Whether Smt. Vunnava ... vs Unknown
2023 Latest Caselaw 3335 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

                 SECOND APPEAL No.668 of 2018

JUDGMENT:

Whether Smt. Vunnava Nagarathnamma died leaving her

estate for succession to be governed by law of succession or

whether she left a Will ordering as to how and to whom her

properties shall be distributed is the question that troubled the

parties and was dribbled before the Courts below and finally

reached this Court in the form of second appeal preferred by

two out of the six plaintiffs in the suit.

2. 561 square yards of site with a building thereon in Block

No.8 with Assessment No.14 in Sangadigunta of Guntur Town is

the property in dispute. There was Sri Vunnava Ramalingam

and his wife Smt. Vunnava Nagarathnamma. A registered sale

deed dated 10.07.1952, the certified copy of which is Ex.A.9, is

admitted on both sides as a document under which

Smt. Vunnava Nagarathnamma purchased the plaint schedule

property. Her husband died. During their wedlock, they were

blessed with three daughters and a son. One such daughter

was Bharathamma. She also died. Thus, there remained two

daughters and a son. One daughter by name

Dr. VRKS, J S.A.No.668 of 2018

Smt. Dandamraju Jayalakshmamma filed O.S.No.110 of 2002

as against her sister Smt. P.Sundaramma and her brother

Sri Vunnava Venkata Rao seeking partition of the above said

property on the premise that their mother Smt. Vunnava

Nagarathnamma died intestate and therefore in terms of law of

succession each of her three surviving children would get 1/3 rd

share. Defendant No.1 contested the suit stating that her

mother executed a registered Will dated 30.10.1995 as per

Ex.B.1 whereunder the plaint schedule property was

bequeathed to testator's grandchildren who are the children of

defendant No.1. Therefore, she claimed that properties were not

available for partition. Defendant No.2, who is the brother of

the plaintiff, contested the suit pleading that though the

registered sale deed indicates the name of his mother as the

owner of the property, the truth is that his mother had no

income and the initial structures that were there in that

property collapsed and utilizing his money the building was

constructed and narrating other relevant facts he claimed title

in himself and finally stated that neither the Will is correct nor

the intestate succession claimed in the plaint is correct and he

sought for dismissal of the suit. Be it noted, subsequent to the

Dr. VRKS, J S.A.No.668 of 2018

pleadings when the trial commenced in the suit, he filed a

memo and represented to the Court that he gave up his defence

and he agrees with the case pleaded by his sister as defendant

No.1 and admits that his mother executed the registered Will.

3. In the written statement of defendant No.1 an objection

was taken stating that since the bequest under the Will vested

the property with two of the grandchildren of Smt. Vunnava

Nagarathnamma and since they were not made parties to the

suit, the suit was bad for non-joinder of parties. In those

circumstances, the two legatees were impleaded as defendant

Nos.3 and 4 by the plaintiff in the suit. While the suit filed by

the sole plaintiff was pending, she died and her children came

on record as plaintiff Nos.2 to 6 as her legal representatives and

it is stated that the sole plaintiff died executing a registered Will

dated 09.01.2006 as per Ex.A.8. Throughout the legal

proceedings in all Courts the said Ex.A.8-Will was not sought to

be proved by the plaintiffs.

4. In the above referred facts and circumstances of the case,

learned III Additional Senior Civil Judge (FTC), Guntur framed

the following issues for trial:

Dr. VRKS, J S.A.No.668 of 2018

1. Whether the plaintiff is in possession of the plaint schedule property and the court fee paid is correct?

2. Whether the suit is bad for non-joinder of necessary party?

3. Whether the plaintiff is entitled for mesne profits?

4. Whether the Will dt. 30.10.1995 is true and correct?

5. Whether the plaintiff is entitled for partition?

6. To what relief?

5. Both parties led their evidence. The original plaintiff died

prior to commencement of evidence and therefore, her son who

is the 3rd plaintiff testified as PW.1. No other witnesses testified

on behalf of the plaintiffs. Exs.A.1 to A.9 were exhibited for

plaintiffs. Defendant No.1 testified as DW.1. Defendant No.4,

who is one of the legatees, testified as DW.2. DW.3 testified to

prove the attestation of the Will. Exs.B.1 to B.27 and Exs.X.1 to

X.3 were marked.

