T. Ramesh and others Vs Laxmamma and others

1. These three appeals are outcome of the respective three suit claims of O.S.Nos.136 of 1987, 90 of 1981 and 58 of 1989, from the conflicting findings of the respective decrees and judgments of the trial Court and the lower appellate Court.

2. These Second Appeals were earlier decided allowing the appeals by the common judgment and respective decrees, dated 25.02.1999, and when the same were impugned before the Apex Court in the Special Leave to appeal Civil Nos.19215 to 19217 of 1999, the Apex Court, by common judgment dated 11.11.2002, observing that this Court has not properly formulated the questions of law in the year, 1997 while admitting the Second Appeals, which are the pre-requisite, remanded the above three Second Appeals for fresh admission by formulation of the substantial questions of law involved and to decide afresh.

3. Pursuant to the remand orders of the Apex Court supra, the Second Appeals restored are since then pending, including for and by impleadment of parties or legal representatives of deceased parties, as the case may be.

4. Before framing the substantial questions of law from the grounds raised in the appeals, the factual background needful to mention is as follows:

4.(a). One Lingamaiah (predeceased his father prior to 1946), son of Yenkaiah (died prior to 1951)-the original owner of the suit lands, was the common ancestor to the plaintiffs of the three suits. Laxmaiah (died in 1974), Balraj (died in 1960, unmarried and issueless) and Balamma, w/o. T. Pochaiah are the three issues of said Lingamaiah. Laxmaiah married one Lachamma and Laxmamma, w/o. T. Jangaiah, is their daughter. Said Jangaiah (died in 1993) and Venkaiah (died in 1981) are the two sons of said Balamma. Jangaiah, through Laxmamma though issueless (for two children born and dead), through Andalamma, got three sons by name- Laxman, Murali and Ramadas (who are on record). Ramesh, who was the main person agitating in all the 3 suits, is the son, besides six daughters of Venkaiah, through 3rd wife-Indramma, leave about through 1st wife- Yallamma(died in 1993) got one daughter-Anasurya (not added as a party to any of the three suits as stated supra) and with no children through 2nd wife-Suselamma. Ramesh (died in 1999), leaving behind him, his wife Renuka and three children - Rakesh Goud, Vishali and Vinotha (who are on record), besides his mother-Indramma, on record in the three suits/appeals representing his estate also (since died in 2012). The fight is between the only daughter of Lingamaiah''s son Laxmaiah, by name Laxmamma, w/o. T. Jangaiah (2nd son of Balamma) and eldest son - Venkaiah of Lingamaiah''s daughter - Balamma, (that continues on one hand by Lachamma, mother of Laxmamma-died issueless on 22.02.2006 and also by said Lachamma brother''s son Shanker (D.3 in O.S.No.58 of 1989), as a legatee and alienee for some of the properties and, on the other hand, by Ramesh, Indramma and Suselamma and, after their death, by the wife and children of Ramesh, besides six sisters of Ramesh, by name - Shoba, Vijaya, Mamata, Anuradha, Bharati and Raja Rani, as LRs of Venkaiah, leave about for any separate estate of Jangaiah, to represent also by his 2nd wife''s three children).

4.(b). The status of Indramma, as wife of Venkaiah, is though chosen to dispute only from the so called deposition stray sentence in O.S.No.136 of 1987 of P.W.1-Ramesh, that his mother Indramma was kept by said Venkaiah, to his knowledge, since he was at the age of 2 years, apart from the positive presumption of wife from long living together, even what Ramesh deposed, no way doubts her status, as he says, since prior to his 2nd year, his mother and father were living together as man and wife, the three marriages of Venkaiah, if performed prior to the Hindu Marriage Act, 1955, those are valid and from the age of Ramesh even, it can be presumed of performed prior to 1955, and there is no dispute of their status as legal heirs of Venkaiah, in any pleadings or by any other evidence, worth to rely. Further, even Ramesh died in 1999, his mother, by name Indramma, is on record, apart from Susheela, with substantial representation of the estate of Venkaiah in all suits and appeals even, till LRs of Ramesh were brought on record during Second Appeal stage, after death of Indramma in 2012, leave about Susheela died before 2002, and thereby none of the suits or appeals, in continuation of the three suits, with no finality from its pendency, abated, in any manner, and none can be held to be bad for non joinder or misjoinder of parties, that too when almost all the LRs of Venkaiah are on record as on to day in the matters, that too having been clubbed at First Appeal stage, of all those covered by common judgment in 1996, and also in the Second Appeals, for common disposal.

5. From the above, the facts of the three appeals arisen out of the three suits concerned are :

5(a). The first suit is O.S.No.90 of 1981, (originally filed on 18.07.1980 and numbered as O.S.No.177 of 1980 by Munsif Magistrate, E&N, Hyderabad) on the file of Principal District Munsif, Medchal, which is a suit for permanent prohibitory injunction with regard to the possession and enjoyment of the plaintiff-Laxmamma, over the suit land in Sy.Nos.143 to 147, 154, 155, 249, 282 and 372, in all admeasuring Ac.13.31 guntas of Nizampet Village, Medchal Taluq of Ranga Reddy District, described in the plaint, and with a further relief of correction in Pahani entries of the period from 1974 to 1986 in column Nos.9 and 11 by entering the name of plaintiff-(T. Laxmamma, w/o. T. Jangaiah cum d/o. Kate Laxmaiah (sic.Kota) by deleting the name of the 1st defendant-T. Venkaiah(elder brother of the 1st plaintiff''s husband-T. Jangaiah-2nd defendant, among the original 5 defendants, including Raghava Reddy, Manik Reddy and Bindla Pochaiah), besides Ramesh and Indramma added as D.6 & D.7, as LRs of D1-Venkaiah-died in 1981, in I.A.No.158 of 1982, for the suit lands and for costs and such other reliefs.

5(a)(i). The plaint averments, in nutshell, are that above suit lands originally belonged to one Yenkaiah (died 30 years prior to the suit date), whose only son-Lingamaiah, pre-deceased Yenkaiah and also left behind, his son Laxmaiah, father of Plaintiff-Laxmamma. Plaintiff did not mention about Balraj, much less of he was mentally challenged. Laxmaiah, in whose name the lands stand in revenue records, while cultivating died in 1974 and since then the plaintiff is in possession and enjoyment by personnel cultivation, through her relative (maternal uncle)-D. Sreeramulu-(father of D. Shanker) and farm servants, and paying land revenue, even though change in the Revenue records of her name not sought. Plaintiff''s husband T. Jangaiah (her father''s sister''s second son) deserted her 30 years back, and Venkaiah, elder brother of Jangaiah, with malafide intention and in collusion with Village Patwari, by taking advantage of original person Yenkaiah''s name and his name are one and same and in cause adding his father''s name in some pahanies. Defendants 1 to 5 tried to interfere with plaintiff''s possession and enjoyment, which she could resist through Sreeramulu etc., and plaintiff also came to know the manipulations in the Revenue records and thereby filed the suit.

5(a)(ii). The sum and substance of said plaint averment is that the plaint schedule property is her paternal great grand father''s property (ancestral) and her father and, after him, herself are in possession and enjoyment, exclusively, by personnel cultivation and the D2 is her deserted husband, whose brother D1 and they with the aid of D3-5 tried to interfere and D1 cause manipulated his name from same name (being his maternal great grand father) of her paternal great grand father by cause entered his father''s name therein to grab the property and thereby entitled to permanent injunction and rectification of name in the Revenue pahanies for the property. As Venkaiah died in 1981, his son Ramesh through 3rd wife Indramma were added as D6 & D7.

5(a)(iii). The averments in the original common written statement of D1 & D2-Venkaiah and Jangaiah, respectively, dated 08.08.1980, in disputing the suit claim and denying the plaint averments, other than the relationship and genealogy, with contest, in nutshell, are that, K. Lingamaiah@ Lingaiah, s/o. Yenkaiah, was having two sons, viz., Laxmaiah (father of plaintiff) & Balraj, who got each undivided half a share in the suit property, Plaintiff''s mother Lachamma is also alive, Plaintiff''s husband T. Jangaiah is the illatom son-in-law of Laxmaiah and Lachamma, Plaintiff and her husband T. Jangaiah blessed with two children, who died and later issueless, and thereby Jangaiah with plaintiff''s consent married another woman, defendants 1 & 2- Venkaiah and Jangaiah, respectively, are enjoying the suit property jointly, including after death of plaintiff''s father- Laxmaiah in 1974, and Jangaiah was maintaining the plaintiff in his care till 1980 and later, at the instance of Sreeramulu, she became hostile towards Jangaiah and filed the suit with false claim. In the Revenue records, the name of Laxmaiah and Balraj continues for the lands and as Balraj made a Will (no Will filed with the written statement, no date, month and year even given, whether it was registered or unregistered not even mentioned) in the name of D1- Venkaiah, for his half share in the suit property.

5(a)(iv). It is also contended that in the suit lands the defendants raised vegetables and plantation of paddy in June, 1980, the plaintiff, by obtaining injunction orders with unsocial elements, is trying to destroy the crops. The name of D1-Venkaiah entered in the Revenue records as per law after completion of formalities in the year 1961-62, with mutation and zamabandi. Plaintiff''s father was having only half a share in the suit lands, for the remaining half share belongs to D1- Venkaiah, as D2-Jangaiah being illatom son-in-law of Laxmaiah, continues with the joint possession and enjoyment of the suit lands along with D1. Defendants 3 to 5 have no concern with the suit lands. There is no cause of action to the suit for the plaintiff. The additional grounds are - the suit without reliefs for declaration and possession wont lie, bad for non-joinder of Lachamma and misjoinder of (D3 to D5). The suit claim, at the instance of Sreeramulu, is false and is liable to be dismissed. Leave about the D6 & D7 as LRs of D1, not entitled to take any additional and new pleas by stepping into the shoes of late Venkaiah to file additional written statement that was filed in April, 1987 and with that even the alleged Will, if in existence, not filed and no date, month and year even given, whether registered or unregistered was not even mentioned, if at all any Will of said Balraj, died in 1960, in existence from the life time of Balraj.

