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IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE,

KRISHNA, MACHILIPATNAM.

Present: Sri Sarikonda China Babu,

VI Addl. Sessions Judge,
Krishna at Machilipatnam.

Wednesday, 2nd day of November, 2022.

O.S.No. 20/2012
Between

1. Kamarajugadda Sesharathnam W/o late K.V.Seshagiri Rao, Hindu,

house wife, properties, R/o 5-77/1, Bhavani Nagar, Hyderabad.

2. Dr.Uppuluri Jaya Lakshmi (died)

3. Mocherla Ranganayakamma (died)

4. Uppuluri Venkata Subbayya Sarma S/o Adinarayana Murthy, Hindu,

85 years, doctor, R/o Old Pattabhipuram, Guntur, Guntur District.

5. Uppuluri Adinarayana Srinivas S/o Venkata Subbayya Sarma, Hindu,

46 years, R/o Hyderabad.

6. Upuluri Lakshmi Prasanna D/o Venkata Subbayya Sarma, Hindu, 47 yrs,

resident of U.S.A.

(plaintiffs 4 to 6 are added as Lrs of the deceased 2nd plaintiff, as per the
orders in I.A.451/2019 dt.9.5.2022.)

7. Mocherla Hemadri Lakshmi Kantha Rao S/o Kondaiah, Hindu, 74 years,

R/o door No.18/35, Englishpalem, Machilipatnam.

8. Mocherla Yagna Sri W/o Akella Venkata Rama Durga Prasad, Hindu,
47 years, R/o D.No.31-43-4/1/6, plot No.202, DNK Towers,
Kulmmapalem, Visakhapatnam.

(Plaintiffs 7 and 8 are added as Lrs of the deceased 3rd plaintiff, as per the
orders in I.A.203/2022 dt.12.08.2022.)
… Plaintiffs

AND

1. Kanukolanu Venkata Subhrahmanyam (died as bachelor)

2. Kanukolanu Venkata Rama Krishna Rao

3. Kanukolanu Venkata Surya Prakasa Rao

4. Kanukolanu Vimala Rani

… Defendants

This case coming upon before me on 27.10.2022 for final hearing in

the presence of Sri V.V.Varadarajulu., Advocate for plaintiffs and of Sri
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Y.U.S.V.V.Subba Rao., Advocate for 2nd defendant, Sri K.V.S.Prakasa Rao.,

Advocate for 3rd defendant and Sri N.Aravind Kumar., Advocate for 4 th de-
fendant (D1 died) and on perusing the material available on record, after
hearing both sides, and having stood over for consideration till this day,
this Court delivered the following:-

JUDGMENT

1. This suit is filed seeking partition of the plaint schedule properties

into 7 equal shares and to allot one such share to each of the plaintiffs 1
to 3 and such share of plaintiff No.2 to her legal representatives plaintiff
Nos. 4 to 6, the share of plaintiff No.3 to her legal representatives plaintiff
Nos. 7 and 8 and for mesne profits and costs.

2. Case of the plaintiffs, in brief, as per the plaint, is as follows.

Plaintiffs and defendants are the children of K. Venkata Narasimha

Rao and K. Rajya Lakshmi. Their mother Rajya Lakshmi died in September
2000 and father K. Venkata Narasimha Rao died on 23.02.2011, intestate.
Said parents of the plaintiffs and defendants were the absolute owners of
plaint schedule properties. Subsequent to their death, the plaintiffs and
defendants have been jointly enjoying said properties without effecting
the partition. Item Nos.1 to 3 of the plaint schedule properties have been
maintained by 1st and 3rd defendants and item No.4 has been maintained
by 4th defendant on behalf of the parties, who are having equal shares in
the schedule properties. Subsequent to death of K. Venkata Narasimha
Rao, the defendant Nos. 1,3 and 4 have been acting against the interests
of the plaintiffs. Then, the plaintiffs have requested defendant Nos.1,3
and 4 for several times for partition of schedule properties, but the parti-
tion was being postponed from time to time and failed to hand over the
respective shares to the plaintiffs. Hence, on 11.11.2010 the plaintiffs got
issued registered notice to defendants, but they failed to make partition.
The 4th defendant has the custody of 15 Sovereigns of Gold belonged to
their mother Rajya Lakshmi. Hence the plaintiffs seek their 1/7th share
each from plaint schedule properties, but the defendants failed to come
forward for partition of the properties. The plaintiff No.2 also died, during
the pendency of the suit, intestate, on 06.05.2019, leaving behind her
husband, son and daughter i.e., plaintiff Nos. 4 to 6, as her legal heirs.
Further, during pendency of the suit, the 3rd plaintiff died Intestate on
29.02.2020, leaving behind her husband and the daughter as her legal
heirs and they were added as plaintiff Nos. 7 and 8 in the suit.
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3. Defendant No.1 filed written statement denying material con-

tentions of the plaint.
Averments of his counter, in brief, are that the relationship of plain-
tiff Nos.1 to 3 and defendant Nos.1 to 4 with late K. Venkata Narasimha
Rao is true and that said Narasimha Rao died on 23.02.2011. It is con-
tended that the said K. Venkata Narasimha Rao during his life time exe-
cuted the Will and testament on 20.12.1962 in his own hand writing
(Holographic Will) when he was in a sound and disposing state of mind
bequeathing his property to his wife, children etc., and it was attested by
one D. Ramu and P. Yogananda Rao. The fact of executing the Will is
known to all the remaining parties to the suit and they also known that
said Will is the last Will of K.Venkata Narasimha Rao. During life time of
the testator Narasimha Rao, he himself disposed of some of the proper-
ties. Present suit is the Brainchild of the Defendant No.3, who is practicing
advocate at Machilipatnam, who got filed the present suit in collusion
with the parties to the suit to knock away the properties of this defen-
dant, who is a bachelor. It is further contended that the plaintiffs are not
in joint possession of the plaint schedule property and the court fee paid
by them is not correct. Further, description of the plaint schedule is incor-
rect and the suit is liable for dismissal on that score also.

