HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO SECOND APPEAL No. 631 OF 2015 JUDGMENT: This second appeal under Section 100 of the Code of Civil Procedure (for short, 'C.P.C.') is filed aggrieved against the decree and judgment dated 06-04-2015 in A.S.No. 228 of 2011 on the file of the Court of learned Additional District Judge, Kovvur (for short, 'the first appellate Court'), in confirming the decree and judgment 17-01-2005 in O.S.No. 770 of 1998 on the file of the Court of learned Principal Junior Civil Judge, Kovvur (for short, 'the trial Court'). 2. The appellants herein are defendants and respondent No. 1 is plaintiff before the trial Court. During the pendency of second appeal, respondent No. 1 died and respondent Nos. 2 to 4 are brought on record as legal representatives of the deceased respondent No. 1. 3. The plaintiff initiated action in O.S.No. 770 of 1998 on the file of the trial Court with a prayer for declaration of his title over plaint schedule property and for possession by virtue of registered Will dated 25-05-1991 and for suit costs. 4. The trial Court decreed the suit with costs declaring that the plaintiff is the owner of ground floor of plaint schedule building by virtue of Will dated 25-05-1991 and directed the defendants to handover 2 vacant possession of plaint schedule building to the plaintiff within one month. Felt aggrieved of the same, the unsuccessful defendants in the above said suit filed A.S.No. 228 of 2011 on the file of the first appellate Court. By decree and judgment dated 06-04-2015 in A.S.No. 228 of 2011, the appellate Court dismissed the appeal suit by confirming the decree and judgment passed by the trial Court. 5. For the sake of convenience, both parties in the second appeal will be referred to as they were arrayed in the original suit. 6. Case of the plaintiff, in brief, as set out in the plaint averments in O.S.No. 770 of 1998, is as follows: The plaintiff and defendant No. 1 are brothers and they are children of one Gangiredla Savithramma. Defendant No. 2 is wife of defendant No. 1. The said Savithramma had no female issues. She, being the absolute owner of plaint schedule property and some other properties, executed a registered Will dated 25-05-1991 in a sound and disposing state of mind bequeathing her properties in favour of the plaintiff, his wife, defendant No. 1 and his wife specifying separate extents. Savithramma died on 23-05-1996 and the registered Will dated 25-05-1991 executed by her is her last Will and testament. The testatrix bequeathed ground floor in the terraced building to the plaintiff and first floor to defendant No. 1. The plaintiff and defendant No. 1 have been 3 enjoying their respective shares in that building. There is a recital in the registered Will dated 25-05-1991 that no further stairs should be raised on the said building as it is a old building and if such second floor or further floors are raised, they is a possibility of the entire building may be collapsed. The defendants, without caring for that condition in the Will, started making arrangements to raise second floor on that building and the defendants filed caveat petition against the plaintiff and his son on the file of the Court of learned Junior Civil Judge, Kovvur. In that caveat petition, the defendants raised false allegations as if Savithramma executed another Will bequeathing the entire plaint schedule building to defendant No. 1 and in that caveat petition, no date of that Will is mentioned. The plaintiff, apprehending that the defendants may file a suit and obtain ex parte orders, also filed a caveat petition on the file of the Court of learned Junior Civil Judge, Kovvur, with true and correct facts asserting that Savithramma did not execute any Will subsequent to the registered Will dated 25-05-1991. After filing of the caveat petitions, defendant No. 1 agreed before elders that he would not construct any stair above the first floor of the building and requested the plaintiff to permit him to occupy a room in the ground floor for keeping his articles as he has to attend repairs of up-stair portion and the plaintiff obliged the request of defendant No. 1 and permitted defendant No. 1 to keep his articles in a room on southern side in 4 ground floor. Thus, the defendants occupied that room on 08-11-1998. Subsequently, taking advantage of absence of the plaintiff in ground floor of plaint schedule building, the defendants occupied the entire ground floor of plaint schedule building highhandedly and when the plaintiff questioned about such occupation, the defendants, though replied that they would vacate the same within a week, did not vacate and all the efforts of the plaintiff for recovery of possession of plaint schedule building through mediators turned futile. Therefore, the plaintiff filed the suit for declaration of title, recovery of possession and for mesne profits and costs. 