(Prayer: Appeals in A.S.Nos.1412 of 1998 and 1479 of 1999 against the Judgement and Decree in O.S.No.125 of 1986 dated 16-4- 1998 on the file of the I Addl. Senior Civil Judge, Kakinada, East Godavari Dist.

Appeal against the Judgment and Decree in I.A.No.136 of 2000 in O.S.No.125 of 1986, dated 31-08-2009 on the file of the Court of the 1st Additional Senior Civil Judge, Kakinada.

IA NO: 1 OF 1998(CMP 14755 OF 1998

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to declare appellant No.8 V. Bhairavi (Defendant No.19) as a major and discharge his guardian

IA NO: 2 OF 1998(CMP 15452 OF 1998

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S. 125/1986 on the file of I Addl. Senior Civil Judge, Kakinada, in so far as it relates to Item No.1 of Plaint 'A' Schedule properties, pending disposal of the appeal

IA NO: 3 OF 1998(CMP 19603 OF 1998

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the stay granted in CMPNo.14542/98 in AS No.1412/98 dt: 10-8-1998

IA NO: 1 OF 2000(CMP 3988 OF 2000

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 34 days in bringing the LRs Deceased Appellant No.1

IA NO: 2 OF 2000(CMP 3989 OF 2000

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to set aside the abatement caused due to the death of 1st petitioner/appellant herein

IA NO: 3 OF 2000(CMP 3990 OF 2000

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to bring on record the appellants 9 to 13 in the above cause title as the legal representatives of the deceased-1st appellant in the above Appeal Suit No.1412 of 1998

IA NO: 1 OF 2007(ASMP 291 OF 2007

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to fix an early date for hearing the above appeal and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.

IA NO: 1 OF 1999(CMP 4132 OF 1999

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

IA NO: 2 OF 1999(CMP 11891 OF 1999

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

IA NO: 1 OF 2011(ASMP 2817 OF 2011

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit the petitioner to take notice to the respondents 2, 3, 6, 7 and 12 in the above appeal through substitute service by way of paper publication in "SAKSHI" District Edition in East Godavari District, and pass

IA NO: 2 OF 2011(ASMP 3310 OF 2011

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

IA NO: 4 OF 2011(ASMP 16460 OF 2011

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

IA NO: 1 OF 2013(ASMP 2842 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to extend the time granted on 1- 10-2013 in AS MP No. 2817 of 2011 in AS No. 1479 of 1999 by (30) more days from today to enable the petitioner to comply with the order dated 1-10-2013 in AS MP NO. 2817 of 2011 and pass

IA NO: 1 OF 2009(ASMP 2285 OF 2009

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to expedite the hearing of the appeal by fixing an early date and pass such other order or orders as are deemed fit and proper.

IA NO: 1 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the return of the material part of record in F.D.I.A. No. 136 of 2000 in O.S. No. 125 of 1986 on the file of I Additional Senior Civil Judge, Kakinada which was submitted to the Hon’ble High Court of reference in A.S. No.769 of 2009 and to pass)

Common Judgment:

1. The regular appeals in A.S.Nos.1412 of 1998 and 1479 of 1999 under Section 96 Code of Civil Procedure are directed against the decree and judgment in O.S.No.125 of 1986 dated 16.04.1998 on the file of the Court of learned I Additional Senior Civil Judge at Kakinada.

2. The appeal in A.S.No.769 of 2009 under Section 96 Code of Civil of Civil Procedure is directed against the order in I.A.No.136 of 2000 in O.S.No.125 of 1986 dated 31.08.2009 on the file of the Court of learned I Additional Senior Civil Judge at Kakinada (hereinafter referred to as “Trial Court”).

3. The plaintiff, before the Trial Court, is the appellant in A.S.Nos.1479 of 1999 and 769 of 2009 as well the defendant Nos.8, 13 to 19, before the Trial Court, are the appellants in A.S.No.1412 of 1998.

4. During the pendency of the appeal in A.S.No.1412 of 1998, the appellant No.1/defendant No.8 died and her legal representatives were added as appellant Nos.9 to 13 vide order dated 14.03.2000 in C.M.P.Nos.3988, 3989 and 3990 of 2000.

5. The appellant in A.S.Nos.1479 of 1999 and 769 of 2009 instituted the suit for partition of plaint A schedule item Nos.1 to 4 and B schedule properties into 18 equal shares, for allotment of eight contiguous shares to the plaintiff, for partition of plaint A schedule item No.5 into six equal shares, for allotment of two such shares to the plaintiff and for mesne profits from 1983 till the date of suit and also future profits and costs.

6. Before adverting to the material and evidence on record and nature of findings in the judgment of the Trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.