4. Defendant No.2 filed written statement denying the material

contentions of the plaint. The avernments of his written statement, in
brief, are as follows:
Marriages of the plaintiffs 1 to 3 were performed by their parents in
about the years 1940, 1950 & 1975 respectively by giving sufficient cash,
gold jewelery and silver articles as per capacity of their parents and sent
to their in-laws homes and since then said plaintiffs have been living with
their families and never agitated and sought for their shares during life
time of their parents. During life time of K. Venkata Narasimha Rao, the
father of plaintiffs Nos.1 to 3 and defendants, he executed the Will on
20.12.1962, with his own hand writing in a sound and disposing state of
mind bequeathing the properties in favour of the defendants. Parents of
the plaintiffs and defendants were living at English Palem, Machilipatnam
with defendant No.1,3 and 4 until their death. This defendant No.2 is
resident of Vishakapatnam since 1973 and used to visit his parents and
provide them the medical aid. The defendants have been in continuous
possession of plaint schedule properties as per their shares alloted to
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them in the Will executed by their father and they never contributed the
means to the plaintiffs at any point of time, as the defendants are
absolute owners and successors under the said Will. The plaintiffs are
having full knowledge about the Will. This defendant No.2 did not receive
any legal notice from the plaintiffs. As the price of immovable properties
were in hike, present suit is filed for wrongful gain, without any cause of
action.

5. Defendant No.3 filed written statement denying material

contentions of the plaint. Case of defendant No.3, in brief, as contended
in his written statement, is as follows:
The relationship that the plaintiff No. 1 to 3 and the defendants are
the children of K. Venkata Narasimha Rao is admitted and said Narasimha
Rao died on 23.02.2011. During his life time when he was in a sound and
disposing state of mind on 13.01.1995, he executed the Will bequeathing
his property to defendant Nos.1 to 4. In that Will he specifically men-
tioned that he had executed a Will on 20.12.1962 and he cancelled the
said Will. In the Will dt. 13.01.1995, father of the defendants bequeathed
Ac.3.75 cents to the 1st defendant and a house D.No.11/512 situated in
R.Peta, Machilipatnam to defendants Nos. 2 to 4, which is shown as item
No.2 of plaint schedule property and he also bequeathed a house and site
bearing door No.19/345 situated in Sukarlabad, Machilipatnam to defen-
dant Nos. 2 to 4. In the same Will, K.Venkata Narasimha Rao bequeathed
totally Ac.1.79cents, situated in Tallapalem village of Bandar Mandal to
the defendant Nos. 2 and 3. Said property was described as a,b,c in
item No.3 of the plaint schedule property. It is the last and final testament
of the father of the defendants.

6. Defendant No.4 filed her written statement denying the material

contentions of the plaint. She admits the relationship of plaint Nos.1 to 3
and the defendants that they are the children of K. Venkata Narasimha
Rao who died on 23.02.2011. It is contended in her written statement
that item No.4 of the plaint schedule property is not in her possession and
in fact there are no such gold ornaments either with their father or
mother. If there are any gold ornaments with this defendant, they are ab-
solute property of this defendant. She had previously worked as the Head
Mistress and retired from her service about 10 years back and said orna-
ments are her personal property.
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7. After plaintiff Nos.7 and 8 were impleaded as legal heirs of the

deceased plaintiff No.3, additional written statement was filed by the de-
fendant No.3. The averments of the written statement filed by plaintiff
No.3 are as follows:

The 7th plaintiff had his first marriage with one Vadapalli Kutumba
Annapurna Devi, who passed away on 05.09.1973, after she delivered the
8th plaintiff. Mocherla Yagnasree i.e., plaintiff No.8 is the step daughter of
3rd plaintiff M. Ranganayakamma and thereby she is not entitled for her
share. All the documents such as date of birth and others of 8 th plaintiff
clearly shown that she is the daughter of V. Kutumba Annapurna Devi.
The 7th plaintiff got executed a registered Will on 14.08.2020, by giving
away all his properties to 8th plaintiff and in that Will he clearly mentioned
that she is the daughter of Kutumba Annapurna Devi. The 7 th plaintiff also
is not entitled for any relief in the present suit.

8. Basing on the pleadings, the then learned presiding officer settled

the following issues for trial.

1) Whether the plaint schedule properties are the joint family

properties of plaintiffs and defendants ?
2) Whether late K. Venkata Narasimha Rao executed the Will
dt.13.01.1995 bequeathing the plaint schedule properties to the
defendants ?
3) Whether the plaintiffs are entitled to seek partition claiming
3/7th share in the suit schedule properties ?
4) To what relief?

