APHC010592532016

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3397]

MONDAY,THE FIFTEENTH DAY OF JUNE

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA

KRISHNA RAO

SECOND APPEAL NO: 494/2016

Between:

S Annapoorna, Died and Others ...APPELLANT(S)

AND

S Satyanarayana Murthy E Godavari Dist 5 Others and

Others

...RESPONDENT(S)

Counsel for the Appellant(S):

1. M N NARASIMHA REDDY

2. A SYAM SUNDAR REDDY

Counsel for the Respondent(S):

1. KIRTHI TEJA KONDAVEETI

The Court made the following:

Reserved on 08.05.2026

Pronounced on 15.06.2026

Uploaded on 15.06.2026

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

SECOND APPEAL No. 494 of 2016

JUDGMENT:

This second appeal under Section 100 of the Code of Civil Procedure is

filed aggrieved by the judgment and decree, dated 14.09.2015, in A.S.No.94

of 2006, on the file of the III Additional District Judge, East Godavari District at

Kakinada, reversing the judgment and decree, dated 16.02.2006, in

O.S.No.59 of 2000, on the file of the II Additional Senior Civil Judge,

Kakinada.

2. The plaintiffs initiated action in O.S.No.59 of 2000, on the file of the II

Additional Senior Civil Judge, Kakinada, with a prayer for declaration of title

over the plaint schedule property and subsequent possession and for

damages.

3. The learned II Additional Senior Civil Judge, Kakinada, dismissed the

suit. Felt aggrieved thereby, the unsuccessful plaintiffs in the above said suit

filed the aforesaid appeal before the First Appellate Court. The learned III

Additional District Judge, East Godavari District at Kakinada, allowed the

appeal with costs by reversing the judgment and decree passed by the

learned trial Judge. Aggrieved thereby, the defendants in O.S.No.59 of 2000

approached this Court by way of second appeal.

4. The appellants herein are the defendants and the respondents herein

are the plaintiffs in O.S.No.59 of 2000. During the pendency of the second

VGKR, J.

SA_494_2016

appeal, appellant No.6 herein died and appellant No.11 was brought on record

as the legal representatives of the deceased appellant No.6.

5. For the sake of convenience, both parties in the second appeal will be

referred to as they are arrayed in O.S.No.59 of 2000 before the trial Court.

6. The case of the plaintiffs, in brief, as set out in the plaint averments in

O.S.No.59 of 2000, is as follows:

I. The plaintiff Nos.1 to 4 are the sons of late Saladi Hanumantha Rao,

plaintiff No.5 is the daughter of late Saladi Hanumantha Rao, and

plaintiff No.6 is the wife of late Saladi Hanumantha Rao. The plaintiffs

further pleaded that late Saladi Hanumantha Rao was the natural

brother of Smt. Pamarthi Subbayamma, who is the wife of late Pamarthi

Venkataswamy of Satyavada Village. The plaintiffs further pleaded that

the said Subbayamma purchased the site over which the plaint

schedule house stands under a registered sale deed dated 14.02.1962

and constructed the plaint schedule house with her own funds from the

savings derived out of the agricultural produce from the lands given to

her by her father, late Saladi Subbarao, and, therefore, the plaint

schedule house is her absolute self-acquired property. The plaintiffs

further pleaded that the defendant No.1 is the wife of late Gangaraju,

who was the brother of late Subbayamma and the defendant Nos.2 to 5

are the sons of the defendant No.1 and late Gangaraju, The plaintiffs

further pleaded that defendant No.6 is the wife of late Parthasaradhi

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and the defendant Nos.7 and 8 are the sons of the defendant No.6 and

late Parthasaradhi, while defendant Nos.9 to 11 are their daughters.

II. The plaintiffs further pleaded that late Pamarthi Subbayamma executed

a registered Will dated 31.08.1990 while in a sound and disposing state

of mind, bequeathing the plaint schedule property in favour of her

younger brother, namely, Saladi Hanumantha Rao, who is the father of

plaintiff Nos.1 to 5 and being the legal heirs of late Hanumantha Rao,

the plaintiffs are entitled to succeed to his estate. The plaintiffs further

pleaded that late Hanumantha Rao died on 07.08.1994 and,

consequently, the plaintiffs succeeded to the plaint schedule property

devolving upon him under the registered Will executed by late

Subbayamma. The plaintiffs further pleaded that during his lifetime, late

Hanumantha Rao got issued a registered legal notice dated 08.12.1993,

to which Saladi Parthasaradhi and Saladi Panduranga Rao issued reply

notices dated 31.01.1994 and 08.02.1994 containing false and

concocted allegations, including a claim that late Subbayamma had

executed an unregistered Will dated 29.12.1991 in their favour. The

plaintiffs further pleaded that late Hanumantha Rao thereafter got

issued a rejoinder notice dated 26.02.1994 specifically contending that

the alleged unregistered Will dated 29.12.1991 is a rank forgery and

fabricated document. The plaintiffs further pleaded that after the death

of her husband, late Pamarthi Venkataswamy, Subbayamma never left

Satyavada Village except on three occasions, namely, for registration of

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the Will dated 31.08.1990 and for execution of settlement deeds dated

23.04.1990 and 24.04.1990 at Draksharama.

