IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SEVENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.2597 OF 2002 Between: Rayala Manikyala Rao ..... Appellant AND Smt. Ramayanapu Subbamma .....RESPONDENT The Court made the following : THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.2597 OF 2002 JUDGMENT: This Civil Miscellaneous Appeal, under Section 384 of the Indian Succession Act, 1925 (for short, “the Act”) is directed against the order dated 26.07.2002, in Succession O.P.NO.693 of 2001 on the file of II Additional District Judge, Vijayawada, whereunder and whereby, the succession certificate was granted for the schedule amounts in favour of the respondent herein. 2. For better appreciation of facts, the parties are hereinafter referred to as they are arrayed before the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows:- The petitioner filed the petition under Sections 372 and 374 of the Act praying the Court to grant succession certificate enabling her to draw the amounts mentioned in the schedule appended to the petition and grant cost of the proceedings. It is averred in the petition that the petitioner is the mother-in-law and respondent is father of one Ramayanapu Vasanta Kumari, wife of Butchi Babu resident of Patamata, Vijayawada, who married Vasanta Kumari in the year, 1985, and who was the son of petitioner. The said couple Butchi Babu and Vasanta Kumari had no issues. While so, the said Butchi Babu died on 08.09.1989 at Annavaram, East Godavari District during the course of his employment on the lorry bearing No.ADM 3637 leaving the petitioner and his wife, as his only legal heirs on whom his estate devolved equally. Later the daughter-in-law of petitioner i.e., Vasanta Kumari also died on 05.03.1993 intestate at Boddapadu village, Vijayawada leaving the petitioner as the sole legal heir of her estate. While so, long after the death of said Vasanta Kumari, the petitioner came to know in the first half of 1993 that the Vasanta Kumari taking advantage of the illiteracy and old age of the petitioner and her non-awareness of the provisions of laws, as to workmen compensation, had filed a petition before the Commissioner for workmen compensation, Eluru in W.C.35 of 90 claiming compensation for the death of her husband Butchi Babu with false allegations and represented that she was the only legal heir of deceased husband, suppressing the fact of existence of the petitioner (mother of deceased), so as to have an unlawful gain with the active connivance and instigation of her father, who is the respondent. As a result, compensation of Rs.68,570/- was awarded only to late Vasanta Kumari. It is also learnt by the petitioner that the same authority passed the award to the effect that out of the said Rs.68,570/- late Vasata Kumari was allowed to withdraw a sum of Rs.18,570/- and the rest of the amount was ordered to be kept in fixed deposit in the name of Vasanta Kumari in the Ashoknagar Branh of Andhra Bank, Eluru, and Vasanta Kumari having drawn the amount of Rs.18,570/- kept the remaining amount in the Savings Bank Account No.2720 in the State Bank of India, Nunna Branch. The petitioner being mother of the deceased is entitled to half share of the compensation amount awarded along with her daughter-in-law and after the death of her daughter-in-law, she is the sole legal heir and she came to know that a will has been fabricated by the respondent, who is no other than the father of Vasanta Kumari, not only for the withdrawal of the amount, but also for the lorry. When the petitioner approached the bank for withdrawal of the amount, they insisted for succession certificate and hence the petition. 4. The respondent filed written statement admitting that his son-in-law died and as per law, his daughter is the only legal heir to succeed the estate of the deceased Butchi Babu and his daughter Vasanta Kumari executed a will dated 18.01.1993 in his favour, bequeathing all the rights including the right to withdraw the amounts deposited in Andhra Bank and the said Will was executed in the presence of K.Vasanta Rao and Y.Venkata Reddy and therefore, he is entitled for the amount. 5. Basing on the above pleadings, the following issue has been framed for trial: “1.Whether the petition filed by the petitioner for issuance of succession certificate as prayed for is sustainable or not, is to be seen.” 6. On behalf of the petitioner, PW.1 was examined and Exs.A-1 to A-15 were marked. On behalf of the respondent RWs.1 to RW.3 were examined and Exs.B-1 and B-2 were marked. 7. The trial Court after considering the evidence available on record, disbelieved the evidence adduced by the respondent with regard to the execution of will, for which he is entitled for the amounts, and issued succession certificate in favour of the petitioner. Challenging the same, the present appeal is filed. 8. Learned counsel for the appellant contended that Ex.B-1- the will, said to have been executed by Vasanta Kumari has been established and proved by examining RWs.2 and 3, who clearly spoke about the execution of the will, and that if the execution of the will under Ex.B-1 is established, then the appellant alone is entitled for the death benefits of his son-in-law and therefore, he prays to set aside the impugned order. 9. On the other hand, learned counsel appearing for the respondent herein contended that since the will has not been properly proved before the trial Court, the trial Court rightly disbelieved Ex.B-1-Will; and that if Ex.B-1- Will is not established, the respondent alone is entitled for the amounts mentioned in the petition schedule and therefore, he prays to dismiss the appeal. 10. The factual matrix is not seriously disputed. The appellant herein is the father-in-law of one Butchi Babu. The marriage of Butchi Babu with the daughter of the appellant i.e., Vasanta Kumari was performed in the year 1985. Admittedly, the said couple had no issues. It is not in dispute that Butchi Babu died in an accident took place on 08.09.1989 at Annavaram, East Godavari District, during the course of employment in the lorry bearing No.ADM 3637 leaving behind his wife Vasanta Kumari. It is also not in dispute that the Tribunal awarded a sum of Rs.68,570/- in favour of Vasanta Kumari as a legal heir of the deceased Butchi Babu. It is also not in dispute that Vasantha Kumari died intestate on 05.03.1993 at Boddapadu village. The respondent herein is the mother-in-law of the deceased Vasanta Kumari. The entire claim of the appellant is based upon Ex.B-1-Will. The trial Court has not placed any reliance on the evidence of RWs.1 to 3 with regard to Ex.B-1-Will. Section 63-A of the Act, reads thus: “ In order to prove the due attestation of the Will the propounder of will has to prove that ‘A’ and ‘B’ the two witnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator.” 11. Similarly, Section 68 of the Indian Evidence Act, 1872 reads thus: “Proof of execution of document required by law to be attested. 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 alive, and subject to the process of the Court and capable of giving evidence: 1[ Provided 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, 1908 (16 of 1908 ), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 12. So, if the two sections are read together in juxta position as they have got to be it is clear that the Will has been signed by the testator and after knowing the contents as true, he signed the Will and thereafter, two attesting witnesses have to attest the Will in the presence of the testator. RWs.2 and 3 are the close relatives of RW.1. No doubt, the relationship by itself is not a ground to discredit the testimony of the witness, but, at the same time, their evidence has to be appreciated like that of the evidence of any other witness. In their evidence they have not testified that Ex.B-1 was the last testament of the deceased Vasanta Kumari or that they saw the deceased Vasantha Kumari signing in Ex.B-1 or acknowledging her signature. Similarly, they have not stated that they have signed after the executant signed the Will after knowing the contents. So, the requirements of proving the Will under the above provisions of law have not been proved beyond preponderance of probability. That is the reason why the trial Court has not placed any reliance on Ex.B-1. Once Ex.B-1 was eschewed from consideration, the appellant is not entitled for any share in the compensation amount deposited in the Bank. Therefore, the trial Court after considering the evidence in a right perspective, ordered for issuance of succession certificate in favour of the respondent herein and that order does not suffer from any infirmities so as to call for interference by this Court. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ (K.C.BHANU, J) Dt.07.06.2010 Ivd/Md