9. On 18.8.2016 the following additional issues are settled for trial.

1. Whether the court fee paid is correct ?

2. Whether the defendants have been in continuous possession
of the plaint schedule properties as per their share alloted to
them under a Will executed by their father ?
3. To what relief ?

10. During trial the 1st plaintiff was examined herself, on behalf of the
plaintiff Nos. 1 to 3, as P.W1 and got marked Ex.A1 and Ex.A2. After clo-
sure of plaintiffs’ evidence, the defendant No.1 was examined as D.W1
on behalf of the defendants and got marked Ex.B1. D.W.2 and D.W.3 are
also examined and Ex.X1 and Ex.X2 are marked through D.W.2.

11. The learned counsel for plaintiffs submitted that the plaint schedule
property is being joint family property, the plaintiffs are entitled for equal
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shares therein and the alleged Will dt.20.12.1962, is fabricated and

surrounded with suspicious circumstances and thereby it cannot be relied
upon and the defendants failed to prove the said Will. He argued that
the defendants not adduced any evidence to prove that the plaint sched-
ule property is the self acquired property of their father and thereby they
failed to discharge their burden of proving that the property for which the
alleged Will was brought into existence is the self acquired property. The
learned counsel further submits that the alleged Will is with certain terms
and conditions, which were not fulfilled and thereby it is not acted upon
and hence it is invalid. He finally argues that the plaintiff Nos.1 to 3 being
coparceners, have equal share in the Hindu joint family property and
hence the suit shall be decreed with costs.

12. The learned counsel for defendant Nos.2,3 and 4 concurrently ar-
gued that the plaintiffs filed this suit as a chance litigation and the testi-
mony of the 1st plaintiff clearly indicates that she does not know anything
about material facts of the case and as to for which purpose the suit was
filed. Any other plaintiffs or the witnesses were not examined and expect
the self supporting testimony of the 1 st plaintiff, no evidence was brought
on record on behalf of the plaintiffs and thereby the suit is not maintain-
able. They further submit that as deposed by P.W1, the plaint schedule
property is not in their possession and thereby the payment of court fees
u/s 34(2) of A.P. Court Fee and Suit Valuation Act is not correct. The
learned counsel for defendants further argued that the said schedule
property is in the continuous possession and enjoyment of defendant Nos.
1 to 4 by virtue of the Will dt. 20.12.1962, which was duly drafted and ex-
ecuted by their father and attested by two witnesses, and attestors fully
corraborated the case of the defendants as D.W2 and D.W3. The learned
counsel further argued that the Ex. X1 and X2 which are the registered
documents drafted by K.V Narasimha Rao, who is testator of the Will,
clearly proved that the said Will Ex.B1 is in the hand writing of K.V
Narasimha Rao himself and thereby the said Will dt.20.12.1962 is abso-
lutely proved. The counsel for defendants finally submits that the proper-
ties of their father were already settled by virtue of the said Will and it
was established by the defendants and on the other hand the plaintiffs
have totally failed to prove their case and hence the suit shall be dis-
missed.
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13. In order to establish the case and to discharge the burden of plain-
tiffs the 1st plaintiff K. Sesha Ratnam was examined as P.W1. On behalf of
the plaintiffs she filed affidavit in lieu of her examination in chief
mostly reiterating the averments of their plaint and testified that their
parents are the absolute owners of plaint schedule properties and subse-
quent to their death, the said properties are devolved upon the plaintiff
Nos.1 to 3 and the defendants and they have been jointly enjoying the
said property without effecting partition and subsequently the defendant
Nos.1,3 and 4 started to act against the interests of the plaintiffs with re-
spect to suit property and thereby the plaintiffs got issued legal notice on
11.11.2010, for which the defendants did not respond for effecting the
partition of said property. P.W1 specifically denied the contention of exe-
cution of the Will by their father with respect to suit properties. Besides
oral evidence, P.W1 produced a certified copy of registered sale deed
dt.29.01.1958 (prepared on 26.01.1958), as Ex.A1 and office copy of legal
notice dt.11.11.2010, as Ex.A2.

14. During cross examination, the P.W1 answered that she cannot de-
scribe the suit schedule properties and plaintiffs asked the defendant to
give their share of property in terms of money and that she cannot say as
to whether they have issued a notice to defendants demanding partition
of the schedule properties. Further, P.W.1 answered that she does not
know whether they have got mentioned in the plaint whether the sched-
ule properties are ancestral or self acquired properties of their parents
and that she cannot say as to in what way they are entitled to right over
the schedule properties. P.W1 further answered that she does not know
whether the agricultural lands are shown in the suit schedule and she
does not know whether they have furnished the particulars of the proper-
ties to their counsel for preparing the plaint. Thus, the testimony of P.W1
clearly shows that she was innocent of material facts of the case, such as
details of the said property and such other details including about is-
suance of legal notice and giving instructions to their counsel.

15. However, P.W1 in her cross examination has clearly denied the sug-
gestions of the learned counsel for defendant No.1 about the execution of
the suit Will dt.20.12.1962 i.e., Ex.B1, by their father and about the right
of the plaintiffs for partition of the plaint schedule properties. Her testi-
mony has shown clearly that though she was not aware of details of her
 8

contentions put forth in the plaint, she was stubborn enough with regard
to right of the plaintiffs for partition and for having share in the said prop-
erty.

