JUDGMENT M.S. RAMACHANDRA RAO, J. 1. As parties to these appeals are one and the same and the subject-matter of both these appeals is related, they are being disposed of by this common judgment. 2. A.S. No. 999 of 1995 is filed challenging the judgment and decree dated 30.6.1995 in O.S. No. 40 of 1985 of the Subordinate Judge, Jagtial. Tr. A.S. No. 88 of 2010 is filed against the judgment and decree dated 13.7.2006 in O.S. No. 4 of 1999 of the Senior Civil Judge, Sircilla. 3. The parties will be referred to as per their array in O.S. No. 40 of 1985. 4. The facts leading to the filing of these suits are:- (i) One Agina Ramalingam (hereinafter referred to as Ramalingam) is the husband of Varamma (plaintiff in O.S. No. 40 of 1985) and the father of Murali and Chandramouli (defendant Nos. 1 and 2 in O.S. No. 40 of 1985). Ramalingam died in August, 1985. (ii) Ramalingam had two brothers by name Viswanadham and Bhadraiah. (iii) The 2nd defendant was originally married to one Pushpalatha on 5.5.1963. A year later disputes arose between them and they started living separately. The suit O.S. 116 of 1967 and O.P. 12 of 1969 (iv) She filed as No. 116 of 1967 before the Subordinate Judge, Karimnagar against Ramalingam, 2nd defendant and 1st defendant for past and future maintenance @ Rs. 125/- p.m. for recovery of jewels mentioned in "A" schedule to that suit, or Rs. 3,965/- being the value of the jewels and for creation of a charge on the properties mentioned in "B" schedule to that suit. The 2nd defendant filed O.P. No. 12 of 1969 against Pushpalatha before the same Court under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. (v) A written statement was filed in O.S. No. 116 of 1967 by Ramalingam and the defendant Nos. 1 and 2 pleading that there was a division of the property belonging to the family in which the 2nd defendant got only Rs. 9,000/- towards his share in cash and that a decree dated 2.3.1965 in O.S. No. 19 of 1965 was passed by the District Munsif, Sircilla to that effect. The certified copy of the plaint, written statement and decree in O.S. No. 19 of 1965 were filed as Exs.B1 to B3 in the suit O.S. No. 116 of 1967. 9,000/- towards his share in cash and that a decree dated 2.3.1965 in O.S. No. 19 of 1965 was passed by the District Munsif, Sircilla to that effect. The certified copy of the plaint, written statement and decree in O.S. No. 19 of 1965 were filed as Exs.B1 to B3 in the suit O.S. No. 116 of 1967. (vi) By a common judgment dated 28.2.1970 in O.S. No. 116 of 1967 and O.P. No. 12 of 1969, the Subordinate Judge, Karimnagar held that it was the 2nd defendant who had deserted Pushpalatha and there was cruelty and desertion on his part towards her. He held that there was no evidence to show that the jewellery of Pushpalatha was taken away by 2nd defendant and she had also not issued any notice to him prior to filing of the suit and therefore the relief regarding jewellery cannot be granted. He fixed the maintenance @ Rs. 75/- p.m. from the date of decree. He also held that there was partition between Ramalingam and his sons; that 2nd defendant had filed a suit O.S No. 19 of 1965 for recovery of a sum of Rs. 300/- out of Rs. 9,000/- which fell to his share against Ramalingam and 1st defendant, that the judgment in that suit proves the partition between Ramalingam and his sons, therefore basing on the salary being received by the 2nd defendant, maintenance is being awarded. He did not grant any charge on "B" schedule properties in O.S. No. 116 of 1967. The suit O.S. No. 170 of 1979 (vii) O.S. No. 170 of 1979 was filed before the District Munsif, Sircilla by Shankaraiah, the son of Ramalingam's brother Viswanadham against Ramalingam and one Maruthi, the son of Ramalingam's other brother Bhadraiah for partition and separate possession of certain properties mentioned in the schedule to it. The said suit ended in a compromise and a compromise decree dated 26.11.1979 was passed dividing the properties among Shankaraiah, Maruthi and Ramalingam. Under the said decree, an extent of agricultural land of Acs.2.13 Gts. in Sy.No.314/A, Ac.0.13½ Gts. in Sy.No.313 of Tippapur Village and Acs.13.78 Gts. in Sy.Nos.390, 434, 435 and 436 of Nampally Village fell to the share of Ramalingam. Under the said decree, an extent of agricultural land of Acs.2.13 Gts. in Sy.No.314/A, Ac.0.13½ Gts. in Sy.No.313 of Tippapur Village and Acs.13.78 Gts. in Sy.Nos.390, 434, 435 and 436 of Nampally Village fell to the share of Ramalingam. The wills and Gift deeds allegedly executed by Ramalingam during his lifetime (viii) During his lifetime, Ramalingam allegedly executed Ex.B12 will dated 6.12.1984 stating that there was already a partition in 1964 between himself and his 2 sons, that they were separately enjoying their respective shares, that the elder son i.e. 1st defendant did not take care of him and the 2nd defendant was taking care of him. It is also recited in that will that he had given considerable amount of gold to his wife. Under the said will, he bequeathed house bearing No. 4-2-13 mentioned in item No. 2 of plaint-A schedule to his wife Varamma. He bequeathed, (i) Item No. 1 of the plaint A schedule, (ii) the other house bearing No. 4-2-13/1 (also mentioned in Item No. 2 of plaint-A schedule) and (iii) an extent of Acs.2.26½ Gts. in Sy.No.313 and 314-A of Thippapur Village (forming part of Item No. 2 of plaint-B schedule) to 2nd defendant under the said will. (ix) Ramalingam also allegedly executed a registered gift deed Ex.B6 dated 16.5.1984 bequeathing Item No. 1 of plaint-B schedule consisting of Acs.13-38 Gts. in Nampally Village to 2nd defendant. (x) He also allegedly executed Ex.B13 gift deed dated 25.4.1985 gifting Item No. 1 of plaint-A schedule exclusively to 2nd defendant. (xi) In addition to the above documents, he also allegedly executed Ex.X1 will dated 12.7.1985. In this will, he stated that the houses mentioned in Item Nos. 1 and 2 of A-Schedule and the agricultural land mentioned in Item Nos. (xi) In addition to the above documents, he also allegedly executed Ex.X1 will dated 12.7.1985. In this will, he stated that the houses mentioned in Item Nos. 1 and 2 of A-Schedule and the agricultural land mentioned in Item Nos. l and 2 of B schedule in Nampally and Thippapur Villages were his ancestral properties inherited by him from his father and grandfather; the cash and jewellery which he had earned during his lifetime had been divided in 1980, in the presence of one Jonnala Narayana and Kotagiri Venkataiah, between himself and his sons; that disputes had arisen on account of the conduct of Rajuri Ramalingam, the brother of the plaintiff Varamma, his wife; that the gift deeds Exs.B6 and B13 executed by him are nominal, that he had no authority to execute them and 2nd defendant would not get any rights under the said gift deeds. He therefore directed that the above properties should be shared equally between defendant Nos. 1 and 2; that Ramalingam and his wife were being maintained by 1st defendant only and therefore Varamma should be taken care by 1st defendant; certain deposits belonging to him in the State Bank of Hyderabad, Vemulawada; certain amounts payable to him by Bommakanti Rajesam and Pedda Mallesam should go to his wife and his sons must assist his wife to get those amounts. He further stated that his wife should retain all the gold and is entitled to give it to whosoever she pleases; that he also has an extent Acs.14-35 Gts. in Vemulawada Village which is joint family property; he had executed an agreement of sale in favour of one Naguri Srinivas and others and received Rs. 30,000/- from them and in respect of this land, his wife and children will have no right therein. The present Suit O.S. 40 of 1985 (xii) Varamma, on 19.11.1985, filed O.S. No. 40 of 1985 against defendant Nos. 30,000/- from them and in respect of this land, his wife and children will have no right therein. The present Suit O.S. 40 of 1985 (xii) Varamma, on 19.11.1985, filed O.S. No. 40 of 1985 against defendant Nos. 1 and 2 contending that the plaint schedule properties are the joint family properties of her husband Ramalingam having been acquired by him from his father by way of inheritance and subsequent to a partition between Ramalingam and his brothers in 1979, that Ramalingam became the exclusive owner and possessor of the plaint schedule properties after the partition between himself and his 2 brothers; there was a final decree in O.S. No. 170 of 1979 in favour of her husband; Ramalingam had 1/3rd share therein along with his sons and on his death, the said 1/3rd share of Ramalingam devolved equally on herself and defendant Nos. 1 and 2. She therefore contended that she is entitled to 1/9th share in the plaint-A schedule properties. She further contended that the Fixed Deposits and advances shown in plaint-C schedule property were the self-acquired properties of her husband and she is entitled to 1/3rd share therein. She specifically alleged that both defendants were neglecting her after the death of her husband, due to which domestic quarrels have started, making it impossible for her to continue to be in joint possession and enjoyment along with them and therefore she was forced to file this suit for partition. There is no mention in the plaint filed by Varamma about Exs.B6, B13 or Ex.X1. The written statement of 2nd defendant 5. There is no mention in the plaint filed by Varamma about Exs.B6, B13 or Ex.X1. The written statement of 2nd defendant 5. On 19.3.1986, the 2nd defendant filed a written statement contending that the plaintiff and 1st defendant had colluded with each other; the suit was got filed by 1st defendant since the plaintiff was under his influence as she was living with him for the past 6 years; there was a partition 40 years prior to filing of the written statement i.e. around 1945 between Ramalingam and his 2 elder brothers of their ancestral house, business, cash and gold; that they had started living separately in the houses that fell to their separate shares since then and had been carrying on business separately, but the agricultural lands belonging to their family were only notionally divided among them and they had 1/3rd share each therein; that the said partition was such that the proceeds of lease of agricultural lands were divided among them and was enjoyed by them separately, but the lands as such were not divided by metes and bounds; the agricultural lands were divided by metes and bounds only in 1979, long after the death of the 2 elder brothers of Ramalingam; that Ramalingam and defendant Nos. 1 and 2 had become divided on 22.3.1964 itself and therefore, as on the date of his death, there was no coparcenary/joint family relationship between Ramalingam, himself and 1st defendant. He further contended that in the said partition which allegedly took place on 22.3.1964, the assets of joint family business along with joint family credits with 3rd persons were allotted to 1st defendant exclusively to run business separately; the joint family gold, silver and cash was allotted to the share of 2nd defendant to enable him to start his separate business and all the immovable properties were allotted exclusively to the share of Ramalingam. He alleged that this partition took place in the presence of Rajuri Ramalingam, brother of Varamma plaintiff and ever since the said partition, Ramalingam and defendants started living separately