K.S. Appa Rao

1. These two appeals are filed against the common order, dated 02-08-1999 passed in O.P.Nos.342 of 1995 and 348 of 1996 respectively on the file of the II Additional Chief Judge, City Civil Court at Hyderabad.

2. Since both appeals arise out of the common judgment and the issue involved in them is interrelated, both the appeals are clubbed together and this common judgment is delivered. The parties hereinafter are referred to as they are arrayed in the lower Court in O.P.No.342 of 1995.

3. The brief facts of the case, which are necessary for the disposal of these appeals, are as follows:

O.P.No.342 of 1995:

This O.P. was filed by the petitioners therein under Section 276 of Indian Succession Act, 1925 (for short ‘the Act’) for granting probate of the Will, dated 06-08-1993 pertaining to the petition ‘A’ and ‘B’ schedule properties.

The first petitioner is a partnership firm. One Late Smt. Saralabai Phadke was the mother of the second petitioner and grandmother of the third petitioner, and she was living with them in petition ‘B’ schedule properties, which is a storied building bearing No.4-2-238 and 237 situated at Sultanbazar, Hyderabad. Her husband Shanker Rao Phadke pre-deceased her. Late Shanker Rao Phadke was running the partnership business under the name and style of the first petitioner in a rented premises. Originally, the said Shanker Rao and the second petitioner were partners of the first petitioner firm and after the demise of Shanker Rao, Saralabai Phadke and respondent Nos.1 and 2, who are the daughters of Shanker Rao, have become the partners and the partnership firm has been reconstituted. Late Saralabai Phadke was allotted with 0.20 ps. share and respondent Nos.1 and 2 each was allotted with 0.15 ps. share in the first petitioner firm.

Late Shanker Rao had purchased petition ‘B’ schedule properties in the name of his wife Saralabai Phadke under a registered sale deed dated 15-09-1959 and it was under the occupation of late Saralabai Phadke and petitioner Nos.2 and 3, since respondent Nos.1 and 2 were married and they were living with their husbands. While so, Saralabai Phadke executed a Will and testament dated 06-08-1993 in a hale and healthy condition, bequeathing her 0.20 ps. share in the first petitioner partnership firm in favour of the second petitioner (son) and petition ‘B’ schedule property in favour of the third petitioner (grandson). She gave 40 tulas gold and bank fixed deposits amounting to Rs.2,50,000/-in favour of respondent Nos.1 and 2(daughters), and this fact was also mentioned in the said Will.

The said Saralabai Phadke died on 02-09-1993 at Hyderabad. She had left the said Will with the third petitioner. In pursuance of the Will, the second petitioner became entitled to 0.20 ps share of Saralabai Phadke in the first petitioner firm while the third petitioner became entitled to ‘B’ schedule property. In fact, late Saralabai Phadke had also helped the second respondent monetarily to purchase a flat at Kutbiguda. During her lifetime, she was living with petitioner Nos.2 and 3 and the second petitioner was looking after her.

Therefore, after the death of Saralabai Phadke, the third petitioner wrote a letter dated 17-01-1994 to the third respondent intimating the execution of the Will and requested them to pay the rents in respect of the premises bearing No.4-2-237 in which they have been the tenants, but there was no reply from them. Subsequently, the third petitioner got issued a legal notice dated 20-09-1994 calling upon the third respondent to pay 15 months arrears of rent at Rs.15,315/-@ Rs.1,021/-for the period from October, 1993 to December, 1994. A reply was got issued to the effect that the second respondent had been collecting the rents from the third respondent in pursuance of a Will, dated 27-07-1993. But, late Saralabai Phadke has not executed any such Will. The said Will would be a forged and fabricated document brought into existence to deprive the legitim