5(b). The second suit O.S.No.136 of 1987 was filed on 25.09.1987(seven years after filing of the first suit supra, by the D6&7 therein viz., T. Ramesh, Indramma and one Suselamma supra) and without impleadment of other heirs of Venkaiah by name- Anasurya and six sisters of Ramesh, for the reliefs of partition of said property of Acs.13.31 guntas of Nizampet village, supra into two equal shares and to allot one such share to the plaintiffs 1 to 3. The three defendants in this O.S.No.136 of 1987 are Jangaiah (D.2 in O.S.No.90 of 1981), Laxmamma and Lachamma (plaintiffs 1 & 2 in O.S.No.90 of 1981) and later the 6 sisters of Ramesh supra came on record as per orders in IA No.244 of 1994, as D.4 to D.9. The plaint averments in O.S.No.136 of 1987 are with no improvement than repetition of the written statement averments in O.S.No.90 of 1981 supra. Even with O.S.No.136 of 1987 plaint, the alleged Will, if in existence, not filed and no date, month and year even given, whether registered or unregistered was not even mentioned, if at all any Will of late Balraj, died in 1960, in existence from life time of said Balraj, that too the suit claim is based on alleged Will of Balraj, without mentioning any particulars and without filing even a copy of it, being suit document, that too with plaint when filed three documents viz., Xerox copy of Ryth Pass Book in the name of Venkaiah, Xerox copies of mutation entries of pahanies of 1961, 1979-80, for no reason in not filing the alleged Will, if at all in existence, at least a copy of it, that too even nearly seven years later to the written statement filed in earlier suit by Venkaiah by setting up Will.

5(b)(i). D.1 and D.3 i.e., Jangaiah and Lachamma (husband and mother of D2-Laxmamma), respectively, remained exparte.

5(b)(ii). D.2-Laxmamma filed a Written Statement denying that the suits property was joint property of Plaintiff and Defendants. It is contended that the suits properties were the absolute properties of Laxmaiah, who enjoyed it, exclusively, during his life time. (No doubt, she cannot aprobate and reprobate, nor wriggle out from plaint averments in O.S.No.90 of 1981 supra of ancestral property). Balraj, brother of Laxmaiah, was born in unsound state of mind and died issueless, therefore, the question of his enjoying the suit properties did not arise and he lived along with Laxmaiah till his death and thus the allegation of Balraj made a Will in favour of Venkaiah in respect of his share in the suit properties is false. It is also contended that the alleged Will was forged and fabricated and brought into existence to usurp the properties. It is contended that said Venkaiah, in collusion with the Revenue authorities concerned, had manipulated the record by incorporating the name of Balraj. The alleged mutation in the name of Venkaiah in year 1961-62 is denied. The Defendants had no notice of the alleged mutation proceedings. Name of Venkaiah appearing in the Revenue records along with Laxmamma''s name is without any sanction. This Defendant (D2-Laxmamma) filed an application for rectification of entries in the Revenue records as per the Rights and Land Regulation Act, 1958 Fasli, before the District Revenue Officer, in respect of suits properties and said application was allowed, by order dated 22.02.1988, directing for deletion of the name of Venkaiah from Pattadar column of pahanies from 1955-56 and said order was implemented. It is alleged mischievously on the basis of alleged Will that as if Venkaiah became half a share holder in the Plaint Schedule Properties along with Laxmaiah, after the death of Balraj. The allegation that Jangaiah went as illatom son-in-law of Laxmaiah and that after the death of Laxmaiah, Jangaiah(D1) became the legal heir, is denied. The allegation that the Plaintiffs and the Defendants are cultivating separate portions is denied. It is alleged that the plaintiffs and 1st defendant have no right whatsoever over the suits properties and hence the question of partition does not arise and that the properties are not liable for partition. It is also contended that there was no cause of action, since there was no occasion for the plaintiff to make any demand for partition. The question of proper court fee is also raised, following their contention that the Plaintiff was never in possession of the suit lands along with the Defendants.

5(c). The third suit in O.S.No.58 of 1989 was also filed by the self-same plaintiffs of O.S.No.136 of 1987 supra against three defendants viz; Laxmamma, Lachamma (plaintiffs 1 & 2 of O.S.No.90 of 1981) and one D. Shanker-Lachamma''s brother''s son), for the relief of permanent injunction restraining alienation of the suit property of Acs.13.31 guntas of Nizampet village supra or for converting the same into non-agricultural house plots.

5(c)(i). Similar contentions were raised by the respective parties in their pleadings in O.S.No.58 of 1989 and hence, those need not be repeated.

6. As T. Laxmamma, w/o T. Jangaiah and D/o. K. Laxmaiah & Lachamma, along with K. Lachamma (mother) as Class 1 legal heirs of K. Laxmaiah, succeeded his interest in the suit property from his death in 1974, from the death of T. Laxmamma on 22.02.2006, from her husband T. Jangaiah, besides pre-deceased her in 1993, none of other heirs of Jangaiah (including those Laxman, Murali and Ramadas, who came on record as per orders in I.A. No.874 of 1995, dated 13.06.1995, as First Appeal co-respondents 11 to 14, from their claim as also children through Andalamma- 2nd wife of late T. Jangaiah (1st defendant in O.S.No.136 of 1987 & 2nd defendant in O.S.No.90 of 1981), can claim as legal heirs of T. Laxmamma, in view of the bar under Section 15 of the Hindu Succession Act. Thus, the Lachamma, w/o. late Laxmaiah (as mother of the issueless and widow-Laxmamma) came on record in O.S.No.90 of 1981 as her sole legal heir, besides party defendant to O.S.Nos.136 of 1987 & 58 of 1989 supra). After O.S.No.90 of 1981 of Laxmamma was decreed, Ramesh etc., filed A.S.No.16 of 1990 and against said reversal decree and judgment in A.S.No.16 of 1990, she filed S.A.No.553 of 1992 and same was remanded to First Appeal Court and after said remand, A.S.No.16 of 1990(out come of O.S.No.90 of 1981 supra) came for common disposal along with A.S.Nos.73 of 1994 & 13 of 1995(out come of O.S.Nos.136 of 1987 & 58 of 1989 supra). A.S.Nos.73 of 1994 & 13 of 1995 filed by Laxmamma & Lachamma-defendants in O.S.Nos.136 of 1987 & 58 1989 supra, where the six sisters of Ramesh, by name Shoba, Vijaya, Mamata, Anuradha, Bharati and Raja Rani were impleaded as per the orders in I.A.No.244 of 1994, dated 17.06.1994, as R.4 to R.9; Laxman, Murali and Ramadas also came on record as per orders in I.A.No.874 of 1995, dated 13.06.1995, as First Appeal co-respondents 11 to 14, from their claim as children of T. Jangaiah, through his another wife late Andalamma, along with her). Whereas, D. Shanker came on record as 3rd appellant in A.S.No.13 of 1995 (against O.S.No 58 of 1989). Against all the three First Appeals common judgment and decrees dated 06.03.1996 of the learned District Judge, Rangareddy, allowing the two appeals of Laxmamma and Lachamma in A.S.Nos.73 of 1994 & 13 of 1995, by reversing the trial Court decrees in O.S.Nos.136 of 1987 & 58 of 1989 and by dismissing those two suit claims of Ramesh, Indramma and Suselamma-(the present Second Appeal appellants), and in dismissing A.S.No.16 of 1990, by confirming the permanent injunction decree of the trial Court in O.S.No.90 of 1981, also with a direction for rectification of entries, the present three Second Appeals are thus filed.

7. While S.A.No.654 of 1997 (against A.S.No.73 of 1994 in O.S.No.136 of 1987) and S.A.No.666 of 1997 (against A.S.No.13 of 1995 in O.S.No.58 of 1989) are filed by Ramesh, Indramma and Suselamma (plaintiffs against First Appeal reversal decrees and common judgment; S.A.No.655 of 1997 (against A.S.No.16 of 1990 in O.S.No.90 of 1981) is filed by Ramesh and Indramma only (defendants 6 & 7 as LRs of D1-Venkaiah) against First Appeal (based on the order in S.A.No.553 of 1992 remanding A.S.No.16 of 1990) for fresh determination reversal decree and common judgment.

