A partition suit is maintainable even when claiming rights through a Will, provided the Will is proven valid and genuine.

JUDGMENT :

(G. RADHA RANI, J.)

This appeal is filed by the appellant – defendant No.1 aggrieved by the judgment and decree dated 09.06.2010 passed in O.S.No.577 of 2006 by the learned V Senior Civil Judge, City Civil Court, Hyderabad.

2. The respondents 1 and 2 are the plaintiffs and the respondents 3 to 5 are the defendants 2 to 4.

3. The parties are hereinafter referred as arrayed before the trial court.

4. The respondents – plaintiffs filed the suit for partition and separate possession of the suit schedule “A” property in their favor and to allot “B” schedule property in favor of defendant No.1 in pursuance of the Will dated 04.06.1994 executed by their mother late Smt.Gowra Lakshmamma and to award costs.

5. The suit schedule “A” property was a house bearing Municipal No.1-3- 607 admeasuring 127 square yards situated at Kotha Bazaar, Kavadiguda, Hyderabad and the suit schedule “B” property was a house bearing Municipal No.1-3-1001 situated at Kotha Bazar, Kavadiguda, Hyderabad.

6. The plaintiffs submitted that both the said two houses belonged to their late mother Smt.Gowra Laxmi alias Gowra Lakshmamma, the mother of the plaintiffs and defendant No.1. Their mother Smt.Gowra Laxmi died on 22.03.1998 leaving behind the plaintiffs - her two daughters and the defendant No.1 – her son. They submitted that their mother executed a Will dated 04.06.1994 registered as document No.78/1994 in the Office of the Sub- Registrar, Chikkadpally, Hyderabad on 06.06.1994. She bequeathed the “B” schedule property to defendant No.1 and bequeathed the “A” schedule property to her two daughters (the plaintiffs herein) equally. As per the Will of Smt.Gowra Laxmi, the plaintiffs were entitled to claim title and for separate possession of the “A” schedule house. On the death of their mother, the defendant No.1 took hold of all the documents of title of both the houses and the link documents and started collecting rents from the tenants pertaining to “A” schedule property while he continued to occupy the “B” schedule property, which was in his possession. They further submitted that the defendant No.1 by his nature was a turbulent and violent person. He used to ill treat their mother during her lifetime. On account of his behavior, the plaintiffs did not dare to open the subject matter of the Will before the defendant No.1 immediately after the death of their mother, except orally informing him about the Will during the 10^th day ceremony and again during the 1^st year annual ceremony of their mother. They feared that the defendant No.1 would go to any extent to attack them, if they dared to pursue the topic. Their husbands also discouraged them to ask for the property on the score that they had small children and it was not desirable to strain the relationship with their brother. In that view, the plaintiffs did not persuade the defendant No.1 to partition the property, as per the Will of their mother. However, the children of the plaintiffs had grown up, marriages of some of them were also performed and their financial condition had weakened and they needed to possess the property bequeathed to them by their mother. The husband of plaintiff No.2 was not having any income and earnings. The plaintiff No.1 was having three daughters and one son. She had performed the marriages of two daughters. One of the daughters of the 1^st plaintiff was suffering with cancer. Due to which, the plaintiff No.1 had to spent heavily on her. She was financially crippled and was in debts. Under the said circumstances, they issued a legal notice dated 14.05.2005 to the defendant No.1 through their advocate for partition of “A” schedule property. But the defendant No.1 through his reply dated 28.05.2005 refuted the claim of the plaintiffs and denied the Will dated 04.06.1994, as such filed the suit.

7. The plaintiffs had shown the tenants in the “A” schedule property as defendants 2 to 4.

8. The defendant No.1 filed written statement. He admitted the relationship between him and the