7. For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court.

8. The case of the plaintiff in brief in the plaint was as follows:

                  (i) The defendant No.1 is the mother of the plaintiff and defendant Nos.2, 5 to 7. Defendant Nos.3 and 4 are the children of defendant No.2. During the life of husband of defendant No.1 by name Sriranganadha Lakshmanaswamy, who worked in the Forest Department up to 1969, performed the marriages of defendant Nos.2, 5 and 6.

                  (ii) There are disputes that arose between the defendant No.2 and his father said Lakshmanaswamy, resulted he (defendant No.2) got separated from his father in the year 1975. He used to reside in the plaint B schedule house property till 1976 and went away from the said house premises and staying in a rented house.

                  (iii) During the lifetime of said Lakshmanaswamy, he constructed B schedule house property and purchased some other landed properties also, including item Nos.1 to 4 of the plaint A schedule with his self-acquisitions. After construction of B schedule house, it is in the exclusive enjoyment of the plaintiff’s family members with absolute title and right.

                  (iv) The plaintiff came to know that the vacant site, on which his father Lakshmanaswamy got the house constructed, was got by him after getting it relinquished by the plaintiff’s paternal uncle. The paternal uncle of the plaintiff also knew that the father of the plaintiff is the exclusive owner of the plaint B schedule property and he is enjoying the same as such.

                  (v) Though the father of the plaintiff purchased item Nos.1 to 4 of the plaint A schedule property, it was treated as joint family property. There was a combination of the self-acquisitions and the joint family property. Item No.5 of the plaint A schedule property is the property in the name of deceased sister of the plaintiff by name Vathada Radha Neeraja, who is unmarried.

                  (vi) After death of father of the plaintiff, defendant No.2 came to manage the properties. However, the father of the plaintiff died leaving debts due to Agricultural Development Bank under loan No.2453, a promissory note debt due to Katakam Padma Venkatalakshmi of Divili and a gold loan due to State Bank of India, Jagannaickpur, Kakinada. Except the above debts, there are no other debts.

                  (vii) As the plaintiff was in employment, he allowed the defendant No.2 to manage the properties. There are disputes arose between the plaintiff and the defendant No.2, which remained as unsettled. The defendant No.2 was managing the item No.1 of the plaint A Schedule wet land with the assistance of defendant Nos.8 to 12.

                  (viii) With the income derived from the lands and house, the defendant No.2 discharged the said debts incurred by their father. The marriage expenses of defendant No.7 are all defrayed from the amount of these properties. The defendant No.1 and the plaintiff discharged the gold loan due to State Bank of India, Jagannaickpur, Kakinada.

                  (ix) At the time of marriage of defendant No.7, defendant No.2 took one gold chain and two gold necklaces weighing 19 sovereigns from the defendant No.1. In the month of October 1985, there were disputes about the income from the boat owned by the plaintiff with which joint business was carried on by one Voleti Desalu and Pemmadi Kameswararao. At that time, the plaintiff demanded the defendant No.2 to pay his share of income and also for partition of the properties. The defendant No.2 has been postponing the same. Hence, the suit for partition of plaint schedule properties, the plaintiff and defendant No.2 are each entitled to 8/18th share in the joint family properties i.e., item Nos.1 to 4 of plaint A schedule property and B schedule property. The defendant Nos.5 to 7 are each entitled to 1/18th share. In item No.5 of plaint A schedule, the plaintiff is entitled to 2/16th share and defendant Nos.2 and 5 to 7 are entitled to the rest, as it is the property of the plaintiff’s sister Vathada Radha Neeraja, who died unmarried.

9. The defendant No.1 denying all the allegations in the plaint and contending in the written statement, which was adopted by the defendant No.7 by filing memo, as follows:

                  Item Nos.1 to 4 of ‘A’ schedule properties are the self- acquisitions of the father of the plaintiff. She denied that the father of plaintiff blended his self-acquired properties with the joint family properties. The husband of defendant No.1 has no joint family properties and as such blending self-acquired properties with joint family properties, does not arise. As such, each party would get 1/6th share in all the properties.

10. The defendant No.2 denying all the allegations in the plaint and contending in the written statement, which was adopted by the defendant Nos.3 and 4 by filing memo, as follows:

                  i). His father Lakshmanaswamy did prawns business for some time, also did boat business during 1976 to 1979 and he was never a contractor. After the death of his father, he performed the marriage of defendant No.7. His father took on lease the fuel depot of one Yalla Venkatarao and he was attending to the daily sales and he was giving the sales amount to his father. He always been staying in the ‘B’ schedule property till 1976. In the year 1976, he has separated in mess since the defendant No.1 did not look after his wife well. He lived separately from November 1976 to March 1979.

                  ii). After the death of his father, the defendant No.1 asked him to come and live in the ‘B’ schedule property as she is not having any male assistance. The defendant No.2 admitted that all the properties mentioned in ‘A’ schedule are purchased by his father. He also admitted that his father got constructed the house. But, he pleaded ignorance with regard to the relinquishment referred in the plaint. His father did not inherit any property from his ancestors and so blending of separate properties with the joint family properties does not arise.