8. In these three Second Appeals, pursuant to the common judgment dated 11.11.2002 of the Apex Court, setting aside the common judgment and respective decrees, dated 25.02.1999, of this Court passed earlier, on restoration to formulate points on substantial question of law involved, if any, and to decide from hearing, since pending, there were applications filed by third parties seeking to come on record and some of co-respondents to the appeals sought for recognition of them as LRs of some of the deceased parties, the details of which, save those covered supra) and further relevant to the lis to mention are:

8(i). Vide orders dated 26.02.2013 in SAMP.No.3061 of 2011 in S.A.No.655 of 1997, as respondent No.10; and SAMP.No.3062 of 2011 in S.A.No.654 of 1997, as respondent No.17, Sri Durgam Shanker, s/o. Sri Ramulu, (who is 3rd respondent to S.A.No.666 of 1997), was impleaded as a pendent-lite alienee, pursuant to the registered Sale Deed, No.8755, dated 30.06.2005 in his favour for Acs.5.20 gts of Nizampet), executed by his father''s sister''s daughter- Smt. T. Laxmamma (since died on 22.02.2006); leave about his earlier claim as a legatee as per bequeaths made by said Laxmamma in the registered Will dated 27.10.1987, Document No.8/1987, vide order dated 26.02.2013 in SAMP.No.1281 of 2008, dismissed holding the petition as unnecessary, saying that said Lachamma by then alive and the bequeaths will come into force only after her death.

8(ii). SAMP.Nos.1602, 1601 and 1603 of 2013 in S.A. Nos. 655, 654 and 666 of 1997, respectively, filed by Renuka, T. Rakesh Goud, Vishali and Vinotha, no other than wife and children of 1st appellant - T. Ramesh, appears to have died in 1999, however, representing his estate, his mother Indramma as 2nd appellant continued on record till her death as one of Class-I legal heirs and from her death on 21.10.2012, in their claim, as such, that were allowed on 29.01.2016, as appellant Nos.3 to 6 in S.A.No.655 of 1997 and appellant Nos.4 to 7 in S.A.Nos.654 and 666 of 1997, respectively.

8(iii). SAMP. No. 377 of 2010 in S.A.No.655 of 1997, SAMP. No. 85 of 2010 in S.A. No. 654 of 1997 and SAMP.No.84 of 2010 in S.A.No.666 of 1997 filed by P. Narayan Goud to come on record as co-respondent, saying that he entered into a Sale Agreement dated 25.02.1980 with late Venkaiah (died in 1982) and Anasurya, D/o. of Venkaiah & Yallamma was demanded to execute Sale Deed and he filed O.S.No.75 of 1999 in Medchal Court for specific performance and as it was dismissed, A.S.No.110 of 2008 filed by him is pending in the Sub-Court, Medchal, and as Bharati, Raha Reddy and Prakasa Rao are impleaded, claiming as purchasers from Indramma, also covering for the property alienated to him, he is to be impleaded. It was dismissed, as he died later and his daughters filed SAMP.No.1238 of 2011 in S.A.No.655 of 1997, SAMP.No.1233 of 2011 in S.A.No.654 of 1997 and SAMP.No.1234 of 2011 in S.A.No. 666 of 1997 with self-same claim through late T. Narayan Goud to come on record and same were ended in dismissal on 26.02.2013, to pursue their remedies otherwise, if any, for the Second Appeals are mainly concerned with the disputes between the appellants and the respondents and not with the third parties.

8(iv). SAMP.No.2190 of 2009 in S.A.No.655 of 1997, SAMP.No.1943 of 2009 in S.A.No.654 of 1997 and SAMP.No.2186 of 2009 in S.A.No.666 of 1997 are filed by the three petitioners viz., one Bharati in claiming as a Donee under registered Gift Deed dated 29.11.2006 from one Raghuveer Reddy, in claiming that he under the Sale Deed of even date purchased the same from Indramma, and also K. Raji Reddy & M. Prabhakar Rao, as Agreement-cum-G.P.A. Holders dated 21.10.2003 from the said Indramma; all as pendent lite alienees from Indramma, who died on 21.10..2012, to come on record and those were allowed, by order dated 26.02.2013.

8(v). Laxman, Murali and Ramadas, who are on record as appeal co-respondents 11 to 14, from their claim as children of the 1st plaintiff''s husband T. Jangaiah, through his another wife late Andalamma, along with her, in SAMP No.2734 of 2011 in S.A.No.654 of 1997 (against O.S.No.136 of 1987), sought on 16.09.2011, to record them as legal heirs of K. Lachamma (died on 22.02.2006) was ended in dismissal, vide order dated 26.02.2013, holding that they are by no stretch of imagination become her legal heirs, so to record, being her husband''s 2nd wife''s children, to succeed her father''s property.

8(vi). One Satyanarayana came on record as respondent No.18, vide orders in SAMP.No.654 of 2016 - (on withdrawal of SAMP.No.515 of 2016) in S.A.No.654 of 1997, in claiming as alienee from T. Laxmamma supra, under Sale Agreement dated 09.02.1990, and based on it obtained registered Sale Deed No.5726/2005, dated 06.05.2005, through Court as per the decree dated 08.04.2004, for specific performance passed in O.S.No.28 of 2004, for Ac.1.10 gts in Sy.No.249 of Nizampet. No Doubt, there is an interim order dated 08.11.2004 in SAMP.No.23523 of 2002 in S.A.No.654 of 1997, including against said Laxmamma, not to alienate the properties covered by Plaint Schedule of Acs.13.31 gts, which include the land in Sy.No.249 of Nizampet supra.

8(vii). In the same line, one Avula Yadamma came on record as respondent No.19, vide orders in SAMP.No.687 of 2016 in S.A.No.654 of 1997, in claiming as purchaser under a registered Sale Deed No.415, dated 18.01.2005, for Ac.0.09 gts in Sy.No.372 of Nizampet from T. Laxmamma.

9. Before dealing with the Second Appeals, in deciding the substantial questions of law supra, from the subsequent events, right from the stage of filing of the suits for the respective suit reliefs, with the further developments till date referred supra, it is just to bring on record the family genealogy.

9(i). The Genealogy/family tree submitted by Respondent No.17- Sri D. Shanker, on behalf of appeals contesting respondents also, is as follows:

"IMAGE OMITTED"

9(ii). The Genealogy/family tree submitted by the appellants to the three Second Appeals is as follows:

"IMAGE OMITTED"

10. From the above, coming to the gist of results of the three suits and first appeals:

10(i). In O.S.No.90 of 1981, interim injunction pending suit was granted, subsequently, the suit was decreed by the trial Court on 30.11.1989, appeal filed by defendants 3 to 7 in A.S.No.16 of 1990 against Jangaiah, Laxmamma and Lachamma was allowed and, in the Second Appeal, the matter was remanded, as stated earlier. In the partition suit i.e., O.S.No.136 of 1987 (along with O.S.No.58 of 1989, which is a suit for perpetual injunction), the trial Court, having found that the plaintiffs were entitled for partition of the suit lands by metes and bounds, directed division of the suit properties into two equal shares and to allot and deliver one such share to the Plaintiffs and Defendants Nos.4 to 9, vide common judgment and decrees dated 15.12.1994, including not to alienate the properties. Aggrieved by said common judgment and decrees dated 15.12.1994 in O.S.No.136 of 1987 & O.S.No.58 of 1989, as Laxmamma filed appeal suits in A.S.No.73 of 1994 and A.S. No. 13 of 1995, respectively, and A.S.No.16 of 1990 arising out of O.S.No.90 of 1981, since remanded, also was pending in the same District Court, to answer the three appeals, basing on the rival contentions, the lower appellate Court framed the following points for determination viz.,

10(ii). The lower appellate Court, having dealt with said points basing on the material and the evidence available on record and by referring various decisions of the Apex Court, and having found that the partition suit is well within time and also not bad for non-joinder of necessary parties, however, Ex.B.2-Will is not genuine and Venkaiah do not have half a share in the suit properties, vide common judgment and decrees dated 06.03.1996, allowed the appeals in A.S.Nos.73 of 1994 and 13 of 1995, by setting aside the judgments and decrees of the trial Court decreeing the suits in O.S.Nos.136 of 1987 and 58 of 1989, respectively; while dismissing the appeal in A.S.No.16 of 1990, by confirming the judgment and decree of the trial Court partly decreeing the suit in O.S.No.90 of 1981. Aggrieved by the same, the present Second Appeals in S.A.Nos.654, 655 and 666 of 1997 were preferred by the appellants - defendants 6 & 7 of O.S.No.90 of 1981 and plaintiffs in O.S.Nos.136 of 1987 and 58 of 1989. As already stated, the said Second Appeals were earlier decided by this Court, allowing the appeals; vide common judgment and respective decrees dated 25.02.1999, and when the same were impugned before the Apex Court in the Special Leave to appeal Civil Nos.19215 to 19217 of 1999, the Apex Court, by common judgment dated 11.11.2002, while observing that this Court has not properly formulated the questions of law in the year 1997, while admitting the Second Appeals, which are the pre-requisite, remanded the above three Second Appeals for fresh admission by formulation of the substantial questions of law involved and to decide afresh.

11. The grounds of these Second Appeals, in nutshell, which are the basis for framing the substantial questions of law raised, are as follows:

12. The Constitution Bench of the Apex Court in Chunilal Mehta v. Century Spinning and Manufacturing Company, AIR 1962 SC 1314, held that it is well settled that construction of a document of title or of a document, which is the foundation of the rights of parties, necessarily raises a question of law.

12(a). That apart, as held by a Bench of Three Judges in Santosh Hazari v. Purushottam Tiwari, 2001 (3) SCC 179, a particular question is a substantial question of law or not depends on facts and circumstances of each case.