and carrying on their businesses separately. He also contended that from the share allotted to him, 1st defendant was doing separate business with the aid of which he acquired several properties such as 1025 Sq. Yds. in Sy.No.81/A1, Karimnagar, 11 Gts. He also contended that from the share allotted to him, 1st defendant was doing separate business with the aid of which he acquired several properties such as 1025 Sq. Yds. in Sy.No.81/A1, Karimnagar, 11 Gts. of plots at Vemulawada, lands at Vilasnagar Village and a share in the Rice and Oil Mill and its land at Thippapur apart from a share in a cinema theatre in Vemulawada. He also pleaded that under Ex.B6 dated 16.5.1984, item No. 1 of "B" schedule was gifted to him by Ramalingam; that 1st defendant objected to the said gift and an agreement dated 18.5.1984 was executed by Ramalingam, 1st defendant and 2nd defendant agreeing to a decision on the dispute by Rajuri Ramalingam, but subsequently 1st defendant abandoned it and started threatening Ramalingam, asking him to cancel it. He alleged that plaintiff was always supporting 1st defendant in his campaign against Ramalingam and 2nd defendant, prompting Ramalingam to call his brother-in-law Rajuri Ramalingam and to execute Ex.B12 will dated 6.12.1984 and subsequently Ex.B13 Settlement Deed dated 25.4.1985. He further contended that no relief of partition in respect of plaint schedule properties can be granted to plaintiff. In addition, he also pleaded that himself and plaintiff are each entitled to ½ share in the deposits in State Bank of Hyderabad shown in Item Nos. l and 2 in plaint-C schedule and 1st defendant is not entitled to any share. He also stated that no amounts are due from Pedda Mallesam and Bommakanti Rajesham shown in item No. II of plaint "C" schedule and so they are not liable for partition. He stated that the original of Ex.B12 was with Rajuri Ramalingam and he has filed its Photostat copy. He also filed an affidavit Ex.B23 allegedly executed by Ramalingam before a Notary Public stating that (a) himself and his two sons had partitioned the properties by metes and bounds more than 20 years back, were residing separately and ceased to be joint; (b) that 2nd defendant was taking care of him and he executed Exs.B6 and B13 Settlement Deed in his favour; (c) on that account he was the absolute owner of the said properties and none else had a right therein and (d) he had no objection for mutating the said properties in the name of 2nd defendant. 6. 6. He contended that the suit is got filed through the plaintiff, by 1st defendant only as an attempt to nullify the admissions of 1st defendant made in several Court proceedings and also before Tahsildar about the fact of the previous partition in the year 1964 and to screen his own properties which were acquired with the aid of the properties he got in the partition in 1964. He pleaded that the land of Acs.14.35 Gts. in Sy.No.474 of Vemulawada Village, although available for partition, was purposefully not included in the suit schedule in the plaint and that the said land was acquired by late Ramalingam under the provisions of the A.P. (Telangana Area) Abolition of Inams Act, 1955 and was owned and possessed by him till his death; that in that land both defendants 1 and 2 have equal rights; that the suit for partition without including the said land is not maintainable; the plaintiff had obtained 20 tulas of gold of late Ramalingam and as per Ex.B12, the plaintiff and 2nd defendant were entitled to the said gold in the ratio 1:1 and this was not included in the suit for partition. He therefore prayed that the suit for partition filed by the plaintiff be dismissed. Rejoinder of plaintiff to written statement of 2nd defendant 7. The plaintiff filed rejoinder dated 9.9.1987 denying that she and 1st defendant had colluded with each other. She contended that she was not influenced by 1st defendant and that she was living in the item-2 of the plaint-A schedule with a separate mess. She contended that her husband Ramalingam died intestate. She also pleaded that the house bearing No. 4-2-13/1 is not the separate or self acquired property of Ramalingam and that the entire construction of the said house was made by 2nd defendant with joint family funds. She contended that the only partition between Ramalingam and his brother's sons took place in 1979 and there was no partition 40 years back as alleged in the written statement of 2nd defendant; that the properties mentioned in the plaint schedules were the properties which had fallen to her husband's share as per the compromise decree in O.S No. 170 of 1979. She denied that there was any partition on 22.3.1964 as alleged by 2nd defendant. She denied that there was any partition on 22.3.1964 as alleged by 2nd defendant. She also denied the execution of Exs.B6 and B13 gift deeds by Ramalingam in favour of 2nd defendant and contended that they were brought into existence by 2nd defendant in collusion with her brother Rajuri Ramalingam. She pleaded that Exs.B12, B6 and B13 are all forged documents and were brought into existence by 2nd defendant with the assistance of her brother Rajuri Ramalingam who was inimical to the plaintiff for more than ten years. She also pleaded that her husband had already sold the land admeasuring Acs.14.35 Gts. in Sy.No.474 situated at Vemulawada Village to N. Srinivas and 2 others under an agreement of sale and therefore she had rightly excluded that property in the present suit. She specifically pleaded that she and her husband expected Pushpalatha, wife of 2nd defendant, to file a suit for maintenance against 2nd defendant and on the advice and suggestion of Rajuri Ramalingam, it was decided that 2nd defendant should be left with no property by creating some documentary evidence to defeat the rights of maintenance of said Pushpalatha; to her knowledge, her husband and the defendants brought into existence some Court record in 1964-65 with the sole purpose of defeating the rights of maintenance of the said Pushpalatha. She categorically asserted that the parties had been living jointly and enjoying the plaint schedule properties to the knowledge of every person. She denied that she had retained 20 tulas of gold. She also pleaded that her brother was an inimical to 1st defendant for more than ten years and was causing obstacles to 1st defendant in searching of match to his daughter and later her brother discarded her and stopped talking to her. The written statement of 1st defendant 8. On 15.10.1987, 1st defendant filed a written statement supporting the plaintiff's plea that plaint A and B schedule properties are ancestral and joint family properties of the plaintiff and contending that Ramalingam had acquired these properties in a partition with his brother's sons. He contended that late Ramalingam, and defendant Nos. 1 and 2, being members of the joint family, were in joint possession of the A and B schedule properties of which Ramalingam was the karta. He contended that late Ramalingam, and defendant Nos. 1 and 2, being members of the joint family, were in joint possession of the A and B schedule properties of which Ramalingam was the karta. He contended that as per final decree passed in O.S. No. 170 of 1979 by the District Munsif, Sirsilla, Ramalingam he got the above properties; that Ramalingam and the defendants were jointly living and enjoying all the plaint schedule properties till his death; even thereafter properties are held jointly and that 2nd defendant is separately living for more than a year. He denied the contention of 2nd defendant that there was a partition in the year 1964 between Ramalingam and defendants in which all the immovable properties fell to the share of Ramalingam, cash and gold were given to 2nd defendant and credits were given to 1st defendant. He pleaded that there were differences between 2nd defendant and his first wife Pushpalatha in 1964 and 2nd defendant was intending to remarry another girl; that 2nd defendant deserted Pushpalatha; anticipating that the said Pushpalatha may file a suit for maintenance, Ramalingam and the defendants were advised to obtain a Court decree to make believe that 2nd defendant had no immovable properties; they therefore obtained a collusive decree in O.S. No. 19 of 1965 from the District Munsif, Sircilla; that the said decree was intended only to serve the purpose of 2nd defendant in defeating the rights of his first wife Pushpalatha in the suit filed by her for maintenance; there was no occasion for defendants 1 and 2 and Ramalingam to divide the properties in 1964. He also pleaded that 2nd defendant was in Nagpur and in other places doing a job, he had not settled down in life and the litigation between 2nd defendant and his first wife went on from 1967 to 1975; taking advantage of the said collusive decree in O.S. No. 19 of 1965, 2nd defendant is now contending that he is a divided member of the family. He pleaded that the brain behind this is Rajuri Ramalingam, the brother of the plaintiff who was inimical to 1st defendant and who obstructed 1st defendant when he was searching for a match to his daughter; that the said Rajuri Ramalingam wanted to take revenge against 1st defendant through 2nd defendant and the latter had fallen prey to the evil designs of Rajuri Ramalingam; Rajuri Ramalingam has also spoiled the mind of their father Ramalingam by telling some false stories and by either playing fraud or misrepresentation over their father, Rajuri Ramalingam brought two registered gift deeds, Exs.B8 and B13 into existence. He contended that his father Ramalingam cannot transfer joint family property by way of gifts and no rights will accrue thereunder to 2nd defendant. He denied the execution of Ex.B12 will and contended that either the said will is forged or was prepared on a signed blank paper after the death of Ramalingam. He also contended that Ex.B23 affidavit executed by Ramalingam was also created and concocted by Rajuri Ramalingam. He further contended that elders by name Jonnala Narayana and Kotagiri Venkataiah were authorized under an agreement dated 1.6.1980 to divide the movables; that on that day, these persons divided the movables and kept the immovable properties joint till the lifetime of the parents of the defendants; that they also decided that 1st defendant should pay Rs. 11,906.50 paise to 2nd defendant and 2nd defendant has taken away those papers and therefore only photostat copy is filed. He also denied that there were another agreement Ex.B38 dated 18.5.1984 under which the defendants and their father Ramalingam authorized Rajuri Ramalingam to decide their family disputes regarding the division of the immovable properties. He also contended that Ex.X1 will dated 12.7.1985 was executed by his father Ramalingam who kept it with his close confident Bussa Sankarayya; that this came to light recently after it was disclosed by Bussa Sankarayya; that the original of Ex.X1 was still with him; under that will, the suit properties were treated as joint family properties and it was held that both defendants would be entitled to half share each and the plaintiff would get cash and other articles mentioned in the bill. He pleaded that on account of Ex.X1 will dated 12.7.1985, Ex.B12 will dated 6.12.1984 is superseded. He pleaded that on account of Ex.X1 will dated 12.7.1985, Ex.B12 will dated 6.12.1984 is superseded. He also contended that the