C J AYODHYA RAM SINGH Vs. B VENKATAMUNI

JUDGEMENT

(1.) This Letters Patent Appeal is by the plaintiffs. Before the District Judge, Chittoor and before the learned Single Judge, they have remained unsuccessful in getting an order'of Probate or Letters of Administration with will dated 29.3.1968 annexed to enable Plaintiff No.l to realise the assets of deceased Smt. B. Akkayamma, the testator.

(2.) Facts in brief are that O.P.No.102 of 1970 was filed on the file of District Judge, Chittoor for grant of a Probate by the plaintiffs. Respondent-Defendant No.l was not impleaded as a party initially. Subsequently, by way of amendment, prayer was amended to include therein, an alternative prayer to grant Letters of Administration. Respondent No.l had by that time also lodged a caveat opposing grant of probate. The plaintiffs and Defendant No.l had led their respective evidence. After hearing arguments, on 2.7.1975, District Judge disposed of the O.P. holding that the will propounded by Plaintiff No.l was true, valid and binding, but, directed that the O.P. be converted into a regular suit, in view of provisions of Section 295 of Indian Succession Act since it had become a contested case with further direction to the plaintiffs to disclose the caveator-respondent as a defendant in the suit. This order was allenged in appeal (A.A.O. No.60 of 1975) before the High Court, which was partly allowed to the extent of setting aside the findings recorded by the District Judge as regards the validity of the will since the District Judge had already observed that it was unnecessary for him to give a firiding on the validity of the will and nonetheless, he had upheld the

(3.) O.P. No. 102 of 1970 was thus converted into suit (O.S. No.30 of 1975) on the file of District Judge, Chittoor. As the parties had already led their respective evidence in O.P. No.102 of 1970, a joint memo was filed by the parties that the evidence already adduced in O.P. No.102 of 1970 be treated as evidence in the suit (O.S. No.30 of 1970) and that the suit be decided on the basis of the said evidence. District Judge heard both sides and on 28.1.1981 dismissed the suir recording a finding that the will Ex.A.l dated 23.3.1968 propounded by Plaintiff No.l was not duly executed by late Smt. B. Akkayamma and the same was not proved. Confirming the said finding, appeal preferred by the plaintiffs in A.S. No.223 of 1982 was dismissed by the learned Single Judge by his judgment dated 19.6.1995, which is under challenge in the present L.P.A.