APHC010029292026 IN THE HIGH COURT OF ANDHRA PRADESH FRIDAY, THE THIRTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO SECOND APPEAL No. BETWEEN: 1. APPIKONDA VENKATA MURALI, S/o. LATE SEETHARAM, AGED ABOUT 62 YEARS, PREVIOUSLY RESIDENT OF DOOR No. 2-5/13, 124, CENTRAL PRISON ROAD, ADAVIVARAM, GREATER VISAKHAPATNAM. PERMANENT RESIDENT OF BOBBILI TOWN AND MUNICIPALITY, VIZIANAGA DISTRICT. 1. NALITHAM VARALAKSHMI, W/o.MOHANA RAO, AGED ABOUT 68 YEARS, OCC:HOUSE WIFE, R/o.D.No.15 RAYAGADA, ODISHA STATE 2. APPIKONDA LAKSHMI NARAYANA, S/o. LATE SEETHARAM, AGED ABOUT 74 YEARS, R/o. MIG. 195, A.P.H.B COLONY, OPPOSITE TO ZILLA PARISHAD, SRIKAKULAM TOWN AND DISTRICT. 3. APPIKONDA SANKARA RAO, S/o. LATE SEETHARAM, AGED ABOUT 71 YEARS, R/o. D.No.38 FUNCTION PLAZA, CHURCH CENTRE. BOBBILI TOW VIZIANAGARAM DISTRICT 4. PAGADA RAMA DEVI, W/o.SURYA RAO, AGED ABOUT 62 YEARS, R/o.D.No.15 PRASADARAOPET, JEYPORE, ODISHA STATE 5. BURIDI SAVITRI, W/o. SRINIVASA RAO, AGED ABOUT 57 YEARS, R/o. D.No.153 AND MUNICIPALITY IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) FRIDAY, THE THIRTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO SECOND APPEAL No. 60/2026 APPIKONDA VENKATA MURALI, S/o. LATE SEETHARAM, AGED ABOUT 62 YEARS, PREVIOUSLY RESIDENT OF DOOR 5/13, 124, CENTRAL PRISON ROAD, ADAVIVARAM, GREATER VISAKHAPATNAM. PERMANENT RESIDENT OF BOBBILI TOWN AND MUNICIPALITY, VIZIANAGA ...APPELLANT AND NALITHAM VARALAKSHMI, W/o.MOHANA RAO, AGED ABOUT 68 YEARS, OCC:HOUSE WIFE, R/o.D.No.15-37/2, J.K.PUR, RAYAGADA, ODISHA STATE. APPIKONDA LAKSHMI NARAYANA, S/o. LATE SEETHARAM, ABOUT 74 YEARS, R/o. MIG. 195, A.P.H.B COLONY, OPPOSITE TO ZILLA PARISHAD, SRIKAKULAM TOWN AND APPIKONDA SANKARA RAO, S/o. LATE SEETHARAM, AGED ABOUT 71 YEARS, R/o. D.No.38-34, OPPOSITE GAYATRI FUNCTION PLAZA, CHURCH CENTRE. BOBBILI TOW VIZIANAGARAM DISTRICT. PAGADA RAMA DEVI, W/o.SURYA RAO, AGED ABOUT 62 YEARS, R/o.D.No.15-37/1, MAIN LINE. NEAR POST OFFICE, PRASADARAOPET, JEYPORE, ODISHA STATE. BURIDI SAVITRI, W/o. SRINIVASA RAO, AGED ABOUT 57 YEARS, R/o. D.No.153-2, MANGALI VEEDHI, BOBBIN TOWN AND MUNICIPALITY. ...RESPONDENT(S): IN THE HIGH COURT OF ANDHRA PRADESH [3330] FRIDAY, THE THIRTIETH DAY OF JANUARY THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO APPIKONDA VENKATA MURALI, S/o. LATE SEETHARAM, AGED ABOUT 62 YEARS, PREVIOUSLY RESIDENT OF DOOR 5/13, 124, CENTRAL PRISON ROAD, ADAVIVARAM, GREATER VISAKHAPATNAM. PERMANENT RESIDENT OF BOBBILI TOWN AND MUNICIPALITY, VIZIANAGARAM ...APPELLANT NALITHAM VARALAKSHMI, W/o.MOHANA RAO, AGED ABOUT 37/2, J.K.PUR, APPIKONDA LAKSHMI NARAYANA, S/o. LATE SEETHARAM, ABOUT 74 YEARS, R/o. MIG. 195, A.P.H.B COLONY, OPPOSITE TO ZILLA PARISHAD, SRIKAKULAM TOWN AND APPIKONDA SANKARA RAO, S/o. LATE SEETHARAM, AGED 34, OPPOSITE GAYATRI FUNCTION PLAZA, CHURCH CENTRE. BOBBILI TOWN, PAGADA RAMA DEVI, W/o.SURYA RAO, AGED ABOUT 62 37/1, MAIN LINE. NEAR POST OFFICE, BURIDI SAVITRI, W/o. SRINIVASA RAO, AGED ABOUT 57 ALI VEEDHI, BOBBIN TOWN ...RESPONDENT(S): 2 Appeal under Section 100 CPC against orders, pleased to a) Admit this Second Appeal and formulate the substantial questions of law as framed above. b) Set aside the common judgment and decree dated 15.09.2025 in A.S No. 07/2022 along with Cross Appeal No. 7/2022 on the file of the II Additional District Judge, Parvatipuram in so far as A.S No. 07/2022 and the judgment and decree dated 10.02.2022 in O.S No. 63 of 2014 on the file of the Senior Civil Judge, Bobbili, c) Dismiss the suit O.S No. 63 of 2014 in its entirety. d) Pass such other order or orders. Counsel for the Appellant: 1. TADDI NAGESWARA RAO Counsel for the Respondent(S): 1. The Court made the following: 3 JUDGMENT: For the sake of convenience in this Judgment, the parties will be referred to as per their array in the Suit. 2. The plaintiff filed suit for partition of the joint family properties i.e. A and B Schedule properties against the brothers and sisters. 