7. Defendant No. 1 filed written statement before the trial Court, which was adopted by defendant No. 2 by filing a memo, wherein it is pleaded that the registered Will dated 25-05-1991 said to have been executed by Savithramma is not executed by her with free will and in a sound and disposing state of mind. It is the contention of the defendants that the bequest is not equal and the plaintiff and his wife were given more valuable properties than the properties given to them. Further, Savithramma spent lot of money towards medical expenses to the plaintiff's son by name Ramakrishna Prasad and also performed marriage of elder daughter of the plaintiff by name Rama Lakshmi and thereby Savithramma spent more money on the plaintiff's family. For 5 that reason, Savithramma executed another unregistered Will dated 05- 05-1996 whereunder keeping all the bequests as-it-is, the entire plaint schedule property was given to defendant No. 1 whereas in the registered Will, first floor alone was bequeathed to defendant No. 1. Thus, the defendants contend that they have been in enjoyment of the entire plaint schedule property as per the Will dated 05-05-1996 and the plaintiff has neither title nor possession over ground floor of plaint schedule property and as such, the plaintiff is not entitled for all the reliefs prayed in the plaint. 8. On the basis of above pleadings, the trial Court framed the following issues for trial: "(i) Whether the plaintiff is entitled for the declaration over the plaint schedule property and possession? (ii) Whether the plaintiff is entitled for mesne profits? (iii) To what relief?" 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A1 to A5 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Ex.B1 was marked. 10. The trial Court, after conclusion of trial, on hearing arguments of both sides and on consideration of oral and documentary evidence on 6 record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendants filed the appeal suit in A.S.No. 228 of 2011 on the file of the first appellate Court, wherein the following points came up for consideration: "(i) Whether the finding of the trial Court suspecting the genuinity of Ex.B1 Will is on sound appreciation of the material before it in the form of pleadings and evidence i.e. oral and documentary and whether the finding of the trial Court in declaring the title of the plaintiff to the plaint schedule property and ordering recovery of possession of plaint schedule property and granting mesne profits etc., is sustainable? (ii) To what relief?" 11. The first appellate Court, after hearing arguments, answered the points, as above, against the appellants-defendants and dismissed the appeal suit filed by the appellants-defendants. Felt aggrieved of the same, the defendants in O.S.No. 770 of 1998 filed the present second appeal before this Court. 12. The composite High Court for the State of Telangana and the State of Andhra Pradesh admitted the second appeal on 25-11-2015, wherein the following substantial questions of law have been framed at the time of admission: "(a) Whether the lower appellate Court is justified in disposing of the appeal in the absence of evidence of the parties, only by relying 7 on the findings recorded by the trial Court which are indirectly under attack/challenge in the appeal and is not such a Decree perverse? (b) Whether the Court below could appreciate the oral evidence properly especially when the depositions of the parties are not available, without ordering for reconstruction of the same and is not such appreciation of evidence improper and perverse? (c) Whether the Courts below are justified in dismissing the suit ignoring the oral evidence, which clinches the case, since the First Appellate Court is the final fact-finding Court, hence, is not such judgment perverse? (d) Whether the findings of the Courts below are in conformity with the evidence adduced by the parties on record and whether such findings would tantamount to misreading of evidence by the Courts below? (e) Are the reasons assigned by the Courts below in the impugned judgment are neither sustainable nor tenable in the eye of law?" 13. Heard Sri Ponnada Sree Vyas, learned counsel, representing M/s. K.S.Murthy Associates, learned counsel appearing for the appellants, and Sri Balaji Medamalli, learned counsel appearing for the respondents. 