Judgment: VENUTHURUMALLI GOPALA KRISHNA RAO, J. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 29.10.2021 in A.S.No.150 of 2015, on the file of the I Additional District Judge, Guntur (“First Appellate Court” for short), confirming the Judgment and decree, dated 13.04.2015 in O.S.No.164 of 2011, on the file of I Additional Senior Civil Judge, Guntur (“Trial Court” for short). 2. The appellant herein is the plaintiff and the respondents herein are defendants in O.S.No.164 of 2011. 3. The plaintiff initiated action in O.S.No.164 of 2011 with a prayer for partition and separate possession of 5/16 th share in the plaint schedule properties. 4. The trial Court dismissed the suit. Felt aggrieved of the same, the unsuccessful plaintiff in the above said suit filed A.S.No.150 of 2015 before the First Appellate Court. The First Appellate Court dismissed the appeal confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful plaintiff approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.164 of 2011, is as follows: The plaint schedule properties are ancestral house property with site an extent of Ac.0-28 cents and a patch of agricultural land. In fact, other ancestral properties were partitioned in 1994 orally between both parties while keeping the plaint schedule properties jointly as their mother Veeramma was then living, with an understanding that the suit properties could be partitioned after her death. However, on her death in 2004 whenever plaintiff demanded for partition, the 1 st defendant, who was in joint possession of the suit properties used to postpone the same on one pretext or the other and the plaintiff had came to know that the 1 st defendant was indulging in bringing into existence some false and bogus documents in order to have illegal gain and causing illegal loss to the plaintiff and jeopardizing the rights and interests of joint share of plaintiff in the suit properties and that the plaintiff is constrained to file the suit. 7. The defendants filed their separate written statements before the trial Court. 7. The defendants filed their separate written statements before the trial Court. The brief averments in the written statement of the 1 st defendant are as follows: The plaintiff has no right over the properties mentioned in the plaint schedule and the said properties belonged to 1 st defendant and he has been in possession and enjoyment of the same since 1985 which he got through a Will, dated 02.02.1985 duly executed by his father Ramaiah during his lifetime in respect of Item Nos.1 and 2 and plaintiff is well aware of the same. The plaintiff and his brother Atchutha Rao (2 nd defendant herein) duly attested the said Will, besides one Bandlamudi Venkateswarlu. In fact, the partition in its entirety was taken place in the year 1985 itself during the lifetime of Ramaiah and the alienations made by brothers individually manifests the partition of family properties among the family members. The plaint schedule properties are absolute properties of the 1 st defendant by virtue of Will, dated 02.02.1985 and the plaintiff was never in joint possession of the plaint schedule properties. The brief averments in the written statement of the 2 nd defendant are as follows: The suit schedule properties are self-acquired properties of Ramaiah. The joint family properties were partitioned in the year 1994 by the plaintiff and defendant Nos.1 and 2 and each of them have got landed properties. The suit schedule properties were kept as joint and it was mutually agreed that the properties shall be enjoyed by their mother during her lifetime and shall be partitioned among plaintiff and defendant Nos.1 and 2 equally after death of Veeramma. The plaintiff and 1 st defendant were not cooperating for partition after death of Veeramma in the year 2004 and having colluded together the plaintiff and 1 st defendant got filed above suit to have wrongful gain for themselves and to cause wrongful loss to the 2 nd defendant. The brief averments in the written statement of the 3 rd defendant are as follows: During the lifetime of her father Ramaiah, he performed her marriage in the year 1960 and had given Ac.2-32 cents land and some valuable movables i.e., gold, etc., towards Pasupu Kumkuma. During the lifetime of Ramaiah, the entire joint family properties were partitioned orally by Ramaiah. During the lifetime of Ramaiah, the entire joint family properties were partitioned orally by Ramaiah. The plaintiff and Defendant Nos.1 and 2 in the year 1994, in the said oral partition, Ramaiah got Ac.2-74 cents of land which includes house and site, 1 st defendant got Ac.2-88 cents, plaintiff got Ac.2-98 cents and 2 nd defendant got Ac.2-98 cents and the 3 rd defendant sold Ac.2-32 cents to the plaintiff in the year 1989. During the lifetime of Ramaiah, he had executed his last and final Will bequeathing the suit schedule properties in favour of 1 st defendant to the knowledge of all the family members and after the death of Ramaiah, the 1 st defendant got suit schedule properties and the suit schedule properties are absolute properties of 1 st defendant. 