CHUNDURU SESHAMMA Vs. CHUNDURU RAMAKOTESWARA RAO

JUDGEMENT

(1.) This appeal is by the 1st defendant in O.S. No. 44 of 19491 on the file of the Subordinate Judge, Tenali. She is the widow of one Appayya who died on 19th March, 1949 and according to the plaintiffs, intestate. The suit was brought by the respondents 1 and 2 who are his divided sons, for partition and for separate possession of their share of the properties of the deceased Appayya. The 2nd defendant who is the 3rd respondent is another son of Appayya while the defendant No. 3 who is the 4th respondent is the widow of one Gopala Krishnamurty, a predeceased son of Appayya. The 1st plaintiff separated from the joint family in the year 1927, the 2nd plaintiff in 1931, while the other members of the joint family effected a partition in the year 1940. At that partition, the properties described in the plaint schedule are stated to have fallen to the share of Appayya. According to the plaintiffs, Appayya's properties are to be divided into five shares each plaintiff getting one and the defendants 1, 2 and 3 getting one each. The 4th, 5th and 6th defendants are impleaded as lessees of some of the items of the property. The plaintiffs also claimed a share of the rentals due from them.

(2.) The 1st defendant in her written statement denied that Appayya died intestate and relied upon an unregistered will stated to have been executed by Appayya on 21st May, 1948. She claimed that under that will, he had confirmed two gifts made by him in favour of his two daughters and made a gift to a choultry and further provided that all the rest of his properties except one item were to be enjoyed by her with absolute rights. She also pleaded that the 3rd defendant, the widowed daughter-in-law was not entitled to any share in the suit properties "as the same cannot be deemed to be the separate properties of late Appayya for the purpose of succession under the Hindu Women's Rights to Property Act ". She, therefore, asserted that in the event of a division, the other sharers will each be entitled to a fourth share and not a fifth as claimed in the plaint. She also disputed the correctness of the schedules given in the plaint. The and defendant supported her in his written statement. The 5th and 6th defendants also filed their written statements disputing their liability to the plaintiffs.

(3.) The main issue in the case centred round the genuineness or otherwise of the will set up by the 1st defendant which is marked as Exhibit B-3 in the case. The trial Court found that the will was not proved to have been executed by Appayya. Though the authenticity of the signatures in the will was disputed, no attempt was made by either party in the Court below to obtain the opinion of a handwriting expert. At an earlier hearing of this appeal on 23rd February, 1956, we,, therefore, directed, at the instance of the appellant, that Exhibit B-3, should be sent to the Government Handwriting Expert for comparing the signatures therein with those in Exhibit B-4, which contained some admitted signatures of late Appayya. The opinion submitted by the Government Handwriting Expert is, against the appellant. We stated in our previous order that the parties might make their submissions as to whether .they would like to examine the Hand-writing Expert in person after the receipt of the opinion. The appellant does not desire to examine him. Nor are the respondents 1nterested in examining him, as his opinion is in their favour. We shall, therefore, proceed to discuss the oral evidence in the case in support of the will.