                  iii). The defendant No.2 cultivated item No.1 of plaint ‘A’ schedule, which is not so fertile, for some years, but he incurred huge loses and so he leased out the property to Nadimpalli Satyanarayana Raju and Kaladi Ranganayakulu. They also fell in arrears and became defaulters. Even though a suit is filed against them, he could not realize a single pie. The extent of item No.1 of plaint ‘A’ schedule is Ac.12.40 cents, but not either Ac.12.50 cents or Ac.13.00 cents. After discussions regarding the situation of the land, its income and accessibility, all the family members together sold away Ac.8.00 cents, out of it to the defendant No.8 and AC.4.00 cents of it to the defendant No.11 in January 1980.

                  iv). All the shares received their respective share amounts. But for the same reason or the other the sale deeds could not be executed in favour of the purchasers. The defendant Nos.8 to 11, who purchased the properties have been in possession and enjoyment of the same in their own right. Plaintiff suppressed facts in collusion with the defendant Nos.1 and 5 to 7.

                  v). Apart from the debts mentioned in the plaint, there were other debts also. His father Lakshmanaswamy obtained a loan from the Agricultural Development Bank at Amalapuram in the name of his brother Sri Venkata Suryanarayana Murthy and utilized the said amount. After the death of his father, the defendant No.2 is discharged the debt due to the said bank besides the debts due to Land Mortgage Bank at Kakinada as well the debt due to Katakam Padma Venkata Lakshmi and the amounts payable to Agricultural Labourers who were engaged for the leveling of the land in item No.1 of plaint ‘A’ schedule. The total amount came to nearly Rs.20,000/-.

                  vi). The defendant No.2 also gave Rs.5,000/- to the defendant No.1 for discharge of the debt due to State Bank of India at Jagannaickpur at Kakinada with which bank a gold chain was pledged by late Lakshmanaswamy. The defendant No.2 spent amounts for the marriage of the defendant No.7, for the maintenance of the family, for the obsequies of his father and for getting the mango saplings planted in item Nos.2 to 4 of plaint ‘A’ schedule and other incidental expenses.

                  vii). So far as item Nos.2 to 4 of plaint ‘A’ schedule are concerned, they all are dry lands. There are some Mango and Sapota trees in an extent of Ac.2.00 cents. In the other extent of Ac.2.00 cents, the defendant No.2 got planted saplings in 1980 and now they are coming to the stage of yielding. The remaining land in item Nos.2 to 4 is a barren land and it is left fallow.

                  viii). His father Lakshmanaswamy himself inducted one Chaganti Sriramulu into possession of Ac.2.00 cents of land in which there are mango and sapota trees. The said Sriramulu has been looking after the entire item No.2 of plaint ‘A’ schedule and is delivering usufruct of the trees and all the sharers of the family are enjoying it. Item No.5 of plaint ‘A’ schedule is a saline land and is unfit for any purpose. The value of item No.5 of plaint ‘A’ schedule and its alleged yielding capacity are exaggerated by the plaintiff.

                  ix). ‘B’ schedule house property consists of 14 rooms. The defendant No.1 and the plaintiff are now living in eight rooms. The defendant No.2 and his family are living in three rooms. Three other rooms in the house are let out on a monthly rental of Rs.210/- to one Koka Umamaheswara Rao. The rentals are being used by the defendant No.2 for the payment of taxes on the house and for electrical charges and for meeting minor repairs etc. The rent of Rs.210/- per month was only from May 1986 and prior to it, the rent is Rs.180/- per month.

                  x). The marriage of defendant No.7 was first fixed with a boy from Marri Family and for some reasons the alliance failed and the Marri people who took Rs.5,000/- returned the amount to the defendant No.1. This amount of Rs.5,000/- and the amount spent for marriage of defendant No.7 was from the sale proceeds of the land to the defendant Nos.8 to 11. Hence, prays to dismiss the suit.

11. The defendant No.11 denying all the allegations in the plaint and contending in the written statement, which was adopted by the defendant No.8 by filing memo, as follows:

                  i). The father of the plaintiff, defendant No.2 and plaintiff constituted a joint family of which the father was the Manager. After the death of father of the plaintiff, the defendant No.2 assumed management of the joint family being the eldest male member. By the time of the death of the plaintiff’s father there were debts due by the family. There was no sufficient income from the landed property and the family was hard pressed for monies. Item No.1 of plaint ‘A’ schedule property is a saline land which is not fit for cultivation.

                  ii). The defendant Nos.8 and 11 purchased item No.1 of plaint ‘A’ schedule property at Rs.5,600/- per acre in 1983. The defendant No.2 with the consent of the plaintiff and his mother/defendant No.1, executed two separate agreements in favour of defendant Nos.8 and 11 and in pursuance of the agreements, possession of the land was delivered. The defendant No.11 purchased Ac.4.00 cents, whereas the defendant No.8 purchased Ac.8.00 cents. They have been paying taxes to the Government and Ryot Passbooks were also issued to them.

                  iii). Though the defendant Nos.8 and 11 have been demanding the plaintiff and others to execute a regular sale deed, they have been postponing the same on one pretext or the other. In case the agreements of sale are not held to be binding on the plaintiff, the defendant Nos.8 and 11 prays that item No.1 of plaint ‘A’ schedule property may be allotted to the share of defendant No.2.

