JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. The A.S. No. 143 of 1999 is filed by the appellants/defendants 1 and 2 against the Decree and Judgment, dated 23.10.1998, passed in O.S. No. 69 of 1991 on the file of the Senior Civil Judge, Cuddapah. The Respondents herein are the plaintiff and defendants 3 to 7 in the said Suit. 2. The first respondent/plaintiff filed a Suit for partition of plaint schedule property and prayed the Court to direct the defendants 1 and 2 to give delivery of possession of the plaintiff’s share to the plaintiff. 3. Both the parties in the case will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No. 69 of 1991, are as follows: The plaintiff and the second defendants are the brothers and sons of third defendant. First defendant is the wife of second defendant. The wife of third defendant by name Krishnamma died in the year 1958, thereafter the third defendant married Mallamma in the year 1959. The said Mallamma treating the plaintiff and the second defendant as her own children. The third defendant purchased the Item No. 1 of the plaint schedule property in the year 1966 under registered sale deed dated 15.11.1966. Out of the funds of the family, the sites of item Nos.2 and 3 were purchased by the said Mallamma and spent her own funds for construction of item Nos.2 and 3 properties. Item No. 4 was purchased on 08.07.1965 with the aid of ‘Stridhana’ and jewels of the mother of plaintiff and second defendant namely Krishnamma and their grand mother Nagamma. Mallamma had been suffering from acute stomach ache and blood pressure and hence she executed a will dated 25.12.1990 bequeathing item Nos.2 and 3 of the plaint schedule property in favour of the plaintiff and the second defendant to be shared by them equally after her death. The third defendant after his retirement from service addicted all sorts of vices, taking undue advantage of the weakness of the third defendant, the defendants 1 and 2 make him to execute three sale deeds on 03.05.1991 and two sale deeds on 06.05.1991 covering the items 1 to 3 of the plaint schedule property in favour of first defendant. The third defendant after his retirement from service addicted all sorts of vices, taking undue advantage of the weakness of the third defendant, the defendants 1 and 2 make him to execute three sale deeds on 03.05.1991 and two sale deeds on 06.05.1991 covering the items 1 to 3 of the plaint schedule property in favour of first defendant. The said sale deeds are sham and nominal and brought into existence with a view to defeat the right of the plaintiff, therefore, the plaintiff obliged to file the suit for partition. Inspite of temporary injunction in I.A. No. 415 of 1991, the first defendant sold the item No. 1 of the plaint schedule property to the fourth defendant, item No. 3 of the plaint schedule property to fifth defendant and item No. 2 of the plaint schedule property to defendants 6 and 7. Pending the suit, the third defendant died in the year 1996 leaving the plaintiff and the second defendant as his sole heirs. 5. The first defendant filed written statement by denying the averments mentioned in the plaint and further contended that she is the bona-fide purchaser by paying consideration and the third defendant is the absolute owner of the item No. 1 to 3 of the plaint schedule property. 6. The third defendant filed written statement by denying all the averments in the plaint and further contended as follows: There was no ancestral property got by him. His wife Mallamma was bed ridden for 4 years and he incurred heavy expenses. The plaintiff has been living separately for the last 20 years. The alleged will got executed by Mallamma is a forged document, got up by the plaintiff. To give colour to the story, the plaintiff included the second defendant as one of the beneficiaries. He purchased the item No. 4 of the plaint schedule property in the name of the plaintiff and second defendant and they are entitled half share in it. Since he acquired the plaint schedule properties with his own funds and he is absolute owner of the plaint schedule properties and he has every right to dispose the same as he likes. Since he acquired the plaint schedule properties with his own funds and he is absolute owner of the plaint schedule properties and he has every right to dispose the same as he likes. He sold the items 1 to 3 of the plaint schedule property to the first defendant to discharge his debts borrowed by him for the ailment of his wife and for the construction of the house under the sale deeds dated 03.05.1991 and 06.05.1991 respectively. The plaintiff has no right to question the alienation made by him and the first defendant is in exclusive possession and enjoyment of those items. The plaintiff is entitled for half share in item No. 4 only and prayed the court to dismiss the suit. 7. The second defendant filed written statement adopting the written statements of defendants 1 and 3 and further contended that the 4th item of the suit schedule property has been partitioned between himself and the plaintiff. 