3. As per the plaint pleadings, the B-Schedule properties are paternal ancestor properties and the A-schedule properties are the maternal side properties. As per the plaint averments, the suit “B” Schedule properties are ancestral properties of Seetharam who died intestate on 06.09.1999 and his wife Sanyasamma died in the month of November, 2012, and the said properties were succeeded by the parties being the heirs of the said Seetharam. 4. The A-Schedule properties belong to the maternal grandparents of the parties and it is asserted that the maternal grandmother has executed a Will on 15.12.1960 in favour of the mother of the parties and on the death of the mother, the parties in the suit have succeeded the properties. Hence, the plaint presented for division of the properties for six equal shares, vide O.S.No.63 of 2014, on the file of the Senior Civil Judge, Bobbili. 4 5. The trial Court has decreed the suit preliminarily dividing the A- Schedule item No.3 and B-Schedule properties into six equal shares and allotted one such share to the plaintiff towards her share with metes and bounds vide judgment and decree dated 10.02.2022. 6. Aggrieved by the Judgment and Decree dated 10.02.2022, on the file of the Senior Civil Judge Court, Bobbili, the 3rd Defendant in the suit filed A.S. No.07/2022 and the plaintiff filed cross appeal No. 07/2022, on the file of the II Additional District Judge, Parvathipuram. The lower appellate Court, after re-appreciating the evidence, has dismissed both the appeal and cross appeal vide judgment and decree dated 15.09.2025, by common order. 7. Aggrieved by the judgment of the trial Court in O.S. No.63 of 2014 on the file of the Senior Civil Judge Court, Bobbili, and confirming the same by the II Additional District Judge, Parvathipuram, in A.S. No.7 of 2022, the present Second Appeal is filed under Section 100 CPC, on the grounds that the appellate Court and trial Court has erred in not relying on the registered Will dated 05.06.2009 and drawing the adverse inference under Section 114 (g) of the Indian Evidence Act, 1872, against the Appellant for non-production of the original Will dated 15.12.1960, ignoring the settled principle of law that such an inference cannot be drawn when the document is not within the exclusive possession of the party and the courts have misinterpreted and 5 misapplied the provisions of the Hindu Succession (Amendment) Act, 2005, particularly Section 6(5) and its explanation, by holding that the unregistered partition deed dated 22.01.1999 (Ex.B17) and the subsequent registered gifts were ineffective, thereby erroneously reopened a partition that was finalized prior to the cut-off date of 20.12.2004 and wrongly applied the law and the plaintiff failed to discharge her initial burden to prove the existence of a joint family. Hence, prayed to allow the Second Appeal by setting aside the judgment and decree dated 10.02.2022 of the trial Court in O.S.No.63 of 2014, which was confirmed by the Appellate Court in A.S. No.7 of 2022 dated 15.09.2025. 8. The 3rd defendant who is appellant herein filed the present Second Appeal under Section 100 CPC contending that the Plaint A- Schedule properties belong to the maternal grandparents. The maternal grandmother executed a Will dated 15.12.1960 in favour of the mother of the 3rd defendant. Subsequently the mother has executed a Will on 05.06.2009 in favour of the 3rd defendant and the properties that got to the 3rd defendant by Will dated 05.06.2009 are exclusive properties of the mother of the 3rd defendant as she has got the same from her parents as Stridhana. 9. The learned counsel for the appellant argues that both the Courts have wrongly displaced evidence of the 3rd defendant. Hence, prayed 6 to set aside the judgment and decree dated 10.02.2022 rendered by the trial Court in O.S. No.63 of 2014 and the Judgment and decree dated 15.09.2025 rendered in A.S. No.7 of 2022 by the Appellate Court. 10. The primary contention of the 3rd defendant is that the A schedule properties that belong to grandmother, and she has executed a registered gift settlement deed / Will dated 15.12.1960 in favour of the 3rd defendant’s mother. Subsequently, the 3rd defendant’s mother has executed a registered Will dated 05.06.2009 in favour of the 3rd defendant and the mother of 3rd defendant is the exclusive owner to the property and despite the said fact, the courts below wrongly ordered for division of the item No.3 of Plaint A-Schedule properties. 11. The 3rd defendant he himself examined as DW3 and he has examined scribe as D.W.4 and attestor as D.W.5 to prove the Will deed dated 05.06.2009 (marked Ex.B8). The other attestor of the Will one Sri K. Srinivasa Rao was not examined by the 3rd defendant. 12. The lower Appellate Court has disbelieved the Will dated 05.06.2009 (marked as Ex.B8) on the ground that suspicious circumstances existed based on the evidence of D.W.5. The attestor has deposed that the executant of the Will is suffering from ill-health from prior to execution of the Will and testified inconsistently with the document, claiming that the Will was executed on stamp paper when it 7 was actually executed on white paper, and the suspicious circumstances that has not been addressed by the 3rd defendant on whom the burden lies. 13. The trial Court has disbelieved the Will dated 15.12.1960 said to be executed by the grandmother of the parties in favour of the mother on the ground that the original Will was not filed before the Court. 14. The settled principle of law that the burden of proof which is peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. 15. The Apex Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao1, held thus:- The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the 1 (2006) 13 SCC 433 8 onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. 16. The Apex Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, & Others2.), held that a Will has to be proved like any other document except that evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act." additionally found the following position :- That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made. 17. This Court places the reliance on the judgment in the case of Sridevi v. Jayaraja Shetty and other3 held that where the Court has said that the onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. 2 AIR 1959 SC 443 3 (2005) 2 SCC 784 9 18. The learned counsel for the appellant argued that the appellate Court ought to have been taken the evidence of the scribe. 19. It is settled law the scribe can be an attesting witness subject to the condition that it must appear from the testament that he has scribed the document as well as he has attested the document as an attesting witness, meaning thereby it must appear that he has intention to attest the document. In the absence the scribe cannot be attested witness. Presence of scribe and his signature appearing on the document does not by itself be taken to be proof of due attestation unless the situation is so expressed in the document itself. 20. In the case of Ram Piari v. Bhagwant4, the Hon‟ble Supreme Court was dealing with the situation of testamentation held that: Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator’s thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special are rules out and the Courts conscience is satisfied not only on execution but about its authenticity. It has further been held that there cannot be hard and fast rule when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed. 4 (1990) 3 SCC 364 10 21. In the present case no evidence has emerged from the 3rd defendant explaining the reason for execution of the Will in his favour, to the exclusion of other heirs of equal degree. In the absence of the same, both the courts have rightly rendered the judgment decreeing the suit in part for whatever reasons assigned. 22. Therefore, this Court does not see any merit in the Second Appeal and the case and the grounds raised by the appellant does not appear to be a substantial question of law for the case on hand. 23. Hence, the present Second Appeal is dismissed. However, no order as to costs. As a sequel thereto, Interlocutory Applications pending, if any, shall stand closed. __________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 30.01.2026 Harin 11 191 THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO S.A.No. 60 OF 2026 Date: 30-01-2026 Harin