14. Law is well settled that under Section 100 of C.P.C., the High Court cannot interfere with the findings of fact arrived at by the first 8 appellate Court which is the 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. 15. In Bhagwan Sharma Vs. Bani Ghosh1, 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." 16. In Kondira Dagadu Kadam Vs. Savitribai Sopan Gujar2, 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 admissible evidence or arrived at without evidence." 17. The undisputed facts are that the plaintiff and defendant No. 1 are brothers and they are children of one Gangiredla Savithramma; 1 AIR 1993 SC 398 2 AIR 1999 SC 471 9 defendant No. 2 is wife of defendant No. 1. Mother of the plaintiff and defendant No. 1 was the original owner of plaint schedule property. The specific case of the plaintiff is that his mother by name Savithramma executed a registered Will dated 25-05-1991 in a sound and disposing state of mind bequeathing plaint schedule property in his favour and the said registered Will is her last testament and she died on 23-05-1996. It is the specific case of the defendants that Savithramma executed another unregistered Will dated 05-05-1996, wherein ground floor and first floor of total building i.e. plaint schedule property herein was bequeathed in favour of defendant No. 1 and it is her last testament and by executing the said unregistered Will, the earlier registered Will dated 25-05-1991-Ex.A1 is cancelled by Savithramma. It is undisputed by both sides that Savithramma died on 23-05-1996. 18. The plaintiff approached the trial Court seeking the relief of declaration of his title in respect of plaint schedule property and for consequential relief of recovery of possession of plaint schedule property. Admittedly, the suit is filed on 25-11-1998. As stated supra, the testatrix of the Will of the plaintiff and the alleged disputed Will of defendant No. 1 died on 23-05-1996. Both parties are claiming plaint schedule property by virtue of Wills said to have been executed by their mother. The plaintiff is relying on Ex.A1-registered Will dated 10 25-05-1991 whereas brother of the plaintiff i.e. defendant No. 1 is relying on Ex.B1-unregistered Will dated 05-05-1996. 19. Learned counsel for the appellants would contend that without re- appreciating the evidence on record, the first appellate Court confirmed the findings of the trial Court and dismissed the first appeal and that the case may be remanded back to the first appellate Court for fresh disposal. He would further contend that in the absence of evidence of the parties, the first appellate Court dismissed the first appeal and therefore the matter may be remanded back to the first appellate Court. 20. As seen from the judgment of the first appellate Court, the first appellate Court explained the reasons in para Nos. 9 and 10 of its judgment and also the first appellate Court held that both counsels produced copies of Exs.A3 to A5 and Ex.B1 and copy of Ex.A1 is already available in the record and with regard to date of death of testatrix-Ex.A2, there is no dispute by both parties and the first appellate Court further held in its judgment that "both parties are not in a position to file any copies or certified copies of those depositions and they state that they have no certified copies or even Photostat copies of those depositions and they also filed a memo to the effect that this Court can proceed with the available material on record including the documents filed by them i.e. Exs.A1, A3 to A5 and B1." The judgment of the first 11 appellate Court goes to show that both counsels requested the first appellate Court to dispose of the first appeal with the available material on record and they have submitted arguments on 27-02-2015 and the first appellate Court dismissed the first appeal on merits on 06-04- 2015. The decree and judgment of the first appellate Court would show that learned counsel for the appellants as well as learned counsel for the respondent requested it to dispose of the first appeal on merits with the material available on record. In fact, no objection has been raised by the appellants before the first appellate Court to dispose of the first appeal on merits. The appellants-defendants filed copies of depositions of both parties before this Court but they failed to produce copies of depositions before the first appellate Court for the reasons best known to them and invited the first appellate Court to hear arguments and pronounce judgment on merits with the material available on record. 