8. Based on the above pleadings, the following issues are settled by the trial Court in O.S. No. 69 of 1991: (i) Whether the plaintiff is entitled to partition and separate possession as prayed for? (ii) Whether the 3rd defendant purchased 1st item of the plaint schedule property as independent owner as prayed for? (iii) Whether the plaintiff is entitled for ½ share in items 1 to 4 of the plaint schedule properties? (iv) Whether the suit items 1 to 3 have been purchased by 3rd defendant with his own funds? (v) Whether the will executed by Mallamma on 25.12.1990 is a forged one? (vi) Whether the sales made by 3rd defendant to the 1st defendant is nominal? (vii) Whether the sales made by 1st defendant during the pendency of the suit are hit by lespendency and not binding on the plaintiff? (viii) To what relief? 9. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW4 were examined and Ex.A1 to Ex.A14 were marked. On behalf of the Defendants DW1 to DW6 were examined and Ex.B1 to Ex.B4 were marked. 10. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit in part vide its judgment, dated 23.10.1998, against which this appeal is preferred by the appellants/ defendants 1 and 2 in the Suit questioning the Decree and Judgment passed by the trial Court. 10. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit in part vide its judgment, dated 23.10.1998, against which this appeal is preferred by the appellants/ defendants 1 and 2 in the Suit questioning the Decree and Judgment passed by the trial Court. 11. Heard Sri Raja Reddy Koneti, learned counsel for appellants/defendants 1 and 2 and Sri V. Venugopala Rao, learned senior counsel representing Sri M. Venkateswara Reddy, learned counsel for first respondent/plaintiff. 12. The learned Counsel for the Appellants would contend that item No. 2 and 3 of the plaint schedule property was purchased for valid sale consideration from the third defendant by first defendant. He would further contend that the first defendant is a bona-fide purchaser, he would further contend that Ex.A1 will is a forged one but the trial Court came to wrong conclusion and decreed the suit by granting half share to the plaintiff. He would further contend that the said decree and judgment passed by the trial Court is not sustainable under law and the same is liable to be set aside and the appeal may be allowed. 13. Per contra, the learned counsel for first respondent would contend that on appreciation of the entire evidence on record, the learned trial judge rightly passed preliminary decree for partition of item No. 2 to 4 of the plaint schedule property and there is no need to interfere with the finding given by the learned trial Judge and the appeal may be dismissed. 14. The plaintiff approached the Court for partition of the plaint schedule property of item Nos.1 to 4 of the schedule properties. On appreciation of the entire evidence on record, the trial judge partly decreed the suit by granting the preliminary decree of partition and half share was allotted to the plaintiff in item No. 2 to 4 of the plaint schedule property and further the trial Court held that the plaintiff is not entitled any share in item No. 1 of the plaint schedule property. The present appeal is filed by the defendants 1 and 2 by challenging the decree and judgment passed by the trial Court with regard to the item Nos.2 and 3 of the plaint schedule property. The present appeal is filed by the defendants 1 and 2 by challenging the decree and judgment passed by the trial Court with regard to the item Nos.2 and 3 of the plaint schedule property. No appeal is filed by defendants 1 and 2 with regard to the allotment of share in item No. 4 of plaint schedule property and so also no cross objections is filed by the plaintiff for not allotting the share in item No. 1 of the plaint schedule property, therefore, the present appeal is confined with regard to item Nos.2 and 3 of the plaint schedule property only. 15. Having regard to the pleadings in the suit and the findings recorded by the trial Court and in the light of rival contentions and submissions made by either side before