8. On the basis of above pleadings, the learned Trial Judge framed the following issues for trial: (1) Whether the plaintiff is entitled for partition of the plaint schedule properties and allotment of 5/16 th share in the plaint schedule property as prayed for? (2) Whether the plaintiff is entitled to a separate possession of the same as prayed for (3) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.8 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.14 and Ex.X.1 were marked. 10. The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit. Felt aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in A.S.No.150 of 2015 before the First Appellate Court wherein the following point came up for consideration: Whether the partition was taken place in the year 1985 or in the year 1994 as contended by the appellant and 1 st respondent and whether Will deed, dated 02.02.1985 as duly proved and the judgment and decree passed by the trial Court are factually and legally sustainable or not? 11. The learned First Appellate Judge after hearing the arguments, answered the point, as above, against the plaintiff and dismissed the appeal confirming the judgment and decree of the trial Court. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.164 of 2011 filed the present second appeal before this Court. 12. 11. The learned First Appellate Judge after hearing the arguments, answered the point, as above, against the plaintiff and dismissed the appeal confirming the judgment and decree of the trial Court. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.164 of 2011 filed the present second appeal before this Court. 12. On hearing both sides counsel at the time of admission of the appeal, on 27.12.2021, this Court framed the following substantial questions of law: (1) Whether the appreciation of the First Appellate Court of Ex.B.1 Will, with reference to contents of Ex.A.5 and Ex.A.6 documents is proper and if had it lead to failure of justice? (2) Whether the First Appellate Court considered the question of burden of proof relating to Ex.B.1 registered deed while agreeing with the findings of the trial? 13. Heard Sri K.H.K. Siva Kumar, learned counsel for the appellant and heard Sri Paladugu Ganesh, learned counsel for the respondents. 14. Law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In a case of Bhagwan Sharma v. Bani Ghosh , [1 AIR 1993 SC 398 ] , the Apex Court held as follows: “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar , [AIR 1999 SC 471] , the Apex Court held as follows: “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 15. In a second appeal filed under Section 100 of the Code of Civil Procedure, this Court is normally not expected to re-appreciate the evidence on record. It shall not reverse the findings of both the Courts below except under few situations. If it is found that the material and relevant evidence are not considered by the First Appellate Court and if considered it would have lead to an opposite conclusion, is one instance where this Court is entitled to interfere. The other situation is when the findings of the facts were arrived by the First Appellate Court by placing reliance on inadmissible evidence, which if it was omitted, an appropriate conclusion was possible. It is on such occasions also this Court can interfere. It is also relevant to say that if the judgment of both the Courts below are contrary to mandatory provisions of the law applicable to the case, then also an interference under Section 100 of the Code of Civil Procedure is permissible. 16. The appellant, who is the plaintiff in O.S.No.164 of 2011, approached the trial Court for seeking relief of partition of the plaint schedule properties. The relationship in between both parties is not in dispute. As per the case of the appellant/plaintiff, all the ancestral properties were partitioned in the year 1994 orally among both the parties, while keeping the plaint schedule property as a joint and the defendant Nos.1 and 2 are not cooperating for partition of the plaint schedule property. Since the plaintiff approached the Court with a specific plea that the plaint schedule property is undivided ancestral property, therefore, the entire burden casts on the plaintiff to prove the same. The plaintiff relied on the evidence of P.W.1 and P.W.2 and Ex.A.1 to Ex.A.8. The documentary evidence relied on by the plaintiff Ex.A.1 to Ex.A.8 are not sufficient to come to a conclusion that the plaint schedule property is undivided joint family property in between the plaintiff and the defendants. P.W.1 is no other than the plaintiff. P.W.2 is third party to the suit. As per the evidence of P.W.2, he came to know about the facts of the suit from the plaintiff. It is the specific case of the plaintiff that partition has been taken place between brothers after the death of their father Ramaiah. But, whereas as per the evidence of P.W.2, partition was effected between Ramaiah and his sons. As per the evidence of P.W.2, he came to know about the facts of the suit from the plaintiff. It is the specific case of the plaintiff that partition has been taken place between brothers after the death of their father Ramaiah. But, whereas as per the evidence of P.W.2, partition was effected between Ramaiah and his sons. The specific case of the 1 st defendant is also that the total properties are partitioned in between their father and three sons i.e., plaintiff, defendant Nos.1 and 2 during the lifetime of their father itself. On the other hand, no documentary evidence is produced by the plaintiff to show that the plaint schedule property is kept in joint and it is an ancestral undivided property. 