III. The plaintiffs further contended that late Subbayamma was never on

cordial terms with the defendants and was not even visiting their house

after the death of her husband. The plaintiffs further pleaded that late

Parthasaradhi and Panduranga Rao were only in permissive occupation

of the plaint schedule property and Saladi Parthasaradhi was the

brother of late Subbayamma and late Hanumantha Rao and that

Panduranga Rao, being the son of late Gangaraju, another younger

brother of late Subbayamma, was also permitted to occupy the plaint

schedule premises. The plaintiffs further pleaded that after construction

of the house at Kakinada, late Hanumantha Rao, plaintiff No.6, plaintiff

Nos.1 to 5, and late Subbayamma used to reside together in the plaint

schedule property. Hence the suit.

7. The case of the defendants, in brief is as follows:

I. The defendants pleaded that the suit schedule site was purchased out

of the contributions made by late Saladi Gangaraju and late Saladi

Parthasaradhi with an intention to provide residential accommodation

for themselves, as Saladi Parthasaradhi was practicing as an advocate

at Kakinada and Saladi Gangaraju was employed in the Revenue

Department. The defendants further pleaded that though the sale deed

was obtained in the name of Pamarthi Subbayamma, the same was

done only because she was the elder member of the family and had

VGKR, J.

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fostered and looked after the family members. The defendants further

pleaded that the house in the suit schedule property was constructed

with the funds contributed by late Saladi Gangaraju and late Saladi

Parthasaradhi and the front portion of the house was allotted to Saladi

Parthasaradhi, who also established his legal office therein, while the

rear portion was allotted to Saladi Gangaraju.

II. The defendants further contended that Pamarthi Subbayamma

executed a Will dated 18.04.1983, which was attested by her husband,

Pamarthi Venkataswamy, and subsequently registered on 06.09.1986.

The said Will was marked as Ex.B-2 and under the said Will, Pamarthi

Subbayamma allegedly bequeathed the suit schedule property in favour

of Saladi Gangaraju and Saladi Parthasaradhi. The defendants further

pleaded that thereafter Pamarthi Subbayamma executed another

unregistered Will dated 29.12.1991, marked as Ex.B-1, whereby she

bequeathed the share of Saladi Gangaraju in favour of his wife and

created vested remainder rights in favour of his sons. As such, the

defendants prayed for dismissal of the suit with costs.

8. On the basis of above pleadings, the learned trial Judge framed the

following issues for trial:

1) Whether the plaintiffs are entitled for declaration and recovery of

possession as prayed for and whether the Will dated 31.08.1990 is true

and correct?

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2) Whether the plaintiffs are entitled for damage of Rs.2,000/- p.m., from

the defendants for use and occupation of the suit schedule property as

prayed for?

3) Whether this Court has no jurisdiction to try this suit?

4) Whether the Court fees paid is not correct?

5) Whether the Will dated 29.12.1991 is true and correct?

6) Whether Pardhasaradhi and Gangaraju perfected their title by adverse

possession over the schedule property? and

7) To what relief?

9. During the course of trial in the trial Court, on behalf of the plaintiffs,

P.Ws.1 to 3 were examined and Exs.A-1 to A-20 were marked. On behalf of

the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-12 were

marked.

10. The learned trial Judge after conclusion of trial, on hearing the

arguments of both sides and on consideration of oral and documentary

evidence on record, dismissed the suit. Felt aggrieved thereby, the

unsuccessful plaintiffs filed the appeal suit in A.S.No.94 of 2006, on the file of

the III Additional District Judge, East Godavari District at Kakinada, wherein

the following points came up for consideration:

1) Whether the appellants/plaintiffs are entitled for declaration of title and

subsequent possession and damages as prayed for?

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2) Whether the impugned Decree and Judgment is sustainable in the facts

and law?

11. The learned first appellate Judge after hearing the arguments,

answered the points, as above, against the defendants and allowed the

appeal with costs by reversing the judgment and decree passed by the

learned trial Judge. Felt aggrieved of the same, the unsuccessful defendants

in O.S.No.59 of 2000 filed the present second appeal before this Court.

12. On hearing both sides‟ counsel at the time of admission of the second

appeal on 29.08.2025, this Court admitted the second appeal and framed the

following substantial questions of law:

1) Whether the judgment of the lower appellate Court is vitiated in ignoring

to consider Ex.B2 registered Will executed by Subbayamma and one of

the attestor of husband of Subbayamma?

2) Whether the judgment of the lower appellate Court is vitiated since the

respondents failed to remove the suspicious circumstances surrounded

Ex.A2?

3) Whether the judgment of the lower appellate Court is vitiated in not

considering the recital in Ex.B2 registered Will?

13. Heard Sri O.Manohar Reddy, learned Senior Counsel, representing Sri

A.Syam Sundar Reddy, learned counsel for the appellants and Sri Kirthi Teja

Kondveeti, learned counsel for the respondents.