this Court, the following points would arise for determination: (i) Whether the alleged Ex.A1 will dated 25.12.1990 is true and valid? (ii) Whether the plaintiff is entitled the relief of partition of item Nos.2 and 3 of the plaint schedule property? (iii) Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent? 16. Point No. 1: Whether the alleged Ex.A1 will dated 25.12.1990 is true and valid? The admitted facts are the plaintiff and second defendant are brothers and sons of third defendant and the first defendant is none other than the wife of second defendant and third defendant has two wives namely Krishnamma and Mallamma. The plaintiff and second defendant are the sons of Krishnamma, after the death of first wife Krishnamma, the third defendant married the Mallamma in the year 1959. 17. It was pleaded by the first defendant in the written statement that the item Nos.2 and 3 of the plaint schedule property was purchased under a registered sale deed dated 03.05.1991. Here it is relevant to say that the second defendant is none other than the husband of first defendant. The first defendant alleged to have been purchased the item Nos.2 and 3 of the plaint schedule property from her own father-in-law i.e. father of second defendant. The case of the plaintiff is that one Mallamma executed a will dated 25.12.1990 bequeathing the item Nos.2 and 3 of the plaint schedule property in favour of the plaintiff and second defendant by giving equal shares to both of them. The case of the plaintiff is that one Mallamma executed a will dated 25.12.1990 bequeathing the item Nos.2 and 3 of the plaint schedule property in favour of the plaintiff and second defendant by giving equal shares to both of them. As stated supra, second defendant is none other than the husband of first defendant. It is not in dispute that the Mallamma died on 07.04.1991. The contention of the first defendant is that she purchased the item Nos.2 and 3 of the plaint schedule property under a registered sale deed 03.05.1991 from her father-in-law i.e. third defendant. Ex.A3 and Ex.A4 are the registration extracts of the sale deeds. It was recited in Ex.A3 and Ex.A4 that the said property is the absolute property of Mallamma and the vendor i.e. third defendant got title by way of succession from his wife Mallamma. The case of the plaintiff is that item Nos.2 and 3 of the plaint schedule property belongs to Mallamma and Mallamma purchased the site in item Nos.2 and 3 of the plaint schedule property and constructed houses. As stated supra, in Ex.A3 and Ex.A4 also it was recited that item Nos.2 and 3 of the plaint schedule property belongs to Mallamma and the third defendant got the title by way of succession being the husband of Mallamma. The case of the plaintiff is that item Nos.2 and 3 of the plaint schedule property is bequeathed in favour of plaintiff and second defendant by Mallamma by executing a will dated 25.12.1990. It is relevant to say that the Mallamma died on 07.04.1991. The death of Mallamma is not at all dispute and the date of death also not in dispute by both sides. If the plaintiff proved the Ex.A1 will, the plaintiff and second defendant will get half share in item Nos.2 and 3 of the plaint schedule property. The contention of the first defendant is that Ex.A1 will is a forged will, therefore, the duty cast on the propounder of the will to prove Ex.A1 alleged will. Here it is important to note that second defendant is also one of the propounder of the will. The second defendant is none other than the husband of the first defendant. The third defendant is none other than the father of the second defendant. 18. PW2 is one of the attestor in Ex.A1 will. Here it is important to note that second defendant is also one of the propounder of the will. The second defendant is none other than the husband of the first defendant. The third defendant is none other than the father of the second defendant. 