17. It is the specific case of the 1 st defendant that the partition was taken place in the year 1985 itself during the lifetime of their father Ramaiah and alienations made by brothers individually establishes the partition of the joint family properties among the family members. He further pleaded that the plaint schedule properties are absolute properties of 1 st defendant by virtue of the Will, dated 02.02.1985 executed by his father and the plaintiff was never in joint possession of the plaint schedule property. As stated supra, it is the specific case of the 1 st defendant that his father executed Will before the Advocate/Notary, dated 02.02.1985 in respect of the plaint schedule property herein and the plaintiff is well aware of the same and the plaintiff and his brother Atchuta Rao (2 nd defendant) duly attested the said Will besides one Bandlamudi Venkateswarlu. It is not in dispute by both parties that the father of the plaintiff and defendants by name Ramaiah died prior to institution of the suit itself. 18. In order to prove the defence of the 1 st defendant, the 1 st defendant produced Ex.B.1 original Will said to have been executed by his father Ramaiah and he also relied on the documentary evidence Ex.B.1 to Ex.B.14. Ex.B.1 is the original Will executed by Ramaiah, Ex.B.2 is the certified copy of the registered sale deed executed by 2 nd defendant alone, dated 11.08.1982 and Ex.B.3 is the certified copy of the registered sale deed executed by plaintiff, defendant Nos.1 and 2 and their respective heirs. Ex.B.1 is the original Will executed by Ramaiah, Ex.B.2 is the certified copy of the registered sale deed executed by 2 nd defendant alone, dated 11.08.1982 and Ex.B.3 is the certified copy of the registered sale deed executed by plaintiff, defendant Nos.1 and 2 and their respective heirs. The 1 st defendant also relied on Ex.B.9 certified copy of registered deed of conveyance executed in favour of plaintiff by Teachers Cooperative Society. Ex.B.13 and Ex.B.14 are sale deeds said to have been executed by Bandlamudi Chinnamma. As noticed supra, it is the case of the 1 st defendant that the properties were partitioned among the members of the family i.e., plaintiff, 1 st defendant, 2 nd defendant and their father during the lifetime of their father Ramaiah and alienations were also made by brothers individually. The documentary evidence produced by the 1 st defendant clearly shows that the properties were partitioned among the father and sons during the lifetime of Ramaiah a way back in the year 1985 itself. 19. The 1 st defendant relied on Ex.B.1 Will said to have been executed by his father, dated 02.02.1985, it is a notarized Will. Since the plaintiff is disputing the Will, it is the duty of the propounder of the Will to prove the alleged Will beyond all reasonable doubts. 20. It is well settled that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The legal position in this regard is no more res integra and the same has been well settled by the Apex Court in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others , [ (2008) 15 SCC 365 ] . In the aforesaid case, the Apex Court held “it is trite law that execution of will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances when such evidences are brought on record, the Court may take aid of the presumptive evidences also”. 21. 21. It is a well settled principle that in every case the burden lies on the propounder of the will and it is the duty of the propounder of the will, he has to satisfy the conscious of the Court that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously that the testator at the time when he subscribed his signature on a will in a sound and disposing state of mind and memory and ordinarily however, the onus is discharged as regards the due execution of the will, if the propounder leads evidence to show that the will bears the signature and mark of the testator and the will is duly attested. This attestation however shall have to be in accordance with Section 68 of Indian Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at-least one attesting witness has been called for the purpose of proving its execution and the same is so however in the event of there being an attesting witness alive and capable of giving evidence. The law is also equally settled that in the event of there, being circumstances surrounding the execution of will, surrounded in suspicion, it is the paramount duty on the part of the propounder to remove the suspicion by leading satisfactory evidence. 