12(b). Considering the above legal position and after hearing the respective Advocates of the parties on record in the three appeals - Sri V.L.N.G.K. Murthy, Sri B. Venkata Ramarao and Sri K.Ramakrishna, from the substantial questions of law raised, mainly as to the truth and genuineness of the Will, dated 13 Khurdad, 1356 Fasli, true copy of the same marked as Ex.B.2 in the suit O.S.No.90 of 1981 and Certified copy of it marked in other two suits O.S.Nos.136 of 1987 and 58 of 1989 as Ex.A.4 (a) & (b), respectively, during common trial of those later two suits, which is in relation to the property of the original person - Kate Lingamaiah @ Lingaiah, s/o. Yenkaiah, by order dated 27.10.2016, this Court re-admitted the three Second Appeals, since involving substantial questions of law, framed as follows:-

13. Heard both sides at length at several sittings finally and perused the material on record and also the decisions placed reliance and written submissions of Counsel for R.17 - D. Shanker.

14. From the above, now to answer the substantial questions of law 1 to 5 framed, as to the applicability of Section 90 of the Evidence Act, 1872, to the proof of a Will and for not specifically raised in the Courts below to apply, whether open to raise now and to consider in the second appeal and failure to apply the same by the Courts below is unsustainable, the wording of Section 63 of the Indian Succession Act, 1925 is required to be reproduced by a witness in proof of a Will or evidence contains the proof of the twin requirements is enough, the Will is shrouded with suspicious circumstances, rejecting the evidence of PW.3, who is son of Raji Reddy, is unsustainable and the conclusions arrived by the Courts below of the Will is not proved, are outcome of illappreciation of facts and law and require interference by this Court, while sitting in second appeal against the concurrent findings concerned:

14(a). For more clarity, it is necessary to mention that the Indian Evidence Act (for short Evidence Act) is divided into 3-Parts, 11-Chapters with 167 Sections viz.,

(iii). Part-3=Chapters-7-11-(101-167-of the burden of proof(which include presumptions-other than presumptions as to docts-s.79-90) (sec.101-114-chaptervii); estoppel(sec.115-117-chapter-viii); of witnesses (sec.118-135-chapter ix); of the examination of witnesses(sec.135-166-chapter x) & of improper admission and rejection of evidence (sec.167-chapter xi).

14(b). Out of which, Sections 90, 100, 68-71 (besides Section 47 & 67 with Section 69) relevant herein to refer are:

Explanation

Illustrations:

Explanation

Illustration:

14(c). Now coming to Section 63 of the Indian Succession Act, 1925, which speaks on execution and proof of Wills with title ''Execution of unprivileged Wills''- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

14(d). From the above provisions, there is a bar to apply Sections 91 to 99 of the Evidence Act as to when to adduce and when not to adduce oral evidence of the contents of Will, from what is laid down in Section 100 of the Evidence Act, leave about looking into any of the contents of Will, to rely for any collateral purpose, does not arise in the absence of proof of due execution of Will, as laid down by this Court in para 15(c) of the expression in Cheedella Padmavati v. Cheedella Radha Krishna Murthy etc., 2015(5)ALT 634 that from a reading of Section 68 of the Evidence Act and its proviso, it is not possible to hold that rigor of the section can be watered down in case of a Will, which is required by law to be attested, to prove it to use the same in evidence even for collateral purposes.

14(e). However, there is no bar laid down on application of other Sections of the Evidence Act to execution and proof of Wills, but for to say, in view of the specific provision covered by Section 63 of the Indian Succession Act, what is laid down by Section 68 of the Indian Evidence Act of where no denial of execution, no need to examine any attestor to the compulsorily registrable documents, is not applicable to Wills, for what is also saved by the proviso to Section 68 of the Evidence Act.

14(f). From the above provisions, now coming to the propositions on the scope of Section 90 of the Indian Evidence Act and its application or non application to Wills, leave about the facts and circumstances permit to exercise the discretion to apply, even if applicable, from the use of the word ''may'' and proof of existence of a document for past 30 years, to say 30 years old to the date of exhibiting the same, and produced, if from proper custody concerned:

15. Before discussing the requirements of evidence in proof of Section 63 of Indian Succession Act, 1925 Sections 68 to 71 of Evidence Act and whether there are suspicious circumstances and same were dispelled or not and due execution and attestation of the Will and the alleged bequeaths made by testator in a sound and disposing state of mind are proved or not concerned, it is needful to have a brief idea of Wills.

15(i). "Will", as defined in Section 2(h) of the Indian Succession Act- means, the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death". ''Will'' is derived from the Latin word "Voluntas" to mean expression of intention of a testator generally in a document. ''Testament'' is derived from the Latin word "Testatio-mentis" to mean testifies the determination of the mind. Thus, it is a legal declaration of a person''s intention to take effect after the death of that person. According to Shoulder''s- Law of Wills, a Will is the aggregate of man''s testamentary intention so far as the same is manifested in writing and duly executed according to the Statutes.

15(ii). Lord Wilmot, C.J. in Doe Long v. Laming (2 Burr. at pp.11-12) described the intention of the testator as the "pole star" and is also described as the "nectar-of the instrument".

15(iii). Underhill & Strahan on interpretation of Wills and Settlements - (1900 Edn.), while construing a Will, stated that "the intention to be sought is the intention which is expressed in the instrument, not the intention, which the maker of the instrument may have had in his mind. It is unquestionable that the object of all expositions of written Instruments must be to ascertain the expressed meaning or intention of the writer; the expressed meaning being equivalent to the intention......"

15(iv). In Halsbury''s Laws of England, 4th Edn., Vol.50, P.239, it is stated:

15(v). ''Will'', therefore, has the four essentialities- (i) It must be a legal declaration of testator''s intention, (ii) That declaration must be with respect to his property, (iii) The desire of the testator that the declaration should be effected after death of testator, and (iv) The other Essential quality of testamentary disposition is ambulatoriness of revocability during executants'' lifetime. Such a document is dependent upon executants'' death for its vigor and effect.

15(vi). A Will need not be stamped under the Indian stamp Act and need not be necessarily registered, being optional under Section 18 of the Indian Registration Act. It is different from Gift or Settlement or other disposition by transfer of rights in immovable property worth above Rs.100/-, which necessarily be registered under Section 17 of the Indian Registration Act, besides duly stamped, though when stamped or impounded and even unregistered can be admitted for collateral purpose under Section 49 of the Indian Registration Act. Though registration is optional and not compulsory and non-registration is by itself not a ground to doubt its due execution, registration is one of the positive circumstances to infer in favour of due execution, unless evidence on record shows otherwise. Registration of Will being optional, mere registration does not dispense with the proof of execution and attestation, but for to serve only a piece of evidence of the execution. Further, collateral purpose is unknown to Wills. That it is also of the reason that Will operates after the death of the testator and in his life time, he can alter or cancel the bequeaths by Codicil or fresh Will, any number of times, as facts and circumstances shown permitted, and thereby also the last disposition prevails over the earlier, even in same document for same property, in case of inconsistent bequeaths.

15(vii). In the interpretation of Wills in India, regard must be had mainly to the rules of law and construction contained in Part VI of the Indian Succession Act and, particularly, Section 88 of the Indian Succession Act and not the Rules of the Interpretation of Statutes-vide- Mathai Samuel v. Eapen Eapen(d)by Lrs, 2013(1 ALT(1)(SC).

15(viii). In Narendra Gopal v. Rajat Vidhyardhi, (2009) 3 SCC 287 at para- 32(cl.3), it was held that, in appreciating the documents of unilateral dispositions and testamentary dispositions like Wills, the true intention of the testator (executant) has to be gathered, not by attaching importance to the isolated expressions, but by reading the document, as a whole.

15(ix). The nomenclature given by the parties to the transaction, in question, is not decisive, but the contents and the intention of the executant, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. One need to carry on the exercise of construction or interpretation of the document only, if the document is ambiguous or its meaning is uncertain. The real and the only reliable test, for the purpose of finding out whether the document constitutes a Will or a Gift/Settlement, is to find out as to what exactly is the disposition, which the document has made, whether it has transferred any interest in praesenti in favour of the beneficiaries or it intended to transfer interest in favour of the beneficiaries only on the death of the executant.

15(x). In Paranru Radhakrishnan v. Bharathan, AIR 1990 Kerala 146, it was held that the imperative and clear straight wording of Section 68 Evidence Act makes it clear that it does not permit the use of a document, which is required by law to be attested, as evidence until it is proved strictly in accordance with the provisions of the Section.

15(xi). In Shivdev Kour v. R.S. Grewal, 2013 (3) ALT 1 SC and in Balwant Kour v. Chanan Singh, AIR 2000 SC 1908, it was held that all the clauses of the Will must be read together to find out the intention of the testator. This is obviously on the principle that the last clause represents the latest intention of the testator (See also Section 88 of the Indian Succession Act).

15(xii). In fact, a Will speaks only from the grave of the testator, as the executant of the Will cannot be called upon to admit or deny its execution, much less to explain any circumstances raising a suspicion surrounding the execution and testamentary capacity and condition with reference to sound and disposing state of mind and thus for appreciating the evidence of due execution and genuineness of bequeaths, the Court will also, and with reference to the above, put itself into the armchair of the executant/testator. The intention of the testator, in this regard, must be ascertained not only from the words used, but also from surrounding circumstances with reference to the unimpeachable evidence regarding genuineness and authenticity as well as probabilities and improbabilities and unnatural or unfair bequeaths with reference to the direct or indirect beneficiaries of the bequeaths in the Will/testament known as propounder/s influence and role as to not a free will and volition of the testator in making the bequeaths and reasons or circumstances in relation to natural heirs and their relation with the testator for ignoring and making bequeaths to other than natural heirs or preferring among the natural heirs or preferring other than natural heirs also as the legatees. Further, with reference to from death of the testator, leave in his lifetime, seen the light of the day. If, in relation to the above or otherwise, there are any suspicious circumstances or cloud shrouded around the execution and in the bequeaths, the propounder has to discharge of the burden lies on him also as held in Kalidindi supra, to prove and dispel the suspicious circumstances to clear the cloud and probablises the genuineness of execution and the bequeaths as per free will and volition of testator. No doubt mere ignoring the natural heirs or preferring among them or preferring other than natural heirs by itself not a ground to doubt the genuineness, for the reason that the testamentary dispositions by Will itself is to interfere or alter or divert the natural line and flow from the intestate succession and survivorship by reducing or depriving the share of natural heirs, if any, at the discretion and will of the testator.