plaintiff had filed the suit on her own accord and not at the instance of 1st defendant as alleged by 2nd defendant. He therefore contended that 2nd defendant cannot derive any rights under the gift deeds Exs.B6 and B13 or under Ex.B12 will dated 6.12.1984 and that the plaintiff's suit for partition be decreed only to the extent provided for in Ex.X1 dated 12.7.1985. The Issues 9. On the basis of these pleadings, the following issues are framed by the Court below:- (1) Whether the plaint schedule A and B properties are the ancestral properties of late A. Ramalingam and were exclusively owned and possessed by him having acquired the same in partition with his brothers in the year 1979? (2) Whether the House No. 4-2-13/1 shown as a part of Item No. 2 plaint schedule A is the self-acquired property of late A. Ramalingam as alleged by defendant No. 2? (3) Whether late A. Ramalingam, the husband of plaintiff and his brothers partitioned their ancestral house, business, cash and gold about forty years back, and divided their landed properties in 1979 as pleaded by defendant No. 2? (4) Whether late A. Ramalingam settled a shop Item No. 1 of plaint schedule A in favour of 2nd Defendant and executed a registered deed of Gift Settlement as pleaded by defendant No. 2? (5) Whether the plaintiff is entitled to 1/3rd share in the plaint schedule C properties? (6) Whether the land in Sy.No.474 of Vemulawada and 20 tulas of gold are joint family properties and are liable to be brought into the hotchpotch of partition as pleaded by defendant No. 2? (7) Whether late A. Ramalingam executed a will deed on 12.7.1985 as pleaded by the defendant No. 1 if so to what effect? (8) Whether there was a partition of ancestral properties consisting of house, business, cash, gold ornaments about 40 years back, barring agricultural lands which were divided in 1979? (9) Whether the House No.4-2-13/1 is the self acquired house of late A. Ramalingam and not inherited from his father? (10) Whether late A. Ramalingam and the defendant Nos. 1 and 2 became divided on 22.3.1964 under an oral partition as alleged in the written statement? (9) Whether the House No.4-2-13/1 is the self acquired house of late A. Ramalingam and not inherited from his father? (10) Whether late A. Ramalingam and the defendant Nos. 1 and 2 became divided on 22.3.1964 under an oral partition as alleged in the written statement? (11) Whether the registered Gift Settlement Deed dated 16.5.1984 in respect of Item No. 1 of schedule B lands in favour of defendant No. 2 is true and what is its effect? (12) Whether the will dated 6.12.1984 in favour of 2nd defendant and plaintiff is true? (13) Whether the registered Gift Settlement Deed dated 25.4.1985 executed in favour of defendant No. 2 with regard to item No. 1 of schedule A is true and what is its effect? (14) Whether Sy.No.474 measuring 14 acres 35 guntas of Vemulawada Village is liable for partition and the same was not included in the hotchpotch? (15) Whether the suit of plaintiff is not maintained for non-inclusion of Sy.No.474 and 20 tulas of gold in the suit? (16) To what relief? 10. The plaintiff examined PW1 and marked Exs.A1 to A7. The defendants examined DWs.1 to 16 and marked Exs.B1 to B38. Exs.X1 and X2 were also marked. The judgment in O.S. 40 of 1985 11. By judgment and decree dated 30.6.1995, O.S. No. 40 of 1985 was decreed directing partition of the plaint A to C schedule properties along with 5 tulas of gold, which was with the plaintiff Varamma, into 9 equal shares and for allotting one such share to her. 12. The judgment in O.S. 40 of 1985 11. By judgment and decree dated 30.6.1995, O.S. No. 40 of 1985 was decreed directing partition of the plaint A to C schedule properties along with 5 tulas of gold, which was with the plaintiff Varamma, into 9 equal shares and for allotting one such share to her. 12. The trial Court held that the A and B schedule properties are the ancestral properties of Ramalingam; that there was nothing to show that the C schedule properties were the self acquired properties of Ramalingam and therefore, even these have to be treated as joint family property; that the said property was acquired under the final decree in O.S. No. 170 of 1979 passed by the District Munsif, Sircilla (Ex.A1 dated 26.11.1979) between Ramalingam and his brothers sons; this was also admitted by the defendants; there was no material to substantiate the plea of oral partition between Ramalingam and his brothers in 1964 as pleaded by 2nd defendant ; that the judgment and decree in O.S. No. 19 of 1965 passed by the District Munsif, Sircilla in the suit filed by Pushpalatha shows that there was a plea of partition raised by Ramalingam and the defendants therein; that the said decree is a collusive one; that there were no disputes between Ramalingam and his two sons in 1964 to compel the partition of properties and therefore the properties remained joint at the time of death of Ramalingam. It held that a gift by coparcener of a joint family property is void and therefore Ex.B6 gift deed dated 16.5.1984 and Ex.B13 gift deed dated 25.4.1985 are void and have no effect. It also held that the C schedule properties were acquired by Ramalingam with the aid by ancestral properties and the plaintiff is entitled to 1/9th share therein. 13. It is also held that the land covered by Sy.No.474 of Vemulawada in an extent of Acs.14.34 Gts. was not shown by 2nd defendant to be joint family property and even though O.S. No. 19 of 1986 filed by vendees N. Srinivas and others under the agreement of sale dated 12.11.1984 was dismissed, still in view of recital in Ex.X1 will about sale of this property under the said agreement of sale, the extent of Acs.14.35 Gts. in Sy.No.474 covered by the said agreement is not available for partition. in Sy.No.474 covered by the said agreement is not available for partition. It is held that only 5 tulas of gold (and not 20 tulas as alleged by 2nd defendant) was admitted by plaintiff to be in possession; that the execution of Ex.X1 dated 12.7.1985 by late Ramalingam is true but since the plaint schedule properties are his ancestral properties, he had no right to execute the will in respect of his undivided ancestral properties and consequently the said will is null and void. It is further held that in view of the execution of Ex.X1 by late Ramalingam, the earlier will Ex.B2 dated 6.12.1984 stood superseded and is deemed to have been cancelled but even the said will Ex.B12 could not have been executed by Ramalingam since the property dealt with thereunder is undivided joint family property. It is therefore decreed the suit granting 1/9th share in plaint A to C schedule properties and 5 tulas of gold which the plaintiff had. The A.S. No. 999 of 1995 14. Aggrieved thereby, 2nd defendant filed A.S. No. 999 of 1995 in this Court. O.S. No. 1 of 1992 renumbered as O.S. No. 4 of 1999 15. While the suit O.S. 40 of 1985 was pending, 2nd defendant filed O.S. No. 1 of 1992 before the Subordinate Judge, Jagtial against plaintiff and 1st defendant for partition of the extent of Acs.14.35 Gts. in Sy.No.474 of Vemulawada Village. He reiterated that his father Ramalingam and the defendants had partitioned the properties on 22.3.1964; that this property was the exclusive property of his father Ramalingam and he had obtained it under the provisions of the A.P. (Telangana Area) Abolition of Inams Act, 1955; on his death, he is entitled to 1/3rd share therein along with the plaintiff and 1st defendant. 16. That suit was transferred to the Court of Senior Civil Judge, Sircilla and renumbered as O.S. No. 4 of 1999. 17. Only 1st defendant in O.S. No. 40 of 1985, who was arrayed as 1st defendant in O.S. No. 4 of 1999, filed a written statement. Agina Varamma, plaintiff in O.S. 40 of 1985, who was 2nd defendant in O.S. No. 4 of 1999 remained ex-parte. The written statement in O.S. 4 of 1999 18. 17. Only 1st defendant in O.S. No. 40 of 1985, who was arrayed as 1st defendant in O.S. No. 4 of 1999, filed a written statement. Agina Varamma, plaintiff in O.S. 40 of 1985, who was 2nd defendant in O.S. No. 4 of 1999 remained ex-parte. The written statement in O.S. 4 of 1999 18. In his written statement, 1st defendant contended that there was no partition in 1964 as alleged by 2nd defendant/plaintiff in O.S. No. 4 of 1999; that under an agreement of sale dated 12.11.1984, marked as Ex.B12 in O.S. No. 4 of 1999, their father Ramalingam had sold the plaint schedule property herein to one N. Srinivas and two others for Rs. 30,000/- and had received Rs. 25,000/- from vendees and had put them in possession over the suit land in part performance of the sale agreement; that the balance consideration of Rs. 5,000/- was paid to 1st defendant on 1.10.1985 by the vendees; that the vendees had filed O.S. No. 19 of 1986 on the file of the Subordinate Judge, Jagtial for specific performance of said agreement of sale; that during the pendency of the said suit, the vendees N. Srinivas and others offered to resell the land to the defendants and 1st defendant had agreed to purchase it for Rs. 80,000/- that he paid Rs. 20,000/- through a cheque on 2.4.1990 and the balance Rs. 60,000/- by pay order dated 27.6.1990; that the vendees had executed an agreement of sale dated 2.4.1990 and 29.6.1990 in favour of 1st defendant and put him in exclusive possession of the said property on 29.6.1990 and since then he has been in exclusive possession over the suit property. He further stated that the suit O.S. No. 19 of 1986 was withdrawn on 10.12.1991 by the vendees by filing I.A. No. 239 of 1990 dated 6.7.1990 and therefore 2nd defendant or the plaintiff cannot claim any share in the plaint schedule property for seeking partition thereon. The Issues in O.S. No. 4 of 1999 19. On the basis of these pleadings, the Senior Civil Judge, Sircilla framed the following issues:- (i) Whether the plaintiff is entitled for partition and separate possession as prayed fur? (ii) Whether there was any partition as alleged by the plaintiff in 1964? (deleted) (iii) Whether Agina Ramalingam during his lifetime sold away suit land vide agreement dated 12.11.1984 as mentioned in W.S.? (ii) Whether there was any partition as alleged by the plaintiff in 1964? (deleted) (iii) Whether Agina Ramalingam during his lifetime sold away suit land vide agreement dated 12.11.1984 as mentioned in W.S.? (iv) Whether A. Ramalingam executed any will dated 6.12.1984 as mentioned in the plaint? (deleted) (v) Whether the defendant No. 1 put in exclusive possession of suit land on 29.6.1990? (vi) To what relief? 20. In this suit, 2nd defendant in O.S. No. 40 of 1985 plaintiff in O.S. No. 4 of 1999 examined PWs.1 to 3 and marked Exs.A1 to A9. The 1st defendant examined DWs.1 to 4 and marked Exs.B1 to B12. Exs.C1 and C2 were also marked. 21. Unfortunately, although the parties to these two suits were one and the same and the properties which are sought to be partitioned belonged to late Ramalingam, both suits were not tried together. 22. In the meantime O.S. 40 of 1985 was decreed and aggrieved thereby A.S. 999 of 1995 was filed in this Court. Proceedings under Section 10 CPC 23. I.A. No. 86 of 2005 was filed in I.A. No. 15 of 2002 in O.S. No. 4 of 1999 under Section 10 CPC to stay further proceedings in the suit till the disposal of A.S. No. 999 of 1995 pending before this Court (filed against the decision in O.S. No. 40 of 1985). Although the trial Court allowed the said application and stayed further proceedings in O.S. No. 4 of 1999 till disposal of A.S. No. 999 of 1985, later it suo motu proceeded in O.S. No. 4 of 1999 notwithstanding the stay granted under Section 10 CPC. This was indeed unfortunate. 