IMPORTANT POINT
A will must be proved in accordance with statutory requirements; failure to do so invalidates claims based on it, allowing for equal partition of estate.

JUDGMENT :

V. GOPALA KRISHNA RAO, J.

1. This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’] is filed by the Appellant/defendant challenging the Decree and Judgment, dated 30.06.2008, in O.S. No. 279 of 1997 passed by the learned III Additional Senior Civil Judge (Fast Track Court), Visakhapatnam [for short ‘the trial Court’]. The Respondent herein is the plaintiff in the said Suit.

2. The appellant/defendant filed a Suit for partition of the suit schedule property into two equal shares and allotment of one such share to the plaintiff and for partition of the amount deposited in the Telegraph Employees Co-operative Thrift and Credit Society and to allot plaintiff’s half share with accrued interest and also the amount in the bank i.e. Rs.2,07,000/- and Rs.60,000/- respectively and future mesne profits of the yielding and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No. 279 of 1997, are as under:

The plaintiff and the defendant are the sons of late Sri Marthanda Murthy, who passed away on 21.12.1996 and the mother of the plaintiff and defendant passed away prior to their father. The plaintiff and the defendant are alone legal heirs to the estate of the deceased father and mother. The father of the plaintiff worked and after retirement, as to the knowledge of the plaintiff, got an amount of Rs.2,67,000/- and deposited the same in the credit society and in the bank, the plaintiff is entitled half share in that amount. Item No. 1 of the suit schedule house is constructed with the amounts of plaintiff and his father and mother as the plaintiff got early employment. The plaintiff also got treated his mother at Puttaparthi. The father of the plaintiff informed during his lifetime that the amounts deposited in the society and in the bank and the other property be shared between the plaintiff and the defendant, but without executing any will, the father of the plaintiff and the defendant died. Subsequently the plaintiff informed the promise made by his father to the defendant, but the defendant put deaf ear and adamantly refusing to provide the share of the plaintiff in the said movable and immovable assets of their father and mother and all the efforts made by the plaintiff is futile. Hence, the plaintiff is constrained to file the suit.

5. The defendant filed a written statement denying the contents of the plaint and further contended as under:

The defendant worked in Telegraph department and earned about Rs.6,000/- per month. The father of the plaintiff and defendant retired from the service in the month of June, 1990, but he never invested his retirement benefits in any society. The plaintiff never extended any financial co-operation to the family. The father of the plaintiff had taken an amount of Rs.1,06,000/- from the defendant on various occasions between the years 1991 to 1994. If any amount is traced out, even then, those amounts are belonging to the defendant. In the year 1972-73 a house site was purchased and later constructed a house, the plaintiff never invested any amounts towards house construction and infact some amounts were invested by the defendant for construction of the house. The defendant met all kinds of repairs and maintenance by spending huge amounts. The plaintiff had taken gold ornaments, cloths, other valuables from the house, when the plaintiff attended his mother’s ceremony on 11th day after her death. The father of the defendant wrote in diary book about all the illegal acts and behavior of the plaintiff and these are evident and sufficient to show about the conduct of the plaintiff. A letter addressed by the father of the plaintiff and defendant to Sri Venkateswara Rao also shows the bad conduct of the plaintiff. The father of the defendant executed a will dated 29.09.1996 and given all his movable and immovable properties to the defendant, therefore, the plaintiff has n