15(xiii). Apart from that, it is absolutely necessary of execution of the Will under Section 63 of the Indian Succession Act to prove that the Will was attested by two attesting witnesses, at least, who saw the testator signing the Will or the testator must personally acknowledge the signature on the Will that of him in the presence of the two attesting witnesses and they themselves signed the same in the presence of the testator. Without attestation, execution of the Deed of Will is not valid. When no witness deposed of the alleged Will was signed by the deceased in his presence or that he had attested the document, execution of the very Will can be held as not proved. A reading of even Section 68 of the Evidence Act shows that attestation and execution are the two different acts, one following the other. Where the Will is registered and there are signatures of registering officer and of identifying witnesses affixed to registration endorsement, endorsement by the Sub-Registrar that the executant has acknowledged execution before him amounts to attestation and when all they deposed the same of due execution and attestation, it is a compliance of Section 63 of Indian Succession Act. It is for the Court to appreciate from the above, including intention of the testator with reference to contents, other attending facts and surrounding circumstances, like considerations in making bequeaths, instead of allowing the estate by intestacy to claim legal heirs equally, motive of the testator in the recitals even by making dispositions to the natural heirs, who, otherwise even succeed, propounder influence, if any, needless to say, propounder of the Will has to dispel with the suspicious circumstances shrouded around the Will and its execution and manner of dispositions, the position of the testator, his family relationship and preference of some among the family members or preference of some other than the family members and among the legal heirs remote to the nearest and other considerations in making bequeaths, propounder influence-(irrespective of not direct beneficiary). There are no set parameters to judge all these aspects, but for within these broad guidelines, to appreciate the evidence on record of the case on hand within the ordinary and reasonable prudence, to arrive at a just conclusion, for each case depends on its own facts - vide decisions in Raghunath Prasad Singh v. Deputy Commissioner, AIR 1929 PC 283, Mokshada Ranjan v. Surendra Bijos, AIR 1939 Calcutta 40, Dasarath Gayan v. Satyanarayana Ghosh, AIR 1963 Calcutta-325, Lalta Baksh v. Phool Chand, AIR 1945 PC 113, Kapuari Kuer v. Shamnarain Prasad, AIR 1962 Patna-149, Savitri Ammal v. State, AIR 1960 Madras 217, Dr. M. Ratna v. K. Navaneetam, AIR 1994 AP 96, Ram Gopal v. Nandlal, AIR 1951 SC 139, Gnanambal Ammal v. T.Raju Iyyer, AIR 1951 SC 103, Raj Bhajrang Bahadur Singh v. Thakurian Bhaktaraj Kuer, AIR 1953 SC 7, Girja Dutt v. Gangotri Dutt, AIR 1955 SC 346, H. Venkatachala Iyangar v. B.N.Timma Rajamma, AIR 1959 SC 443, Kameswara Rao v. B.Surya Prakasa Rao, AIR 1962 AP 178, Rani Purnima Devi v. Kumar Khagrendra Narayan Deb, AIR 1962 SC 567, Peareylal v. Rameswar Das, AIR 1963 SC 1703, the Constitutional Bench expression in Shashi Kumar Benarji v. Shubodh Kumar Benarji, AIR 1964 SC 529, T.V. Kaur, AIR 1964 SC 1323, Surendra Pal v. Dr.(Smt) Saraswathi Arora, AIR 1974 SC 1999, Beni Chand v. Kamala Kunwar, AIR 1977 SC 63, Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74, Brijmohanlal Arora v. Giridharlal Manocha, AIR 1978 SC 1202, Smt. Indu Balabore v. Manindra Chandra Bose, AIR 1982 SC 133, Kalyan Singh v. Choti, AIR 1990 SC 396, Ram Pyar v. Bhagwanh, AIR 1990 SC 1742, Veerattalingam v. Ramesh, AIR 1990 SC 2201, Kasibhai v. Parwatibai, 1995 (6) SCC 213, Rabindranath Mukherjee v. Panchanan Benarji, AIR 1995 SC 1684, PPK Gopalan Nambiar, AIR 1995 SC 1852, Daulat Ram v. Sodha, AIR 2005 SC 233, S.Sundaresara Pai v. Sumangala T.Pai, AIR 2002 SC 317, Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 : 2003 (1)Supreme, 297 , Umadevi Nambiar v. T C Sridhan, 2004(2)SCC 321, Daulat Ram v. Sodha, AIR 2005 SC 233, Sridevi v. Jayaraja Shetty, AIR 2005 SC 780, Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362, Gurdev Kaur v. Kaki, AIR 2006 SC 1975, Gopal Swaroop v. Krishna Murthy, AIR 2010(14)SCC 266, Mathai Samuel (supra).

15(xiv). The propositions laid down in Venkatachala Iyengar (supra) have been followed and explained in other judgments, including of a Bench of three Judges in Smt. Jaswant Kaur (supra), wherein it is observed that:

15(xv). The Apex Court three Judges Bench in Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346, answered the requirements of evidence in proof of Section 63 of Indian Succession Act to the effect that:

15(xvi). In M.B. Ramesh (D) by LRs. supra, by quoting with approval the expression in Bharpur Singh supra, it was held that the requirement of Section 63(c) of the Indian Succession Act, 1925 was once not fulfilled, viz., that two or more witnesses have to see the testator sign or affix his mark to the Will, and each of the witnesses have also to sign the Will in the presence of the testator, there is no proof of Will, even it is a 30 years old document.

15(xvii). In B. Venkatamuni v. C.J. Ayodhya Ram Singh,(2006) 13 SCC 449 it was held that proof of execution of the Will in terms of Section 63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act would be a pre-requisite, but, to take the same in evidence, it is also trite that while arriving at a finding as to whether the Will has duly been executed or not, the Court must satisfy its conscience having regard to the totality of the circumstances.

15(xviii). In Gopal Swaroop v. Krishna Murari Mangal, (2010) 12 SCALE 470, it was held that:

15(xix). Now in deciding the above, coming to what is meant by attestation and what is the mode of proof, Section 3 of the Transfer of Property Act, defines attestation in relation to an instrument (to mean non-testamentary, though same analogy applies to testamentary with reference to Section 63 of the Indian Succession Act), means and shall be deemed always to have meant, attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executants a person acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. As per the Apex Court''s expression in Abdul Jabbar v. Venkata Shastry, AIR 1969 SC 1147- to attest is to bear witness to a fact. The essential conditions of a valid attestation are that two or more witnesses have seen the executant sign or affix his mark to the instrument, or have seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executants a person acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executants to bear the witness to this fact, it is essential that the attesting witness has put his signature animus attestandi that is for the purpose of attesting the signature of the executant.

15(xx). Execution of Will includes attestation and its proof. Apart from the other expressions supra, the Constitutional Bench expression in Shashi Kumar Benarji (supra) held at page-531, para-3, that the mode of proving a Will does not ordinarily differ from that of proving any other document, except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act,1925, which says the testator shall sign or affix his or her mark to the Will or it shall be signed by some other person in the presence and by his direction and the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his or her mark to the Will, or has seen some other person signed the Will in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator, and Section 68 of the Indian Evidence Act mandates in the case of denial or not of execution, examination of one attesting witness atleast in proof of the Will, whether registered or not. In the absence of suspicious circumstances, it is suffice to prove testamentary capacity and due execution with attestation, and where there are suspicious circumstances, the onus is heavy on the propounder to dispel the same for the Court acceptance as genuine and last Will and testament. Attestation of a Will means, testifying the signature of the executant. It is equally important that for a Will to be valid and enforceable shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or the testator should personally acknowledge his signature or affixture of his mark to the Will in the presence of the attestors and without that acknowledgement, it cannot be inferred and further each of the witnesses has signed said Will in presence of testator and said provision is not a mere formality, but mandatory. Proof of attestation of the Will is also thus mandatory Dr. M. Ratna v. Kottaboina Navaneetham, AIR 1994 AP 96, Yumnam O.T.I.Devi (supra) & A.Poline D''Souza v. John D''Souza, 2007(7)SCC 225. However, Court cannot disregard evidence of attending circumstances on record, if those must satisfy itself as to compliance on the totality, like giving evidence by one attesting witness and there is no dispute about the presence of other attesting witness at the time of execution of the Will from the other contesting party from the other attester''s name finds place in the Will even the witness examined did not speak by mere non-recollection of said fact from lapse of time to the date of evidence from the date of document and its execution, vide decision M.B. Ramesh v. K.M. Veerajeurs, 2013(7) SCC 490. It is also no doubt held that such circumstances are, in fact, rare and as such, the attesting witness examined otherwise must also speak the presence and attestation of other witness also as part of proof. Thus, in view of Section 63(1)(c) of the Indian Succession Act r/w Sections 68 and 71 of the Indian Evidence Act, it is sufficient even one attestor is examined, but that attestor should speak, not only about the testator''s signature or affixing his mark to the Will or somebody else signing it in his presence and by his direction or that he had attested the Will after taking acknowledgement from the testator of the signature or mark, but he must also should speak that each of the witnesses had signed the Will in the presence of the testator. It is irrespective of non-denial of its execution, one attesting witness, at least as a concession out of minimum two persons to attest, as required, must be called upon to prove the deed, if there be even one alive and subject to the process of the Court. But what is significant is that said attesting witness examined must be able to speak to the attestation by the other attestor also. The Apex Court in Kashibai and another v. Parwatibai, 1995 (6) SCC 213. held at paras 10 and 11 that, Section 68 of the Indian Evidence Act shows that the attestation and execution are two different acts, one following the other. There can be no valid execution of a document, which is required by law to be attested, without the proof of its due attestation and if due attestation is also not proved; the fact of execution of the Will is of no avail - See also several expressions referred and discussed in the previous paras supra and, in particular, of the expression in Janki Narayan Bhoir supra - with reference to Section 3 of the Transfer of Property Act, 1882 Sections 68 to 71 of the Indian Evidence Act and Section 63 of the Succession Act, and with regard to the execution of unprivileged Wills, the word ''attested'' has been defined as in Section 3 of the Transfer of Property Act.