VGKR, J.

SA_494_2016

14. The law is well settled that under Section 100 of CPC, High Court

cannot interfere with findings of fact arrived at by first appellate Court, which is

final Court of facts, except in such cases where such findings were erroneous

being contrary to the mandatory provisions of law, or its settled position on the

basis of the pronouncement made by the Apex Court or based upon

inadmissible evidence or without evidence.

In the case of Bhagwan Sharma v. Bani Ghosh

1

, the Apex Court held

as follows:

“The High Court was certainly entitled to go into the question as to whether the

findings of fact recorded by the First Appellate Court which was the final Court of fact

were vitiated in the eye of law on account of non-consideration of admissible evidence

of vital nature.”

In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar

2

,

the Apex Court held as follows:

“The High Court cannot substitute its opinion for the opinion of the First Appellate

Court unless it is found that the conclusions drawn by the lower appellate Court were

erroneous being contrary to the mandatory provisions of law applicable or its settled

position on the basis of pronouncements made by the Apex Court, or was based upon

inadmissible evidence or arrived at without evidence.”

15. The undisputed facts are that the plaintiff Nos.1 to 5 are the children of

late Hanumantha Rao and the plaintiff No.6 is the wife of the said late

Hanumantha Rao, who was the natural brother of Pamarthi Subbayamma,

and the plaint schedule property is the house property belonging to Pamarthi

Subbayamma. The case of the plaintiffs is that Subbayamma executed a

registered Will on 31.08.1990, in favour of Hanumantha Rao bequeathing the

plaint schedule property and later Subbayamma died intestate. The plaintiffs

1

AIR 1993 SC 398

2

AIR 1999 SC 471

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pleaded that subsequent to the death of Subbayamma, Hanumantha Rao died

intestate, and the plaintiff Nos.1 to 5, being the sons of Hanumantha Rao, and

the plaintiff No.6, being the wife of Hanumantha Rao, are having right in the

plaint schedule property. The case of the plaintiffs is that Subbayamma,

during her lifetime, executed a registered Will bequeathing the plaint schedule

property in favour of Hanumantha Rao, and Subbayamma died on

24.10.1993, and thereafter, Hanumantha Rao got absolute rights in the plaint

schedule property by virtue of a registered Will, i.e., the last testament

executed by Subbayamma, and after the death of Hanumantha Rao, the

plaintiffs are having absolute rights in the plaint schedule property, and

Hanumantha Rao got issued a legal notice dated 08.12.1993, to which

Pardhasaradhi and Pandurangarao issued reply notices dated 31.01.1994

and 08.02.1991 contending that the Ex.A-2 registered Will is a rank forged

one and that Subbayamma executed an unregistered Will on 29.12.1991, by

cancelling the earlier Wills, bequeathing the southern side of the plaint

schedule property in favour of her brother Pardhasaradhi and bequeathing the

northern portion of the house in favour of Annapurnamma, wife of late

Gangaraju, while retaining life interest, and after her death, her male children

have to enjoy the same.

16. The plaintiffs relied on Ex.A-2 registered Will dated 31.08.1990,

whereas the defendants relied on Ex.B-1 unregistered Will dated 29.12.1991.

The claim of the plaintiffs is based on Ex.A-2 registered Will dated 31.08.1990.

The claim of the defendants is based on Ex.B-1 unregistered Will dated

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29.12.1991, and Subbayamma died on 24.10.1993. The present suit is filed by

the plaintiff seeking the relief of declaration of right and title in favour of the

plaintiffs and also possession of the plaint schedule property. The very case of

the plaintiffs is that during the lifetime of Hanumantha Rao, he got issued a

legal notice to Pardhasaradhi and Pandurangarao on 08.12.1993, Ex.A-4, by

informing about the execution of Ex.A-2, registered Will dated 31.05.1990 by

Subbayamma and demanded them to deliver the vacant portion of the plaint

schedule property. The defendants contended in the reply notice dated

31.01.1994 under Ex.A-5 and dated 18.02.1994 under Ex.A-6 by informing

about the execution of the unregistered Will dated 29.12.1991.

17. The contention of the appellants herein is that the respondents/plaintiffs

failed to prove Ex.A-2 Will dated 31.08.1990 and that the defendants are

having absolute rights in the plaint schedule property by virtue of Ex.B-1

unregistered Will deed dated 29.12.1991. The contention of the respondents

is that Ex.B-1 unregistered Will is a fabricated one and that Ex.B-1 was

surrounded by several suspicious circumstances. The defendants relied on

the evidence of D.W.1, who is none other than the defendant No.2. D.W.2 is

one of the attestors to Ex.B-1 unregistered disputed Will. D.W.3 is the scribe

of Ex.B-1 and D.W.4 is one of the attestors to Ex.B-2 Will deed dated

18.04.1993. His evidence is in no way connected to prove the recitals in Ex.B-

1, because the defendants are contending that by cancelling earlier Ex.B-2

Will, Subbayamma executed an unregistered Will under Ex.B -1 dated

09.12.1991.