12. The defendant Nos.5, 6, 9, 10 and 12 remained ex-parte before the Trial Court.

13. On these pleadings, the Trial Court settled the following issues as well additional issues for trial:

                  “1.Whether the plaintiff is entitled for partition of plaint schedule properties and for allotment of 7/18th share of item 1 to 4 of A schedule and B schedule and 1/6th share in item 5 of A schedule?

                  2. Whether the plaintiff is entitled for mesne profits from the year 1983 till the date of suit and for future profits?

                  3. To what relief ?

                  Additional Issues:

                  1. Whether the sale agreement in respect of item 1 of plaint A schedule property in favour of D.8 and D.11 are true, valid, and binding on the plaintiff? and

                  2. Whether D.1 and D.7 are entitled to get 1/6th share each in all the plaint schedule properties as pleaded in the written statement?”

14. At the trial, on behalf of the plaintiff, he was examined as P.W.1 while relying on Exs.A.1 and A.2 in support of his contentions. On behalf of the defendants, defendant Nos.1, 2 and 8 were examined as D.Ws.1 to 3 as well the daughter-in- law of defendant No.11 and husband of defendant No.7 were examined as D.Ws.4 and 5 and got marked Exs.B.1 to B.48.

15. Basing on the material and evidence, trial Court came to conclusion that the item Nos.1 to 5 plaint ‘A’ schedule and ‘B’ schedule house property are the self-acquisitions of Lakshmanaswamy, who died intestate, that the plaintiff, defendant Nos.1, 2 and 5 to 7 are each entitled to a share equally in all these properties; that the defendant No.7 is entitled to the share of defendant No.1 also besides her share and that the sale agreements in favour of defendant Nos.8 to 11 are true and valid, but they are binding on defendant No.2 alone and they do not bind the others and that the plaintiff is not entitled to any past mesne profits, however, the plaintiff is entitled to future profits from the date of suit till delivery of his separate share to be ascertained on separate application to be filed by him under Order 20 Rule 12 C.P.C., thus, preliminarily decreed the suit in part.

16. It is against this decree and judgment, the present appeals are preferred by the defendant Nos.8, 13 to 19 and plaintiff respectively, vide A.S.Nos.1412 of 1998 & 1479 of 1999.

17. As well, aggrieved by the order dated 31.08.2009 passed in I.A.No.136 of 2000 in O.S.No.125 of 1986 on the file of the Trial Court, passing the final decree for mesne profits for the years 1986 to 2008 at Rs.1,28,908/- as fixed by the commissioner, payable by the defendants to the plaintiff, the appeal in A.S.No.769 of 2009 was preferred by the plaintiff.

18. Heard Sri A.K.Kishore Reddy, learned counsel for the plaintiff/appellant in A.S.Nos.1479 of 1999 and 769 of 2009 and Sri M.V.Suresh, learned counsel for the defendant No.8, 13 to 19/appellant in A.S.No.1412 of 1998.

19. The only contention raised by the learned counsel for the plaintiff/appellant in A.S.Nos.1479 of 1999 to appreciate his case is that as per Ex.B.45 Will his mother bequeathed her share of properties to the plaintiff only, but not defendant No.7, thereby, the Trial Court absolutely made an error by allotting the share of his mother to the defendant No.7.

20. The said contention is not specifically denied by the learned counsel appearing for the defendant Nos.8, 13 to 19/appellant in A.S.No.1412 of 1998, but he vehemently contends that the Trial Court failed to consider their case and erred in ordering partition of item No.1 of plaint A schedule property.

21. Now this Court would like to refer certain admitted facts as culled out from the record. The plaintiff, defendant Nos.2 and 5 to 7 are the children of defendant No.1 and Sreeranganatha Lakshmanaswamy. The said Lakshmanaswamy worked in the Forest Department, retired from the service in 1969, then he did some business and died intestate on 04.03.1979, by that time already the Hindu Succession Act came into force. It is not in dispute that the item Nos.1 to 5 of plaint ‘A’ schedule properties are purchased by the said Lakshmanaswamy, which includes the item No.5 purchased by him in the name of his deceased daughter Vathada Radha Neeraja, who remained unmarried, as well, they said Lakshmanaswamy constructed ‘B’ schedule house, thereby, they are absolutely self-acquisition of Lakshmanaswamy. Thereby, the property devolved from Lakshmanaswamy shall be made partition between plaintiff, defendant Nos.1, 2 and 5 to 7 being his class I heirs.

