B. PRAKASH RAO, J. ( 1 ) THESE two appeals are at the instance of the defendants against the judgments and decrees, both preliminary and final, in a partition suit in O. S. No. 100 of 1983 dated 11-7-1988 and 3-7-1992 on the file of the additional Subordinate Judge at Guntur. ( 2 ) THE suit is filed for partition of plaint a and B schedule properties into two equal shares and for allotment and delivery of possession of one such share to the plaintiffs. Schedule-A consists of agricultural lands described as items 1 to 6 admeasuring Ac. 9-96 cents and Schedule-B consists of various movables like bullock cart etc. ( 3 ) THERE is no dispute about the relationship of the parties. One late chereddy Subba Reddy and Chereddy yerra Reddy are brothers and sons of chereddy Veera Reddy. Subba Reddy died in the year 1976 leaving behind his widow, the defendant No. 1, one son, the defendant no. 2 and one daughter, the defendant No. 3. The defendant No. 4 is the daughter of the defendant No. 3. Yerra Reddy died on 30-1-1983 leaving behind his widow, the plaintiff No. 1 and a daughter, the plaintiff no. 2. ( 4 ) IN brief, the case of the plaintiffs is that the suit properties are ancestral and jointly acquired by late Subba Reddy and Yerra reddy. As both died intestate, the plaintiffs and the defendants are entitled to half share each. ( 5 ) IN defence, the case of the defendants is that the plaintiff No. 1 deserted Yerra reddy long back and her claim was already settled on 15-9-1982. Late Yerra Reddy was looked after by the defendant No. 2 and his wife, and he executed a Will dt. 22-11-1980 bequeathing the properties in favour of the defendant No. 4. in addition, it is the further plea of the defendant No. 3 that item No. 6 of schedule-A of the plaint is the separate property of Subba Reddy. ( 6 ) WITH these above pleas and other allegations as contained in the pleading, the court below framed the following issues:" (1) Whether the plaintiffs are entitled to the partition of the suit property into two equal shares, if so, whether they are entitled to get on such share as alleged in the plaint?
( 6 ) WITH these above pleas and other allegations as contained in the pleading, the court below framed the following issues:" (1) Whether the plaintiffs are entitled to the partition of the suit property into two equal shares, if so, whether they are entitled to get on such share as alleged in the plaint? (2) Whether the plaintiffs are entitled to the future mesne profits, if so, to what extent? (3) To what relief the parties are entitled to?additional Issues: (1) Whether the Will dated 22-11-1980 is true, valid and binding on the plaintiffs? (2) Whether item 6 of plaint A schedule is the self acquired property of late Chereddy Subba reddy?" ( 7 ) ALONG with this suit, another suit in o. S. No. 346 of 1984 filed by the defendants 2 and 4 for permanent injunction over the suit properties was also tried and dismissed under common judgment. However, no appeal is filed against the said judgment and decree. ( 8 ) DURING the trial, on behalf of the plaintiffs, the plaintiff No. 2 was examined as P. W. I supported by P. W. 2 and marked exs. A-1 and A-2. On behalf of the defendants, the defendant No. 4 was examined as D. W. I along with other witnesses D. Ws. 2 to 7 and marked Exs. B-1 to B-5. On a consideration of the evidence and material on record, the court below passed a preliminary decree for partition of schedules A and B properties except item no. 4 in schedule B into two equal shares and allotting one share to the plaintiffs and for possession thereof with directions to determine the future profits on a separate application. ( 9 ) THEREUPON, in pursuance of an application filed in I. A. No. 1063 of 1983 at the instance of the plaintiffs, the court below after an enquiry on appointment of a commissioner passed the final decree, against which the other appeal in a. S. No. 377 of 1994 is filed by the defendants. ( 10 ) SRI V. L. N. G. K. Murthy, the learned counsel appearing for the appellants in both the appeals, attacked the findings of the court below by taking through the evidence on record, especially on doubting the validity and correctness of the Will deed ex. B-2 dated 22-10-1980 when there is ample acceptable evidence in proof of its execution and truthfulness.