VGKR, J.

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18. D.W.2 is the attestor to Ex.B-1 Will. As per the evidence of D.W.2, on

27.12.1991, he attended the marriage function of his relations at Kakinada,

and at that time Smt. Pamarthi Subbayamma met him and requested him to

assist her in executing a Will and told him that she is staying with her brother

Pardhasaradhi behind the Collector's Office and asked him to meet her there

in the morning of 29.12.1991. As per his evidence, Ex.B-1 Will was executed

at the house of Pardhasaradhi, and he further contended that at the time of

giving instructions to the scribe of Ex.B-1 Will, Subbarao, i.e., D.W.1, was

present at the time of execution of Ex.B-1 Will.

19. It is the admitted case of the defendants that Ex.B-1 unregistered Will

was executed at the house of Pardhasaradhi, who is one of the beneficiaries

under alleged Ex.B-1, in the presence of Pardhasaradhi and D.W.1. As noted

supra, D.W.1‟s family and Pardhasaradhi are the beneficiaries under Ex.B-1.

The date of alleged unregistered Ex.B-1 Will is 29.12.1991. As per the

evidence of D.W.2, the Will was executed at the house of Pardhasaradhi and

at that time, Pardhasaradhi and D.W.1 were present. It is evident that

Subbayamma filed O.S.No.72 of 1990 against Saladi Subbarao viz. D.W.1

and others, and D.W.1 also filed O.S.No.34 of 1990 against Subbayamma.

D.W.1 is the son of Gangaraju, who is one of the legatees under Ex.B-1 Will.

Therefore, it is evident that there are disputes between Subbayamma and the

branch of Gangaraju from 1990 till the date of death of Subbayamma.

Therefore, the very execution of Ex.B-1 unregistered Will in favour of the

branch of Ganga Raju on 29.12.1991 is highly doubtful.

VGKR, J.

SA_494_2016

20. D.W.1/defendant No.2 admitted in his evidence in cross-examination

that he and Subbayamma were not in good terms after filing of the suit in

O.S.No.134 of 1990, and he further admits that Subbayamma died during the

pendency of the suit O.S.No.134 of 1990. He further admits that Subbayamma

died during the pendency of the suit in O.S.No.72 of 1990 and Hanumantha

Rao and the plaintiff Nos.1 to 5 herein filed a legal representatives‟ application

in the said suit, based on Ex.A-2 Will herein. D.W.1 filed a counter in the said

legal representatives‟ application under Ex.A-20, and the said counter was

filed on 27.09.1994. The alleged Ex.B-1 unregistered Will dated 29.12.1991 is

not at all referred to in the counter dated 27.09.1994 filed in the earlier suit

proceedings in O.S.No.72 of 1990. Therefore, the same is also one of the

strong suspicious circumstances to doubt the Ex.B-1 alleged unregistered

Will. Furthermore, in view of the aforesaid circumstances, since there are

disputes between the defendants' family and Subbayamma, by the date of

alleged Ex.B-2 Will, the very execution of alleged Ex.B-1 unregistered Will

dated 29.12.1991 is highly doubtful. Furthermore, D.W.2 is a relative of

Pardhasaradhi and there is evidence on record to show that there were no

talking terms between Pardhasaradhi and Subbayamma from the year 1990

till the death of Subbayamma in the year 1993. Therefore, the very execution

of Ex.B-1 Will in the year 1991 in favour of their enemies by Subbayamma is

highly doubtful and cannot be considered. Even as per the own admissions of

D.W.1, Subbayamma lived in the house of Hanumantha Rao, i.e., the father of

the plaintiff Nos.1 to 5, till the date of her death, i.e., on 24.10.1993. There is

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material on record to show that Hanumantha Rao, i.e., the father of the

plaintiff Nos.1 to 5, attended the funerals of Subbayamma and he performed

all the funeral ceremonies of Subbayamma and the defendants' branch did not

even attend the same. For the aforesaid reasons, the very execution of Ex.B-1

alleged unregistered Will dated 29.12.1991 is highly doubtful and

unbelievable.

21. The learned counsel for the appellant would contend that Ex.B-1

unregistered Will is proved in accordance with law and that the defendants

examined one of the attestors to Ex.B-1 unregistered Will as D.W.2. As stated

supra, there are several suspicious circumstances surrounding the execution

of alleged Ex.B-1 Will. It is the admitted case of D.W.2 that he is a relative of

the beneficiary of Ex.B-1 Will. The defendants failed to examine another

attestor to the alleged Ex.B-1 Will, though the scribe of the alleged Ex.B-1 Will

was examined as D.W.3. “The evidence of the scribe cannot be equated with

the evidence of an attestor.”

22. In a case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas

Kantara

3

, the Hon‟ble Apex Court held as follows:

“Whether a Will is surrounded by suspicious circumstances or not is

essentially a question of fact. It is a trite law that execution of a Will must be

held to have been proved not only when the statutory requirements for

proving the Will are satisfied but the Will is also found to be ordinarily free

from suspicious circumstances. When such evidences are brought on record,

the Court may take aid of the presumptive evidences also.”