15(xxi). Thus, the sum and substance of the expressions is clear that reproduction of wording of Section 63 is not necessary, but the evidence must speak the requirements of compliance of the section, as mandatory in proof of a Will and what is significant is that said attesting witness examined must be able to speak as to the due attestation by the other attestor also.

15(xxii). In this regard, coming to said proof, where and when application of Sections 69 to 71 of the Evidence Act, arise, it is clear from a reading of Sections 68 to 71 of the Evidence Act and Section 63 of the Indian Succession Act, that Section 71 of the Evidence Act has no application, if one of the two or more attesting witnesses examined failed to prove execution of the Will and the other attesting witness/s, even available, was not summoned and examined. It is also very clear from the language of Section 71 of the Evidence Act, that if an attesting witness examined denies or does not recollect execution of the document, its execution may be proved by other evidence (under Sections 47 and 67 and/or Sections 45, r/w. Section 51 and/or Section 73 of the Evidence Act). It arises to invoke Section 71 of the Evidence Act, where there is no other attesting witness alive and, even alive and summoned, failed to attend or untraced at the address and unknown to secure. Thus, invocation of Section 71 cannot be resorted to when one of the attesting witnesses fails to prove the Will and the other attesting witness, if alive and available, without his examination to prove the Will. Section 71 of the Evidence Act is only a permissive provision and enabling section to permit a party to lead other evidence only in certain circumstances, which are the above, as it is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and such impossibility cannot be let down without any other means of proving due execution by other evidence as well. Section 68 of the Evidence Act is not merely an enabling section as it lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Thus, Section 71 of the Evidence Act cannot be read so as to absolve a party of his obligation under Section 68 of the Evidence Act, read with Section 63 of the Indian Succession Act - to liberally allow him, at his choice, to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the Court concerned and confer a premium upon his omission or lapse, to enable him to give a go-bye to the mandate of law relating to the proof of execution of a Will. Where the attesting witness called upon to prove execution is not in a position to prove the attestation of the Will by second witness, the evidence of the witness falls short of the mandatory requirements of Section 68 of the Evidence Act, read with Section 63 of the Indian Succession Act. See - Janaki Narayan Bhogir(supra), Karri Nukaraju v. Putra Venkatrao, AIR 1974 AP 13 Dr. M. Ratna and Babu Singh v. Ram Shahi@ram singh, 2008(14) SCC 754. In Janki Narayan Bhoir(supra), the Apex Court held at the end of the para 6 of the judgment that "it is true that although a Will is required to be attested by two witnesses, it could be proved by examining one of the attesting witnesses as per Section 68 of the Indian Evidence Act." It is also noted in paragraph 9 of the judgment that "one of the requirements of due execution of a Will is its attestation by two or more witnesses, which is mandatory." In paragraphs 11 and 12 of the judgment, the Court noted the relevance of Section 71 of the Evidence Act by stating that "aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence." "Section 71 has no application when one attesting witness, who alone has been summoned, has failed to prove the execution of the Will and the other attesting witness, though available, has not been examined." In the facts of the case, therefrom, the Court held that attestation of the Will, as required by Section 63 of the Succession Act, was not established, which was equally necessary. Even way back this Court in Doctor M. Ratna v. Kottiboyina Navaneetam, 1993 (2)ALT 459 : AIR 1994 AP 96 held by referring to the Apex Court''s expression in Girija Datt v. Gangotri Datt, AIR 1955 SC 346 and Venkatachalaiah supra and commentary of Manta Ramamurthy on law of wills and the other expression of the Apex Court in Beni Chand supra held that attestation satisfies requirements for no implied acknowledgment as sufficient in proof of execution of a will.

15(xxiii). Further, Section 69 of the Evidence Act, applies in the absence of attesting witness and only when party moves the Court for summons under Order 16, Rule 10 CPC and the witness fails to obey the summons to prove the Will in the manner prescribed by Section 68 of the Evidence Act - vide Babu Singh (supra). If the attesting witnesses are dead, their signature can be proved by other evidence of person acquainted with or opinion from comparison with signature/handwriting/thumb impression, as the case may be (under Sections 47 and 67 and/or Section 45 r/w. Section 51 and/or Section 73 of the Indian Evidence Act).

15(xxiv). No doubt, it was held by a Division Bench of this Court in Alluri JS Lakshmi v. Kopparthi R Rao, 1994(1)ALT 217(DB) that execution of Will need not be proved, when it is admitted by other side and when contest is only on legal aspects as to the validity of bequeathing certain properties covered by the Will. For that conclusion, it mainly relied upon Section 58 of the Evidence Act.

15(xxv). In fact, the Apex Court in Kahibai v. Parwatibai, 1995(6)SCC 213 held that without attestation, execution of the Will is not valid. Thus, without attestation when execution is not complete and without proof of execution by attestation, the disputed contents of it cannot be looked into, as also laid down by the Apex Court in catena of expressions referred supra, there could be no question of taking a Will proved even from its admission, leave about in the case on hand, there is no any admission of execution and attestation and also its contents, since all are denied and disputed including signatures are not that of deceased Balraj and the alleged will is brought into existence for purposes of the cases. When genuineness of a Will is questioned, it is the duty to prove that the Will is the product of free mind of the testator and it is also the duty of the propounder to dispel the surrounding suspicious circumstances, if any- vide decisions in Savithri v. Karthyayani Amma, (2007) 11 SCC 621 ; Gopala Krishna Pillai v. Meenakshi Ayel, AIR 1967 SC 155, Venkatachala Iyangar and other decisions referred in the previous paras (supra).

15(xxvi). Coming to the suspicious circumstances and burden of proof, in addition to the expressions supra on the scope of law, it is also relevant to consider the expression of the Apex Court in Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600], wherein the law on proof of Will by dispelling suspicious circumstances and the propounder to clear any cloud was stated in the following terms:

16. From the above, coming back to some more relevant facts with regard to evidence, among the 3 suits, the suit in O.S.No.90 of 1981 (O.S.No.177 of 1980) was filed on 18.07.1980 and written statement filed by D1 & D2-Venkaiah and Jangaiah, respectively, was dated 08.08.1980 and the trial in O.S.No.90 of 1981 was commenced on 15.12.1987. The suit O.S.No.136 of 1987 was filed on 25.09.1987 and the suit O.S.No.58 of 1989 was filed on 25.05.1989. As referred supra, there is no date or month or year of the Will allegedly executed by Sri Balraj, in said written statement dated 08.08.1980 and it is not even mentioned, whether registered or unregistered and as to what are the bequeaths in substance made, if any. Nothing even stated, including in O.S.No.136 of 1987 filed on 25.09.1987. The Will not seen the light of the day in any of the 3 suits but for the first time only from its filing in the Court on 16.12.1988 in O.S.No.90 of 1981 during trial after the evidence of P.Ws.1 to 3 completed by 22.11.1988 and without even confronting any of them with said Will, and without even at least putting any substance of the contents to any of the witnesses as to of what are the bequeaths and preference, if in existence, but for filed on 16.12.1988, which was before commencement of evidence of DW.1 on 23.12.1988, which speaks volumes against the very existence of the Will till then, despite contest including in O.S.No.136 of 1987. Even the alleged Will is in Urdu and the so called Balraj allegedly signed it in Telugu and not even in Urdu, leave about he is admittedly an illiterate. The translated copy filed through Advocate Commissioner appointed as per order passed in November, 1995 in IA.No.2740 of 1995 in A.S.No.73 of 1995 shows dated 15 Khurdad 1356 Fasli (1946 AD). In original Urdu language, it is not clear who were the attestors and who was the scribe.

17. Before discussing further, coming to the common trial of the partition suit and injunction suit filed by Ramesh etc., against Laxmamma etc., P.Ws.1 to 5 were examined during March, 1991 to September, 1992 and Exs.A.1 to A.32 were marked on their behalf. D.Ws.1 to 3 were examined during February, 1993 to January, 1995 and Exs.B.1 to B.53 were marked on behalf of defendants. Ex.X.1 to X.7 were also marked through witnesses.

