JUDGMENT:

V. GOPALA KRISHNA RAO, J.

1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is filed aggrieved against the Judgment and decree, dated 12.12.2012 in A.S.No.38 of 2006, on the file of learned VI Additional District Judge (Fast Track Court), Tirupati, reversing the Judgment and decree, dated 27.01.2006 in O.S.No.1465 of 1998, on the file of learned Principal Junior Civil Judge, Tirupati.

2. The appellant herein is the defendant and the respondent Nos.1 and 2 herein are the plaintiffs in O.S.No.1465 of 1998, on the file of learned Principal Junior Civil Judge, Tirupati.

3. The plaintiffs initiated action in O.S.No.1465 of 1998, on the file of learned Principal Junior Civil Judge, Tirupati, with a prayer for partition of plaint schedule property into 3 equal shares by metes and bounds and allot 1 share to the plaintiffs and put the plaintiffs in separate possession and enjoyment thereof, for future mesne profits and for costs of the suit.

4. The trial Court dismissed the suit in O.S.No.1465 of 1998, on the file of learned Principal Junior Civil Judge, Tirupati. Felt aggrieved of the same, the plaintiffs in the above said suit filed A.S.No.38 of 2006, on the file of learned VI Additional District Judge (Fast Track Court), Tirupati. The learned VI Additional District Judge (Fast Track Court), Tirupati, disposed off the appeal by setting aside the decree and judgment passed by the trial Court and passed preliminary decree. Aggrieved thereby, the defendant in the suit approached this Court by way of second appeal.

5. For the sake of convenience, both parties in the appeal Will be referred to as they are arrayed in the original suit.

6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.1465 of 1998, is as follows:

The suit schedule property was originally an ancestral property of one Shaik Ibrahim Saheb, who is the husband of the plaintiff No.1 and the father of the plaintiff No.2 and the defendant and after performing the marriages of his children, he had gifted 1/3^rd share of the house property to his daughter on 24.12.1988, with the consent of the defendant. Thereafter, the said Shaik Ibrahim Saheb died intestate on 15.05.1991 and during his lifetime, he executed a Will dated 24.03.1991, under the compulsion of the defendant by bequeathing the entire property to his wife i.e., the plaintiff No.1 with life interest and absolute rights over the property to the defendant. The plaintiff and the defendant are residing jointly by enjoying the property. While so, Late Shaik Ibrahim Saheb is not entitled to bequeath the entire property as his own and as such, the Will dated 24.03.1991, said to have been executed by the father of the plaintiff No.2 and the defendant is null and void. Under the influence of his wife and others, the defendant is threatening the plaintiffs to vacate the schedule premises and as disputes have arisen between the plaintiffs and the defendant, mediation has taken place and the mediators have suggested the parties to partition the suit schedule property into 3 shares. But, as the defendant is not taking any steps to the partition of the suit schedule property, the plaintiffs were constrained to file the suit.

7. The defendant filed written statement before the trial Court denying the material averments in the plaint, except admitting the relationship between the parties and Late Shaik Ibrahim Saheb and contended as follows:

The suit is not maintainable either in fact or in law and hence the suit is liable to be dismissed. The defendant denied the averment about Late Shaik Ibrahim Saheb gifted 1/3^rd share of house property to his daughter on 24.12.1998 with his consent. He further pleaded that in the registered Will dated 24.03.1991, the said Late Shaik Ibrahim Saheb has given a life interest in favour of the plaintiff No.1 alone and absolute rights over the property to the defendant. The defendant had pleaded that he had gi