This Second Appeal is preferred by defendants aggrieved by the judgment and decree in A.S.No.91 of 1991 dated 17.08.1999 passed by the learned II Additional Senior Civil Judge, Vijayawada whereby and whereunder the learned Judge allowed the appeal preferred by the plaintiff against the judgment and decree in O.S.No.474 of 1988 dated 12.07.1991, filed for partition.

2. The parties in this Second Appeal are referred as they were arrayed before the Trial Court.

3. The facts in nutshell are thus:

(a) Parties are related to each other. Defendants 1 to 3 are brothers and defendant No.4 is the sister of plaintiff and all are residents of Penamaluru village; their mother-Saraswathamma died intestate on 02.09.1984 and their father-Veeraswamy also died intestate on 19.07.1987; Saraswathamma had Ac.0.66 cts. in R.S.No.87/1 of Chodavaram village and therefore, plaintiff is entitled to 1/5th share in the said property; as the defendants are evading to partition the suit property, she issued legal notice and filed the suit.

(b) Defendant No.1 filed written statement admitting the relationship between the parties and also admitting that the suit property belonged to their late mother-Saraswathamma. Their case is that their father-Veeraswamy executed a Will dated 10.07.1987 bequeathing properties including the share which he got from his wife to defendants 1 to 3 and hence plaintiff is entitled to only 1/6th share. They also pleaded the suit property is only Ac.0.52 cts. in R.S.No.86/3 but not Ac.0.66 cts as alleged. Thus, they prayed to dismiss the suit.

(c) Defendants 2 and 3 filed a memo adopting the written statement of 1st defendant. Defendant No.4 was set ex parte.

(d) Basing on the above pleadings, the trial Court framed the following issues.

(1) Whether the Will dated 10.07.1987 is true, valid and binding?

(2) Whether the plaint schedule property is correct?

(3) Whether the plaintiff is entitled to share as prayed for?

(4) Whether the plaintiff has no cause of action?

(5) To what relief?

(e) During trial, PWs.1 to 3 were examined and Exs.A1 to A14 were marked. DWs.1 to 3 were examined and Exs.B1 and B2 were marked on behalf of defendants.

(f) The Trial Court accepting the genuinety of the Will propounded by the defendants held the plaintiff is entitled to 1/6th share in Ac.0.52 cts. in RS No.86/3.

(g) Aggrieved in so far as granting 1/6th share to her, plaintiff filed A.S.No.91 of 1991 before the II Additional Senior Civil Judge, Vijayawada and the said appeal was allowed granting 1/5th share to the plaintiff. The lower Appellate Court held the due execution of the Will was not established by the defendants inasmuch as they failed to examine the attestors but only examined the scribe. It may be noted that during pendency of first appeal, 1st respondent-died and respondents to 5 to 10 were brought on record as his LRs. vide Court order dated 16.06.1997 in I.A.No.8093 of 1996.

Hence, the instant Second Appeal by defendant Nos.1, 2, 3, 5, 6, 7 and 10.

4. The following substantial questions of law were framed by this Court out of the grounds of appeal filed by the appellants:

(1) Whether the learned II Additional Senior Civil Judge is right in holding that Ex.B2 was not proved by not examining any of the attestors?

(2) Whether the evidence of the scribe DW2 is not sufficient to prove the execution of the will, he having put his signature “ANIMO ATTESTANDI” as required under Section 68 of the Indian Evidence Act?

5. Heard arguments of Sri K.V.Subrahmanya Narsu, learned counsel for appellants and Sri O.Manohar Reddy, learned counsel for respondents.

6. Appeal against R3 and R4 was dismissed for default vide Court order dated 25.06.2014

7. Substantial Question Nos.1 and 2: Since both the above questions are interconnected, they are taken up together. The main plank of argument of learned counsel for appellants is that though under law attestors have to be examined in proof of Will, still Will can be proved by examination of scribe only if he could speak