16. The defendant No.1 K.V Subrahmanyam was examined himself as

D.W1 by filing chief affidavit mostly reiterating the version laid down in
his written statement. He contended that their father K.V Narasimha Rao
executed the Will and testament dt.20.12.1962, bequeathing his property
to his wife, children etc., and it is his last Will and during his life time he
disposed of some of the properties. D.W1 further testified that he is in
continuous possession and enjoyment of the properties as per the holo-
graphic Will executed by their father. Besides his oral evidence, he pro-
duced the original will dt.20.12.1962, as Ex.B1.

17. During his cross examination by learned counsel for plaintiffs, D.W1
answered that the Will Ex.B1 was not produced in any proceedings prior
to filing the same before the court, but he paid property tax as per terms
of the Will and he can produce proof of such property tax. But, he did not
produce any such proof of paying property tax. D.W1 further admitted
that as per the terms of the Ex.B1 Will, an amount of Rs.30/- per month
has to be paid to one Vani Vilasam, but he had not paid such amount to
her. He further answered that his father maintained good health and
never suffered with ill health during the life time. All these answers go to
show that Ex.B1 Will was not brought into light and was not acted upon
before filing the suit. D.W1 further answered in the cross examination
that their mother was not having gold jewelery and their parents were not
having gold and silver items during their life time. This answer is related
to item No.4 of the plaint schedule property i.e., 15 sovereigns of gold or-
naments.

Genuineness and duly executing the Will Ex.B1:

18. The D.W2, D. Rama Krishna Rao and D.W3 P. Yogananda Rao are
examined as attestors to the Ex.B1 Will. To that extent, they have fully
corroborated the case of defendant No.1 that K.V Narasimha Rao exe-
cuted holographic Will Ex.B1 and they attested his signature and the said
testator was in good health by the time of executing the said Will. Both
D.Ws.2 and 3 have identified the hand writing and signature of K.V
Narasimha Rao present in Ex.B1. Even though the learned counsel for
plaintiffs has tried to shake their veracity, their testimony stood unshaken
 9

over any material fact relating to execution of the Ex.B1 Will by K.V.
Narasimha Rao and their attesting the Will. Even though D.W.2 expressed
his innocence and wrongly mentioned some of the averments of Ex.B1, it
should be noted here that the testimony of attestor is having limited
scope of attesting the signature of the testator as executant of the Will.
To that extent, the evidence of D.W.2 and D.W3 has fully corroborated the
version of defendants about duly execution of Ex.B1 Will by K.V
Narasimha Rao.

19. With regard to execution of the Ex.B1 up to the legal requirements,

such as compulsory attestation by two or more persons, the testimony of
D.W1 to D.W3 has complied with totally. Though there are certain doubt-
full circumstances as to not registering the Will for long time despite the
testator was a living person and also about the reasons put forth in Ex.B1
for executing the Will, they are minor in nature. We should keep in mind
that the Will is not a compulsorily registrable document.

20. With respect to proof of due execution of the suit Will Ex.B1, the
learned counsel for defendant No.2 placed his reliance on a judgment of
Hon’ble Supreme Court in Om Prakash (died) through Lrs v/s Shanti
Devi and Others; 2015 SAR (Civil) 299. In that judgment Hon’ble
Apex Court has discussed the scope and requirements for drawing pre-
sumption u/s. 90 of the Indian Evidence Act, discussing the disputed gift
deed.

21. However, as relied upon by the learned counsel for plaintiffs on the
judgment of Hon’ble Supreme Court in Bharpur Singh and Others v/s
Shamsher Singh; 2009 SAR (Civil) 207, it is held at Para 14 that pro-
visions of the sec 90 of the Indian Evidence Act keeping in view the na-
ture of proof required for proving a Will have no application. A Will must
be proved in terms of the provisions of sec 63(c) of the Indian Succession
Act, 1925 and section 68 of the Indian Evidence Act, 1872. xxxxxx

The same legal position, as afore mentioned, is reiterated by

Hon’ble Apex Court in M.B Ramesh (died) by Lrs. v/s K.M. Veeraje
Urs (died) by Lrs and Others; 2013 SAR(Civil)574, where in, it is
held at Para 15 that the presumption regarding documents 30 years old
does not apply to a Will.
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22. Further, though the presumption u/s. 90 of the Indian Evidence Act,
does not attract in the case on record, by virtue of the testimony of the
attestors D.W.2 and D.W.3, which is found unshaken, this court has care-
fully compared the hand writing of the scribe and signature of the testa-
tor in Ex.B1 with the hand writing of the scribe in Ex.X1 and Ex.X2 and
observed clearly that they are identical in all aspects such as style, font
size, stressing on certain letters etc,. Hence I hold that the testator K.V.
Narasimha Rao himself scribed and executed the Ex.B1 Will and it was
duly attested by D.W.2 and D.W3. Thus, the defendants have successfully
proved the valid execution of Ex.B1, subject to testamentary capacity of
its executant i.e., the testator.

23. Testamentary capacity of the testator K.V Narasimha Rao:

With regard to testamentary capacity of their father and as to na-

ture of the suit property, D.W.1 answered that he cannot say as to in
which year his father purchased the properties and that he does not re-
member as to whether their father had mentioned in Ex.B1 Will that the
properties are self acquired. He specifically answered that he cannot pro-
duce any documents to show that the properties were purchased by their
father. He further answered that their entire family was depending on the
earnings of their father. D.W1 deposed clearly that he does not know
whether his father got any properties from his father. Further, he denied
that all the schedule properties were devolved on his father from the
grand father of this witnesses and out of the income of those lands, his
father purchased the property covered under Ex.A1 and that his father
does not have testamentary capacity to execute Ex.B1 Will. The sugges-
tion of the learned counsel for plaintiffs covered under the above said an-
swers clearly shows that the property covered under Ex.A1 was pur-
chased by father of defendants and the burden of proof that it was ac-
quired out of joint family nucleus, lies on the plaintiffs.

