IMPORTANT POINT
Proof of execution of Will – In cases where document sought to be proved is required by law to be attested, same cannot let be in evidence unless at least one of attesting witnesses has been called for the purpose of proving attestation.

JUDGMENT (COMMON)

This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellant/plaintiff challenging the Decree and Judgment, dated 18.08.2003, in O.S. No.55 of 1993 passed by the learned Additional Senior Civil Judge, Nellore [for short ‘the trial Court’]. The Respondents herein are the defendants in the said Suit. The defendants 1 and 2 filed cross objections questioning the decree and judgment passed by the trial Court.

2. The Plaintiff filed the above said suit for partition of the property described in the plaint schedule into 3 equal shares and to allot one such share to the plaintiff and to put her in separate possession and to pass preliminary decree accordingly.

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.55 of 1993, are as under:

Late Dodla Venkata Subbareddy, the father of the plaintiff had bequeathed an extent of Ac.4.21 cents of wet land shown in item No.3 of the plaint A schedule to his wife Kotamma through a settlement deed dated 21.05.1957, since then she is in exclusive possession over the same. An extent of Ac.5.05 cents belonged to Venkata Subbareddy brought into sale in I.P.No.5 of 1960 and E.P.No.71 of 1977 in O.S.No.64 of 1961. The said property was purchased in the name of first defendant with the money of joint family and that it has to be divided into 4 equal shares and plaintiff is entitled 1/4th share. Item Nos.4 and 5 of plaint A schedule are in joint possession of the plaintiff, defendants 1 and 2 and their mother and their mother managed the entire property. After the death of Venkata Subbareddy, Kotama purchased items 9 to 15, 17 and 18 of plaint B schedule with the joint family income. The remaining items have acquired by Venkata Subbareddy. Therefore, the plaintiff is entitled to 1/4th share in plaint B.Schedule property. Kotamma died on 14.09.1992 intestate. After her death, first defendant occupied item No.6 of the plaint A schedule property. Plaintiff and second defendant requested the first defendant for partition. But she did not respond, hence the plaintiff got issued legal notice on 11.01.1993 to the defendants 1 and 2. First defendant gave reply stating that she is the absolute owner of items 1 to 3 and 6 of plaint A schedule property as per the will executed by her mother. The said Kotamma never executed any type of will and the alleged will is a fabricated and forged one.

5. The first defendant filed a written statement, which was adopted by third defendant, by denying the averments mentioned in the plaint and further contended as under: -

The first defendant contend that she has purchased the items 4 and 5 of the plaint A schedule property with her own funds and official receiver executed a document in her favour, the plaintiff and the second defendant have no joint right in the same. Items 11 to 15 of plaint B schedule property are exclusively belonged to the first defendant and not belonged to Dodla Subbareddy and Kotamma. Kotamma gave items 1 to 3 of Plaint A schedule property to the first defendant. Kotamma had executed a will bequeathing her entire property to the defendants 1 and 2. The plaintiff had knowledge about the execution of will dated 22.07.1992.

6. The second defendant did not file written statement and the fourth defendant remained exparte.

7. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the plaintiff is entitled for partition and separate possession as prayed for?

(ii) To what relief?

8. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW3 were examined and Ex.A1 to Ex.A8 were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.B1 to Ex.B5 were marked.

9. After completion of the trial and on hearing the arguments of both sides, the trial Court partly decreed the Suit vide its judgment, dated 18.08.2003, against which