18. PW2 is one of the attestor in Ex.A1 will. She deposed in her evidence that she is working as a health Supervisor in Government Head Quarters hospital, Kadapa and plaintiff is her own sister’s son and the plaintiff and second defendants are her own sister’s sons, her sister name is Krishnamma. Krishnamma died at about 40 years ago. The father of the plaintiff and second defendant married one Mallamma after the death of Krishnamma, by that time, the age of the plaintiff and second defendants was 2 and 3 years respectively. The Mallamma had no issues. She further deposed that the said Mallamma brought up the plaintiff and second defendant as her own children. She further deposed that Mallamma prior to her death executed a will in her presence on 25.12.1990 and the said will was executed at her own house at Co-operative colony, Kadapa at 10.00 a.m. and she was present at that time, another attestor Kamal sab was also present and the document writer Syed Hussain was also present and prepared the will and Mallamma narrated the contents of the will and scribe read over the contents of the will after preparing the will then the Mallamma affixed her thumb impression and herself and Kamal Sab attested and subscribed their signatures in the will. She further deposed that Mallamma has seen when they are attesting in Ex.A1 and Ex.A1 contains her signature as first attestor. 19. As per the case of the plaintiff and defendants, the said Mallamma died on 08.04.1991, Ex.B2 filed by the defendants clearly proves that the Mallamma died on 08.04.1991. PW2 one of the attestor was cross examined by the learned counsel for defendants. In cross examination it was not suggested to PW2 by the learned counsel for defendants that Ex.A1 is a fabricated will. It was not suggested to PW2 by the defendants counsel that Mallamma did not execute Ex.A1 will. It was suggested to PW2 in cross examination by the defendants counsel that she is the responsible for execution of Ex.A1. The said suggestion is denied by PW2. It was not suggested to PW2 by the defendants counsel that Mallamma did not execute Ex.A1 will. It was suggested to PW2 in cross examination by the defendants counsel that she is the responsible for execution of Ex.A1. The said suggestion is denied by PW2. The above suggestion given by the defendants counsel to PW2 in cross examination itself suffice that the defendants 1 and 2 are admitting the execution of Ex.A1 alleged will. In cross-examination the evidence of PW2 is not at all disturbed on the material aspects of the case. It is the contention of the defendants 1 and 2 that PW2 is none other than the mother’s sister of the plaintiff. Here it is to be seen that the plaintiff and the second defendant are the propounder of the will Ex.A1, second defendant is the own brother of the plaintiff, first defendant is none other than the wife of second defendant. PW2 is mother’s sister of plaintiff and second defendant. PW2 is also equally related to defendants 1 to 3. Plaintiff and second defendant are the beneficiary under the will, but the second defendant did not enter into the witness box for the reasons best known to the defendants. Therefore, there are no suspicious circumstances surrounding the Ex.A1 will. 20. PW3 is the scribe of Ex.A1 will. He deposed in his evidence that he is a document writer by profession and he is writing documents for the past 15 years and he has prepared the will on 25.01.1990 on the instructions given by the Mallamma at the time of execution of the Ex.A1 will. He further deposed that the attestors one Lakshmamma i.e. PW2 and another Muslim by name Kamal Saheb and also plaintiff were present and the time of execution of Ex.A1 and it is scribed in between 10.00 a.m. and 11.30 a.m. He further deposed that the executant of Ex.A1 Mallamma has given instructions to prepare Ex.A1 will. Though PW3 was cross examined by the learned counsel for defendants, nothing was elicited from PW3 to discredit the testimony of PW3. 21. A will is an instrument of testamentary disposition of the property. It is a legally acknowledged mode of bequeathing a testator property during his life time to be acted upon his/her death and carries with it an element of sanctity. 21. A will is an instrument of testamentary disposition of the property. It is a legally acknowledged mode of bequeathing a testator property during his life time to be acted upon his/her death and carries with it an element of sanctity. It speaks from the death of the testator, since the testator/ testatrix, at the time of testing the document for its validity would not be available for deposing as to the circumstances in which the will came to be executed, stringent requisites for the proof thereof have been statutorily enjoyed to rule out the possibility of any manipulation. 