24. The afore mentioned answers given by the defendant No.1/D.W1

have further shown clearly that he does not aware of the nature of the
plaint schedule properties, whether they are ancestral or self acquired
properties of their father. Further, as admitted by D.W1, he did not pro-
 11

duce any documentary proof to show that the plaint schedule properties
are self acquired properties of their father.

25. As the defendants come up with specific version that the plaint
schedule properties are the self acquired of their father K.V Narasimha
Rao and as such he executed the Ex.B1 Will bequeathing the property
mentioned thereunder, they have to establish the said nature of the prop-
erty. Further, as discussed earlier, the D.W.1 has expressed his innocence
about the nature of the said property, whether it is self acquired or ances-
tral. To that extent, the testimony of D.W.2 and D.W.3 is also silent and
thereby not useful to prove the nature of the property. Even in Ex.B1 Will,
the nature of the properties bequeathing thereunder, was no where men-
tioned. The defendants have not produced any documents or any proof
to show that the the said property is a self acquired property of the tes-
tator K.V Narasimha Rao. At this juncture, the learned counsel for plain-
tiffs placed his reliance on the judgment of Hon’ble Supreme Court in
Selva Rani and Others v/s R. KrishnammaL and Others; (2017) 11
SCC 246, wherein the Supreme Court discussed the rival contentions
therein as to the nature of the property whether ancestral or self ac-
quired, in the suit for partition and held at Para 6 that--
The question of the validity of the Will could arise only if
the property is held to be self-acquired.
The finding of the trial court on this score is otherwise. The
First Appellate Court and the High Court did not go into the said
question but decided the appeal against the plaintiffs only by
holding the Will to be invalid. The question with regard to the sta-
tus of the property i.e., self-acquired or ancestral is required to be
decided in the first instance, namely, before the question of the
validity of the Will is gone into. We will, therefore, find no fault
with the order of the High Court in remanding the mater to the
First Appellate Court for a de-novo decision on the said question.

26. As held by the Hon’ble Supreme Court in afore mentioned judg-

ment, in the case on record also the nature of the property is a pivotal
point to determine the testamentary capacity of the testator of Ex.B1. In
the case on record, neither parties pleaded anything as to the nature of
the property whether self acquired or ancestor. However, it is the duty of
the defendants to prove that the property covered under Ex.B1 will is self
acquired property of their father and then only their father would attain
 12

testamentary capacity to bequeath the property mentioned therein upto

his wish and desire against the equal rights of his daughters i.e., plain-
tiffs. Unless and until it is proved that said property is self acquired one
and their father, the will Ex.B1 cannot be held as valid with respect to tes-
tamentary capacity of this executant. To that extent, afore mentioned ob-
servations of the Hon’ble Apex Court would squarely applicable to the
case on hand.

27. On careful reading of Ex.A1, it is observed that no where mentioned

therein that the property covered under said document, which is undis-
putedly the item No.2 of the plaint schedule property, was purchased by
K.V Narasimha Rao out of the earnings of joint family nucleus. So it is
shown clinchingly that item No.2 of schedule property is the self acquired
of said K.V Narasimha Rao. With regard to item No.1 and 3 of plaint
schedule property, a discussed in detail earlier, the defendants have to-
tally failed to prove that they are the self acquired properties of their fa-
ther. Therefore, it is proved that said item Nos.1 and 3 are the joint fam-
ily properties of the plaintiffs 1 to 3 and the defendants. Hence it is estab-
lished clearly that the testator under Ex.B1 must not have any testamen-
tary capacity to bequeath said item Nos. 1 and 3 to any one under Ex.B1,
other than under intestate succession. Thus, by virtue of the afore dis-
cussed evidence, facts and circumstances of the case on hand, this court
found, without hesitation, that the father of the defendants does not have
any right to bequeath item Nos. 1 and 3 properties under Ex.B1.

Acting upon the Will Ex.B1:

28. As seen from the record, the testator K.V Narasimha Rao died
on 23.02.2011 and the present suit was filed in April 2012. There was no
long gap between the said two incidents for acting upon the terms of the
said Will. Therefore, the contentions of learned counsel for plaintiffs that
the Ex.B1 is not acted upon and thereby it is invalid, is not untenable. To
that extent, the judgment submitted by the learned counsel for plaintiffs
in Godi Jaya Rami Reddy v/s Siddamurthy Jaya Rami Reddy 2004
(2) ALT 135(AP) with regard to non-fulfillment of the terms of the Will.
Under facts of said judgment the testator appointed an executor and kept
an obligations on him under the Will to perform certain acts, but said exe-
cuter was found to be failed to act as executor and to protect the inter-
ests of the minor. In the said background of facts, the Hon’ble High Court
 13

held that the legal heirs of the executor cannot claim any property under
the Will.
29. However, in the case on record before this court, the facts and cir-
cumstances are altogether different and there was no appointment of ex-
ecutor and laying any obligations on any specific person to fulfill certain
terms. But, in Ex.B1 Will, the testator i.e., K.V. Narasimha Rao had made
certain arrangements of property and amounts to be distributed. Hence,
though some amounts were not given to the persons mentioned in Ex.B1,
it shall not be treated as violation of obligations and not acting upon the
will. Therefore, I hold, by keeping due respects to observations of the
Hon’ble court, the finding in that judgment is not applicable to the case
on hand.