6. On considering the oral and documentary evidence and

on considering the arguments advanced on both sides, the

learned trial Court stated that by impleadment of defendant

Nos.3 and 4 there was no more non-joinder of necessary party

and all the parties necessary for determination were available

on record. It found that plaintiff has never been in possession

Dr. VRKS, J S.A.No.668 of 2018

of the plaint schedule property and the joint possession she

claimed is incorrect and the fixed Court fee paid is incorrect and

in effect it held that there is clear and cogent evidence

indicating defendant Nos.3 and 4 have been in occupation of

plaint schedule property and therefore, there is an ouster and

she should pay advalorem Court fee. It refused to grant mesne

profits. It disbelieved the Will propounded by the defendants

and answered issue No.4 in favour of the plaintiffs. However,

there is total clumsiness in the trial Court's judgment. When it

answered issue No.5. Para No.27 of the trial Court judgment

answering issue No.5 is extracted here:

"27. In view of the elaborate discussion in issue Nos.1 to 4 it came to light that the Will dt.30.10.1995 is correct and binding on the plaintiffs and thereby the 1st plaintiff is entitled for 1/3rd share in the schedule property along with D.1 and D.2. Since the 1st plaintiff is died PWs.2 to 6 who are her sole legal heirs are entitled 1/3rd share in the schedule property by virtue of Central Act Amendment of Sec.6 of Hindu Succession Act by virtue the daughter is coparcener in the property of their parents and thereby the 1st plaintiff entitled for equal share among defendants 1 & 2 in the Hindu Joint Family properties of the parents. Thereby the plaintiffs are entitled for 1/3rd share in the plaint schedule property."

Dr. VRKS, J S.A.No.668 of 2018

Finally it decreed the suit and directed division of property into

three shares and granted one share to original plaintiff and

since original plaintiff died learned trial Court directed her

share to go to her children who are plaintiff Nos.2 to 6. Learned

trial Court directed to pass a preliminary decree.

7. Disturbed of the division of properties ordered by the trial

Court, the two grandchildren of late Vunnava Nagarathnamma

who are defendant Nos.3 and 4 in the suit took the matter in

first appeal as A.S.No.483 of 2010. Rest of the parties on both

sides were shown as respondents in that appeal. During the

pendency of that appeal, defendant No.1 and defendant No.2 in

the suit died. Their legal representatives came on record as

respondent Nos.9 and 10 in that first appeal. Thus, by the time

the matter reached the first appellate Court the very original

parties namely one plaintiff and two defendants are dead.

8. Learned first appellate Court heard arguments on both

sides and drew the following points for its consideration:

1. Whether the defendants 3 and 4/appellants established that late Vunnava Nagarathnamma executed a Will, dt.30.10.1995, bequeathing the schedule property in their favour?

Dr. VRKS, J S.A.No.668 of 2018

2. Whether the plaintiffs are entitled for partition of the schedule property as prayed for?

3. Whether the impugned decree and judgment, dt.26.03.2010 in O.S.No.110/2002 on the file of III Additional Senior Civil Judge (FTC), Guntur, is sustainable or not?

4. Result of the appeal?

9. Learned first appellate Court in great detail analysed the

evidence, considered the contentions, made note of all the

statutory provisions governing execution of a Will and proof of a

Will and finally concluded that there is good and sufficient

evidence on record proving that Smt. Vunnava Nagarathnamma

executed Ex.B.1-Will and therefore, the property was not

available for partition and in that view of the matter it set aside

the judgment of the trial Court and dismissed the suit for

partition.

10. Be it noted that the trial Court as well as first appellate

Court have recorded their findings that the plaint schedule

property has been in possession and occupation of the

grandchildren of Smt. Vunnava Nagarathnamma (respondents

in this second appeal) and they have been paying tax and

electricity bills evidenced by Exs.B.2 to B.23 and that

Dr. VRKS, J S.A.No.668 of 2018

Smt. Vunnava Nagarathnamma mortgaged the property and

before discharging she died and after her death her

grandchildren repaid that loan and obtained the title deeds and

all other papers and that Smt. Vunnava Nagarathnamma was

looked after by her daughter/defendant No.1 in the suit till her

death and she was looked after by them. These concurrent

findings have not been seriously challenged in the present

second appeal. It is in the backdrop of these facts, the present

second appeal has to be considered.

11. On 14.07.2022 this Court admitted this second appeal on

the following substantial question of law:

"Whether the judgment and decree of the lower

appellate Court is perverse and contrary to the settled

legal provisions of law while dismissing the judgment and

decree passed by the trial Court?"