3

(2008) 15 Supreme Court Cases 365

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23. In the case at hand, there are several suspicious circumstances

appearing on the face of alleged Ex.B-1 unregistered Will. It is well settled that

“suspicious circumstances must be real, germane and valid and not merely

the fantasy of the doubting mind; whether a particular feature would qualify as

suspicious would depend on the facts and circumstances of each case.”

Admittedly, in the case at hand, there is ample evidence on record to show

that there are civil suits between the defendants' branch and the testatrix from

1990 onwards till the death of the testatrix, i.e., on 24.10.1993, and by the

date of death of the testatrix, she was in the house of the father of the plaintiff

Nos.1 to 5, Hanumantha Rao, and the plaintiffs Nos.1 to 5 herein and their

father filed a legal representative application in a suit filed by Subbayamma in

the year 1993, based on Ex.A-2 registered Will in the suit proceedings in

O.S.No.72 of 1990. The testatrix in O.S.No.72 of 1990 and D.W.1 herein are

also parties to the said suit, and D.W.1 filed a counter in the said legal

representative application on 27.09.1994. In the said counter, Ex.B-1

unregistered Will of the year 1991, in favour of the defendants‟ branch, is not

even referred to by D.W.1 in the counter itself that is also one of suspicious

circumstance to doubt the Ex.B-1 unregistered Will.

24. In a case of Rani Purnima Devi And Another vs Kumar Khagendra

Narayan Dev And Another

4

, a Four Judge Bench of the Hon‟ble Apex Court

held and as follows:

4

AIR 1962 SUPREME COURT 567

VGKR, J.

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“There is no doubt that 'if a will has been registered, that is a circumstance

which may, having regard to the circumstances, prove its genuineness. But

the mere fact that a will is registered will not by itself be sufficient to dispel all

suspicion regarding it where suspicion exists, without submitting the evidence

of registration to a close examination. If the evidence as to registration on a

close examination reveals that the registration was made in such a manner

that it was brought home to the testator that the document of which he was

admitting execution was a will disposing of his property and thereafter he

admitted its execution and signed it in token thereof, the registration will

dispel the doubt as to the genuineness of the will.”

25. In a case of H.Venkatachala Iyengar Appellant Vs.

B.N.Thimmajamma and others Respondents

5

, the Hon‟ble Apex Court held

as follows:

“It is obvious that for deciding material questions of fact which arise in

applications for probate or in actions on wills, no hard and fast or inflexible

rules can be laid down for the appreciation of the evidence. It may, however,

be stated generally that a propounder of the will has to prove the due and

valid execution of the will and that if there are any suspicious circumstances

surrounding the execution of the will the propounder must remove the said

suspicions from the mind of the court by cogent and satisfactory evidence. It

is hardly necessary to add that the result of the application of these two

general and broad principles would always depend upon the facts and

circumstances of each case and on the nature and quality of the evidence

adduced by the parties.”

As noticed supra, there are several suspicious circumstances

surrounding Ex.B-1 alleged unregistered Will dated 29.12.1991. The

defendants relied on the evidence of D.W.1. D.W.1 is the beneficiary under

the alleged disputed unregistered Will under Ex.B-1. D.W.2 is one of the

attestors to Ex.B-1 Will. D.W.2 admits that he is a close relative of the

5

AIR 1959 SUPREME COURT 443

VGKR, J.

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beneficiary of the Ex.B-1 Will. Therefore, in view of the several suspicious

circumstances surrounding the execution of Ex.B-1, the evidence of D.W.2,

who is a relative to one of the beneficiaries under the Ex.B-1 alleged

unregistered Will, cannot be taken into consideration. As noticed supra, D.W.3

is the scribe of the disputed Ex.B-1 Will and the evidence of the scribe cannot

be equated with the evidence of an attestor. The defendants failed to examine

another attestor to the alleged unregistered Ex.B-1 Will. For the aforesaid

reasons, this Court is of the considered view that Ex.B-1 alleged Will is not at

all proved in accordance with law by the appellants.

26. The plaintiffs relied on Ex.A-2 registered Will dated 31.08.1990. To

prove Ex.A-2 Will, the plaintiffs relied on the evidence of the attestors to Ex.A-

2 Will and the plaintiffs examined them as P.W.2 and P.W.3. P.W.2 is the 2nd

attestor and the 1st identifying witness to Ex.A-2 Will and P.W.3 is the 1st

attestor and 2nd identifying witness before the Sub-Registrar to Ex.A-2 Will.

P.W.2 narrated in his evidence about the execution of Ex.A-2 Will. The

learned counsel for the appellants would contend that P.W.2 is the son of the

beneficiary and also the plaintiff No.1 herein and that his evidence cannot be

taken into consideration.