22. It is well settled that ordinarily, the burden of proving the execution of the will is on the propounder of the will. For proving attestation, the best evidence would naturally be an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending upon availability has been called for proving its execution as required under Section 68 of Indian Evidence Act. Here in the case on hand, there is no dispute that the requirement of Section 68 of Indian Evidence is satisfied since one attesting witness i.e. PW2 was called for, for the purpose of proving the execution of will and she also deposed to that effect. PW2 clearly stated that she signed on the will in the presence of testatrix and so also in the presence of another attestor and testatrix affixed her thumb mark on the will. To discharge his liability the plaintiff also examined the scribe of the Ex.A1 will. 23. As stated supra, in the case on hand, the evidence of PW2 inspires confidence to prove the execution of Ex.A1 alleged will dated 25.12.1990. It is an admitted fact by both the parties that the testatrix died on 08.04.1991, Ex.B2 proves the same. Considering the facts of the present case and careful perusal of the entire material on record and applying the provisions, it is evident that Ex.A1 will was duly executed by the testatrix in the presence of witnesses out of her free will in a sound and disposing state of mind and the same stands proved through the testimony of one of the attesting witness namely Lakshmamma who was examined as PW2 by trial Court. This witness categorically stated that the testatrix executed the will in question. More over PW3 scribe also supports the evidence of PW2. This witness categorically stated that the testatrix executed the will in question. More over PW3 scribe also supports the evidence of PW2. As stated supra, a suggestion was given to the attestor of Ex.A1 will by the learned counsel for defendants in cross examination that she is responsible for execution of Ex.A1 will. The above suggestion given by the defendants to PW2 in cross examination itself suffice that the defendants 1 and 2 are admitting the execution of Ex.A1 will. Therefore, the Ex.A1 will is proved in accordance with law, accordingly, the point No. 1 is answered. 24. Point No. 2: Whether the plaintiff is entitled the relief of partition of item Nos.2 and 3 of the plaint schedule property? The plaintiff is claiming the relief of partition of the plaint schedule property. On appreciation of the entire evidence on record, the trial Court passed a preliminary decree by allotting half share in item Nos.2 to 4 of the plaint schedule property against which the present appeal is filed by defendants 1 and 2 by challenging the judgment of the trial Court for granting half share in item Nos.2 and 3 of the plaint schedule property. No appeal is filed in respect of item No. 4 of plaint schedule property. As stated supra, by virtue of Ex.A1 will dated 25.12.1990, the plaintiff and second defendant are entitled equal shares in item Nos.2 and 3 of plaint schedule property. Ex.A1 will is also proved in accordance with law by the plaintiff. The case of the first defendant is that she purchased item Nos.2 and 3 of the plaint schedule property under a registered sale deed from her father-in-law i.e. third defendant. Here second defendant is none other than the husband of first defendant. It is made it clear that in the sale deeds of first defendant dated 03.05.1991 under Ex.A3 and Ex.A4, it was recited that the vendor got the said property from his wife Mallamma by way of natural succession. It is made clear that the date of Ex.A1 will is 25.12.1990, the death of testatrix is 08.04.1991, the date of the alleged sale deeds of the first defendant is 03.05.1991. As stated supra, the Ex.A1 will dated 25.12.1990 is proved by the plaintiff. It is made clear that the date of Ex.A1 will is 25.12.1990, the death of testatrix is 08.04.1991, the date of the alleged sale deeds of the first defendant is 03.05.1991. As stated supra, the Ex.A1 will dated 25.12.1990 is proved by the plaintiff. It was also held that the plaintiff and second defendant are entitled equal shares in item Nos.2 and 3 of the plaint schedule property by virtue of Ex.A1 will executed by the testatrix. As stated supra, it was suggested to PW2 one of the attestor in Ex.A1 will by the learned counsel for defendants in cross examination that she is responsible for execution of Ex.A1, therefore, the above circumstances clearly reveals that to defeat the rights of the plaintiff in Ex.A1 will, the first defendant obtained nominal sale deeds from her father-in-law within one month from the date of death of testatrix of Ex.A1. Second defendant is none other than the husband of first defendant, he did not enter into the witness box. Therefore, for the foregoing reasons, the plaintiff is entitled half share in item Nos.2 and 3 of the plaint schedule property by virtue of Ex.A1 will said to have been executed by Mallamma, accordingly the point No. 2 is answered. 