The main legal point established in the judgment is the requirement to prove the execution of a will as per Section 68 of the Indian Evidence Act, and the court's discretion in interfering with the trial Court's decree and judgment.

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 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. He sold the items 1 to 3 of the plaint schedule property to the first defendant to discharge his debts borrowed by