24. It is also pertinent to note that after O.S. No. 19 of 1986 was withdrawn by the vendees under the agreement of sale dated, 12.11.1984, 2nd defendant in O.S. No. 40 of 1985 filed I.A. No. 239 of 1990 to transpose him as a plaintiff and to try the said suit as a suit for partition. The said I.A. No. 239 of 1990 was also dismissed on 10.12.1991. It was only thereafter that he filed O.S. No. 1 of 1992 which was later renumbered as O.S. No. 4 of 1999. The judgment in O.S. No. 4 of 1999 25. The suit O.S. No. 4 of 1999 filed by 2nd defendant against the plaintiff and 1st defendant was dismissed on 10.7.2006. It was only thereafter that he filed O.S. No. 1 of 1992 which was later renumbered as O.S. No. 4 of 1999. The judgment in O.S. No. 4 of 1999 25. The suit O.S. No. 4 of 1999 filed by 2nd defendant against the plaintiff and 1st defendant was dismissed on 10.7.2006. The trial Court therein held that O.S. No. 19 of 1986 filed by N. Srinivas and others for specific performance of agreement of sale dated 12.11.1984 had been dismissed as withdrawn on 10.12.1991 (the judgment and decree in O.S. No. 19 of 1986 were marked as Exs.B8 and B9 in O.S. No. 4 of 1999). It also took note of I.A. No. 239 of 1990 filed by 1st defendant to transpose him as plaintiff in O.S. No. 19 of 1986 and held that even if I.A. No. 239 of 1990 was also dismissed on 10.12.1991, the matter was not carried by way of Revision and it indicated that 2nd defendant had tacitly accepted the sale of the suit land in favour of N. Srinivas and others by 1st defendant. It further held that 2nd defendant had not sought the relief of declaration of title to the extent of his share in the land of Acs.14.35 Gts. at Vemulawada by questioning the said agreement of sale between N. Srinvas and others, while the proceedings in O.S. No. 19 of 1986 were pending. It is held that the conduct of 2nd defendant in not preferring Revision or appeal against the order dated 10.12.1991 in I.A. No. 239 of 1990 in O.S. No. 19 of 1986, estops him from seeking relief of partition and separate possession as claimed in the suit. It is also accepted shockingly the statement of 1st defendant that he purchased the agricultural land in Vemulawada from N. Srinivas and others orally for Rs. 80,000/- that he had paid Rs. 20,000/- by cheque and Rs. 60,000/- by way of pay order and had obtained possession from the said persons. It is held that a filing of mere suit for partition and separate possession, without asking for relief of declaration of title, as was done by 2nd defendant in O.S. No. 4 of 1999, was bad in law and on that ground, the suit is liable to be dismissed. It is also observed that 1st defendant was in possession of this property as an owner since 29.6.1990. Tr. It is also observed that 1st defendant was in possession of this property as an owner since 29.6.1990. Tr. A.S. No. 88 of 2010 26. Aggrieved thereby, Tr. A.S. No. 88 of 2010 is filed by 2nd defendant. 27. Pending A.S. No. 999 of 1995, the appellant therein i.e. 2nd defendant in O.S. No. 40 of 1985 died. His legal representatives were impleaded as appellants 2 to 5. 28. In Tr. A.S. No. 88 of 2010 also the legal representatives of 2nd defendant were impleaded as appellants 2 to 5. 29. Heard Sri A.K. Kapoor, learned Counsel for legal representatives of the appellant/2nd defendant in both appeals, Sri P.V. Vidya Sagar, learned Counsel for 1st defendant (respondent No. 2 in A.S. No. 999 of 1995 and Respondent No. 1 in Tr. C.M.P. No. 269 of 2009 in A.S. No. 49 of 2006) and Sri K. Raji Reddy, learned Counsel for the plaintiff in O.S. No. 40 of 1985 (respondent No. 1 in A.S. No. 999 of 1995 and respondent No. 2 in Tr. A.S. No. 88 of 2010). The contentions of Counsel for parties 30. The learned Counsel for the appellant contended that the findings of the Courts below in the judgments rendered by them in O.S. No. 40 of 1985 and O.S. No. 4 of 1999 are contrary to law and the evidence on record; that the trial Court should not have held that the decree in O.S. No. 19 of 1965 of the District Munsif, Sircilla is a collusive decree intended to defeat the rights of 2nd defendant's first wife Pushpalatha in O.S. No. 116 of 1967 filed by her that the said decision binds 1st defendant particularly when 1st defendant had admitted in his written statement in O.S. No. 116 of 1967 that there was already a partition between Ramalingam, himself and 2nd defendant; that 40 years prior to filing of O.S. No. 40 of 1985, there was a partition between Ramalingam and his two elder brothers; therefore as on the date of death of Ramalingam in 1985, the plaint schedule properties in O.S. No. 40 of 1985 remained as his separate properties only and were not joint family properties and therefore late Ramalingam was entitled to execute Ex.B6 gift deed dated 16.5.1984, Ex.B12 gift deed dated 6.12.1984 and Ex.B13 gift deed dated 25.4.1985. He further pointed out that Ex.X1 dated 12.7.1985 is not the true, valid and has to be disbelieved. 31. As regards Tr. A.S. No. 888 of 2010, the learned Counsel for the appellants/2nd defendants legal representatives contended that the agreement dated 12.11.1984 executed by Ramalingam in favour of N. Srinivas and others was a mere agreement of sale; that the suit for specific performance of that agreement i.e. O.S. No. 19 of 1986 had been withdrawn by the vendees; therefore the said property is also available for partition; since plaintiff did not seek partition of the agricultural land of extent Acs.14.35 Gts. in Vemulawada (which is subject-matter of that agreement of sale) in O.S. No. 40 of 1985, the said suit would be only a suit for partial partition and therefore not maintainable in any event, since no registered sale deed was obtained by Sri N. Srinivas and others from Ramalingam or from the defendants, the title to the property continued with Ramalingam at the time of his death; that the trial Court in O.S. No. 4 of 1999 could not have held that 1st defendant was the owner thereof from 29.6.1990 under an oral sale by the vendees under agreement dated 12.11.1984 in favour of 1st defendant; that it could not have dismissed O.S. No. 4 of 1999 on the ground that relief of declaration of title was not sought by 2nd defendant therein. He also contended that the Court could not have held that there was a purchase of the above land from late Ramalingam under the said agreement of sale dated 12.11.1984 by N. Srinivas and others since there was no transfer of title since it was only an agreement of sale and not a sale deed. 32. The learned Counsel for appellants relied upon Ram Raj Singh vs. Rajendra Singh and Another, AIR 1943 All. 247; K. Indira Bai vs. R. Venkata Sivaprasada Rao, AIR 1953 Mad. 461 ; Kanbi Vaghji Savji vs. State of Gujarat, AIR 1968 Guj. 11 ; Narinder Singh Rao vs. Air Vice-Marshall Mahinder Singh Rao and Others, 2013 (4) ALD 85 (SC): (2013) 9 SCC 425 ; Pariki Subbireddy and Another vs. Pariki Chinna Reddemma and Others, 1996 (3) ALD 98 (DB) and Tulshiram vs. State of Maharashtra, 1984 Cri. L.J. 209. 33. 11 ; Narinder Singh Rao vs. Air Vice-Marshall Mahinder Singh Rao and Others, 2013 (4) ALD 85 (SC): (2013) 9 SCC 425 ; Pariki Subbireddy and Another vs. Pariki Chinna Reddemma and Others, 1996 (3) ALD 98 (DB) and Tulshiram vs. State of Maharashtra, 1984 Cri. L.J. 209. 33. Per contra, the learned Counsel for the respondents supported the findings of the Courts below in both the suits. They contended that the plaint schedule properties continued to be the joint family properties of late Ramalingam at the time of his death; that there was no partition 40 years back between Ramalingam and his brothers; that only under the final decree in O.S. No. 170 of 1979, there was a division between Ramalingam and the sons of his two brothers; that in that partition, the plaint schedule properties fell to the share of Ramalingam; that the alleged oral partition of 1964 recorded in O.S. No. 19 of 1965 is a collusive one intended to defeat the rights of Pushpalatha, the first wife of 2nd defendant who had filed O.S. No. 116 of 1967; that since the properties are the joint family properties of Ramalingam and the defendants, he had no authority to execute Ex.B12 will or Ex.B6 and B13 gift deeds. They also pleaded that Ex.X1 will dated 12.7.1985 executed by Ramalingam is true and valid. The learned Counsel for the respondents also contended that O.S. No. 4 of 1999 was rightly dismissed by the trial Court and the reasons given by the trial Court therein are not liable to be set aside. 34. The Counsel for the respondents cited the following judgments – Sethukandiapan vs. Jagadambal, (2002) 2 MLJ 342 ; Musini Leela Prasad vs. Musini Bhavani and Others, 1995 (1) ALD 456 ; Mukund Singh vs. Wazir Singh, (1972) 4 SCC 178 ; V. Rajamma vs. A. Rami Reddy and Others, 1997 (5) ALD 598 : 1997 (2) All IHLR 548; Sita Ram vs. Radha Bai and Others, AIR 1968 SC 534 . 35. I have noted the contentions of the respective parties. The decisions cited by them, insofar, as they are relevant alone would be dealt with. The points for consideration 36. The following points arise for consideration in the appeals:- (a) Whether the property which is subject-matter of O.S. No. 40 of 1985 is the self-acquired property or ancestral property of late Ramalingam? The decisions cited by them, insofar, as they are relevant alone would be dealt with. The points for consideration 36. The following points arise for consideration in the appeals:- (a) Whether the property which is subject-matter of O.S. No. 40 of 1985 is the self-acquired property or ancestral property of late Ramalingam? (b) Whether the Gift Deeds Exs.B6 dated 16.5.1984 and B13 dated 25.4.1985 in favour of 2nd defendant are true, legal and valid and bind the plaintiff and 1st defendant? (c) Whether the will Ex.B12 dated 6.12.1984 allegedly executed by late Ramalingam is true, legal and valid and it binds the plaintiff and 1st defendant? (d) Whether the will Ex.X1 dated 12.7.1985 allegedly executed by late Ramalingam is true, legal and valid and it binds the plaintiff and 1st defendant? (e) Whether the extent of Acs.14.35 Gts. in Sy.No.474 of Vemulavada Village is the self-acquired property or ancestral property of late Ramalingam? (f) Whether the parties are entitled to partition of Acs.14.35 Gts. in Sy.No.474 of Vemulavada Village? (g) Whether the parties are entitled to any relief in the appeals? And if so, to what relief? Point (A) – 37. According to the plaintiff and 1st defendant, the "A" and "B" Schedule properties in O.S. No. 40 of 1985 are the ancestral properties of late Ramalingam and he had obtained these properties under the final decree in O.S. No. 170 of 1979 passed by the District Munsif, Sircilla in which he and his brothers sons are parties. 