25. Point No. 3: Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent? In view of my findings on point Nos.1 and 2, the decree and judgment passed by the trial Court is perfectly sustainable under law and it requires no interference. Accordingly, the point No. 3 is answered. C.M.P. No. 13603 of 1999 26. The C.M.P. No. 13603 of 1999 is filed by the petitioners/defendants 1 and 2 in O.S. No. 69 of 1991, with a prayer to send the Ex.A1 will along with original registered sale deed dated 16.02.1981 on the file of Sub-Registrar, Rajampet to a finger print expert for opinion and examine the finger prints of Mallamma on both the documents. 27. 27. The brief averments of the affidavit filed by the first petitioner in C.M.P. No. 13603 of 1999 are as follows: The petitioner is the first defendant in the suit and she has taken a plea of the alleged will is a forged one and pending suit she could not take steps to refer the document to a finger print expert as she was not aware any public document duly executed by the testatrix of the will which could be used as her admitted thumb impression. She further pleaded that recently she came to know during her life time, the testatrix Mallamma executed a registered sale deed dated 16.02.1981 bearing document No. 178 of 1981 on the file of Sub Registrar, Rajampeta alienating her agricultural land in favour of one S. Sudarshan. With a great difficulty she could perceive the vendee Mr. Sudarshan with the original document for a limited period to enable her to file this application for referring the will along with the said sale deed to the finger print expert. 28. Learned counsel for petitioners would contend that the original document is in the custody of the petitioners, if this Court allows this petition, they will produce the original document before this Court to send the same along with Ex.A1 to the finger print expert. 29. In the case on hand, the date of alleged will is 25.12.1990, the suit is filed by the plaintiff in the year 1991 for claiming the relief of partition of the plaint schedule property. The trial was completed in the year 1998, after completion of trial and on hearing arguments of both sides counsels, the learned trial Judge pronounced judgment on 23.10.1998, admittedly, the appellants i.e. defendants 1 and 2 have not taken any specific plea in their written statement that Ex.A1 will is a forged will, it was simply averred in the written statement that they are adopting the written statement of third defendant in other aspects. The defendants did not take any steps during the pendency of the suit, for a period of 8 years, to send the Ex.A1 will to the finger print expert. This appeal is filed in the year 1999. The present application is also filed in the year 1999. The defendants did not take any steps during the pendency of the suit, for a period of 8 years, to send the Ex.A1 will to the finger print expert. This appeal is filed in the year 1999. The present application is also filed in the year 1999. It is relevant to say that to prove the Ex.A1 will the plaintiff relied on the evidence of PW2, who is one of the attestor in Ex.A1 will. It was not suggested to PW2 in cross examination by the learned counsel for defendants that Ex.A1 will is a fabricated will. It was also not suggested to PW2 in cross examination by the learned counsel for defendants that Mallamma did not execute Ex.A1 will. It was simply suggested to PW2 in cross examination by the learned counsel for defendants that she is responsible for execution of Ex.A1. The said suggestion is denied by the PW2. The above suggestion given by defendants counsel to PW2 in cross examination suffice that the defendants 1 and 2 are admitting the execution of Ex.A1 will. No cogent reasons were assigned by the petitioners/ appellants in the affidavit for not taking any steps to send the Ex.A1 document to the finger print expert during the pendency of the trial, that too for a period of 8 years after passing of the decree, aggrieved the decree and judgment passed by the trial Court, the present petition is filed by the defendants 1 and 2 during the pendency of the appeal. Therefore, there are no grounds to allow the present petition. For the foregoing reasons, there are no justifiable grounds to send the Ex.A1 to finger print expert. The evidence of PW2 is consistent and cogent to prove Ex.A1 will and also inspires confidence, the same is supported by PW3. Therefore, the present petition is dismissed. 30. In the result, A.S. No. 143 of 1999 and C.M.P. No. 13603 of 1999 in A.S. No. 143 of 1999 are dismissed. No order as to costs. 31. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.