27. P.W.3 is another attestor to Ex.A-2 registered Will. As per his evidence,

Pamarthi Venkataswamy was having his own house at Satyavada and he also

had landed properties in the surrounding villages of Satyavada and on the

demise of her husband, Smt. Subbayamma came down to the house of

Hanumantha Rao and she lived there till her death, and she died in the year

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1993, and Subbayamma never attended any function after the demise of her

husband Venkataswamy. He further deposed that Subbayamma, even during

the lifetime of her husband, sold some landed property to them and she

delivered the possession of the property at the time of their purchase and he

purchased it in the name of his wife Mangadevi in the year 1984, and Smt.

Subbayamma also executed a registered agreement of sale in favour of his

wife at the time of purchase of the property, and she is a signatory. He further

admits that the registration of the sale deed took place when Subbayamma

came down to the house of Hanumantha Rao and on the demise of her

husband, i.e., about six years later, on the date of execution of sale deed in

the name of his wife, Subbayamma executed two (02) other documents and

got them registered and all the said documents were registered at a time and

Ex.A-2 Will was also registered on the same day and he also acted as an

attestor to the said Will. He further deposed that by the time of execution of

Ex.A-2 Will, Subbayamma was hale and healthy and she executed the Will

voluntarily in a sound and disposing state of mind and the scribe of the said

Will was Palepu Rama Rao and he died about two years ago. He further

deposed that after drafting the Will by the scribe, it was read over to

Subbayamma and she admitted the contents and after that she affixed her

thumb mark with the help of the scribe. He further admits that even though

she is a signatory, due to old age, she could not sign and that she affixed her

thumb mark on the sale deed and on the other two documents including the

registered Will executed by Subbayamma. It is not the case of P.W.3 that he

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is a close relative of the beneficiary under Ex.A-2 Will. The evidence of P.W.3,

who is one of the attestors to Ex.A-2 Will, proves the execution of Ex.A-2 Will

and another important circumstance to believe Ex.A-2 Will is that there are no

suspicious circumstances surrounding the Ex.A-2 Will.

28. It is in the evidence of P.W.2 that the entire funeral functions of

Subbayamma were attended by his father Hanumantha Rao and the

defendants and their family did not attend the funeral functions of

Subbayamma. No suggestion was given by the defendants in cross -

examination to P.W.2 to deny the same. Moreover, it was admitted by D.W.1

that he deposed in earlier suit proceedings in O.S.No.72 of 1990, which were

between Subbayamma and defendants and their family members, that

Subbayamma stayed with Hanumantha Rao till her death. D.W.1 further

admits that Subbayamma died during the pendency of O.S.No.72 of 1990 and

that Hanumantha Rao and his sons, i.e., the plaintiff Nos.1 to 5 herein, filed a

legal representative application on the basis of Ex.A-2 Will herein.

29. It was contended by the learned counsel for the appellants that

Subbayamma was a signatory, but in the Will Ex.A-2 she affixed her thumb

mark, which raised a suspicion on the execution of Ex.A-2 Will. The plaintiffs

placed Ex.A-17 and Ex.A-18 registered documents along with Ex.A-2, and in

the same year, the Ex.A-17 and Ex.A-18 documents were also registered,

which contained the thumb mark of Subbayamma. Moreover, Subbayamma

also filed suits against the defendants‟ family members in the year 1990,

wherein in the plaint she affixed her thumb mark only. The plaintiffs also

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placed Ex.A-10 and Ex.A-16 served suit summons in the said suit, those are

public documents, wherein Subbayamma affixed her thumb mark only in all

the aforesaid documents. The above circumstances go to show that due to

her old age, Subbayamma affixed her thumb mark instead of her signature on

the Will deed dated 31.08.1990.

30. In a case of M.Chandraiah and another Vs. C.Narayana and

another

6

, the Composite High Court of Andhra Pradesh at Hyderabad held as

follows:

“4. It is well known that Pahanis are public documents within the meaning

of Section 74 of the Evidence Act. Certified copies of public documents can

be obtained in view of Section 76 of the Evidence Act. Question of proving a

public document by examining the person who issued it does not arise in view

of Section 77 of the Evidence Act, which lays down that certified copies of

public documents can be produced in proof of the contents of a public

document. It would have been a different case if the genuineness of Ex. A-7

is disputed and if it is stated that Ex. A.7 in fact was not issued by the office of

the Tahsildar cum Deputy Collector, Quthubullapur, or that it is a forged

document. When the genuineness of Ex. A-7 is not questioned, question of

proving Ex. A-7 by calling the person who issued it by examining him as a

witness does not arise. Time of that public servant need not be wasted by

summoning him to Court for proving Ex. A-7, which does not require any

further proof.”

31. In a case of R.V.E. Venkatachala Gounder Vs. Arulmigu

Viswesaraswami and V.P. Temple and another

7

, the Hon‟ble Apex Court

held as follows:

6

AIR 2003 SUPREME COURT 4548

7

AIR 2003 SUPREME COURT 4548

VGKR, J.