38. But the 2nd defendant asserts that 40 years prior to the filing of O.S. No. 40 of 1985, there was a partition between late Ramalingam and his brothers Vishwanatham and Badraiah whereunder they divided the ancestral houses, businesses, cash and gold; they started living separately in the houses that fell to their separate shares and they carried on their businesses separately; but the agricultural lands were only notionally divided among them although each had 1/3rd share and that there was no division by metes and bounds. He also pleaded that subsequently on 22.3.1964, Ramalingam and both defendants went through an oral partition; in that partition they had been allotted to late Ramalingam all the immovable properties; the joint family credits and businesses were allotted to 1st defendant and joint family gold, silver and cash were allotted to the share of the 2nd defendant to start his separate business. He also contended that this partition of 1964 was accepted by the District Munsif, Sircilla in O.S. No. 19 of 1965 filed by him against Ramalingam and the 1st defendant and the judgment in O.S. No. 19 of 1965 was relied upon by Ramalingam and both defendants in O.S. No. 116 of 1967 on the file of the Sub-ordinate Judge, Karimnagar, a suit filed by one Pushpalatha, the first wife of the 2nd defendant for maintenance against them. 39. This is refuted by the plaintiff and the 1st defendant who contended that there was no partition forty years back as alleged by 2nd defendant; for the first time only in 1979, late Ramalingam got the plaint "A" and "B" Schedule properties in the partition with his brothers sons; there was no division on 22.3.1964; that the Court decree in O.S. No. 19 of 1965 is a collusive one intended to protect the family properties from a claim of maintenance by Pushpalatha and to defeat her rights; there was no necessity to divide the properties in 1964 and therefore, the case set up by 2nd defendant is false. 40. Exs.A5 is the extract of the Property Register of the Gram Panchayat for 1981-82 for House Nos. 4-2-13 and 4-2-13/1. Exs.A6 and A7 are Demand Notices for House No. 4-2-13/1. These show that these houses stand in the name of Ramalingam. 41. Item No. 1 of plaint-A schedule is a shop bearing No. 2-1-67 at Temple Road of Vemulawada. The plaintiff stated that it is joint family property and this was also accepted by 1st defendant. The 2nd defendant denied this in his written statement. But in his evidence as DW4, the 2nd defendant admitted that the properties in Schedule A and B came to his father in a partition with his brothers and are ancestral properties. DW5, the plaintiffs brother alleged that this shop had fallen to the share of the 1st defendant in the alleged partition in March, 1964 thereby hinting that it is also joint family property. 42. Item II of A schedule consists of two residential houses bearing House No. 4-2-13 and 4-2-13/1 at Vemulawada Village. The plaintiff stated in the plaint that these are joint family properties. In her rejoinder she stated that the house bearing No. 4-2-13/1 was constructed by 1st defendant with the joint family funds. 42. Item II of A schedule consists of two residential houses bearing House No. 4-2-13 and 4-2-13/1 at Vemulawada Village. The plaintiff stated in the plaint that these are joint family properties. In her rejoinder she stated that the house bearing No. 4-2-13/1 was constructed by 1st defendant with the joint family funds. The 1st defendant pleaded that House No. 4-2-13 is the old house and House No. 4-2-13/1 was constructed on the back of the old house and within the premises of the old house. He also stated that both these houses belong to the joint family. PW1, the plaintiff stated that she and her husband used to live in the old house and her husband constructed a new house consisting of two rooms in the same premises. DW1 i.e. 1st defendant stated that he constructed house bearing No. 4-2-13/1 on the backside of the old house bearing No. 4-2-13, but he stated that plaint A schedule properties are ancestral and joint family properties. 43. DW3 is related to both parties and is the son-in-law of Bhadraiah, the brother of Ramalingam. He categorically asserted that both A and B Schedule properties were kept joint during the lifetime of Ramalingam. Merely because he and 1st defendant were President and Secretary respectively to the Vysya's Satram in Vemulavada, since he is closely related to both sides, his evidence is not liable to be rejected. 44. DW4 i.e. the 2nd defendant deposed that the A Schedule properties came to Ramalingam in the partition with his brothers and are his ancestral property. 45. In view of the above evidence, I am of the opinion that Item Nos. 1 and 2 of A Schedule are joint family properties. 46. Coming to B schedule properties, Ex.A1 is the certified copy of the final decree dated 26.11.1979 in O.S. No. 170 of 1979 passed by the District Munsif, Sircilla. The said decree was passed in terms of a compromise filed under Order XXIII Rule 3 CPC in I.A. No. 391 of 1979 in the said suit to which Ramalingam and the sons of his brothers were parties. Properties mentioned in Schedule B in the said suit were allotted to the share of Ramalingam. They are Item Nos. 1 and 2 of the plaint B schedule in O.S. No. 40 of 1985. 47. Properties mentioned in Schedule B in the said suit were allotted to the share of Ramalingam. They are Item Nos. 1 and 2 of the plaint B schedule in O.S. No. 40 of 1985. 47. PW1, i.e. the plaintiff stated that plaint B schedule properties were divided pursuant to the decree in O.S. No. 170 of 1979 among Ramalingam and his brothers sons. 48. DW1, i.e. 1st defendant, supported the evidence of PW1 to the extent that he admitted that his father had two brothers, that they had shops and agricultural lands along with gold and silver but stated that there was no partition prior to 1979 and only in that year through Court there was a partition between his father and the sons of his father's brothers. He however stated that the house and shops at Vemulavada were already recorded by that time in his father's name in an oral partition since they fell to his share, and that such oral partition of house and shop took place about two to three months prior to the partitioning of lands. 49. DW3, who is the son-in-law of late Ramalingam's brother stated that the immovable properties mentioned in the plaint A and B schedule were kept joint between Ramalingam and his sons till his death. 50. DW5, Rajuri Ramalingam, the brother of the plaintiff supported the 2nd defendant and contended that the plaint schedule properties are not joint family properties of Ramalingam and his sons. He also spoke of a partition between Ramalingam and his brothers 47 years prior to the suit dividing houses, gold, silver, shops and cash but retaining the landed property joint 51. From the above evidence on record, it is thus clear that the plaint B schedule properties were divided for the first time in O.S. No. 170 of 1979 by Ramalingam and the sons of his two elder brothers and that the plaint B schedule properties in O.S. 40 of 1985 are the ancestral properties of late Ramalingam which he had obtained in the division with his brothers sons in O.S. No. 170 of 1979. 52. It is important to note that there is no mention about the alleged partition (excluding the agricultural lands) in 1940 or thereabouts between Ramalingam and his brothers in the compromise petition I.A. No. 391 of 1979 in O.S. No. 170 of 1979 (Ex.A1). 52. It is important to note that there is no mention about the alleged partition (excluding the agricultural lands) in 1940 or thereabouts between Ramalingam and his brothers in the compromise petition I.A. No. 391 of 1979 in O.S. No. 170 of 1979 (Ex.A1). Also the 2nd defendant has not examined any family member of the brothers of Ramalingam to prove his plea. Except the oral evidence of DW4 and DW5, there is nothing to show that there was an oral partition between Ramalingam and his brothers 40 years prior to the filing of the suit O.S. 40 of 1985. Both plaintiff and 1st defendant alleged that DW5 is inimical to them and is responsible for the litigation. So it is difficult to believe the evidence of DWs. 4 and 5 that there was a partition between Ramalingam and his brothers 40 years prior to filing of O.S. 40 of 1985. 53. As regards the plea of partition on 22.3.1964 raised by the 2nd defendant, if there was no partition 40 years prior to O.S. No. 40 of 1985 between Ramalingam and his brothers as regards immovable properties mentioned in plaint B schedule, and for the first time these agricultural lands were obtained by late Ramalingam in O.S. No. 170 of 1979, there could not have been any partition between Ramalingam and his sons in 1964 orally, with Ramalingam retaining these properties as well as plaint A schedule properties. 54. According to 2nd defendant in the partition of 1964, he was allotted Rs. 9,000/- towards his share but actually given Rs. 8,700/- and for recovery of balance of Rs. 300/- he filed O.S. No. 19 of 1965 against Ramalingam and 1st defendant. The suit was decreed ex-parte on 2.3.1965. The 2nd defendant admitted that he did not file any petition for execution of the decree and that the defendants in that suit had voluntarily made payment of the decretal amount. He also stated that he did not know even the name of the Advocate who he had engaged in O.S. No. 19 of 1965. 55. Both the plaintiff and the 1st defendant have alleged that this was done on the advice of DW5 to create an impression that the 2nd defendant had no property, in anticipation of Pushpalatha (the 1st wife of 2nd defendant), filing a suit for maintenance against him. 55. Both the plaintiff and the 1st defendant have alleged that this was done on the advice of DW5 to create an impression that the 2nd defendant had no property, in anticipation of Pushpalatha (the 1st wife of 2nd defendant), filing a suit for maintenance against him. Pushpalatha did file O.S. No. 116 of 1967 against Ramalingam and the defendants for maintenance of Rs. 125/- and for creation of a charge on the immovable properties of the family. The said suit was decreed partly on 28.2.1970 and Ex.B4 is the judgment therein. It indicates that taking into account only the salary earned by 2nd defendant, who was employed at that time, maintenance of Rs. 75/- per month was awarded in her favour, without creating any charge on the immovable properties. 56. DW5 admitted that there were no disputes or differences between Ramalingam and his sons in 1964. So there was no necessity for them to have a partition in 1964. It therefore appears that such a partition was alleged and evidence of it was created by way of a judgment and decree dated 2.3.1965 in O.S. No. 19 of 1965 solely to defeat the claim of Pushpalatha in O.S. No. 116 of 1967, in order to ensure that the assets of the 2nd defendant were few and to see that lesser amount of maintenance was awarded to her without there being any charge on the immovable properties of the family. 57. In Sukhnandan Singh vs. Jamiat Singh, (1971) 1 SCC 707 . In that case, the Supreme Court held:- "7. Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial Tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask, designed to give falls appearance of a genuine judicial determination and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham." 58. In Mahaboob Sahab vs. Syed Ismail, (1995) 3 SCC 693 : 1995 (1) ALD (S.C.S.N.) 61, the Supreme Court held that there can be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record. 59. In such a proceeding the contest is a mere sham." 58. In Mahaboob Sahab vs. Syed Ismail, (1995) 3 SCC 693 : 1995 (1) ALD (S.C.S.N.) 61, the Supreme Court held that there can be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record. 