JUDGMENT :

VENKATA JYOTHIRMAI PRATAPA, J.

1. This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u) of Code of Civil Procedure, 1908 (in short ‘C.P.C.’) by plaintiff Nos. 2, 3, 6 and 7 against the impugned judgment and decree in A.S. No. 116 of 2009, dated 21.03.2013 on the file of I Additional District Judge, West Godavari, Eluru (in short, appellate court) whereby the judgment and decree in O.S. No. 40 of 2003, dated 02.02.2008 on the file of Additional Senior Civil Judge’s Court, Eluru (in short, trial court) was set aside, and the appeal was allowed in favour of the defendants remanding the matter to the trial Court for a fresh disposal.

2. The appellants herein were the plaintiffs 2, 3, 6 and 7, whereas the respondents were the defendants before the trial court. For the sake of convenience, parties hereinafter will be referred to as arrayed before the trial Court.

3. Bereft of unnecessary details, facts necessary for the disposal of the appeal in brief need mention in order to appreciate the controversy involved in the appeal.

4. Case of the plaintiffs:

4.1. Originally, the plaintiff No. 1/Mandavilli Kanaka Durgamba acquired the suit schedule property by virtue of a will executed by her mother. She has been in possession and enjoyment of the said property since the death of her mother i.e. 18.04.1974. Her husband predeceased her and the couple remained issueless.

4.2. When registration authorities visited the schedule property to take some measurements, she learnt that the defendants created some documents relating to the schedule property. Then she presented a report to the police and filed a suit for permanent injunction against the defendants alleging that they are making hectic efforts to dispossess her from the schedule property.

5. Contention of the defendants:

5.1. The defendants filed their written statement denying the plaintiffs case inter-alia contending that the first plaintiff executed a gift deed in favour of first defendant on 09.12.2002 bequeathing the schedule property. He allowed the first plaintiff to stay in the house during her lifetime. The original gift deed is kept with the first plaintiff. On 01.02.2003 when the first defendant was held up at Visakhapatnam in his absence one Manepalli Venkateswara Rao and Maddipati Atchuta Rao spoiled the mind of first plaintiff and created documents in favour of their son and daughter-in-law.

Procedural History

6. In course of trial, both parties adduced oral and documentary evidence in support of their respective contentions. During pendency of the suit, plaintiff No. 1 died and her legal representatives made their claims in two streams. Plaintiff Nos. 4 and 5 laid their claim based on unregistered will said to have been executed by the 1st plaintiff. Plaintiff Nos. 2, 3, 6 and 7 contended that they are the legatees under the registered will executed by the testator i.e. the 1st plaintiff. The plaintiff Nos. 2 to 5 are added as legal representatives of 1st plaintiff. Later 3rd plaintiff also died and plaintiff Nos. 6 and 7 are added as legal representatives of 3rd plaintiff.

7. The trial court vide judgment and decree dated 02.02.2008 in O.S. No. 40 of 2003 decided in favour of plaintiffs holding that the registered will projected by the plaintiffs 2, 3, 6 and 7 is a genuine one, since testator herself admitted its execution.