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“19. Order 13 Rule 4 of the C.P.C., provides for every document admitted

in evidence in the suit being endorsed by or on behalf of the Court, which

endorsement signed or initialed by the Judge amounts to admission of the

document in evidence. An objection to the admissibility of the document

should be raised before such endorsement is made and the Court is obliged

to form its opinion on the question of admissibility and express the same on

which opinion would depend the document being endorsed as admitted or not

admitted in evidence. In the latter case, the document may be returned by the

Court to the person from whose custody it was produced.”

In the present case, at the time of marking of Ex.A-10 and Ex.A-16, no

objection was raised by the defendants before the trial Court. Therefore, they

cannot contend that Ex.A-10 and Ex.A-16 are inadmissible documents. The

aforesaid documents from 1990 to 1993 reveal that Subbayamma used to

affix her thumb impression only due to her old age at that relevant point of

time.

32. The learned counsel for the appellants placed a case law in Bharpur

Singh and Others Vs. Shamsher Singh

8

, wherein the Hon‟ble Apex Court

held as follows:

“It may be true that the Will was a registered one, but the same by itself would

not mean that the statutory requirements of proving the Will need not be

complied with. In terms of Section 63(c), Succession Act, 1925 and Section

68, Indian Evidence Act, 1872, in terms whereof the propounder of a will must

prove its execution by examining one or more attesting witnesses. Where,

however, the validity of the Will is challenged on the ground of fraud, coercion

or undue influence, the burden of proof would be on the caveator.

The fact that the propounder took interest in execution of the Will is one of the

factors which should be taken into consideration for determination of due

execution of the Will. The propounder of will must prove: (i) that the Will was

8

(2009) 3 Supreme Court Cases 687

VGKR, J.

SA_494_2016

signed by the testator in a sound and disposing state of mind duly

understanding the nature and effect of disposition and he put his signature on

the document of his own free will, and (ii) when the evidence adduced in

support of the Will is disinterested, satisfactory and sufficient to prove the

sound and disposing state of testator's mind and his signature as required by

law, Courts would be justified in making a finding in favour of propounder.”

33. The learned counsel for the appellants placed a case law in Leela and

Others Vs. Muruganatham and Others

9

, wherein the Hon‟ble Apex Court

held as follows:

“Though in normal circumstances there was no necessity to examine the

scribe and the non-examination of the scribe cannot be a suspicious

circumstance, it was taken note of by the courts in the circumstances

explained above.”

34. The learned counsel for the appellants placed a case law in Meena

Pradhan and Others Vs. Kamla Pradhan and Another

10

, wherein the

Hon‟ble Apex Court held as follows:

“10.11 Suspicious circumstances must be „real, germane and valid‟ and not

merely „the fantasy of the doubting mind‟ 1. Whether a particular feature

would qualify as „suspicious‟ would depend on the facts and circumstances of

each case. Any circumstance raising suspicion legitimate in nature would

qualify as a suspicious circumstance for example, a shaky signature, a feeble

mind, an unfair and unjust disposition of property, the propounder himself

taking a leading part in the making of the Will under which he receives a

substantial benefit, etc.”

9

(2025) 4 Supreme Court Cases 289

10

(2023) 9 Supreme Court Cases 734

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35. The learned counsel for the appellants placed a case law in Smt.

Jaswant Kaur Vs. Amrit Kaur and Others

11

, wherein the Hon‟ble Apex Court

held as follows:

“In cases where the execution of a will is shrouded in suspicion, its proof

ceases to be a simple lis between the plaintiff and the defendant. What,

generally, is an adversary proceeding becomes in such cases a matter of the

court's conscience and then the true question which arises for consideration

is whether the evidence led by the propounder of the will is such as to satisfy

the conscience of the court that the will was duly executed by the testator. It

is impossible to reach such satisfaction unless the party which sets up the will

offers a cogent and convincing explanation of the suspicious circumstances

surrounding the making of the will.”

36. The law is well settled that “the onus probandi lies in every case upon

the party propounding a Will and he must satisfy the consciousness of the

Court that the instrument so propounded is the last Will of a free and capable

testator.” It is also well settled that “where one attesting witness is examined

to prove the Will under Section 68 of the Indian Evidence Act and fails to

prove the due execution of the Will, then the other available attesting witness

has to be called to supplement his evidence to make it complete in all

respects. Where one attesting witness is examined and he fails to prove the

attestation of the Will by the other witness, there will be a deficiency in

meeting the mandatory requirements of Section 68 of the Indian Evidence

Act.” In the case at hand, the two (02) attestors to Ex.A-2 registered Will were

examined as P.W.2 and P.W.3. The learned counsel for the appellant has

taken an objection that P.W.2 is one of the beneficiaries under Ex.A-2 Will,

11

(1977) 1 Supreme Court Cases 369

VGKR, J.