59. Therefore, the judgment in O.S. No. 19 of 1965 being collusive cannot operate as res judicata and bind the 1st defendant and the plaintiff. 60. It is true that a joint written statement was filed in O.S. No. 116 of 1967 by the defendants and Ramalingam pleading about the prior partition in 1964. But since the purpose of the plea was only to help 2nd defendant defeat the claim of Pushpalatha and ensure passing of a collusive decree, the 2nd defendant cannot take advantage of the said plea and allege that 1st defendant is estopped from saying that there was partition in 1964. 61. In Alluri Venkatapathi Raju vs. Dantuluri Venkata Narasimha Raju, AIR 1936 PC 264 , the Privy Council held:- "It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue." These observations were followed by Subba Rao, J. (as he then was) in Rukhmabai vs. Lala Laxminarayan, AIR 1960 SC 335 . In that case, like in the present case, certain admissions were made by family members accepting a partition. The Supreme Court therefore held that, notwithstanding such admission, the Court has to see whether in fact one of the members of the joint Hindu family separated himself from the others by renouncing his interest in the joint family property and if, on appreciation of evidence, no such severance in the joint family was found and the family continued to be joint, then Court must hold that they brought into existence documents to tide over their financial difficulties and the admission then need not be given any weight. This principle was followed in Surendra Kumar Jain vs. Royce Pereira, (1997) 8 SCC 759 , also. 62. This principle was followed in Surendra Kumar Jain vs. Royce Pereira, (1997) 8 SCC 759 , also. 62. Since the property continued to be joint family property of Ramalingam and his sons at his death as held supra the statement of 1st defendant in written statement in O.S. No. 116 of 1967 cannot come in the way of the 1st defendant taking a contrary plea in O.S. No. 40 of 1985. 63. In Sivaramakrishnan vs. Kaveri Ammal and Others, AIR 1955 Mad. 705 (DB), a Division Bench of Madras High Court has held that under Mitakshara Law, the share of coparcenary property allotted to any member on partition becomes coparcenary property as regards his issue, whether such issues were or were not born, at the time of the partition. Their Lordships held that property obtained by a coparcener on partition is ancestral joint fan1ily property in which sons, born or adopted subsequently, have rights, notwithstanding that at the date of the partition, the dividing member was a sole coparcener. 64. Therefore, I have no hesitation to hold that the plaint A and B Schedule properties are the ancestral properties of late Ramalingam and defendant Nos. 1 and 2; that there was no prior partition in 1964 between them and that the decree in O.S. No. 19 of 1965 is a collusive one intended to defeat the rights of Pushpalatha, the 1st wife of the 2nd defendant. 65. Coming to the C schedule property, the plaintiff alleged that Ramalingam had deposits shown in C schedule in item No. 1 and had advanced some loans which are shown as Item No. 2 of plaint C schedule and that these were his self-acquired properties. The 1st defendant in his written statement did not deny this. The 2nd defendant contended that only himself and plaintiff are entitled to half share each in items 1 and 2 of plaint C schedule under Ex.B12 will dated 6.12.1984 and also pleaded that the amounts shown as due from Pedda Mallesam and Bommakanti Rajesam shown in item 2 of plaint C schedule, is not available for partition since no amounts are due from them. The trial Court held that there is no material to show that the C schedule properties are the self-acquired properties of Ramalingam on the ground that there is a presumption that acquisition from ancestral properties form part of joint family property. The trial Court held that there is no material to show that the C schedule properties are the self-acquired properties of Ramalingam on the ground that there is a presumption that acquisition from ancestral properties form part of joint family property. Since there is no evidence placed on record as to income from any other source other than the ancestral properties from which the C schedule properties could have been acquired, I agree with the trial Court's finding in O.S. No. 40 of 1985 that the C schedule properties are also ancestral properties. 66. Therefore, I hold that A, B and C schedule properties are ancestral properties of Ramalingam and the defendants. The plaintiff admitted in her evidence that she is in possession of 5 tulas of gold out of 10 tulas of gold she had since she had sold about 5 tulas of gold towards her maintenance. Therefore even this 5 tulas of gold, having been given to her by late Ramalingam, constitutes the joint family property. Point (B) – 67. I will now consider whether the Gift Deeds Ex.B6 dated 16.5.1984 and Ex.B13 dated 25.4.1985 executed by late Ramalingam during his lifetime gifting item 1 of B schedule and item 1 of A schedule to the 2nd defendant are true, legal and valid and whether they are binding on defendant No. 1 and the plaintiff. 68. In Mukund Singh's Case (supra), cited by the Counsel for respondents, the Supreme Court held that a gift of coparcener's property by a member of coparcenary is void. 69. In Thamma Venkatasubbamma (Dead) by LR vs. Thamma Rattamma, AIR 1987 SC 1775 , the Supreme Court has held that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. It held that such a gift would be quite legal and valid. This decision was also followed in Pavitri Devi vs. Darbara Singh, (1993) 4 SCC 392 . 70. In Baljinder Singh vs. Rattan Singh, (2008) 16 SCC 785, the Supreme Court reiterated the same and observed:- "In Thamma Venkatasubbamma (Dead) by LR vs. Thamma Rattamma (supra), it was observed as follows:- "12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. 70. In Baljinder Singh vs. Rattan Singh, (2008) 16 SCC 785, the Supreme Court reiterated the same and observed:- "In Thamma Venkatasubbamma (Dead) by LR vs. Thamma Rattamma (supra), it was observed as follows:- "12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne's Hindu Law, 11th Edition, Para 382:- "382. Gift invalid – It is now equally well settled in all the provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid. A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts." 13. We may also refer to a passage from Mulla's Hindu Law, 15th Edition, Article 258, which is as follows:- "258. Gift of undivided interest – (1) According to the Mitakshara Law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners. 14. It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. *************** 17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid." 28. We may also refer to a passage from Mulla's Hindu Law, 17th Edition, Article 258, which is as follows:- "258. Gift of undivided interest – (1) According to Mitakshara Law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners." 29. In Mayne's Hindu Law, 14th Edition. It has been noted as follows:- "Gifts of affection – The father's power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognised. In Ramalingam Annavi vs. Narayana Annavi the Privy Council held that the father has undoubtedly the power under the Hindu Law of making within reasonable limits, gifts of movable property to a daughter. By Will – But such gifts through affection of joint family property when they are by will, are invalid, because the right of the coparceners vests by survivorship at the moment of the testator's death and there is accordingly nothing upon which the will can operate. In Subbarami Reddi vs. Ramamma the Madras High Court held that a will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid as against his infant son though it would have been a proper provision if made by him, during his lifetime. In Subbarami Reddi vs. Ramamma the Madras High Court held that a will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid as against his infant son though it would have been a proper provision if made by him, during his lifetime. This may be in a sense right. There is however no compelling logic in not regarding wills as gifts to take effect upon death at least as to the property which they can transfer and the persons to whom it can be transferred. Convenience would seem rather to point to the extension to the sphere of Hindu Law of the general principle of jurisprudence that what a man can give by act inter vivos, he can give by will. (Emphasis supplied) 71. Thus, only if the consent of the other coparceners is taken, a gift of undivided interest in the coparcenary property by a coparcener, either to another coparcener or to a stranger, is valid. Admittedly, consent of the 1st defendant was not obtained by late Ramalingam before executing the Gift Deeds in favour of the 2nd defendant. Therefore, the said Gift Deeds are void. 72. The Counsel for the appellants however contended that only in respect of gifts to strangers by a coparcener, the consent of other coparceners is necessary and in respect of gifts to another coparcener within the family, the consent of the rest of the coparceners is not necessary. He placed strong reliance on the judgment of this Court in Pariki Subbireddy and Another vs. Pariki Chinna Reddemma and Others (supra). In that case one of the coparceners had executed a registered deed of gift of his undivided interest in the joint family property in favour of some coparceners and one outsider. On facts of that case, the Division Bench was of the opinion that the consent of the coparcener, whose son had challenged the gift deed, can be inferred and presumed. It was not held in that case that in respect of the gifts to other coparceners, consent of all coparceners is not necessary. 73. On facts of that case, the Division Bench was of the opinion that the consent of the coparcener, whose son had challenged the gift deed, can be inferred and presumed. It was not held in that case that in respect of the gifts to other coparceners, consent of all coparceners is not necessary. 73. Recently a Division Bench of this Court in Sangavarapu Rukminidevi vs. Sangavarapu Venkata Subbaiah and Others, LPA No. 183 of 2001, dated 13.11.2013, also followed the judgment in Thamma Venkatasubbamma's case (supra) and held that a gift by a coparcener of his undivided interest in the coparcenary property to a lady is void. 74. In S. Venkata Subbiah Sarma vs. K. Galib Saheb, 1997 (3) ALD 821, a Single Judge of this Court followed the decision in Thamma Venkatasubbamma's case (supra) and held that when property is held by the coparceners jointly, no coparcener can claim that a particular piece of land or property exclusively belongs to him and so he cannot gift a specified item of the property. 75. In Sanika Munda and Others vs. Jhablu Munda and Others, a Single Judge of the Jharkhand High Court has also held that a gift by a father of specific joint family property in favour of a daughter without knowledge/consent of other coparceners, was illegal. 76. In the present case not only were the gifts made without the consent of the 1st defendant, they were gifts of specific items of joint family property by late Ramalingam in favour of 2nd defendant. The interest of Ramalingam, at the time of execution of gift deeds, was an undivided interest in respect of all the properties of the family. Until there is a partition valid in law, the right of each co-sharer extends over the entire property to the extent of his share. Ramalingam therefore had no right to treat any specific property as his exclusive property or divide, by metes and bounds, his undivided share in the properties and bequeath a specific item to 2nd defendant. 