was executed between 10.00 a.m. and 11.00 a.m. in the house of the first respondent and on the specific mental fitness he states that doctor has not advised whether Venkataramaiah is in a fit condition mentally to execute a document. The other witness R.W.3 also confirms that the Will was executed between 10.00 a.m. and 11.00 a.m., but he too does not speak of the mental fitness of the deceased. His evidence further shows that there is no date noted on Ex.R-1 anywhere and there is no explanation as to why the scribe was not examined, when there is a doubt with regard to the mental condition of the deceased. It is not in dispute that the deceased was in hospital suffering from kidney ailment for several years and he was discharged from the hospital, but was advised not to move out. In such a situation, the execution of the Will by the deceased in the circumstances which are shrouded with suspension with regard to genuineness of the said Will, were not repelled by the profounder of the Will i.e., the first respondent in O.P. No.3 of 2002, the petitioner herein. Both the courts below having concurrently found that the said Will is suspicious and not proved, I do not find any justification to take a different view. 5. The civil revision petition is accordingly dismissed. No costs. ____________________________ VILAS V. AFZULPURKAR, J Date: October 19, 2011. BSB