12. As seen from the grounds urged in the appeal and as seen

from the arguments advanced before this Court, the entire

controversy and the challenge against the judgment of the first

appellate Court revolve around due execution and proof of

Ex.B.1-Will. It is only in that context the judgment of first

Dr. VRKS, J S.A.No.668 of 2018

appellate Court is impugned as perverse and against law.

Therefore, though the substantial question of law formulated

does not indicate the questions concerning Ex.B.1-Will by any

specific terms, it is not in controversy that the only controversy

between parties is about this Will, which question inheres in the

question formulated.

13. Sri V.S.K.Rama Rao, the learned counsel for appellants

and Sri Hanumantha Prasad K.V.R, learned counsel for

respondents submitted their arguments and cited legal

authorities.

14. For appellants, the learned counsel cited Janki Narayan

Bhoir v. Narayan Namdeo Kadam1 and Bharpur Singh v.

Shamsher Singh2.

15. For respondents, the learned counsel cited the following

legal authorities:

1. H.Venkatachala Iyengar v. B.N.Thimmajamma3

AIR 2003 SC 761

2009 (2) ALT (SC) 33

1959 Supp (1) SCR 426

Dr. VRKS, J S.A.No.668 of 2018

2. M.B. Ramesh (Dead) by Lrs. v. K.M. Veeraje URS

(Dead) by Lrs.4

3. Bharpur Singh v. Shamsher Singh5

4. Beena v. Manoj6

5. Anand Burman v. State7

16. All the above rulings contain the most necessary wisdom

that is required in considering the principles about making of a

Will and when it can be said that the testator validly executed

the Will and how the Will is to be proved and which witnesses

are to be examined in proof of the Will and about the need for

examining the attestors of a Will and as to what should be done

if the attestors are no more available. These rulings also

indicate that the presumption of law that a 30 year old

document is presumed to have been duly executed cannot be

taken aid of when it comes to proof of a testament/Will. On the

principles laid down in these rulings, there is absolutely no

controversy. Ex.B.1 is the Will in dispute. It is a Will dated

(2013) 7 SCC 490

(2009) 3 SCC 687

2022 SCC Online P&H 581

Dr. VRKS, J S.A.No.668 of 2018

30.10.1995. It is stated to have been executed by Smt.

Vunnava Nagarathnamma. It bears the purported signature of

the executant of the will. Her signature finds place at such

place after the body of the Will indicating that the signatory

indicates her assent over the contents written above. This

document also bears the signatures of Sri B.Satyanarayana Rao

and Smt. Dandamraju Jayalakshmamma as attesting witnesses

to the Will. Be it noted, the second attestor Smt. Dandamraju

Jayalakshmamma is the very original plaintiff in O.S.No.110 of

2002 and is daughter of the testatrix. One would also see from

this document it is a hand written document and the scribe is

Sri M.Srirama Samba Murthy Lakshmi Narayana Rao. Though

this was executed on 30.10.1995 it was not taken for

registration immediately and it was registered only on

12.04.1999. The contents of the Will indicate about several

properties and indicate about the children of the testatrix and

also the grandchildren of testatrix. It mentions about three

schedules of properties as A, B and C. 'A' schedule properties

were retained by her for her lifetime and thereafter the bequest

ILR (2012) 6 Delhi 152

Dr. VRKS, J S.A.No.668 of 2018

was made in favour of her one son and two daughters jointly.

'C' schedule contains of more than one item and one of the

items is 561 square yards and a building thereon and it is the

suit schedule property in this case.

17. The executant of the Will Smt. Vunnava Nagarathnamma

died on 17.08.1999 and that is evidenced by the death

certificate as per Ex.A.1. The date of death is not in dispute.

One of the attesting witnesses Sri B.Satyanarayana Rao did not

give evidence before the Courts below. It is stated that he died

on 11.07.2008. Ex.X.1 is his death certificate. His death and

date of death are not in dispute. The second attestor is stated

to be the original plaintiff in O.S.No.110 of 2002 by name

Smt. Dandamraju Jayalakshmamma. She died on 27.01.2006.