77. Therefore, I have no hesitation to hold that the gift deeds Ex.B6 dated 16.5.1984 and Ex.B13 dated 25.4.1985 are void not only because they were executed by Ramalingam without the consent of the 1st defendant but also because they comprised specific joint family properties of the family and not just his undivided interest in the entire joint family properties. 77. Therefore, I have no hesitation to hold that the gift deeds Ex.B6 dated 16.5.1984 and Ex.B13 dated 25.4.1985 are void not only because they were executed by Ramalingam without the consent of the 1st defendant but also because they comprised specific joint family properties of the family and not just his undivided interest in the entire joint family properties. I therefore confirm the findings of the trial Court in this regard. Points (C) and (D) – 78. As regards the power of a coparcener to execute a will, Section 30 of the Hindu Succession Act, 1956 states:- "Section 30 of the Hindu Succession Act provides –– "Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus." "Explanation – The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section." 79. In view of the above provision of law, there is no doubt that late Ramalingam could at best execute a will bequeathing his undivided interest in the properties in favour of the plaintiff or 2nd defendant. The section does not permit bequest of specific property by a coparcener in favour of another coparcener or stranger. 80. In Sethukandiapan's case (supra), the Madras High Court considered a case of such bequest by a will by a coparcener of specific items of property and upheld the will only to the extent of his interest in the said items bequeathed. It observed:- "6. Next, one has to examine the capacity of the testator to bequeath the property. Section 30 of the Hindu Succession Act gives the Hindu the right to dispose by will or other testamentary disposition, any property which is capable of being so disposed by him. It observed:- "6. Next, one has to examine the capacity of the testator to bequeath the property. Section 30 of the Hindu Succession Act gives the Hindu the right to dispose by will or other testamentary disposition, any property which is capable of being so disposed by him. The explanation to this section shows that for the purpose of this Act, property capable of being disposed of by a Hindu would include the interest of a male Hindu in the Mitakshara coparcenary property or the interest of a member of a Tarwad, Tavazhi etc. Therefore, what Rangasamy Gounder gave under the will or can give under the will is his interest in the joint family property. So, he could only dispose of under the will his interest in the same. This interest is not a definite share, but the undivided share that extends over the entire property. There is no dispute that the properties are joint family properties. Therefore, the appellant and the testator, each had an undivided half share in all the properties. Until there is a partition valid in law, the right of each co-sharer extends over the entire property to the extent of his share. The testator cannot allocate as his half share, a specific property to a particular person even if the value of the property is well within the value of the half share to which the testator is entitled to. The testator cannot divide by metes and bounds, his undivided share in the properties under the will and bequeath a specific item. Therefore, the testator has the right to bequeath his undivided half share in the Pollachi property to the respondents who will take it according to the terms of the will namely a life estate, with the absolute estate vesting in their Santhathis. The remaining undivided half shares will be the appellant's since that is his share as a member of the joint family along with his father. As regards the agricultural properties, here too, the bequest under the will to the appellant will be only in respect of the father's half share in these properties and the appellant shall take this half share which belonged to his father according to the terms of the will which is a life estate with the absolute vesting in his Santhathis. As regards the agricultural properties, here too, the bequest under the will to the appellant will be only in respect of the father's half share in these properties and the appellant shall take this half share which belonged to his father according to the terms of the will which is a life estate with the absolute vesting in his Santhathis. The remaining undivided share which is the appellants own share as a member of the joint family property cannot be the subject-matter of the will and the appellant is entitled to deal with it as his absolute property." 81. In Narinder Singh Rao's case (supra), a will was executed by one S, wife of one G bequeathing the subject property in favour of N, one of her sons. It was found that the property did not belong to S, that it was the property of G, her husband in which S had only 1/9th share on his death as a widow and that under the will she could not have bequeathed more than her interest of 1/9th in the subject property. The Supreme Court held:- "9. The next question which was to be considered by the High Court was with regard to the ownership right of the suit property. The property was in the name of Rao Gajraj Singh and no evidence of whatsoever type was adduced to the effect that the property originally belonged to Sumitra Devi. Looking to the said fact, the findings arrived at by the High Court that the suit property belonged to Rao Gajraj Singh cannot be disturbed. As Rao Gajraj Singh died intestate and was the owner of the property at the time of his death, the suit property should have been inherited by his widow, namely, Sumitra Devi and his eight children in equal shares, as per the provisions of the Hindu Succession Act, 1956. In that view of the matter, the High Court arrived at the conclusion that the suit property would be inherited by all the 9 heirs i.e. Sumitra Devi and her eight children and therefore, Sumitra Devi had inherited only 1/9th of the right and interest in the suit property whereas 1/9th of the right and interest in the suit property belonged to each child of Rao Gajraj Singh. 10. 10. Though the will executed by Sumitra Devi has been treated as a validly executed will, Sumitra Devi, who had only 1/9th of the right and interest in the suit property, could not have bequeathed more than her interest in the suit property. If Sumitra Devi was not a full-fledged owner of the suit property, she could not have bequeathed the entire suit property to the present appellant, Narinder Singh Rao who has claimed the entire property by virtue of the will executed by Sumitra Devi. At the most Sumitra Devi could have bequeathed her interest in the property which was to the extent of 1/9th share in the said property. So the High Court rightly came to the conclusion that the 1/9th share in the suit property belonging to Sumitra Devi would be inherited by the present appellant Narinder Singh Rao by virtue of the will executed by her. In addition to his own right and interest in the suit property to the extent of 1/9th share, which the present appellant had inherited from his father, the present appellant would get 1/9th share in the suit property as he also inherited share of his mother Sumitra Devi whereas all other children of Rao Gajraj Singh would get 1/9th share each in the suit property. Thus, the present appellant would be having 2/9th share in the suit property." 82. However, the question is whether both wills are valid or only one of them is valid and if so, which of them is valid? 83. Under Ex.B12 will dated 6.12.1984, Ramalingam had bequeathed Item No. 1 of A schedule and Item No. 2 of B schedule apart from H.No.4-2-13/1 in Item No. 2 of A schedule to the 2nd defendant. He bequeathed H.No.4-2-13 in Item No. 2 of A schedule to the plaintiff. He stated that the 1st defendant did not take care of him in his old age and only the 2nd defendant took care of him. 84. This will was scribed by DW5 who also attested it along with one Cheekoti Vishwanadham, the father of DW10. DW10 identified the signature of his father Vishwanadham on the will Ex.B.12. 85. The said will contained a recital that there was a partition in 1964 between Ramalingam and the defendants. 84. This will was scribed by DW5 who also attested it along with one Cheekoti Vishwanadham, the father of DW10. DW10 identified the signature of his father Vishwanadham on the will Ex.B.12. 85. The said will contained a recital that there was a partition in 1964 between Ramalingam and the defendants. I have already held that there was no such partition in 1964 and that a sham partition was set up to ensure that a collusive decree in O.S. No. 19 of 1965 was passed, in support of that partition to defeat the rights of Pushpalatha, the first wife of the 2nd defendant. Also the signature of the executant on the second page of the said will is not put horizontally but at an angle and the will itself was executed on two stamp papers each of value Rs. 5. The DW5 is stated to be familiar with writing of documents/agreements and is a businessman and he would have been aware that wills need not be executed on stamp paper. The iniquitous bequests under Ex.B12 i.e. giving nothing to 1st defendant, giving only H.No.4-2-13 in Item No. 2 of A schedule to the plaintiff and giving Item No. 1, H.No.4-2-13/1 in Item No. 2 of A schedule and Item No. 2 of B schedule to the 2nd defendant, also create a suspicion about its authenticity. It is unthinkable that a more substantial provision would not have been made by Ramalingam in favour of his wife, the plaintiff, for her maintenance and security in her old age and she would be left to the mercy of the defendants. There is no satisfactory explanation from the 2nd defendant on these matters. I am therefore of the opinion that execution of Ex.B12 dated 6.12.1984 is surrounded by suspicious circumstances and therefore it cannot be believed. 86. Coming to Ex.X1 dated 12.7.1985, this will is attested by Bussa Shankaraiah and K. Kishan and scribed by one Bussa Srinivas (DW2). It is the case of the 1st defendant that this will was executed by late Ramalingam on 12.7.1985 and was kept with Bussa Shankaraiah; that on the death of Ramalingam it was brought to the notice of the villagers; when he came to know about its contents, he raised a plea basing on the will in the written statement filed by him on 15.10.1987, after the 2nd defendant filed his written statement on 19.3.1986. The copy of the said will was not filed by 1st defendant along with his written statement. It was produced by DW2 on 7.9.1993 for the first time in the trial Court. It is important to note that Bussa Shankaraiah had given evidence as PW3 on behalf of Pushpalatha, the first wife of the 2nd defendant in O.S. No. 116 of 1967 filed by her for maintenance and which was tried along with O.P. No. 12 of 1969 filed by the 2nd defendant against her for restitution of conjugal rights. Ex.B4 the common judgment dated 28.2.1970 filed on behalf of the defendants shows this. It is unlikely that late Ramalingam would have asked a person like Bussa Shankaraiah, who had given evidence in the suit filed against his son, the 2nd defendant, to attest his will. Without noticing this fact, the trial Court erroneously believed the execution of Ex.X1 will. It is also difficult to believe the statement of DW2 that Bussa Shankaraiah and late Ramalingam were very close and the latter had faith in Bussa Shankaraiah. It is important to note that Bussa Shankaraiah was alive and DW2 stated that Bussa Shankaraiah sent Ex.X1 after receiving summons from the trial Court, that he is not keeping good health and is only able to walk within the house. Nothing prevented the 2nd defendant to seek a Commission for recording the evidence of Bussa Shankaraiah at his house. It is possible that Bussa Shankaraiah was not examined by 2nd defendant in evidence to avoid exposing the fact that Bussa Shankaraiah had appeared and given evidence against the 2nd defendant in O.S. No. 116 of 1967. It is also pertinent to note that there is no signature of the executant Ramalingam on the 1st page of Ex.X1. 