Suspicious circumstances on Ex.B1:

30. The learned counsel for plaintiffs made a strong contention that the
Ex.B1 Will is surrounded by suspicious circumstances and thereby it can-
not be considered and shall not be treated as valid bequeath. In support
of his contentions, he placed his reliance on judgment of Hon’ble High
Court of AP in Anantharaju Venkata Seshamma v/s Rajupalem Se-
shavataram (died) & Other 2014 (5) ALT 232 (AP). In the facts of
said judgment, the propounder of the Will did not examine any of the at-
testors and also not taken any steps to summon the persons having ac-
quaintance with the signatures or hand writings of the attestors by claim-
ing that the Will is a holographic. The Hon’ble Court held that though the
Will is holographic, the requirement under law as per Sec-68 of the Indian
Evidence Act, regarding proof of Will is very clear and there is no differ-
ence between the holographic Will and a Will scribed by 3 rd parties. How-
ever, in the case on hand, though the defendants contended Ex.B1 as
holographic, they have examined both the attestors, who supported their
case. Further, the hand writing of the testator present in the registered
deeds Ex.X1 and Ex.X2 were also brought on record for comparison with
the hand writing and signature of testator present in Ex.B1. Therefore, it
is clearly shown that the observations present in the afore mentioned
judgment are not applicable to the case on hand.

31. The learned counsel for plaintiffs filed another judgment in support
of his contention of suspicious circumstances around execution of Ex.B1.
It is in State of Harayana v/s Harnam Singh (dead) through L.r’s
 14

and Others; (2022)2 SCC 1366, where in the thumb impression of tes-
tator was not matched and there was contradiction in evidences of attest-
ing witnesses as regards place of execution. In that context, the Hon’ble
Apex Court had found that the will was not proved as the evidence of the
witnesses was not inspiring the confidence of the court and such evi-
dence was not reliable. However, in case on record the evidence is differ-
ent and the hand writing and signatures of the testator present in Ex.B1
was perfectly matched with his hand writing and signatures present in
Ex.X1 and Ex.X2 and the testimony of attesting witnesses is also found
reliable. Hence, the finding of that judgment is held to be not applicable
to the case on record.

32. In another judgment filed by learned counsel for plaintiffs in Smt.

Lalitha Sharma v/s Smt. Sumitra Sharma of Hon’ble High Court of
Delhi in RFA No.361/2001 dt.08.03.2011, the testator of alleged holo-
graphic Will had signed it in wrong name and the attesting witnesses also
gave contradictory statements and further old Stamp Paper was used for
writing the Will. On these circumstances the Hon’ble High Court of Delhi
upheld the trial court judgment that the Will was with suspicious circum-
stances. However, in the case on record, the facts and circumstances are
no way related to that of discussed in the said judgment. Therefore it is
not applicable to the case on hand.

33. In the light of afore discussed evidence, facts and circumstances of

the case on record, this court found clinchingly that the suspicious cir-
cumstances as alleged by the plaintiffs were remained unproved and fur-
ther they are of no gravity in nature.

ISSUE NO.1 OF MAIN ISSUES:

Whether the plaint schedule properties are the joint family
properties of plaintiffs and defendants ?

34. As seen from the pleadings of both sides and the evidence on
record, it is found that the plaint schedule property is undisputedly the
joint family property of the plaintiff Nos.1 to 3 and defendant Nos. 1 to 4
and their parents. Only by virtue of Ex.B1 Will, the defendants claiming
their exclusive right over certain portions of suit property and up to the
point of came into existence of Ex.B1 Will, the property was found to be
their joint family property. Therefore, unless and until the defendants
 15

have proved that the Ex.B1 was executed by the person having testa-
mentary capacity to bequeath the property, the plaintiffs Nos.1 to 3 are
certainly entitled for equal rights over plaint schedule property on par
with the defendant Nos. 1 to 4, as it is admitted fact that plaintiffs No. 1
to 3 are daughters of K.V Narasimha Rao. As discussed earlier, the defen-
dants have failed to establish that the testator K.V Narasimha Rao was
having testamentary capacity to bequeath the item Nos. 1 and 3 of suit
property. Therefore, the plaintiffs Nos. 1 to 3 are prima facie having equal
share in the said item Nos.1 and 3 of suit property on par with D1 to D4.
Accordingly issue No.1 of main issues is answered in favour of the plain-
tiffs Nos.1 to 3 that the properties are joint family properties. Though item
No.2 is also joint family property, it is subject for bequeath under Ex.B1,
as it is proved as the self acquired property of K.V.Narasimha Rao.
Even though the defendant No.2 pleaded that the plaintiffs were al-
ready given sufficient cash, gold and silver articles at the time of their
marriage, it shall not substitute their coparcenary rights. Defendant No.2
has failed to prove that the plaintiffs are already given their share.

ISSUE NO.2 OF MAIN ISSUE:

Whether late K. Venkata Narasimha Rao executed the Will
dt.13.01.1995 bequeathing the plaint schedule properties to the
defendants ?

