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2005 DIGILAW 1044 (AP)

N. Madan Mohan v. N. Prabhakar Gupta

2005-11-07

P.S.NARAYANA

body2005
( 1 ) HEARD Mr. Prabhakar Sarma, Counsel representing the appellant/defendant in O. S. No. 48/96 on the file of subordinate Judge, Hindupur and Ms. Thamsha Rani, Counsel representing the plaintiff in the said suit. ( 2 ) THE respondent herein/plaintiff originally filed the suit O. S. No. 36/90 on the file of Additional District Judge, hindupur which was renumbered as O. S. No. 48/96 on the file of Subordinate Judge, Hindupur. The suit was filed for partition and separate possession of the 3/4th share of the plaintiff in the suit schedule property. The evidence of P. W. 1 to P. W. 5 and D. W. 1 had been recorded. Exs. A-1 to A-5 and exs. B-1 and B-2 were marked. ( 3 ) THE dispute is between the brothers. The respective lengthy pleadings of the parties need not be dealt with in elaboration. After settlement of Issues, findings had been recorded by the learned Subordinate Judge and a preliminary decree was passed with costs directing division of the plaint schedule property into four equal shares and to allot 3/4th share to the plaintiff. Submissions at length were made by the Counsel representing the appellant/defendant that he is seriously disputing the validity of Ex. A-1 and except the evidence of P. W. 5, the attestor, and also the evidence of P. W. 1, there is no other acceptable evidence in this regard. The learned Counsel incidentally would contend that P. W. 2 and P. W. 3, the other beneficiaries, it is said, had executed sale deeds and hence naturally they would be interested in supporting the version of P. W. 1. The learned appreciated by the learned Judge and findings in detail had been recorded. ( 4 ) ON the strength of the submissions made by both the Counsel, the following Points arise for consideration :1. Whether the registered will dated 25-3-1971 Ex. A-1 executed by the father of the plaintiff can be said to be true, valid and binding in the facts and circumstances of the case ? 2. Whether the plaintiff is entitled to the share which he had prayed for by virtue of registered sale deeds said to have been executed by the other brothers, the beneficiaries under the will Ex. A-1 ? , 3. If so, to what relief ? 2. Whether the plaintiff is entitled to the share which he had prayed for by virtue of registered sale deeds said to have been executed by the other brothers, the beneficiaries under the will Ex. A-1 ? , 3. If so, to what relief ? ( 5 ) POINTS 1 and 2 : It is needless to say that the whole controversy revolves around Ex. A-1, the registered will dated 25-3-1971 said to have been executed by the father of P. W. 1. The evidence of P. W. 1 and D. W. 1 is available on record. Apart from this evidence, the evidence of P. W. 2 and P. W. 3 also is available who had supported the version of P. W. 1. It is needless to say that when the validity of the will Ex. A-1 is in controversy and there is specific denial in the written statement and also in the evidence of D. W. 1, P. W. 1 should have proved Ex. A-1 in accordance with law. Apart from this evidence of P. W. 1 to P. W. 3, the other evidence available on record is that of the only attestor. It is no doubt true that it is a registered will. P. W. 5, the attestor, deposed that he knows the father of the plaintiff and the defendant and he knows the family members and he had attested the will executed by the father of the plaintiff and Ex. A-1 is the will executed by the plaintiff s father and it contains his signature as attestor. About 20 years back the plaintiff s father. Subbanna Setty executed Ex. A-1 will. In cross-examination also the details of the particulars relating to the due attestation of the will had not been elicited. ( 6 ) IT is unfortunate that the evidence of P. W. 5 may not be sufficient to arrive at a conclusion that Ex. A-1 had been proved in accordance with law as required by the provisions of the Indian Evidence Act 1872. ( 6 ) IT is unfortunate that the evidence of P. W. 5 may not be sufficient to arrive at a conclusion that Ex. A-1 had been proved in accordance with law as required by the provisions of the Indian Evidence Act 1872. It is needless to say that inasmuch as the other brothers are claiming as beneficiaries under the will who had executed the sale deeds in favour of P. W. 1, the ultimate shares may alter but however the fact remains that they are also sharers and at least upto that limited extent it can be said that those brothers had conveyed their title to the extent of their respective shares in favour of P. W. 1. It is needless to say that these are all matters in relation to which findings in detail may have to be recorded. This Court is not inclined to express any opinion inasmuch as there is serious dispute relating to the validity of the will and it is suffice to state that the evidence of P. W. 5, the attestor, as such may not be sufficient and the will Ex. A-1 is required to be proved in accordance with law. Hence without expressing any other opinion on all other aspects which are left open, this Court is of the considered opinion that the Judgment and decree made by the this Court cannot be sustained and accordingly they are hereby set aside and the matter is remanded to the trial Court for the purpose of affording opportunity to both the parties to let in further evidence relating to all the aspects inclusive of the proof of Ex. A-1. ( 7 ) POINT No. 3 : In view of the findings recorded above, the Judgment and decree made in O. S. No. 48/96 on the file of subordinate Judge, Hindupur are hereby set aside and the matter is remanded to the learned Subordinate Judge, hindupur for the purpose of affording further, opportunity to both the parties to let in further evidence on all the aspects and decide the matter afresh. The appeal is allowed to the extent indicated above. Inasmuch as the controversy is between the family members, the two brothers, the parties to bear their own costs. Inasmuch as this is a very old suit, top. The appeal is allowed to the extent indicated above. Inasmuch as the controversy is between the family members, the two brothers, the parties to bear their own costs. Inasmuch as this is a very old suit, top. priority to be given by the trial Court for the disposal of the suit so that the matter can be disposed of at the earliest point of time.