18. In the first suit in O.S.No.90 of 1981, the Plaintiff- Laxmamma and 2 more witnesses, namely N.Veeraiah and N.Narasimhulu were examined as P.Ws.1 to 3 during December, 1987 to November, 1988 and marked Exs.A.1 to A.17 viz., Pahanies of the years 1966-68, 1971-72, 1979-80, 1984-87, Tax receipts, copy of the proceedings of District Revenue Officer, dated 22.02.1988, respectively. On behalf of defendants, Ramesh etc., D.6 Ramesh was examined as DW.1, one Bal Reddy as DW.2, one M. Balraj, s/o. M.Pochaiah as DW.3 (during December, 1988 to August, 1989) and Exs.B.1 to B.20 were marked viz., Vasool Baki, original Will dated 15.07.1956 Fasli, Pahanies of 1962-63, 1971-72, 1975-78, 1980-83, 1986-87, Adangal of 1986-87, Chow Fasla of 1978-79, Faisal Patti, 2 LR receipts, Ryth Pass Book and Sethwar, respectively. Exs.A.18 to A.20 viz., order of the Revenue Divisional Officer, dated 14.9.1990, and a Xerox copy of the General Power of Attorney executed by the 1st respondent in favour of K. Sri Ramulu, Pahani for the year 1961-62, respectively, and Exs.B.21 and B.22 viz., Certified copy of the proceedings of the District Social Welfare Officer, Land Acquisition, Hyderabad, dated 13.12.1976, and a Carbon copy of the order in W.P.No.2212 of 1991, respectively, that were marked at the stage of appeal in A.S.No.16 of 1990, prior to the remand.

19. Among said evidence, Ex.A.20 in O.S.No.80 of 1981 is the Pahani for the year 1961-62, an oldest Revenue record filed before the Court, shows only the name of Laxmaiah and not the name of Balraj, along with him. There is a correction incorporating the name of Sri T. Venkaiah (D.1) and the same was deleted by rectified proceedings No.B3/9444/86, dated 22.02.1988, of the Revenue Divisional Officer under Exs.A.17 and A.18 and it also refers to the Faisal Patti for the lands in the year 1960-61 and Khasra Pahani for the year 1954-55 standing in the name of only Laxmaiah and also some of the Pahanies, out of the years 1965-66 to 1983-84 that were, in fact, marked by the R.D.O. in his proceedings as Exs.A.2 to A.9 along with M.R.O. proceedings with reference to Revenue records, by Memo dated 23.07.1987, as Ex.A.1 and no record was filed by Sri Ramesh and Indramma, respondents to the said proceedings before the R.D.O. supra, in relation to the suit lands, much less by showing mutation of name of Balraj or Venkaiah as a legatee of Balraj by referring to any Will. Ex.B.1, so called Certified copy of Vasool Baki of 1956 A.D. which refers Laxmaiah and Balraj, thereby cannot be given credence, that too after said proceedings of R.D.O., leave about the same even taken true for nothing to entitle by Venkaiah and his heirs and the R.D.O. proceedings also made final and same not even attacked by amendment of pleadings in the partition suit or injunction suits Ramesh etc.,supra. The Survey Numbers and extents not even given in the so called Will, in detail, for survey number-wise, but for Sy.Nos.130, 136, 181, 123 and 173, total admeasuring Acs.14.08 guntas mentioned in the translated copy, without mentioning the extent of each survey number, and the same is not even tallying with the referred survey numbers under Exs.P.17 and P.18 proceedings of R.D.O., that correlates to suit properties.

20. Leave it as it is, even from a perusal of Exs.B.21 and B.22 viz., Certified copy of the proceedings of the District Social Welfare Officer, Land Acquisition, Hyderabad, dated 13.12.1976, and Carbon copy of the order in W.P.No.2212 of 1991, respectively, that were also marked at the stage of appeal in A.S.No.16 of 1990, what it disclose is that part of the land belonging to the family i.e., Acs.3.38 guntas in Sy.No.257 of Nizampet, was acquired by the Government in the year 1976, whereunder Venkaiah (D.1) and Laxmamma (1st plaintiff) were awarded half of the compensation each for the acquired land, it cannot be said that the compensation paid was pursuant to the existence of and based on said Ex.B.2 - Will, more particularly from the facts referred supra and borne by record, including in the findings of the Courts below that the so called Will, if really in existence, since 1356 Fasli, in favour of Venkaiah, from Balraj died in 1960, said Will was not filed by Venkaiah and Jangaiah along with their common written statement dated 08.08.1980 in O.S.No.90 of 1981 (originally numbered as O.S.No.177 of 1980) nor even after the death of Venkaiah in 1981, Ramesh with his mother Indramma came on record in 1982 with additional written statement, nor even in O.S.No.136 of 1987 filed by Ramesh and Indramma with Suseelamma for partition, though the Will was made basis for the claim of partition. In fact, the said Will was filed in O.S.No.90 of 1981 supra only in December, 1988, which is after the cross-examination of PWs.1 to 3 and while letting in evidence of the defendants by Ramesh-D.6 as DW.1, as stated supra. In fact, in any of the pleadings by Venkaiah, Jangaiah, Indramma and Ramesh supra, they did mention even, at least the date or month or year of the Will and, whether registered or not, or atleast, the contents of the Will, in brief, of what are the exact dispositions, same not even suggested in the cross-examination of P.W.1 -Laxmamma by Ramesh on 09.08.1988. What he suggested to her was, Balraj executed a Will in favour of D.1 in 1956 and not even confronted with or even suggested any date or month, but for, if at all, of the year 1956. However, a perusal of Ex.B.2 - Will, no way shows that it was executed in the year 1956. It is the case of Laxmamma and her mother Lachamma that, Balraj was a mentally challenged and had no sound and disposing state of mind and was staying with his elder brother Laxmaiah''s family only and never stayed with his sister Balamma or her sons Venkaiah and Jangaiah.

21. Even to say, Jangaiah was illatom son of Laxmaiah, being husband of 1st plaintiff - Laxmamma, with any composite family (vide decision Garimella Annapurnaiah v. Kota Appalanarasimha Murthy, 1994 (3) ALT 491 : (1995)(1) APLJ there is no scrap of paper and no any revenue mutation, including of any of his cultivation of any of the suit properties, even to give any credence to such a propounded contention of therefrom, only to equally benefit Venkaiah, Balraj bequeathed to him his so called undivided share; No doubt, a mutation in Revenue record does not confer any title and even it is the case of the plaintiff - Laxmamma of Balraj was mentally challenged and, if so, when Laxmaiah was managing, the mutation in his name does not take away any entitlement by Balraj of undivided interest therein to succeed after him by his legal representatives under Section 8 of the Hindu Succession Act, 1956 as Balraj admittedly died in 1960 left behind his brother, sister and family members. That is not the case, but for, if at all, to consider on merits, in the event of the so called Will propounded by Sri Venkaiah not proved. In this regard further, the evidence of DW.1- Ramesh shows that Balraj was an illiterate. But Ex.B.2 Will with Urdu contents contains the signatures in Telugu said to be that of Balraj, which also doubts the genuineness of the signature, which is even in dispute, not proved by any other evidence. Exs.B.13 and B.14 do not disclose that mutation was affected in the name of the 1st defendant on the basis of Ex.B.2 - Will. As per the Apex Court in Kalyan Singh supra referring to Section 61 of the Indian Succession Act, failure to remove suspicious circumstances by a person relying upon Will, Will could be said to be not genuine for the reason the executant of the Will cannot be called to deny or admit or explain circumstances of execution and as such the trustworthy and unimpeachable evidence must be produced in the Court to establish genuineness of the Will. In view of all these circumstances, apart from all those discussed by the trial Court in the suit, it cannot be said that Ex.B.2 - Will is a genuine document. Once the document not seen the light of the day, even prior to December, 1988, as referred supra and particulars of date, month and year not even given in any pleadings from 1980 and even from 1987, the very existence not proved from the above, much less of proper custody, there is nothing even to draw the discretionary presumption under Section 90 of the Indian Evidence Act, leave about said Section has no application to Wills, in view of specific proof required of Section 63 of Indian Succession Act, from the settled expressions of the Apex Court referred supra of Bharpur Singh and M.B.Ramesh relying upon H.Venkatachala Iyyangar supra. The suspicious circumstances shrouded around the alleged Will are thus not dispelled and the Will is not even proved, as required by law, as concluded by the Courts below. What all deposed by Ramesh as DW.1 on 16.06.1989, for the first time, in his evidence in O.S.No.90 of 1981 is, the scribe - Jagir Asim Hussain of Ex.B.2 is no more, though he cannot say when he died and the particulars of his heirs. He does not know the residences of other persons, other than Linga Goud of Bachupally, among the witnesses not alive and denied the suggestion of Balraj was in unsound state of mind with no capacity to execute the Will and it is a created one for the purpose of defence in the suit and other suit claims. DW.2 - Bal Reddy in his cross-examination deposed that till the death of Balraj, he was resided only with Laxmaiah at his house. DW.3 - M. Balraj, s/o. Pochaiah (D.5) speaks nothing of the Will. Suffice to say, there is nothing to totally non-suit O.S.No.90 of 1981 claim, but for to say a suit for bare injunction was maintainable without relief of declaration vide Saraswathi v. Jaganmohanrao, 1985(1) APLJ-277, the plaintiffs are not the absolute owners for entire plaint schedule property, since Balraj''s share is therein and plaintiffs are in possession for that also, to confine the relief of not to interfere or dispossess the plaintiffs except through due process of law, which is subject to result of partition suit in O.S.No.136 of 1987 supra.