22. Ex.B.1 goes to show it is notarized before the Advocate/Notary, it was said to have been executed by the father of 1 st defendant. The Plaintiff and defendant Nos.1 and 2 are brothers. The plaintiff, 2 nd defendant and one Bandlamudi Venkateswarlu are the attestors to Ex.B.1 Will. Bandlamudi Venkateswarlu died. The plaintiff, who is one of the attestors in Ex.B.1 Will admitted his signature in Ex.B.1. Though the 2 nd defendant disputed the signature on Ex.B.1 Will, he admitted Bandlamud Venkateswalru was one of the attestors in Ex.B.1 Will. Therefore, 2 nd defendant is having knowledge about the Will said to have been executed by their father Ramaiah a way back in the year 1985. It is relevant to say that the present suit has been instituted in the year 2011. The material on record further reveals that the 1 st defendant filed written statement on 16.06.2011 before the Trial Court. It is relevant to say that the present suit has been instituted in the year 2011. The material on record further reveals that the 1 st defendant filed written statement on 16.06.2011 before the Trial Court. In the written statement itself, it was pleaded by the 1 st defendant about the notarized Will is said to have been executed by his father on 02.02.1985 wherein the plaintiff and his brother Atchuta Rao, i.e., 2 nd defendant duly attested the said Will beside one Venkateswarlu. As noticed supra, on 16.06.2011 the 1 st defendant filed written statement whereas the 2 nd defendant filed his written statement before the Trial Court in the month of August, 2011 subsequent to the filing of written statement by the 1 st defendant. In order to dispute the recitals mentioned in written statement of 1 st defendant about the Will executed by their father and also attestation by plaintiff and 2 nd defendant, Ex.B.1 Will is not yet disputed by the 2 nd defendant. It was not specifically pleaded by the 2 nd defendant in the written statement that Ex.B.1 Will is a fabricated Will and the signature as an attestor in Ex.B.1 Will is not belongs to him. Though the plaintiff is having knowledge about the Will a way back in the year 1985 itself, there is no whisper in the plaint itself about the said Will executed by their father. No rejoinder is filed by the plaintiff to deny the execution and attestation of Ex.B.1 Will by the plaintiff. The plaintiff and 2 nd defendant are having knowledge about Ex.B.1 Will in the year 1985 itself. Moreover, to discharge his burden, the 1 st defendant examined the son of another attestor, Bandlamudi Venkateswarlu by name Bandlamudi Subba Rao, as D.W.2. D.W.2 is no other than the son of Bandlamudi Venkateswarlu, who is the signatory in Ex.B.1. As per his evidence, his father died due to Cancer on 05.02.2005 and the signature as attestor in Ex.B.1 belongs to his father and he identified the signature of his father. Therefore, the 1 st defendant discharged his burden to prove Ex.B.1 Will. 23. D.W.2 is no other than the son of Bandlamudi Venkateswarlu, who is the signatory in Ex.B.1. As per his evidence, his father died due to Cancer on 05.02.2005 and the signature as attestor in Ex.B.1 belongs to his father and he identified the signature of his father. Therefore, the 1 st defendant discharged his burden to prove Ex.B.1 Will. 23. With regard to proof of Will, the same was well settled that the mode of proving the Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at-least one attesting witness, if an attesting witness is alive and subject to process of the Court and capable of giving evidence. As stated supra, in the present case on hand, the plaintiff and 2 nd defendant are the attestors to Ex.B.1 Will, dated 02.02.1985 and they are having knowledge in the year 1985 itself. The present suit proceedings are instituted by the plaintiff in the year 2011. The plaintiff admitted that he is one of the attestors in Ex.B.1 Will, dated 02.02.1985. As stated supra, though the 2 nd defendant disputed his signature on Ex.B.1 Will, he admitted that one Bandlamudi Venkateswarlu acted as one of the attestors in the Will, dated 02.02.1985. To discharge his burden, since the said Venkateswarulu died in the year 2005, the 1 st defendant also examined the son of Bandlamudi Venkateswarlu as D.W.2 by the 1 st defendant. Unless there was a prior partition, the plaintiff and 2 nd defendant will not give consent for the execution of Ex.B1 Will in the year 1985 itself. The suit for partition is instituted in the year 2011 by the plaintiff with a specific plea that the plaint schedule properties are in joint possession and enjoyment of the plaintiff and defendant Nos.1 and 2. But, the same is not proved by plaintiff. For the aforesaid reasons, I am of the considered view that Ex.B.1 will is proved by the 1 st defendant in accordance with law. 24. But, the same is not proved by plaintiff. For the aforesaid reasons, I am of the considered view that Ex.B.1 will is proved by the 1 st defendant in accordance with law. 24. By giving cogent reasons, the learned Trial Judge rightly dismissed the suit and on re-appreciation of the entire evidence on record, the learned First Appellate Judge dismissed the appeal suit filed by the plaintiff. This Court while exercising power under Section 100 of the Code of Civil Procedure must confine to the substantial question of law involved in the second appeal and this Court cannot re-appreciate the evidence on record and interfere with the concurrent findings of both the Courts below, where the Courts below are exercised discretion judiciously. Further, the existence of substantial question of law is a sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Courts below are manifestly perverse and contrary to the evidence on record, I am of the considered view that there is no perversity in the judgments of both the Courts below and therefore, there are no merits in the second appeal and that the second appeal is liable to be dismissed. 25. In the result, the second appeal is dismissed. Each party do bear their own costs in the second appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.