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therefore, his evidence cannot be taken into consideration. However, the

evidence of P.W.3 clearly goes to show that he was present at the time of

execution of Ex.A-2 Will and that the scribe read over the contents of the

Ex.A-2 Will to the testatrix and the testatrix admitted the same and after

admitting the same, the testatrix affixed her thumb mark on the Ex.A-2 Will

and the evidence of P.W.3 is inspiring confidence to prove that Ex.A-2 Will is

the last testament of the testatrix. It is undisputed that the scribe of Ex.A-2 Will

had expired. The law is well settled that “the scribe cannot be equated with the

evidence of an attestor”, and the two attestors to Ex.A-2 Will deed were

examined as P.W.2 and P.W.3. In this case, though P.W.2 is a beneficiary

under Ex.A-2 Will, the evidence of P.W.3 is inspiring confidence to prove the

recitals in Ex.A-2 and there are no suspicious circumstances around the Ex.A-

2 registered Will.

37. The learned counsel for the appellant would contend that Ex.B-2 Will

deed dated 18.04.1983, is admitted by both the parties and attested by the

husband of the testatrix and in the absence of clear and categorical revocation

of the said Will in the subsequent registered Will namely Ex.A-2. Ex.A-2

cannot be considered as a valid one. No doubt, there is no mention in Ex.A-2

that the earlier Will shall stand cancelled, moreover, it is not mandatory that

every Will shall contain the clear recital that earlier Wills, if any, shall stand

cancelled. In the instant case, the defendants are relying on Ex.B-1

unregistered Will dated 29.12.1991. As stated supra, there are several

suspicious circumstances surrounding Ex.B-1 unregistered Will and Ex.B-1

VGKR, J.

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unregistered alleged Will dated 29.12.1991, is doubtful and not validly proved

by the defendants. The plaintiffs are relying on Ex.A-2 registered Will deed

which is the last Will. As stated supra, the plaintiffs are relying on Ex.A-2

registered Will which is the last testament of the testatrix and there are no

suspicious circumstances surrounding Ex.A-2 Will. Therefore, the last Will of

Subbayamma, i.e., Ex.A-2 Will, has to be taken into consideration.

38. As noticed supra, this Court came to the conclusion that the Ex.B-1 Will

is not proved. Since Ex.B-1 Will is not proved, Ex.A-2 registered Will dated

31.08.1990, which is the last testament of Subbayamma, has to be taken into

consideration. Under law, the latest Will prevails over the old Wills and Ex.A-2

herein is the last testament of Subbayamma. Moreover, the appearance of the

testatrix before the Sub-Registrar on 31.08.1990 cannot be doubted and the

presence of the executant before the Sub-Registrar can be favourably

presumed unless some material is placed by the other side to disprove Ex.A-2

Will. Though the appellant pleaded that the testatrix is a signatory, Ex.A-2

contains only the thumb mark, and the same cannot be taken into

consideration. The plaintiffs explained that though Subbayamma is a

signatory, due to her old age she affixed her thumb mark and to substantiate

the same the plaintiffs placed the registered documents of the relevant period,

i.e., Ex.A-18 and also the plaint in O.S.No.72 of 1990 and the served suit

summons in O.S.No.34 of 1990, wherein Subbayamma affixed her thumb

mark only instead of her signature. The documents produced by the plaintiffs

support their claim that Subbayamma used to affix her thumb impression at

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SA_494_2016

that relevant period of time. Even as per the own admissions of D.W.2, the

testatrix stayed in the house of Hanumantha Rao and died at the house of

Hanumantha Rao. There are no suspicious circumstances surrounding the

execution of Ex.A-2. Though P.W.2, who is one of the attestor, is a party to

the suit, the evidence of P.W.3, who is another attestor, proves about the

genuineness of the Will and Ex.A-2 registered Will is the last testament of

Subbayamma. As per Ex.A-2 last Will executed by Subbayamma, the plaintiffs

being the legal representatives of Hanumantha Rao are having absolute rights

over the plaint schedule property.

39. The appellants have taken three (03) inconsistent pleas to prove their

title over the property. Firstly, they claimed that the property was purchased in

the name of Subbayamma as a „Benami‟, secondly, the appellants claimed the

title by way of adverse possession and thirdly, they claimed the property under

Ex.B-1 alleged unregistered Will dated 29.12.1991. All the aforesaid three

pleas of the appellants are inconsistent and they are not sure about the title of

the property. If really the property was nominally purchased with the funds of

the appellants, there cannot be any question of executing Ex.B-1 Will to

distribute the property once again. Moreover, the appellants failed to prove

that the property was purchased in the name of Subbayamma as a „Benami‟

and the appellants also failed to prove that they are having title by way of

adverse possession.

40. On appreciation of the entire evidence on record, the learned First

Appellate Judge had arrived at a conclusion that the plaintiffs are having valid

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title over the plaint schedule property. In the light of the material on record and

upon earnest consideration now, it is manifest that the substantial questions of

law raised in the course of hearing in the second appeal on behalf of the

appellants did not arise or remain for consideration. This Court is satisfied that

the second appeal did not involve any substantial question of law for the

determination.

41. In the result, the second appeal is dismissed by confirming the

judgment and decree passed by the First Appellate Court.

Pending applications, if any, shall stand closed. Each party do bear their

own costs in the second appeal.

__________________________

V. GOPALA KRISHNA RAO, J.

Date: 15.06.2026

SRT