B-2 dated 22-10-1980 when there is ample acceptable evidence in proof of its execution and truthfulness. Further, it is their case that the left thumb of late Yerra reddy was injured by a bull and hence the will contained the right thumb impression. It is also his further contention that there is no evidence on sufficiency or existence of nucleus for purchase of item No. 6 of schedule A and therefore, the court below ought to have accepted the same as self acquired property of Subba Reddy. ( 11 ) REPELLING the contentions, sri B. Adinarayana Rao, the learned counsel appearing for the respondents, submitted that there is no plea raised in the written statement as to the alleged injury to the left thumb of Yerra Reddy nor there is any acceptable evidence in proof thereof. And, even on the item No. 6, the court below has rightly held that it is not a joint family property. ( 12 ) THE submissions made on either side give rise to the points for consideration in this appeal as to whether the Will Ex. B-2 dated 22-10-1980 alleged to have been executed by late Yerra Reddy is true and genuine and whether item No. 6 of schedule-A is the joint family property liable for partition? ( 13 ) UNDISPUTEDLY, the brothers Subba reddy and Yerra Reddy lived together jointly. It is also not in dispute that the suit properties, except item No. 6, as claimed by the defendants are the self-acquired properties, Subba Reddy died in the year 1976 and Yerra Reddy died on 31-1-1982. According to the defendants, Yerra Reddy had executed the Will deed dt. 22-11-1980 in favour of the fourth defendant who was being treated as his own daughter more so after the plaintiff No. 1 deserted him. The plaintiff No. 2, as P. W. 1, asserts that the entire property is joint and Yerra Reddy died intestate. Therefore, she is entitled to half share. She is supported by another witness P. W. 2. However, as the burden rests on the defendants to prove the said Will deed executed by Yerra Reddy, it is necessary to consider their evidence in the first instance. ( 14 ) D. W. 1 is the defendant No. 6 who asserts that Yerra Reddy executed the Will deed in Ex. B-2 on 22-10-1980 in view of love and affection towards the defendant No. 4.
( 14 ) D. W. 1 is the defendant No. 6 who asserts that Yerra Reddy executed the Will deed in Ex. B-2 on 22-10-1980 in view of love and affection towards the defendant No. 4. It is only during the evidence, D. W. I for the first time on 1/-12-1987 states that Ex. B-2 contains the right thumb impression of yerra Reddy. Apparently, there is no specific plea or any averment in regard to the affixture of right thumb impression by yerra Reddy or the left thumb being injured by bull. While explaining the reason for affixing the right thumb impression, it was stated that the left thumb of Yerra Reddy was injured by a bull and therefore, the right thumb impression was taken. To prove the incident, D. W. 2, the doctor was produced who stated that he treated Yerra reddy for the said injury. D. Ws. 3 to 5 are the attestors of the said Will and D. W. 6 is the scribe. All these witnesses in one voice stated that it is the right thumb impression of Yerra Reddy which was affixed on ex. B-2. As regards the nature and extent of the injury to the left thumb, there is a substantial variance between the statements. The suit was filed as long back as on 2-4-1983 and written statements filed on 17-1-1984 by defendant No. 1 and others in late 1984. The plaintiff also filed rejoinder on 25-9-1986. It is only in his evidence, d. W. I first time stated the version of right thumb impression being affixed on Ex. B-2. There is absolutely no explanation forthcoming as to such long silence on the part of the defendants and absence of plea. D. W. 1 states that the left thumb of Yerra reddy was amputated to some extent and the left thumb was crushed during the course of bullock fighting when he intervened to separate the bulls. She reiterates the same thing during the cross- examination apart from further clarifying that the left thumb of Yerra Reddy was removed till the base of the left thumb nail. She also states that they instructed their advocate that the right thumb impression was obtained on Ex. B-2 as his left thumb was removed.