22. It is against this backdrop, the following points, which arise for determination and need for consideration now:

                  I).Whether the Trial Court erred in effecting the partition of the suit schedule property by allotting two shares to the defendant No.7 by virtue of Ex.B.45 Will said to be executed by the 1st defendant/mother in her favour?

                  II).Whether the defendant Nos.8 and 11/appellants in A.S.No.1412 of 1998 are entitled to get the relief under

                  Exs.B.20 and B.35 agreements of sale, respectively, as prayed for?

                  III). Whether the Trial Court erred in determining the mesne profits entitled by the plaintiff?

                  IV). Whether the decree and judgment of the Trial Court is liable to be set aside, if so, to what extent and to what relief?

23. POINT NO.I:

                  I). Whether the Trial Court erred in effecting the partition of the suit schedule property by allotting double the share to the defendant No.7 by virtue of Ex.B.45 Will said to be executed by the 1st defendant/mother in her favour?

                  As stated supra, it is not in dispute that the suit properties are the self-acquired properties of said Lakshmanaswamy, who died intestate on 04.03.1979. Thereby, the plaintiff, defendant Nos.2, 1 and 5 to 7 being sons, wife and daughters respectively as well class I legal hires, are entitled for partition of the properties in dispute equally.

24. It is the utmost contention of the plaintiff that as per Ex.B.45 Will executed by the defendant No.1, she bequeathed her share of properties to the plaintiff only, but not defendant No.7/daughter and the Trial Court erred in allotting the said share to the defendant No.7, besides her share.

25. Leave apart from the entitlement of the share of deceased defendant No.1 by virtue of Ex.B.45 Will, firstly, this Court would like to decide the authenticity of the said Will. Admittedly, the Trial Court gave a little finding on the said Will in paragraph No.33 of the judgment that “Under Ex.B.45 Will the 1st defendant directed that the share which she would get in this suit would devolve on the 7th defendant. Accordingly, the 7th defendant is entitled to the share of her mother in the suit properties besides her share.” Except the above said two sentences nothing more than that was discussed in the entire judgment of the Trial Court. Thereby, in view of the specific as well sole contention raised by the plaintiff in the appeal preferred by him against the judgment of the Trial Court, this Court being first Appellate Court is bound to decide the authenticity/validity of the said Will as stated supra.

26. Admittedly, the said Will came on record before the Trial Court through D.W.5, who is husband of defendant No.7. It is also not in dispute that he is one of the attestor of Ex.B.45 Will. On perusal of the entire chief examination of D.W.5 nothing was stated about the beneficiary of the said Will. Even if it is considered that the defendant No.7 is the beneficiary of the said Will, she did not enter into the witness box and the same was marked through D.W.5, who is her husband. Thereby, the testimony of D.W.5 is definitely interested in nature. Admittedly, except the testimony of D.W.5, no pleadings or otherwise placed on record to prove the said Will by the defendant No.7.

27. The appellant in the grounds of appeal specifically pleaded that his mother (defendant No.1) executed a Will and the same was upheld by the Trial Court, but no share was allotted by the Court below and that as per the said Will the share of the mother of the appellant was bequeathed to him, but not to the respondent No.7. On this point, when this Court perused the Ex.B.45 Will, it is clear that nowhere the executant of the said Will i.e., the mother of the appellant/plaintiff bequeathed her share in favour of the plaintiff and the recitals of the Will clearly goes to show that the mother of the plaintiff shown her intention that the expenses for the suit filed by the plaintiff against her has to be recovered from her share by the respondent No.7/defendant No.7. The plaintiff/appellant misread the Will and in the grounds of appeal he claimed Trial Court failed to appreciate the contents of the Will, but in-fact the said Will is otherwise.

28. It is settled law that a Will cannot be given legal effect or evidential weight in a civil suit like partition, unless it is duly proved through proper legal procedure, which primarily includes examination of the propounder or at least one attesting witness. Furthermore, the propounder, who present or submits the Will to the Court seeking its validation and execution as the lawful testamentary document, the initially legal burden is on the propounder to prove the same that it was duly executed by the testator by following the requirements of Indian Succession Act and Indian Evidence Act. This acceptance showing satisfactory evidence that the testator signed the Will was in a sound mind at that time and executed the same voluntarily. The role of the propounder is crucial, because the propounder must resolve all doubts and suspicious circumstances surrounded the Will. The propounder must present the Will to the Court and proved that it was duly executed by the testator in compliance of Section 68 of Indian Evidence Act. The propounder must have examined at least one attesting witness in-terms of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. The propounder has to produce essential requirements or details regarding circumstances under which Will was executed. Failure to meet these requirements, the Court can reject the said document, which leading intestate succession of property in dispute among the legal heirs. Thereby, the burden is on the propounder to present the Will before the Court initially and then proved the same with substantial testimony of attestors of the same and circumstances of voluntarily execution with sound and disposing state of mind by the testator.

