GONDRALA SITHAMAHALAKSHMI Vs. PULIPATI RAJARAO

JUDGEMENT

(1.) This L.P.A. was filed against the decision of our learned brother Chalameswar, J. in P. Raja Rao v. C. Sithamahalakshmi (A.S. No.1750 of 1985 and Cross-objections) wherein he has held that Ex.B-1 Will, on the evidence of its scribe, D.W.3, in the absence of examination of its attestors, holds good.

(2.) The facts are not in dispute. There was a registered partition between one Kotaiah, first respondent-first defendant (son of the said Kotaiah), the second defendant (wife of the said Kotaiah) and plaintiffs 1 and 2 (wife and daughter of one Ramlingaiah, the second son of the said Kotaiah) in Ex.A-3. Each one of them was allowed one share in the joint family property. Subsequently the said Kotaiah died intestate in the year 1970. The first respondent-first defendant and the second defendant took possession of the property that fell to the share of the said Kotaiah without giving share to the branch of his 2nd son, Ramalingaiah. In those circumstances, the appellants filed O.S. No.234 of 1979 on the file of the Additional Subordinate Judge, Guntur against the first respondent-first defendant, the second defendant, and respondents 2 to 4 (defendants 3 to 5) seeking partition of the property that fell to share of Kotaiah at the time of partition. It is seen from the record that the second defendant, the wife of the said Kotaiah died during the pendency of the proceedings. Both of them contended in the written statement that the said Kotaiah executed Ex.B-1 unregistered Will dated 4-4-1970 bequeathing the properties that fell to his share to his wife, the second defendant, for life time and the vested remainder to the first respondent-first defendant. Subsequently the second defendant died. The first respondent-first defendant filed additional written statement contending that his mother, the second defendant, bequeathed the properties under Ex.B-2 registered Will dated 16-11-1973 and those properties are not the subject-matter of the dispute. Hence we need not go into the correctness or otherwise of that Will.

(3.) The trial court disbelieved Ex.B-1 unregistered Will and ordered partition of the properties between the branches of late Kotaiah. Aggrieved by the said judgment and decree the first respondent-first defendant filed A.S. No.1750 of 1985 and the appellants herein seem to have filed cross- objections with regard to Ex.B-2 which was upheld by the court below. Since both the counsel agreed that the properties covered under Ex.B-2 are not the subject matter of the partition suit we need not go into the correctness or otherwise of the Will executed by the second defendant, the wife of the said Kotaiah.