35. Though the defendant No.3 pleaded in his written statement that
their father executed the fresh Will dt.13.01.1995 for plaint schedule
properties, he did not produce the alleged Will before the court and any
of the attestors of said Will were also not examined. In fact, he has not
disclosed as to who are the attestors of that Will and as to the circum-
stances which prompted their father to cancel the earlier Will i.e., Ex.B1
and to execute the fresh Will. Further, the defendant No.3 himself was
not examined to prove the alleged Will. Therefore, on considering all
these aspects, it is clinchingly shown that defendant No.3 has totally
failed to prove his said contention. Accordingly this issue No.2 of main is-
sues is answered against defendant No.3.

Issue No.1 of Additional Issues:

Whether the court fee paid is correct ?
 16

36. It is the specific pleading of defendants Nos.1 to 4 that the plaint

schedule property is not in the joint possession of themselves and the
plaintiffs Nos. 1 to 3 but in the possession of defendant Nos. 1,3 and 4
alone. But, they have not adduced any evidence to show that the prop-
erties are in their possession. P.W1 deposed in her cross examination
that she is not in possession of any of the schedule property and she does
not know whether her other sisters are also not in possession of any of
said properties. It clearly shows that she is not in the joint possession of
plaint schedule property.

37. However, it is the settled legal position as laid down in Neelavathi

Vs. N. Natarajan; AIR 1980 SC 691, that

“Unless the plaintiff himself avers that he has been excluded from
the joint possession of the suit schedule property, he cannot require to
pay advaloram Court Fee. In other words where such averment does not
find a place in the plaint, the plaintiff can maintain the suit by paying the
Court fee u/s 34(2) of the A.P. Court Fee and Suit Valuation Act.”

The said proposition of law was also followed in K. Venkata Ran-

gadas Vs. K. Venkata Krishna Rao; AIR 1982 AP 60.

38. In view of the afore mentioned clear legal position and as the plain-
tiffs clearly pleaded that they are in the joint possession of suit property,
they are certainly entitled to pay Court Fee u/s. 34(2) of the A.P. Court Fee
and the Suit Valuation Act, 1956. In the case on record the plaintiffs also
paid the Court Fee only under 34(2) of the Act. Therefore, it is held that
the plaintiffs have rightly paid the Court Fee. Accordingly Issue No.1 of
Additional issues is answered against the defendants.

Issue No.2 of Additional Issues:

Whether the defendants have been in continuous possession of the

plaint schedule properties as per their share alloted to them under
a Will executed by their father ?

39. The burden of proof of this issue lies on the defendants. They have
not produced any evidence to bring home that they are in the possession
of their share of properties bequeathed under Ex.B1. Further, except the
 17

self serving statement of defendant No.1 in his chief affidavit, the defen-
dants have not examined any witnesses to prove their possession. The
testator i.e., the father of defendants has died in February 2011. If at all
they have been really in possession of their shares, they must have pro-
duced any adangals or tax receipts or any other material to show the
same. But they have totally failed in that regard. Hence, it is held that the
defendants have failed to prove that issue. Accordingly said issue is an-
swered against them.

Issue No.3 of Main Issues:

Whether the plaintiffs are entitled to seek partition claiming

3/7th share in the suit schedule properties ?

40. Admittedly plaintiff No.3 died during pendency of the suit. Plaintiff
Nos.7 and 8 are impleaded as her legal heirs i.e., husband and daughter
respectively. Plaintiff No.3 M. Ranganayakamma died without having chil-
dren. As per additional written statement of defendant No.3, the plaintiff
No.8 is the daughter of 1st wife Annapurna Devi of plaintiff No.7. Thus,
plaintiff No.8 M. Yagnasree is the step daughter but not original daughter
of plaintiff No.3 Ranga Nayakamma. Infact, even the learned counsel for
plaintiffs has fairly conceded in a memo that plaintiff No.8 is daughter of
plaintiff No.7 through one Annapurna Devi, but not through plaintiff No.3.
Thus, basing on material on record, it is found that plaintiff No.3 has died
issue-less. Therefore, the provisions of section 15(2) of the Hindu Succes-
sion Act, 1956 shall come into operation. It reads that
15 General rules of succession in the case of female Hindus-
(2) Notwithstanding anything contained in sub section (1),-
(a) any property inherited by the Female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of the de-
ceased (including the children of any pre-deceased son or daughter) not
upon the other heirs referred to in sub section (1) in the order specified
therein, but upon the heirs of the father;

41. In the light of afore mentioned clear legal position, it is concluded

that the share of plaintiff No.3 shall not devolve upon plaintiff No.7 or
plaintiff No.8, but devolve upon heirs of her father i.e., plaintiffs No.1,2
and defendants 1 to 4. However, undisputedly, defendant No.1 also died
 18

pending the suit. Therefore, the share of plaintiff No.3 shall goes to plain-
tiff Nos.1,2 and defendant Nos.2 to 4 equally.

42. Originally the plaintiffs have shown item No.4 also in the plaint
schedule properties, as 15 sovereign of gold contended that it is the prop-
erty of their mother present in the hands of defendant No.4. Subse-
quently in the neat copies of the plaint filed on 16.08.2022, said item
No.4 was not shown. Further, the plaintiffs also adduced no evidence to
prove the existence and presence of said gold items with defendant No.4.
As the defendant No.4 has totally denied said contention, the onus is on
the plaintiffs to establish the same. However, they have totally failed to
prove the existence of item No.4 and its presence with defendant No.4.
Accordingly, any of the parties to the suit are not entitled for any share in
the item No.4 of plaint schedule property.