21. The legal position in this regard is no more res integra. The same has been well settled by the Apex Court in Nafees Ahmad and another Vs. Soinuddin and others3, wherein it is held at para Nos. 13 and 14 as follows: "13. We must also look into the provisions of Rule 30 of Order 41 for the purpose of fortifying our interpretation of Rule 31. Order 41 Rule 30 of C.P.C. reads thus: 3 2025 SCC OnLine SC 826 12 30. Judgment when and where pronounced – (1) The appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. (2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced. 14. Thus, this Rule does not make it incumbent on the appellate Court to refer to any part of the proceedings in the Court from whose decree the appeal is preferred. The appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceedings of the Courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong." 22. The copies of depositions of P.Ws.1 to 4 and D.Ws.1 to 4 are filed by the appellants before this Court. Defendant No. 1 relied on Ex.B1- Will dated 05-05-1996. In Ex.B1-Will, the testatrix stated that at the instance of the plaintiff, without deciding in a proper manner, she 13 executed Ex.A1-Will and that she is executing another unregistered Will- Ex.B1 by cancelling the earlier Will-Ex.A1. Therefore, the fact remains that execution of Ex.A1-Willl is admitted by the testatrix but the appellants failed to prove that the testatrix executed Ex.A1-Will on the pressure of the plaintiff. Moreover, the gap between the alleged Will- Ex.A1 and the disputed Will-Ex.B1 is approximately five years. If really any pressure was brought by the plaintiff for execution of Ex.A1- registered Will, Savithramma would not keep quiet for a period of five years and she would certainly cancel the same immediately but she remained silent for a period of 5 years though she was hale and healthy subsequent to execution of Ex.A1-registered Will. 23. Ex.B1-Will is seriously disputed by the other side i.e. the plaintiff. Therefore, it is the duty of the propounder of the Will-defendant No. 1 to prove Ex.B1-Will in accordance with law. The law is well settled that a Will has to be proved in terms of Section 68 of the Indian Evidence Act, 1872, read with Section 63 of the Indian Succession Act, 1925. In the case on hand, the propounder of the Will-D.W.1 got examined the two attestors in the alleged Ex.B1-Will as D.Ws.2 and 3 respectively. It is in the evidence of D.W.2 that as on the date of Ex.B1-Will, the sons of Savithramma were not residing in the said house and the entire house was leased out whereas D.W.3, another attestor of the alleged Ex.B1- 14 Will, stated in his evidence in cross-examination that as on the date of Will, in the house described in plaint schedule, defendant No. 1 was residing and Savithramma was present at the house of defendant No. 1 by the time of Ex.B1. It is in the evidence of D.W.2 that the testatrix happened to meet him at 2 p.m. on road and called him to her house by 4 p.m. and by the time he reached her house, D.W.3 and scribe were present at that time whereas another attestor-D.W.3 deposed in his evidence that Savithramma sent a word to him at about 4 or 5 p.m. while he was in his fields to visit her house and by the time he reached her house, scribe and Savithramma were there. Therefore, there is no consistency in between the evidence of both the attestors viz., D.W.2 and D.W.3. 24. D.W.2, one of the attestors of the alleged disputed Will-Ex.B1, deposed that the reason for execution of subsequent Will under Ex.B1 is that defendant No. 1 got two daughters and for that reason, Savithramma wanted to give more properties to defendant No. 1. While so, D.W.3, another attestor, gave another reason that in Ex.A1-Will, the property was not properly apportioned and as such, Savithramma executed Ex.B1-Will. D.W.3 did not state in his evidence that the reason for execution of Ex.B1-Will is incurring expenses for treatment of son of the plaintiff and marriage expenses of daughter of the plaintiff 15 whereas D.W.4, scribe, deposed in his evidence that as Savithramma spent more amount for heart operation of son of the plaintiff and marriage of daughter of the plaintiff, she thought of giving more properties to defendant No. 1 by executing Ex.B1-Will. Therefore, there is no consistency between the evidence of both the attestors as stated supra. Furthermore, prior to filing of the suit by the plaintiff before the trial Court, defendant No. 1 filed a caveat petition before the trial Court which was marked as Ex.A3, wherein defendant No. 1 stated that Savithramma executed Will in