29. Furthermore, it is also settled law as observed by the Hon’ble Supreme Court in Rani Punima Debi v. Kumar Khagendra Narayan Deb(AIR 1962 SC 576) that; “mere production and marking of the Will is not enough, due execution and attestation must be proved.”

30. In the present case on hand, admittedly the propounder of the Will is not examined before the Trial Court. Furthermore, it is not the case of the plaintiff either in the pleadings or in the evidence affidavit that there is a Will existing in his favour executed by the defendant No.1. It is also quite astonishing that even the defendant No.1 examined before the Trial Court as D.W.1 on 07.04.1993, which is much later to the execution of the alleged Will dated 02.11.1987, nothing was pleaded or testified about the existence of said Will. Thereby, altogether the above circumstances categorically show that there is no substantial evidence placed on the record either by way of pleadings or by way of oral testimony to prove the Ex.B.45 Will. As such, this Court is of the considered opinion that Trial Court committed error in understanding the will in question and granted a decree in favour of the 7th respondent.

31. Furthermore, it is settled law as observed by the Hon’ble Supreme Court in a recent pronouncement in Meena Pradhan v. Kaml Pradhan(2023 INSC 847), that “whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testators’ last Will.” But, in the present case on hand, as discussed supra, either the plaintiff or defendant No.7 utterly failed to discharge the said primary responsibility being propounder or beneficiary of the same.

32. In view of the above discussion, the Trial Court utterly failed to appreciate the case in proper perspective by effecting the partition of the suit schedule property in allotting double the share to the defendant No.7 by virtue of Ex.B.45 Will said to be executed by the 1st defendant/mother in her favour and it is also quite clear that the plaintiff could not get any share of his deceased mother/defendant No.1/D.W.1 by virtue of the said Will in the absence of pleadings and valid testimony on his behalf about the existence of the same. Thus, this point is answered accordingly.

33. POINT NO.II:

                  II). Whether the defendant Nos.8 and 11/appellants in A.S.No.1412 of 1998 are entitled to get the relief under Exs.B.20 and B.35 agreements of sale, respectively, as prayed for?

                  On this point, Sri M.V.Suresh, learned counsel for the defendant Nos.8 and 11/appellants in A.S.No.1412 of 1998 strenuously contends that the defendant No.2 being elder male member of the family, after death of his father Lakshmanaswamy, acted as Manager of the family and he sold the item No.1 of Plaint A schedule property to the defendant Nos.8 and 11 by virtue of Exs.B.20 and B.35 respectively to discharge the loans of the family incurred by Lakshmanaswamy and perform the marriage of defendant No.7, thereby, the said agreements of sale cannot be denied by the other family members and the same are binding on them as well. In support of the said contention, he relied upon a pronouncement of Hon’ble Supreme Court in Pandurang Mahadeo Kavade (dead) by his legal representative v. Annaji Balwant Bokil(AIR 1971 Supreme Court 2228).

34. He also submits that by virtue of Exs.B.20 and B.35, the defendant Nos.8 and 11 are in possession of the property and they were also obtained Ryot passbook under Ex.B.44 besides paying land tax under Exs.B.42 and 43 pertaining to the said property, which shows their legitimate right over the said property.

35. He further contends that the plaintiff absolutely has no right to ask for rendition of past accounts from the defendant No.2 and a ‘kartha’ or manager of a joint Hindu family is not liable to account, in the absence of proof of direct misappropriation, or fraudulent and improper conversion of the money to his personal use. In support of the said contention, he relied upon pronouncements of Madras High Court, this Court as well Hon’ble Supreme Court in R.M.N.Ramanathan Chettiar v. Narayanan Chettiar(AIR 1955 Madras 629),L.Bappu Ayyar v. Renganayaki(AIR 1955 Madras 394), Paruchuri Suryanarayana v. Parnchuri Sugunavathi(AIR 1961 Andhra Pradesh 393), K.Appalanarasimha Bhukta v. K.Mahadevalla Bhukta(AIR 1967 Andhra Pradesh 247) and K.V.Narayanaswamy Iyer v. K.V.Ramakrishna Iyer(AIR 1965 Supreme Court 289).

36. Per contra, Sri A.K.Kishore Reddy, learned counsel for the plaintiff/appellant in A.S.Nos.1479 of 1999 vehemently contends that the marriage expenses of the defendant No.7 was not met by the defendant No.2 and it was performed with the gold given by the defendant No.1/mother as well D.W.1 denied the transaction between the defendant No.2 and defendant Nos.8 & 11; that the alleged sale consideration was not passed on to the other family members; that the said agreements of sale was not concluded by any sale deeds, thereby, the alleged pattas cannot be taken into consideration; that the Trial Court after thorough appreciation of the material on record, rightly came to the conclusion that the sale agreement in favour of defendant Nos.8 and 11 are binding on the defendant No.2 alone and they do not bind the others, which requires no interference of this Court, thereby, prays to dismiss the appeal preferred by the appellants in A.S.No.1412 of 1998.