Her death and date of death are not in dispute. Evidence of first

witness for plaintiffs in the trial Court commenced only on

17.09.2009. Thus, by the time the evidence commenced, the

testatrix and both the attestors died. Neither side examined the

scribe of the Will. These are the basic and undisputed bear

facts that are to be noticed before one goes to consider the rival

contentions. The arguments advanced on behalf of the

appellants/plaintiffs are that:

Dr. VRKS, J S.A.No.668 of 2018

 Since the execution of Ex.B.1-Will is denied, burden is

heavy on the propounders of the Will.

 Propounders of the Will have to examine the attestors

and the scribe. Scribe was not examined and no

explanation was offered.

 In the light of the contest raised by the opponents the

propounders of the Will should have taken the Will to

the handwriting expert but they failed to do so.

 There are suspicious circumstances and they are not

dispelled.

 It is incorrect on part of the first appellate Court to have

comparison of signature of the executant available in the

disputed Will as against her signatures in the pleadings

and other documents and thereby taking upon itself the

task of proving the Will.

 The disputed Will mentions various properties and two

of them are non-existent as one of them was acquired by

A.P.S.R.T.C. in the year 1992 and one of the items never

belonged to the testatrix.

Dr. VRKS, J S.A.No.668 of 2018

 Ex.B.1-Will refers to an earlier registered Will dated

05.03.1986. If Ex.B.1-Will is held not proved, whether

the earlier Will can be considered or not.

 The approach of the first appellate Court that the Will

was acted upon and the legatees discharged the debt of

their grandmother and that they have been in

possession and enjoyment of the properties cannot

deprive the claim of parties.

 Ex.B.1-Will is not proved by legal evidence. The huge

gap of more than four years between the execution of the

Will and its registration is not explained and is a

suspicious circumstance.

 Judgment of first appellate Court is peripheral without

touching upon the core issue.

 Requirements of Section 63 of the Indian Succession

Act, 1925 and Sections 68 and 69 of the Indian Evidence

Act, 1872 remained unfulfilled.

 That the judgment of the first appellate Court is

erroneous and it incorrectly upset the very well reasoned

and considered judgment of the trial Court.

Dr. VRKS, J S.A.No.668 of 2018

18. As against this, the learned counsel for respondents

submit that many arguments put forth on behalf of the

appellants are against principles on pleadings and law. That

the Will is to the knowledge of original plaintiff and assailing it

there was no whisper in the plaint and there was no rejoinder

filed despite the Will being pleaded in the written statements.

Signature of the testatrix on the Will is proved by DW.1, who is

the very daughter of the testatrix. It's attestation is proved by

DW.3, who identified his father's signature who has one of the

attestors on Ex.B.1-Will. Scribe cannot be called as an attestor

and non-examination of scribe has no bearing in considering

the aspects related to Will. There are no suspicious

circumstances alleged in the plaint and deposed in the evidence

on plaintiffs' side to disbelieve the Will. Cross-examination of

DWs.1 to 3 do not challenge the physical and mental disposition

of the testatrix when she made the Will and died several years

thereafter. It is further argued that the judgment of the trial

Court is imperfect and appreciation of evidence was incorrect

and several of its findings are contrary and such an ill-

considered judgment was well scrutinized by the first appellate

Court and it rightly allowed the appeal and set aside that trial

Dr. VRKS, J S.A.No.668 of 2018

Court judgment. That without any basis the matter is carried in

second appeal and it has to be dismissed with costs.

19. Unlike many other documents a Will is a unilateral

document. It is not a document inter vivos. It only modifies the

rule of succession. It operates only on the death of the testator

and not otherwise. As the testator could not be summoned to

say whether it was her intention that was depicted in the Will,

law mandates a few safeguards in its preparation and for its

proof. Every principle of law concerning proof shall always be

pragmatic. Since there is long gap of time between the date of

execution of Will and its registration, the following aspects

require notice:

               Principle                                    Statute

The documents shall be presented for
                                              Section 23 of the Registration Act,
registration within four months from

the date of its execution. From this
principle exemption is granted for
"Wills".


A     Will   can     be    presented   for    Section 27 of the Registration Act,
registration at any time.                     1908.

All     documents          that   require     Section 28 of the Registration Act,
registration       shall   normally    be     1908.

                                                               Dr. VRKS, J
                                                         S.A.No.668 of 2018

presented for registration in the office of a Sub-Registrar within whose Sub-

District the whole or some portion of the property to which such document relates is situate.