87. Rajuri Ramalingam, the brother of the plaintiff, who was also examined as PW3 in O.S. No. 4 of 1999 tried to explain that 10 days prior to the death of Ramalingam on 2.8.1985, he visited him at his residence and told him that he did injustice to the 1st defendant and then Ramalingam repented and executed Ex.X1 will. 88. The signature of late Ramalingam on Ex.X1 was alleged by the 2nd defendant to have been forged. On a comparison of the signature of late Ramalingam on Ex.B13 dated 25.4.1985 gift deed with the signature appearing on Ex.X1 dated 12.7.1985, certain discrepancies are noticed. 89. 88. The signature of late Ramalingam on Ex.X1 was alleged by the 2nd defendant to have been forged. On a comparison of the signature of late Ramalingam on Ex.B13 dated 25.4.1985 gift deed with the signature appearing on Ex.X1 dated 12.7.1985, certain discrepancies are noticed. 89. Ex.X1 will was sent by Bussa Shankaraiah to the Court in a sealed cover with a letter dated 9.8.1993 which is marked as Ex.B7 in O.S. No. 4 of 1999. In the said letter, it is stated that he is unwell and therefore he is not coming out of the house and is sending it to the Court through his elder son one Dasarath. 90. DW3 stated that the execution of Ex.X1 was made known to the relatives of late Ramalingam one year after its execution and that Bussa Shankaraiah refused to give details to the relatives of the testator. He also stated that after the death of the testator, DW3 and his father Bussa Shankaraiah did not disclose about Ex.X1 to anyone including the parties to the suit. He stated that the testator had instructed them that if any dispute arises after his death, then only Ex.X1 is to be used, either before panchayat or in the Court to settle the dispute. He further stated that there is a dispute between defendant Nos. 1 and 2 for the last 5 to 10 years to his knowledge and that no panchayat was held. He also stated that Bussa Shankaraiah, his father even did not disclose about contents of will to the parties to the suit, till it was sent to the Court. If this was true, then the 1st defendant, who had filed written statement on 15.10.1987, would not have been able to give details of the bequests under it. The conduct of DW3 and his father in not revealing about Ex.X1 after the death of late Ramalingam to his wife and children although they are alleged to be their immediate neighbours, if true, is highly suspicious, particularly when they claim that late Ramalingam was very close to them and had faith in them. The conduct of DW3 and his father in not revealing about Ex.X1 after the death of late Ramalingam to his wife and children although they are alleged to be their immediate neighbours, if true, is highly suspicious, particularly when they claim that late Ramalingam was very close to them and had faith in them. When Ramalingam's relationship with the sons of his brothers was cordial, it is difficult to believe that he would not call them as attestors to the will and instead asked Bussa Shankaraiah, who had deposed against 2nd defendant in O.S. No. 116 of 1967 filed by Pushpalatha and who is alleged to be related to the said Pushpalatha, to attest it. 91. For all the above reasons, I am not inclined to believe that Ex.X1 will was executed by late Ramalingam. 92. In this view of the matter, since both Exs.B12 and X1 have been disbelieved, the normal rules of succession would operate and the defendant Nos. 1 and 2 would each get 4/9th share and the plaintiff would get 1/9th share in the plaint A to C schedule properties. Points (E) and (F) – 93. This issue relates to the extent of Acs.14.35 Gts. in Sy.No.474 of Vemulawada Village. This is subject-matter of O.S. No. 4 of 1999 and not O.S. No. 40 of 1985. 94. It is stated by the plaintiff that this property was subject-matter of an agreement of sale dated 12.11.1984 by late Ramalingam in favour of one N. Srinivas and 2 others and since it was already sold, she did not seek for partition of it. But the 2nd defendant contended that this property left by late Ramalingam was not included in the hotchpot for partition by plaintiff, that this property is also available for partition and since its partition was not sought by plaintiff, her suit for partition is not maintainable. 95. DW4 i.e. the 2nd defendant contended that this is the self-acquired property of late Ramalingam and was acquired in 1976 under the provisions of the A.P. (Andhra Area) Abolition of Inams and Conversion into Ryotwari Act, 1956. The patta under the said Act issued to Ramalingam for this land has been filed. 95. DW4 i.e. the 2nd defendant contended that this is the self-acquired property of late Ramalingam and was acquired in 1976 under the provisions of the A.P. (Andhra Area) Abolition of Inams and Conversion into Ryotwari Act, 1956. The patta under the said Act issued to Ramalingam for this land has been filed. The 1st defendant admitted in his written statement in O.S. No. 4 of 1999 that this land is the exclusive property of late Ramalingam and out of legal necessity, he sold this land under the above agreement of sale (marked as Ex.B12 in O.S. No. 4 of 1999) to the above persons. 96. In Ex.B12 agreement of sale dated 12.11.1984, executed by late Ramalingam, it was stated that this land is "Kharid Kabza." 97. The trial Court in O.S. No. 40 of 1985 observed that the 2nd defendant did not place any evidence to prove that this property was joint family property and therefore it has to be treated as self-acquired property of late Ramalingam. (It therefore declined to grant any share in the above property to the plaintiff.) I agree with this finding and hold that this land of Acs.14.35 Gts. in Vemulawada Village is self acquired property of late Ramalingam. But I do not agree with its conclusion that the plaintiff and defendants 1 and 2 are not entitled to any share therein for the following reasons. 98. It is not disputed that N. Srinivas and others had filed O.S. No. 19 of 1986 for specific performance of Ex.B12 agreement dated 12.11.1984 against the plaintiff, defendant Nos. 1 and 2 herein; that I.A. No. 239 of 1990 was filed by the plaintiffs therein for withdrawal of the suit; that the said I.A. was allowed on 10.12.1991 and the suit was dismissed as withdrawn; on 10.12.1991, the said suit was withdrawn. (Exs.B8 and B9 are the certified copies of judgment and decree therein). It is also not disputed that I.A. No. 259 of 1990 was filed by 2nd defendant to transpose him as plaintiff in the suit and it was also dismissed on 10.12.1991. 99. (Exs.B8 and B9 are the certified copies of judgment and decree therein). It is also not disputed that I.A. No. 259 of 1990 was filed by 2nd defendant to transpose him as plaintiff in the suit and it was also dismissed on 10.12.1991. 99. The trial Court in O.S. No. 4 of 1999 held that even though O.S. No. 19 of 1986 is dismissed and no relief of specific performance is granted to the plaintiffs therein, still by not filing a Revision against I.A. No. 259 of 1990, the 2nd defendant tacitly accepted the sale of the suit land in favour of N. Srinivas and others and therefore he is estopped from seeking partition and separate possession. This reasoning is clearly perverse. It is settled law that title to property does not pass under an agreement of sale and it continues to be with the vendor till registered sale deed is executed in favour of the purchasers. Once the relief of specific performance is not granted to N. Srinivas and others (who were plaintiffs in the said suit), the title to the property remains with Ramalingam's legal representatives i.e. the plaintiff and defendant Nos. 1 and 2. 100. It went further and held that there was an oral sale by N. Srinivas and others in favour of the 1st defendant and he had paid Rs. 80,000/- to them and secured possession of the above property and therefore, the 1st defendant is the owner of the property from 29.6.1990. This is also perverse and contrary to law since there cannot be a transfer of title under an oral sale since the law requires a transfer under a written sale deed which is registered (See Section 54 of the Transfer of Property Act, 1882 read with Section 17 of the Registration Act, 1908). 101. It further held that the 2nd defendant ought to have sought relief of declaration of title and not mere partition and separate possession. According to me, this is also erroneous because if the property vests in the plaintiff, 1st defendant and 2nd defendant on the death of Ramalingam and Ex.B12 agreement of sale is not specifically enforced, the suit O.S. No. 19 of 1986 having been withdrawn, each of these three persons would have a joint undivided 1/3rd share in the property. According to me, this is also erroneous because if the property vests in the plaintiff, 1st defendant and 2nd defendant on the death of Ramalingam and Ex.B12 agreement of sale is not specifically enforced, the suit O.S. No. 19 of 1986 having been withdrawn, each of these three persons would have a joint undivided 1/3rd share in the property. Therefore, the 2nd defendant had rightly sought relief of partition and he need not have sought any relief of declaration of his title to the property. 102. In this view of the matter, I hold that since the extent of Acs.14.35 Gts. in Sy.No.474 of Vemulawada Village is the self acquired' property of late Ramalingam and since the wills Exs.B12 dated 6.12.1984 and X1 dated 12.7.1985 have been held to be not proved, the plaintiff and defendants 1 and 2 are each entitled to 1/3rd share therein. Point No. (G) – 103. For the above reasons, I hold that:- (i) Plaints A, B and C schedule properties and 5 tulas of gold are the joint family properties of late Ramalingam and defendants 1 and 2. On his death, in these properties, the plaintiff in O.S. No. 40 of 1985 is entitled to 1/9th share and defendants 1 and 2 are entitled to 4/9th share each. (ii) That the extent of Acs.14.35 Gts. in Sy.No.474 of Vemulawada Village is the self acquired property of late Ramalingam. Therefore on his death, the plaintiff in O.S. No. 40 of 1985 and her two sons, defendants 1 and 2 therein are each entitled to 1/3rd share. 104. In view of the above, appeal A.S. No. 999 of 1995 is dismissed and Tr. A.S. No. 88 of 2010 is allowed. No costs. 105. Miscellaneous applications pending, if any, in this appeal shall stand closed.