43. In view of the foregoing discussion, it is established that only item

No.2 of the plaint schedule property is subject for testamentary succes-
sion as bequeathed in Ex.B1 Will. As per Ex.B1, upper portion i.e., first
floor of the building covered under item No.2 of schedule property was
bequeathed to defendant No.1 and the lower portion i.e., ground floor of
the said building was bequeathed to wife of the testator as her life estate
and after her demise it shall be succeeded by D1 to D3 equally.

44. With regard to 1st floor of said building, which was originally be-
queathed to the elder son i.e., the defendant No.1, it shall be succeeded
by plaintiff Nos.1,2 and defendant Nos. 2,3 and 4 equally, as the defen-
dant No.1 has already died. Therefore, they shall entitled for 1/5th share
each over 1st floor of the said building.

45. When coming to the ground floor of the building covered under
item No.2 of schedule property, it shall be noted that the wife of the tes-
tator has died in September 2000. Hence, as bequeathed in Ex.B1 Will,
the defendant Nos. 1 to 3 shall succeed the said ground floor, equally i.e.,
each of them are entitled for 1/3rd share. As the defendant No.1 also
died, his 1/3rd share in ground floor goes equally to plaintiff Nos.1,2 and
defendant Nos.2 to 4. Out of this share of the defendant No.1, the remain-
ing plaintiff Nos. 1,2 and defendant Nos. 2 to 4 shall have 1/15th share
 19

each. Further, the defendant Nos.2 and 3 are obviously having their inde-
pendent 1/3rd share each, in the ground floor of the building.

46. On adding the independent 1/3rd share of each of defendant Nos.2

and 3 to their 1/15th share in the share of defendant No.1, their outcome
share is 1/3 + 1/15 = 0.4 i.e., 2/5th share. Therefore the defendant Nos. 2
and 3 are entitled for 2/5th share each and the plaintiffs Nos. 1,2 and de-
fendant No.4 are entitled for 1/15th share each from the ground floor of
item No.2 of the plaint schedule property.

47. Now, so far as item Nos. 1 and 3 of plaint schedule properties are
concerned, the plaintiffs Nos.1,2 and defendants Nos.2 to 4 would suc-
ceed 1/5th share each.

48. As the plaintiff No.2 died, her share of property, as described

above, shall be devolved upon plaintiff Nos. 4 to 6 equally.

49. In the light of the fore discussed material on record and in view of
the rearrangement of the shares on surviving successors, the issue No.3
of main issues is answered accordingly.

Mesne Profits:
50. So far as the claim of the plaintiffs regarding the mesne profits is
concerned, they produced no evidence to show that the defendants have
been in exclusive possession of the plaint schedule property so far. The
related issue No.2 of the additional issues is also answered against the
defendants by holding that there is no evidence to believe that the defen-
dants have been in possession of the suit properties. In the absence of
the evidence to show that the defendants themselves are enjoying the
fruits of the schedule property, the plaintiffs are not entitled for mesne
profits from the defendants. Therefore the plaintiffs are not entitled for
the claim of mesne profits.

Issue No.4 of Main Issues and Issue No.3 of Addl. Issues:

To what relief ?

51. As issue No.1 of main issues and issue No.1 of additional issues are
answered in favour of the plaintiffs, as issue No.3 of main issues is
 20

answered partly in favour of the plaintiffs, as issue No.2 of main issues is

answered against the defendant No.3 and issue No.2 of the additional
issues is answered against the defendants, consequently the plaintiffs 1
and 2 are partly entitled for their claims, as discussed and concluded ear-
lier.

52. However, in view of the rival contentions of both sides and the facts
proved on record, both parties have to bear their own costs.

53. In the result, suit is preliminary decreed partly for partition of the
plaint schedule properties of item No.1 to 3. The plaintiff Nos.1,2 and de-
fendant Nos.2 to 4 are entitled for 1/5th share each in the item Nos. 1 and
3 of schedule property. They are further entitled for 1/5th share each in
1st floor of item No.2 building. Plaintiff Nos.1,2 and defendant No.4 are en-
titled for 1/15th share each and defendant Nos.2 and 3 are entitled for
2/5th share each in ground floor in item No.2 of the plaint schedule prop-
erty. The suit for mesne profits is dismissed. No order as to costs.

Directly typed to my dictation by the steno on desktop, corrected and

pronounced by me in open court, on this the 2nd day of November, 2022.

VI Addl. District Judge,

Krishna, Machilipatnam.

Appendix of Evidence

Witnesses examined for Plaintiff

P.W.1: Smt.K.Sesharathnam

Witnesses examined for Defendants

D.W.1: K.Venkata Subhrahmanyam

D.W.2: D.Ramakrishna Rao
D.W.3: P.Yoganandha Rao

Documents marked for plaintiff

Ex.A1: Certified copy of registered sale deed

Ex.A2: Office copy of legal notice
 21

Documents marked for defendants

Ex.B1: Un-Registered Will dt.20.12.1962

Ex.X1 : Registered sale deed dt.06.04.1938.

Ex.X2 : Registered sale deed dt.30.07.1944.

VI Addl. District Judge,

Krishna, Machilipatnam.