CHERUKURI SATYAVATHI Vs. VELAGA KAMALA

JUDGEMENT

(1.) This petition is filed under Order 22 Rule 3, Order 1 Rule 9 and Section 151 C.P.C., requesting the court to implead the second petitioner as the legal representative of the deceased - sole appellant in the appeal.

(2.) First respondent in this application filed the suit in O.S.No.226 of 1987 for partition of plaint schedule properties into four equal shares by metes and bounds according to good and bad qualities and for separate possession of one such share to her. The suit property was the estate of the husband of the sole appellant and grandfather of respondents 1 and 2 herein. Third respondent was impleaded later in the suit alleging that he is the adopted son of the sole appellant Satyavathi. She denied having adopted the 3rd respondent. The trial court decreed the suit granting 1/4th share each to the plaintiff and the second defendant and the remaining half share to the first defendant in the suit. Aggrieved by the said preliminary decree for partition, the first defendant in the suit, namely, Satyavathi filed the present appeal. Her so called adopted son is the third respondent in the appeal. During the pendency of the appeal, the sole appellant Satyavathi died. Thereafter a memo was filed by the third respondent in the appeal stating that as the sole appellant died and as he is the adopted son of the deceased - sole appellant, the appeal abated. The appeal was not dismissed by this court as abated basing on the memo filed by the third respondent in the appeal. However, N. Sankar Prasad filed the present application to come on record as the second appellant on the ground that the sole appellant bequeathed her entire estate including the suit property to him by virtue of a registered Will on 19.10.1994. The L.R. application is opposed by the third respondent. Thereupon this court directed the trial court to make an inquiry into the averments made in C.M.P.No.8380 of 2001, record evidence and submit a finding to this court. In the inquiry before the trial court the petitioner examined P.Ws 1 to 3 and marked Exs.A.1 to A.16. Third respondent examined himself as R.W.1 and marked Exs.B.1 to B.8. The disputed Will was marked as EX.A.1. The genuineness of the Will was disputed and questioned by the third respondent. On a consideration of the evidence adduced before him, the learned trial Judge held in para 15 of his order that as per the evidence of the witnesses, the execution of Ex.A.1 Will is proved. After recording such a categorical finding, the trail Judge opined that the petitioner took a prominent role in the execution of the Will and as the entire property was bequeathed to him, it is a suspicious circumstance. The trial Judge further held that the deceased - sole appellant had two sisters and one brother and even though she was having close relations, she did not bequeath any portion of her property to any of them and she bequeathed the entire property to a stranger, namely, the 2nd petitioner. It is to be stated that the third respondent is a son of one of the sisters of sole appellant. Therefore, in the view of the learned trial Judge, active participation by the propounder of the Will, namely, the petitioner and not bequeathing any portion of the property to any of her blood relations are suspicious circumstances and they are not properly explained by the propounder of the Will. He held that Ex.A.1 Will is not a genuine Will. After this court received the above findings of the trial Judge, objections have been filed by the petitioner alone to the finding given by the trial Judge. The third respondent alone is opposing the claim of the second petitioner to come on record as the legal representative of the deceased - sole appellant.

(3.) It is already noticed that on a consideration of evidence adduced before him, at one place the trial Judge recorded the finding that due execution of Ex.A.1 Will is proved and at a later stage he held that Ex.A.1 Will is not a genuine one. The learned counsel for the third respondent relying upon a number of decisions of Apex Court as well as this court contended that the burden of proving due execution of a Will as well as removing suspicious circumstances surrounding the execution of the Will lie on the propounder of the Will and the burden is heavy on him. There cannot be any dispute regarding the said proposition of law advanced by the learned counsel for the third respondent. In the present case the finding of the trial court that due execution of the Will Ex.A.1 was proved is not challenged before this court.