Point of Law:Will - In terms of Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act, it is obligatory on the part of the appellant to examine the attestors of this Will.

JUDGMENT :

The plaintiffs in O.S.No.108 of 1989 on the file of the Court of the learned Senior Civil Judge, Machilipatnam, Krishna District are the appellants. The defendants therein are the respondents.

2. The suit was laid for partition of the plaint schedule properties into four (04) equal shares and to allot one such share to the original plaintiffs 1 and 2 and the original defendants 1 and 2.

3. The 1st appellant was the father of the 2nd appellant, respondents 1 and 2 and Sri Srimannarayana Murthy. The wife of the 1st appellant died long ago. They have three daughters too, who were all married by the date of institution of the suit.

4. During pendency of the suit, the 1st appellant died. So also the 2nd respondent. The appellants 3 and 4 were brought on record as L.Rs.of the deceased 1st appellant in the course of trial and the respondent No.6 being the alleged legatee under the Will of the deceased 1st appellant. Similarly, the respondents 3 to 5 were brought on record as L.Rs.of the 2nd respondent during trial. The respondents 7 and 8 were brought on record being the legal representatives of the 6th respondent and appellants 3 and 4 are also L.Rs.of the 6th respondent, who was the wife of the deceased 2nd appellant.

5. The appeal against the 3rd respondent was dismissed for default by an order dated 18.10.2011. No attempt was made to get the appeal restored against her.

6. The deceased 1st appellant was running firewood business in Item No.2 of plaint ‘A’ schedule. His elder brother by name Sri Vemula Sreerama Murthy had no issues and had adopted Sri Srimannarayana Murthy, one of the sons of the 1st appellant. Under a registered partition deed dated 10.11.1941 (Ex.B1), Sri Vemula Sreerama Murthy, their another brother Sri Venkatachalam and the 1st appellant got divided their properties.

7. Out of his business, the 1st appellant had also acquired substantial extent of lands. There was a division among the 1st appellant and his sons viz., the 2nd appellant and the respondents 1 and 2 evidenced by a partition list dated 14.06.1979. (This partition list is not a part of the record in this case). Prior to the year 1979, all of them got divided their movable properties. However, at the time when the partition was entered into in the year 1979, an extent of Ac.2-00 of agricultural land in Kankipudi village apart from item Nos. 2 and 3 of plaint ‘A’ schedule were left joint. This Ac.2-00 of land was sold away by the 1st appellant during his lifetime.

8. The specific case of the appellants is that plaint ‘A’ and ‘B’ schedule properties constituted those of Hindu joint family comprised of the appellants 1 and 2 as well as the respondents 1 and 2. They further contended that they used to have a common mess till the year 1985 and when disputes arose among women members of the family leading to having separate mess by appellants 1 and 2 on one hand, respondents 2 as well as respondent No.3 separately, while all of them were living in item No.1 of the plaint ‘A’ schedule. They further contended that the 1st appellant had purchased item No.1 of the plaint ‘A’ schedule house in the name of the 1st respondent on account of an advice by an astrologer though it was also treated as a joint family property acquired from the funds provided by the 1st appellant himself. The sale deeds in respect thereof according to them were retained by the 1st appellant, who had bargained with the vendors, paying sale consideration by means of two different bank drafts obtained from Andhra Bank, Machilipatnam. They further contended that the 1st appellant alone was paying property tax to this house, attending to its maintenance and that taking advantage of the sale deeds being in his name, the 1st respondent demolished small varandah on the rear side of his house during 2nd week of August, 1988. Legal notices were exchanged between the appellants 1 and 2 on one hand and the 1st respondent on the other dated 23.08.1988 and 10.10.1988 respectively.

9. The appellants