sound and disposing state of mind bequeathing total terraced building to him but the date of the alleged Will is not mentioned in the caveat petition which is also one of the strong circumstances to disbelieve Ex.B1-Will. 25. Another important circumstance to doubt the genuineness of Ex.B1-Will is that the testatrix is in the habit of executing registered Wills. In Ex.A1-Will also, earlier registered Will was referred to by the testatrix. Moreover, the testatrix died on 23-05-1996 within a gap of 18 days from the date of the alleged Ex.B1-unregistered Will which is also one of the strong circumstances to doubt the genuineness of Ex.B1. Another strong circumstance to doubt Ex.B1-Will is that defendant No. 1 obtained separate electricity service connection to the first floor of the building. Moreover, the essential requirements of proving of Will under 16 Section 63 of the Indian Succession Act, 1925, are missing in the evidence of D.Ws.2 and 3. 26. It is well settled that "a Will has to be proved like any other document but it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925, in the manner that for due execution, the testator has to sign or affix his mark on the Will or it has to be signed by some other person in the presence of testator and under his direction and the Will has to be attested by two or more witnesses, each of them has seen such signing or affixation by testator or by other person acting as per the directions of the testator". 27. Admittedly, the ingredients of Section 63 of the Indian Succession Act, 1925, are missing in the evidence of D.Ws.2 and 3. The propounder of the Will-D.W.1 failed to remove the aforesaid suspicious circumstances surrounded the execution of the alleged Ex.B1-Will. Furthermore, the trial Court also took pains to compare both the admitted Will-Ex.A1 and also the disputed unregistered Will-Ex.B1 under Section 73 of the Indian Evidence Act, 1872, and by giving cogent reasons, the trial Court came to the conclusion that Ex.B1-unregistered Will is not a genuine one. 28. As stated supra, the execution of Ex.A1-Will is not disputed by defendant No. 1. It is the contention of defendant No. 1 that under the 17 pressure of the plaintiff, his mother executed Ex.A1-registered Will but the alleged pressure as stated by defendant No. 1 is not at all proved by him. Moreover, Ex.A1-Will is a registered Will dated 25-05-1991 and the testatrix died after five years of Ex.A1 in the year 1996. Moreover, the ground floor in the house property was bequeathed to the plaintiff under Ex.A1-registered Will and the first floor of the said house property was bequeathed to defendant No. 1 under Ex.A1-registered Will. It is also not in dispute that except the plaintiff and defendant No. 1, there are no other children to Savithramma. One of the attestors and the scribe of Ex.A1-Will were examined by the plaintiff as P.Ws.2 and 3. The plaintiff proved Ex.A1-Will. Therefore, Ex.A1-Will is proved in accordance with law by examining one of the attestors and the scribe as P.Ws.2 and 3. Moreover, execution of the registered Will under Ex.A1 is not disputed by the defendants. 29. The material on record proves that by virtue of Ex.A1-registered Will, the plaintiff is having right and valid title in plaint schedule property. Moreover, the unregistered Will-Ex.B1 of defendant No. 1 is not proved in accordance with law. Therefore, the plaintiff is entitled for the relief of declaration of title in plaint schedule property. Since the plaintiff is entitled for the main relief of declaration of title in plaint schedule 18 property, he is also entitled for the consequential relief of recovery of possession. 30. In the case at hand, on appreciation of entire evidence on record, the trial Court rightly decreed the suit for the reliefs of declaration of title and recovery of possession filed by the plaintiff. By giving cogent reasons, the first appellate Court rightly dismissed the first appeal by confirming the decree and judgment passed by the trial Court. 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 this second appeal did not involve any substantial question of law for determination. 31. In the result, the second appeal is dismissed confirming the decrees and judgments passed by the trial Court as well as the first appellate Court. Pending miscellaneous applications, if any, shall stand dismissed in consequence. There shall be no order as to costs. __________________________ V.GOPALA KRISHNA RAO, J. Date: 14-11-2025, JSK 19 HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO SECOND APPEAL No. 631 OF 2015 DATE: 14-11-2025 JSK