22. Coming back on the proof of alleged Will, in the suits for partition and injunction not to alienate maintained by Ramesh etc., where Certified copy of said Ex.B.2 - Will in O.S.No.90 of 1981 obtained is marked as Ex.A.4 and not even exhibiting the original by consent for or by seeking substitution of original certified copy of returned original of case marked in the other suit supra. It is his saying the Will refers to old survey numbers and said Will was executed in the presence of Jagirdar Asim Hussain. One Vittalaiah of Bachupally (P.W.2) and Raja Reddy(father of P.W.3) and Lingamaiah were present at the time of execution of the Will and Lingamaiah did not sign and the other two died subsequently. The age of Ramesh, as per his deposition in 1991, was stated to be about 33 years and practically he was not even born by then, but deposing, as if present, as to who were present and who signed among them. Suffice not to give credence to his version on the Will, but for, if at all, scribe and attestors, to say not alive. He admitted that Balraj died in Nizampet at the house of Laxmaiah and Laxmaiah performed his obsequies. What PW.2 - Vittalaiah, Patwari during 1950-69 of Nizampet, according to him, deposed is, Balraj did not go for marriage due to his ill-health. However, he did not describe said ill-health, which disables him to undergo marriage. That, in fact, substantiates the contention of Laxmamma of Balraj was mentally challenged and only staying under the care of them in their house till his death. It very clearly proves of Balraj was not having sound and disposing state of mind, though PW.2 - Vittalaiah pretends that Balraj executed Will bequeathing his share to Venkaiah, father of PW.1 - Ramesh. The so called Will said to have been executed at the house of Jagir. There were no circumstances to go to the Jagir''s house, much less without even knowledge or taking also of Laxmaiah, as Balraj was staying in the house of Laxmaiah under his care and due to his ill-health and had Laxmaiah been present, he could be a signatory to the Will, but it is not so. Even P.W.2 deposed that said Jagir Asim Hussain used to reside in Mangalhat and he has no even lands in Nizampet and the villagers do not go to the Jagir for drafting any transactions of the lands. He deposed that the Jagir''s Munshi is Shabuddin. When the transaction is drafted, the signature of person drafted be there and Shabuddin''s signature is there as scribe. This evidence also varies to evidence of Ramesh supra as if Jagir''s scribe since P.W.2 says Shabuddin scribed at house of the Jagir and Jagir is not even attestor much less Laxmaiah if at all present and if at all true, being natural witnesses if executed there, rather chance witnesses P.W.2 Vittalaiah, Raji Reddy and any other persons. P.W.2 supra says the document was first signed by Balraj and then by others and later Jagirdar and to be sealed on the same. There is no any seal reflecting even on Ex.A.4. Even from this evidence of P.W.2 in O.S.No.136 of 1987, it no way establishes the requirements of due attestation of the executant signing seen by at least two attestors and their attesting/ signing seen by the executant which is suffice to say there is no proof of the Will and there are several suspicious circumstances around it. PW.2''s native place is in fact, Mangampet of Medak District and not even of Nizampet or nearby place to it, for believing his presence and for nothing deposed even of who called him and with what information to attest the Will, on that day and at that time and at that place of Jagir. Coming to the other attestor - Raji Reddy, stated to be Mali Patel, P.W.2 supra deposed to the effect that said Raji Reddy was involved in many Court cases. He also deposed that he was suspended for dereliction of duties and for manipulation of records and said Raji Reddy was not murdered, as suggested much less for manipulating the records. P.W.3 - Seetharam Reddy, s/o. Raji Reddy, claimed to be a Patwari of Nizampet during 1969-83, deposed that Ex.A.4 bears the signature of his father. In fact, Ex.A.4 is not the original Will, but only a certified copy. He was not even examined in O.S.No.90 of 1981, where original Will was filed, much less by referring to it. He denied the suggestion of his father was murdered due to land disputes and manipulations and instigating land disputes. He denied the suggestion of the signature on Ex.A.4 (B) is not that of his father and he is deposing falsehood and Ex.A.4 is a created one. It is also suggested that he never worked as Patwari of Nizampet. Even PW.2 did not depose of due execution and attestation of the Will, as per the legal requirements as referred supra and once such is the case, even PW.3''s evidence of his identifying his father''s so called signature, is of no significance, leave about the difficulty to compare and identify in a Photostat copy matter on seeing original; also to disbelieve apart from no proof of Section 63 of the Indian Succession Act compliance from the legal position discussed supra.

23. From the above, with reference to the legal position, as also found by the Courts below, none of the witnesses, including the so called attestor to the Will, had deposed that to their seeing the deceased-testator had signed the Will before them and they also saw the deceased when signing, for due attestation and in the absence of such evidence, it is difficult to accept that the execution of the Will is proved in accordance with law, but for to hold that the Will has not been proved, apart from the very execution of Will is riddled with suspicious circumstances supra and also its existence not shown till the same was filed in December, 1988 in the Court and there is nothing even to show it was acted upon from death of Balraj, in 1960. Thus, there is no proof of the Will to rely and the conclusions arrived by the Courts below against the Will are no way perverse and the evidence of P.Ws.2 and 3 in O.S.No.136 of 1987 was rightly not relied by the Courts below for incredibility as discussed supra and for the so called deposition of PW.2- Vittalaiah in O.S.No.136 of 1987 no way complies with the legal requirements of proof of attestation and execution of the Will as per Section 63 of Indian Succession Act.

24. Coming to other aspects, even what PW.1 - Ramesh deposed in O.S.Nos.136 of 1987 and 58 of 1989 is of the self-same suit lands jointly belong to plaintiffs and defendants in equal halves. Thus, there is no question of anybody claiming adverse possession with animus possessandi in any of the 3 suits. It clearly reveals that the property originally belonged to Lingamaiah''s father Yenkaiah and Lingamaiah pre-deceased him prior to 1946 and as per the pleadings in O.S.No.90 of 1981, Yenkaiah also died 30 years ago, to say in or around 1950. By then, even the Hindu Women''s Right to Property Act, 1937 by extending to agricultural lands, as per the Madras Amendment under the composite State of Madras in 1945, was not applicable to the Telangana area, until the separate State of Andhra from Madras formed, later combined with the Telangana area, which was under erstwhile Nizam''s Rule and later separately and it is after those united and only from adaptation of the Laws, at best, that Act application can be presumed for Balamma, daughter of Lingamaiah, to claim any rights, otherwise but for only by Laxmaiah and Balraj. However, from death of Balraj as unmarried and issueless in 1960, for alleged Will not proved even, from the Hindu Succession Act, 1956 came into force, his brother Laxmaiah and sister Balamma succeed his undivided half share as when Balamma died is not stated anywhere and nothing to say she died prior to Balraj and as such to draw any presumption of she died prior to Balraj. Once such is the case as per the Hindu Succession Act, 1956 Section 8 r/w Schedule Class-II, items 3 and 4 viz; brother and sister to succeed. In that way, even any mutation in the Revenue records in the name of Venkaiah (D.1) of O.S.No.90 of 1981 or his brother Jangaiah, as sons of Balamma, no way confer any right on them other than for ¼th out of plaint schedule properties.

25. Thus, so far as partition suit O.S.No.136 of 1987 and equally the other suit O.S.No.58 of 1989 for injunction not to alienate and not to convert into non-agricultural of the suit lands are concerned, as discussed supra, out of the ancestral property jointly belonged to Laxmaiah and Balraj, sons of Lingamaiah, s/o. Yenkaiah, in each equal half share, from the death of Balraj in 1960, predeceased his brother and sister, Laxmaiah and Balamma, respectively, they succeed equally his undivided half share, to mean Balamma got ¼th and thus only ¼th of the suit property shall go to the sons of Balamma, namely Venkaiah and Jangaiah, equally, to say the Branch of Venkaiah, put together got ⅛th and the Branch of Jangaiah put together got ⅛th and remaining ¾th by Laxmaiah, and after his death in 1974, by his daughter Laxmamma and wife Lachamma, plaintiffs 1 and 2 in O.S.No.90 of 1981 and defendants 2 and 3 in O.S.Nos.136 of 1987 and 58 of 1989, respectively.

26. Having regard to the above, in the partition suit, since all the legal representatives of the respective branches are on record, for no way bad for non-joinder or mis-joinder and from the death of one or other, no way abated as there is a representation of the Estate by the other parties on record, including for Ramesh, by mother Indramma and from her death, the wife and children of Ramesh, came on record, and for Jangaiah, besides his first wife Laxmamma, second wife Andalamma and her children came on record, that too, all the suits at the First Appellate stage were decided commonly in 1996 and the Second Appeals arisen therefrom by clubbed together for common disposal and said conclusion can be fortified by the expression of the Apex Court in Mahmud Mian (died) through L.Rs. v. Samsuddin Mian(died), 2005(11) SCC 582. The suits for injunction, respectively, supra, cannot be decreed in favour of any of the plaintiffs, exclusively, but for to say the undivided interest, respectively, cannot be alienated and any such alienation is subject to working out of equities by giving priority of the first sales over subsequent sales rather alienations or Court decrees, to that extent, respectively, to work out equities in the partition suit by filing final decree applications, as the Court is bound to consider in a suit for partition, as on the date of even passing of final decree, any changes to mould the relief by impleadment or the like and in working out the equities without the need of separate suit/s vide expression of the Division Bench of this Court, to which I am one of them in W.P.No.16068 of 2016, dated 12.07.2016 in late Karumanchi Venkaiah v. State of A.P.rep. by the Secretary, Law, (2016) 6 ALD 618, referring to several expressions in this regard.

Accordingly and in the result:-

T. Ramesh and others Vs Laxmamma and others

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