37. In view of the above rival contention, this Court perused the material placed on record. Admittedly, even as per the pleadings of both parties, the family has some debts during the life of Lakshmanaswamy and the said debts were discharges subsequent to his death. It is also an admitted fact that the marriage of the defendant No.7 was performed after the death of Lakshmanaswamy. But, it is in dispute about the source of expenditure incurred for the said marriage.

38. This Court has no quarrel with the proposition relied upon by the learned counsel for the appellants/purchasers in A.S.No.1412 of 1998. But, firstly, to get the relief as prayed, it is to be substantially proved that the defendant No.2 acted as Manager of the joint family and to discharge the family debts as well perform the marriage of defendant No.7, he sold the item No.1 of plaint ‘A’ schedule property to the defendant Nos.8 and 11 by virtue of Exs.B.20 and B.35 agreements of sale dated 27.01.1980 and 03.02.1980 respectively, in that capacity.

39. As stated supra, the defendant No.2 is the eldest male son in the family and after the death of Lakshmanaswamy, the marriage of the defendant No.7 was performed. It is also not in dispute that the plaintiff is an engineering graduate and he employed elsewhere. It is the foremost pleading as well testimony of defendant No.2 as D.W.2 that the sale consideration paid by the defendant Nos.8 and 11 was utilized for discharging the debts due by his father as well the debts incurred for the marriage expenses of the defendant No.7. But, which is contra to the categorical testimony of D.W.1/mother that she gave 19 sovereigns of gold to the defendant No.2 and with that money the marriage of defendant No.7 was performed. To fortify the said fact, D.W.5 also testified that his mother-in-law informed that she spent the amount for the marriage expenses of the defendant No.7. Even as per the testimony of P.W.1 in the year 1983, defendant No.7’s marriage was performed and to meet the expenses of the said marriage his mother’s gold was sold. It is also admitted by D.W.2 that by the time of death of his father, no money available with the family for the maintenance or to perform the marriage of defendant No.7. Thereby, it is crystal clear that the marriage expenses of defendant No.7 was incurred from the sale proceeds of gold given by the defendant No.1/mother.

40. Coming to the other debts incurred by the Lakshmanaswamy said to be discharged by the defendant No.2 is concerned, it is his contention that he being Manager of the joint family discharged the family debts incurred by the Lakshmanaswamy with the sale proceeds of item No.1 of ‘A’ schedule property.

41. Admittedly, D.Ws.3 to 5 have no knowledge about the family affairs of plaintiff and defendant Nos.1 to 7. Even as per the admission made by P.W.1 during cross examination, after the death of Lakshmanaswamy, there are some debts incurred has to be discharged by the family members. It is also not in dispute by the testimony of P.W.1 as well D.Ws.1 and 2 that the defendant No.2 discharged the loan due to Katakam Venkatalakshmi. According to defendant No.2, the debt due to State Bank of India was paid by his mother/defendant No.1. It is also testimony of D.W.1/mother that she discharged the debt due to the Bank for gold loan. The defendant No.2 stated that he gave Rs.5,000/- to his mother for discharging the said gold loan. But, the same was denied by D.W.1. It is also case of the defendant No.2 that he discharged the debt due to Agricultural Development Bank standing in the name of Venkata Suryanarayana Murthy, who is his paternal uncle i.e., brother of Lakshmanaswamy. But the said contention was denied by D.W.1. Admittedly, no piece of material or the prudent testimony was placed on record by the defendant No.2 to show that the said Lakshmanswamy incurred the debt in the name of his brother Venkata Suryanarayana Murthy, which requires defendant No.2 to discharge the same. It is also categorical testimony of D.W.2 that his father was in the habit of maintaining accounts, but those accounts were not filed to show the debts of the joint family. Except the bare testimony of D.W.2, nothing was placed on record to say that the defendant No.2 being Manager of the family discharged the joint family debts as well performed the marriage of the defendant No.7 with the sale proceeds of item No.1 of plaint ‘A’ schedule property obtained from defendant Nos.8 and 11. Furthermore, they only liability discharged by the defendant No.2 due to one Katakam Venkata Lakshmi cannot give any capacity to him as Manager of the joint family and it does not mean to say he discharged the family debts with the said sale proceeds.

42. Now, coming to the validity and binding nature of Exs.B.20 and B.35 agreements of sale executed between the defendant Nos.2, 8 and 11, over the members of the joint family. As stated supra, the suit schedule properties, which includes item No.1 of ‘A’ schedule property, are the self- acquired properties of deceased Lakshmanaswamy and the plaintiff, defendant Nos.1, 2, 5 to 7 have equal right over the same. Admittedly, the alleged agreements of sale were only between the defendant Nos.2, 8 and 11. It is also an admitted fact that all the sharers did not sign the said agreements of sale.