20. The provisions from the Registration Act indicate that a

Will need not be registered. If it is desired to be registered,

there is no time limit for its registration. It could be executed

on one day and could be sent up for registration at any time in

future. In the case at hand, there is about four years gap

between date of execution of the Will and date of presentation

for registration. Therefore, what was permitted by law was what

was done. It is for those who believe that there is anything

fishy, they have to establish what it is. Excepting arguing that

there is gap of four years between execution and registration,

there is no fact that is relevant for consideration is seen from

the record to suspect the Will. Therefore, the time gap between

execution and registration cannot be considered as a suspicious

circumstance in the context of the material on record.

21. One of the contentions raised is that the parties belonged

to Guntur and there is Sub-Registrar at Guntur, but the Will

was registered at Pedakakani. This submission is also against

Dr. VRKS, J S.A.No.668 of 2018

law. A Will could be presented at any place where it was

executed or where the property situate or at other places. No

infraction of law is pointed out. The fact is argued only to show

that as a suspicious circumstance. The learned first appellate

Court considered the very same argument and then it stated

drawing reference from facts elicited in the cross-examination of

DW.1 and DW.2 and said that Ex.B.1-Will could be presented

for registration either at Guntur or at Pedakakani and from the

place of residence of the testator the Guntur Sub-Registrar is at

a distance of 3 Kilometres and the Pedakakani Sub-Registrar is

at a distance of 4 to 5 Kilometres and that Guntur being a big

town normally there was huge gathering and busy work

whereas the Rural Pedakakani holds relatively fewer number of

people and therefore, choice of the testatrix to have the

document registered at a convenience place could never be

considered as a suspicious circumstance. I could not gather

any particular argument made before me to think that the above

approach of the learned first appellate Court is erroneous either

on facts or atrocious in its reasoning.

22. Turning to the contentions concerning execution of the

Will, Section 63 of the Indian Succession Act, 1925 provides

Dr. VRKS, J S.A.No.668 of 2018

that the Will shall be attested by two or more witnesses. As

could be seen from Ex.B.1- Will, it is attested by two witnesses.

Therefore, this mandate is complied with. The provision further

makes that each of these attestors shall have seen the testator

signing the Will and then they shall subscribe their signatures

in the presence of the testator. If the attestors are available,

then they shall depose as to how the execution and attestation

took place. It is then the evidence of those attestors that shall

fall for consideration to find out whether the attestators really

witnessed the execution and whether the testatrix really saw the

attestation or not. In the case at hand, both attestors are dead.

Then what has to be done is provided by Section 69 of the

Indian Evidence Act. This provision shows that if no such

attesting witness is available, the Will shall be proved through a

witness who could prove the signature of the attesting witness

or at least one of the attesting witnesses. The provision further

shows that the signature of the person executing the document

is in the handwriting of that person has also to be proved.

Precisely it is this Section 69 of the Indian Evidence Act that

operates in the case at hand. The very daughter of the testatrix

and her very son are arrayed in the suit as defendant Nos.1 and

Dr. VRKS, J S.A.No.668 of 2018

2. During trial both of them supported the Will. Defendant

No.1 testified as DW.1. At para No.4 of her examination-in-chief

she had categorically deposed that her mother made her last

Will and testament on 30.10.1995 and she did it while she was

in sound and disposing state of mind and that the said Will was

taken up for registration on 12.04.1999. She was subjected to

cross-examination on behalf of the plaintiffs. The sound and

disposing state of mind of the testatrix that was spoken to by

the witness was not challenged while questioning her in cross-

examination. The evidence of DW.1 that Ex.B.1-Will was

executed by her mother and bears her signature is not

questioned while cross-examining this witness. In her cross-

examination it was elicited that the testatrix suffered from

diabetes. It is not known since how long she has been a

diabetic. Diabetes is a life style disease and it is no one's case

that it affected the testatrix's sound and disposing state of mind

or that her diabetes was of such nature which prevented her

faculties from proper functioning. Except a stray word that she

suffered from diabetes nothing else was brought on record. Be

it noted, PW.1 in his evidence never said anything about state of

mind of the testatrix or any sickness suffered by her making

Dr. VRKS, J S.A.No.668 of 2018

this Court to think that she was unable to execute the Will or

that she did not know what she was doing. Thus, through the

evidence of DW.1 it is clearly proved that Ex.B.1-Will bears the

signature of the executant of the Will.

23. Coming to attestation, as both attestators died, DW.3,

who is son of the first attestator Mr. Satyanarayana Rao, said

on oath that he could identify the signatures and writings of his

father and he verified Ex.B.1 and said that it is his father's

signature which is there as an attestor. To bring more

credibility to his version, he offered for scrutiny Ex.X-2 which is

health identify card of his deceased father containing his

signature and Ex.X-3 which is a cheque book containing cheque

leaves and also containing the signature of his father. As could

be seen from cross-examination of this witness, on behalf of

these appellants/plaintiff Nos.3 and 4, they never questioned

the correctness of signatures available on Exs.X.2 and X.3 and

they did not question the evidence of DW.3 when he said that

on Ex.B.1-Will it is his father's signature that is available as

first attestator. In fact while cross-examining him plaintiffs

suggested to him that his father colluded with the defendants

and signed on the Will. That suggestion admits the truth of the

Dr. VRKS, J S.A.No.668 of 2018

evidence of DW.3 that the Will bears the signature of the

attestator who is father of DW.3. Thus, this evidence

established the requirements of proof of Will by attestor with

reference to a Will. These aspects were well considered by the

learned first appellate Court. The questions raised by the

appellants include collusion, conspiracy and impersonation of

testatrix. In the first place such aspects are not spoken to by

PW.1 and such aspects are not available in the pleadings and

such aspects were not suggested to DW.1. It was only in the

evidence of DW.2 this new version of impersonation etc. find a

vague suggestion which was met with by strong denial from the

witness. Harping on those suggestions appellants made their

vain attempt to persuade this Court and this Court having

considered it in all its details find that the submissions have no

merit.

24. Having considered the entire record and the submissions

of the learned counsel for appellants and respondents, the

following few aspects are required to be noticed so as to gain a

proper perspective of the matter at dispute:

Dr. VRKS, J S.A.No.668 of 2018

The dispute between parties has not begun with

presentation of plaint on 21.03.2002. The dispute between

parties commenced much earlier to it. Seeking for partition, the

very original plaintiff who is mother of the present appellants

issued Ex.A.2-notice to her siblings and that notice is dated

06.04.2001. Thus, almost a year earlier to presentation of the

plaint such notice was shot from original plaintiff. There was a

prompt reply from her siblings under Ex.A.3-reply notice dated

14.04.2001. The contents of this reply would clinch the facts

and circumstances. It made a detailed disclosure of the Will

dated 30.10.1995 executed by Smt. Vunnava Nagarathnamma

and it notified the plaintiff that by virtue of the Will bequest

went to the grandchildren of the testatrix. Thus, original

plaintiff fully grasped what was there on the other side. She

gave a reply under Ex.A.4 to which her siblings sent a rejoinder

under Ex.A.5. These exchange of notices further indicate that

her siblings were propounding the Will and she was disputing

the Will. All this exchange of notices took place several months

prior to institution of the suit. In such circumstances, she was

required to make a mention in her plaint about her version

towards the Will that was mentioned in the reply notice received

Dr. VRKS, J S.A.No.668 of 2018

from her siblings. She did not make a mention. Thereafter

defendants filed written statements. They made all the details

of the Will in their written statements. The original plaintiff did

not choose to put in any additional pleadings questioning the

factum of Will or legality of the Will. She was alive till

27.01.2006. Thus, for four years subsequent to institution of

the suit she was alive. In all these four years despite having

been assisted by her own counsel, she never thought of utilizing

any of the provisions contained in Order X to Order XIV C.P.C.

and she never thought of asking the defendants to produce the

Will, so that she could verify and say something about it. She

did not do it. From all this one could rationally gain an

impression that the original plaintiff did not choose to deny the

execution of Ex.B.1-Will by her mother. Original plaintiff died

without testifying before the Court. It is thereafter her children

came on record and one of them gave evidence as PW.1. In his

cross-examination PW.1 stated that only after filing of the suit,

he had come to know about the Will propounded by the

defendants. So far so good. A few interesting things could be

seen from the cross-examination conducted on behalf of the

plaintiffs as against DWs.1 and 2. It was elicited from DW.2

Dr. VRKS, J S.A.No.668 of 2018

that Ex.B.1-Will refers to an earlier Will of the year 1986 which

is also a registered Will. It is further elicited from this witness

by the plaintiffs that so far as suit schedule property is

concerned, under the earlier registered Will the testatrix granted

equal share to her two daughters and a son, but in the later

Ex.B.1-Will she changed it and gave the properties to the

grandchildren. It was suggested to DW.1 that she suppressed

the earlier 1986 registered Will and as per that earlier Will the

original plaintiff gets 1/3rd share. This cross-examination

makes it crystal clear that there was a registered Will by the

year 1986 executed by Smt. Vunnava Nagarathnamma and

under that Will her properties were bequeathed. When the

plaintiffs stand on that footing, it is for them to explain as to

why they did plead and strongly mention in their plaint that

Smt. Vunnava Nagarathnamma died intestate. When they knew

it very well that there was a Will, they should have sought for

partition in terms of that Will of the year 1986. They did not do

it. On the other hand, the plaint suppressed 1986 Will and

gives an impression to the Court that Smt. Vunnava

Nagarathnamma died intestate. Thus, we have found a

situation where original plaintiff wanted to harass her siblings

Dr. VRKS, J S.A.No.668 of 2018

and initiated this litigation after she found that the

grandchildren/defendant Nos.3 and 4 relieved the property from

encumbrances. Original plaintiff knows about first Will of her

mother in 1986 and knows about second Will of her mother

under Ex.B.1 and she knows about herself attesting Ex.B.1-

Will. Therefore, she did not specifically question the second Will

of her mother anywhere in her plaint and she did not seek at

least inspection of Ex.B.1-Will in all those years of her lifetime

even after commencement of litigation. All this go to show that

the circumstances clearly proved participation of original

plaintiff and making of the Ex.B.1-Will by her mother.

25. The contention of appellants is about propounders failing

to examine the scribe of Ex.B1-Will. I find no merit in this.

Attestation is required by law as a special measure as against

forgery or fraud. A person who sees the execution and

authenticates the fact by subscribing his signature as an

attesting witness that furnishes trustworthy fact and evidence

and creates confidence in the Court about due execution of Will.

Law mandates two witnesses to attest. If a scribe is to be

considered as an attestor, then citizens would tend to fall in

error and gain an impression that it would be sufficient for them

Dr. VRKS, J S.A.No.668 of 2018

to have one witness sign as an attestor since the scribe could be

considered as a second witness for attestation. Utilising the

scribe as an attesting witness would also make it more

convenient for mischief. It is to obviate such things law

mandated two attestors. The scribe may or may not have

witnessed the execution. He may have prepared the document

and left it there and may have gone away and thereafter the

executant and the attestors could complete the task of signing

the document and making it fully executed. Therefore, presence

of scribe and his possibility of witnessing the testator and

witnesses signing the document are remote. Original plaintiff

with full knowledge of existence of a Will propounded by the

opposite party did not choose to whisper in her plaint anything

about that Will. It certainly misleads the opposite parties to

think that plaintiff was not really challenging the Will. If really

plaintiffs believe Ex.B.1-Will was not a genuine document,

nothing prevented them to summon any witness to prove their

version. That was not done. On the other hand, defendants did

everything that was possible. In the manner narrated in the

earlier paragraphs they proved the execution and attestation. A

reading of the judgment of the learned III Additional District

Dr. VRKS, J S.A.No.668 of 2018

Judge indicates full flourish in grappling with the issues and by

a very highly reasoned way he considered the substantial facts

available on record. It is such well written judgment which is

unmeritedly described in this appeal as perverse. This Court

finds no perversity in the judgment of the learned first appellate

Court. All the points, the findings and reasons offered by the

first appellate Court are in accordance with law. It considered

all the evidence that was available on record. It did not omit to

consider any evidence available on record. It did not consider

anything that was not part of the record. The judgment of the

learned first appellate Court has to be approved. There is

absolutely no merit in this appeal. Point is answered against

the appellants.

26. Before parting with, it may be noted here that while

considering cases of "Wills", the great Lord Denning made a

recollection of what Lord Atkin said about "Wills". It is stated

that the group of ghosts of dissatisfied testators wait on the

other side of the river amusing to see what the living judges

would say about "Wills" they executed. (Broadly drawn from

page No.23 of the Discipline of Law, Oxford University Press

(Indian Print)).

Dr. VRKS, J S.A.No.668 of 2018

27. In the result, this Second Appeal stands dismissed with

costs. As a consequence, judgment dated 19.03.2018 of learned

III Additional District Judge, Guntur in A.S.No.483 of 2010

stands confirmed.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.07.2023 Ivd

Dr. VRKS, J S.A.No.668 of 2018

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.668 of 2018

Date: 11.07.2023

Ivd