She reiterates the same thing during the cross- examination apart from further clarifying that the left thumb of Yerra Reddy was removed till the base of the left thumb nail. She also states that they instructed their advocate that the right thumb impression was obtained on Ex. B-2 as his left thumb was removed. However, D. W. 2, the doctor, who claims to be a physician and surgeon states that as the left thumb of Yerra Reddy became septic, he operated the same in the year 1977. In the cross-examination, he states that the left thumb of Yerra Reddy was not amputated but its inner portion was scrapped to a length of 1/2 inch from the tip. He also says he cannot say whether the left thumb of Yerra Reddy was scrapped including the finger portion used for obtaining the thumb mark. He further says that only 1/2 inch portion on the left thumb of Yerra Reddy on its tip got septic but there was no injury on the left thumb or any portion of the left palm. Curiously, this witness, a doctor, does not give the full details as to the nature of the injuries sustained and the extent of operation performed on the left thumb. Further, there is no mention about the percentage of disability and the extent of incapacity of use of the thumb. However, D. W. 3, the attestor, goes on to say that the left thumb of Yerra reddy was not in proper condition as the flesh of the left thumb was removed as it was crushed two years ago. Further, he says that the left thumb was not having the nail and flesh and any part of the left thumb of yerra Reddy was not amputated. D. Ws. 4 and 5, the other attestors, did not bother to give the details of the injury to the left thumb and its inability to take the impression. D. W. 6, the scribe, states in the cross-examination that the nail of the left thumb of Yerra Reddy was not removed and the flesh commencing from the first joint of left thumb was scrapped, i. e. , removed. Thus with this evidence, which is contradictory in nature, the defendants plead that the right thumb impression of yerra Reddy was taken.
Thus with this evidence, which is contradictory in nature, the defendants plead that the right thumb impression of yerra Reddy was taken. It is now well established that in regard to proof of a Will, heavy burden lies on the propounder to prove its execution and also to remove all the doubting circumstances. Surprisingly, when the defendants are aware that it is the right thumb impression which was taken on ex. B-2 Will, they should have come forward with a specific explanation at the first opportunity. No doubt, normally the left thumb impression of the executant is taken and it is only in case of incapacity of the left thumb, the right thumb impression also would be taken. But however, when according to the defendants, it is the right thumb impression which was there on ex. B-2, they should have explained the damage to the left thumb and the use of right thumb for the impression. Another important factor which is to be taken note of is that Ex. B-2 does not mention that the impression which contained on the said document is of the right thumb whereas the defendants have sought to prove that Yerra reddy used to put right thumb impression by producing another document i. e. , Ex. B-3, the promissory note alleged to have been executed by him in the year 1978 which specifically notes that the impression contained thereon is of his right thumb. In fact such a statement in the document would go against the defendants themselves when similar such statement is absent in ex. B-2. Even in regard to the actual happening of the incident, there is contradiction and no witness has come out with details or extent to which Yerra Reddy suffered the injury. Admittedly, Ex. B-2 is an unregistered one and when there is an attempt to disrupt the natural succession, the same has to be viewed from a very stricter angle and it requires a stricter proof. ( 15 ) IT is now well established that the onus probandi lies heavily in every case upon the party propounding the Will in regard to not only the due execution but removal of all suspicious circumstances. This requires a complete satisfactory proof from the propounder and lay down a proper foundation in the pleadings themselves especially where there is a deviation from the normal course.
This requires a complete satisfactory proof from the propounder and lay down a proper foundation in the pleadings themselves especially where there is a deviation from the normal course. Any discrepancy on such varied circumstances does not lend any truth. Such exceptional impression of right thumb, contrary to the normal practice of left thumb, is a material one, which requires to be referred to in the pleading and then substantiated by evidence. In fact, no evidence can be looked into without a foundation in the pleading. ( 16 ) HAVING regard to the aforesaid reasons and absence of any consistent and acceptable evidence coming from the side of the defendants as to the injury to the left thumb and the use of right thumb for impression on the document, it can be safely concluded, as rightly held by the court below, that the defendants have failed to prove the execution of Ex. B-2 by removing an important suspicious circumstance. ( 17 ) NOW coming to the other question as to Item No. 6, it is claimed by the defendants that it is the self acquired property of late subba Reddy. Except the evidence of D. W. 1, there is no other evidence in support of such plea. The first defendant who could have been a better witness to explain in regard to the said item, has not been produced. Further, there is no other independent evidence to show that the same was purchased with the money of Subba Reddy by his parents-in law as contended by the defendants. Accordingly, it has to be held that item No. 6 of the plaint A schedule is a joint property and liable for partition. Accordingly, the appeal in A. S. No. 1870 of 1988 is liable to be dismissed. ( 18 ) IN regard to the other appeal in a. S. No. 377 of 1994, except making a bald ground that the shares have not been properly allotted, no serious attempt is made nor any illegalities are made out. Hence, nothing remains to be considered in this appeal also. ( 19 ) IN the result, both the appeals fail and they are accordingly dismissed. No costs.