43. It is the case of the defendant No.2 that he consulted all the members of the family and then sold away the said property to the defendant Nos.8 and 11. But, on the other hand, it is also contention of the defendant No.2 even in this written statement that there are misunderstandings between his wife and his mother and he had separate mess and thereafter he joined again in ‘B’ schedule house. It is not the case of the defendant No.2 as well defendant Nos.8 and 11 that they have passed the sale consideration to the other family members and obtained any receipt from them. Even no testimony of sister or otherwise placed on record to prove the contention raised by the defendant No.2 that the sale consideration was passed to the other family members. More so, it is the categorical testimony of D.W.2 that the defendant Nos.8 and 11 know the fact that the plaintiff is having share in item No.1 of plaint ‘A’ schedule property, but they did not ask him to sign the said agreements of sale. It is also not the testimony of D.W.3/defendant No.8 that they have given the sale consideration to the other family members, who have right over the said property.

44. It is also testimony of D.W.1 that defendant No.2 never informed her about the sale of land to the defendant Nos.8 and 11. Absolutely there is legitimate obligation on the part of the defendant Nos.8 and 11 to get the consent or signatures of other family members when they intend to purchase the joint family property, since they well known about the nature of the property and right over the same by the joint family. Thereby, it is crystal clear that the said transaction entered between the defendant No.2 and defendant Nos.8 and 11 under Exs.B.20 and B.35 is not at all binding on the other family members.

45. It is also contention of the defendant Nos.8 and 11 that they have obtained ryot passbook in the name of the defendant No.8 pertaining to the said property under Ex.B.44 and they paid the land tax under Exs.B.42 and B.43, which creates right over the said property. The said contention absolutely has no legs to stand, since, admittedly, the alleged agreements of sale under Exs.B.20 and B.35 have not concluded by way of any sale deeds to create charge over the said property. Thereby, in any way the defendant Nos.8 and 11 cannot claim any right against the joint family property pertaining to the other family members by virtue of Exs.B.20 and B.35 and they are binding against defendant No.2 alone. Furthermore, the defendant No.2 utterly failed to show any legal necessity, which compelled him to sell away the joint family property, being elder male member of the family, without any consent of other family members.

46. It is settled law that the joint family properties shall not be drained out through selfish acts of one member of group of family members, thereby, absolutely the agreements of sale under Exs.B.20 and B.35 obtained through defendant No.2 alone coupled with Exs.B.42 to 44, does not create any charge over the said joint family property in favour of defendant Nos.8 and 11.

47. In view of the above discussion, this Court has no hesitation to come to the conclusion that the Trial Court after thorough appreciation of the material on record rightly gave a finding that the sale agreements in favour of defendant Nos.8 and 11 are true and valid, but they are binding on defendant No.2 alone and they do not bind on other family members, which requires no interference of this Court by way of appeal. Thus, this point is answered against the defendant No.2 as well appellants in A.S.No.1412 of 1998.

48. POINT NO.III:

                  III). Whether the Trial Court erred in determining the mesne profits entitled by the plaintiff?

                  In view of the findings in point No.1, since the decree and judgment of the Trial Court itself liable to be set aside, the appeal preferred by the plaintiff against the consequential order became infructuous, and no cause survives over the said appeal, and it would require to re-determination of the mesne profits payable by the defendants to the plaintiff as per the partition to be affected. Thus, this point is answered accordingly.

49. POINT NO.IV:

                  IV). Whether the decree and judgment of the Trial Court is liable to be set aside, if so, to what extent and to what relief?

In view of the findings in point No.1, the plaintiff, defendant Nos.2, 5 to 7 being sons and daughters of deceased Vathada Sriranganatha Lakshmanaswamy and Vathada Narasamamba/defendant No.1 respectively, who are their class-I legal heirs, are entitled a share in the suit schedule properties equally. As well, in view of the findings in point No.2, the appellants in A.S.No.1412 of 1998, who are said to be purchasers of item No.1 of plaint ‘A’ schedule property, are not entitled to get any relief by way of the appeal.

50. In the result, the appeal in A.S.No.1412 of 1998 is dismissed. There shall be no order as to costs.

51. The appeal in A.S.No.1479 of 1999 is partly allowed by setting aside the decree and judgment, dated 16.04.1998 in O.S.No.125 of 1986 on the file of the Court of learned I Additional Senior Civil Judge at Kakinada only to extent of partition of the plaint ‘A’ and ‘B’ schedule properties into five equal shares and allot one such share to the plaintiff and defendant Nos.2, 5 to 7. The other findings arrived by the Trial Court shall remained intact. There shall be no order as to cots.

52. The appeal in A.S.No.769 of 2009 is dismissed as infructuous. There shall be no order as to costs.

                  Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed.