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9. POINTS 2 and 3:

9.1 The plaintiff is the daughter of Vallabhdas B.Shah and the defendants are her brothers. According to her, Vallabhdas B.Shah had died intestate. On the other hand, the defence of the defendants is that Vallabhdas B.Shah had executed a Will on 07.01.1987 and that the said Will is his last testament and that he had executed the said Will in the presence of Dr.N.D.Menon and B.Ramdev and that under the said Will, he had bequeathed the properties which had fallen to his exclusive share by virtue of the partition final decree in O.S.No.7 of 1963 and that as per the said Will, the defendants 1 to 4 are equally entitled to 1/4th share each in the house property as per the bequests in the Will and that the defendants are under an obligation to perform pooja of the family deity in the house and that the rights in the 1/5th share in the immovable properties are bequeathed equally to the defendants and that HUF movable properties and personal movable properties and cash were bequeathed in favour of two sons and the daughter of the plaintiff and that under the said Will, the 1st defendant was appointed as an executor and that the plaintiff is very much aware of the existence of the Will and that the Will executed by Vallabhdas B.Shah is true, valid and binding upon the parties and that in view of the Will executed by late Vallabhdas B.Shah the contention of the plaintiff that Vallabhdas B.Shah had died intestate is false, and that, therefore, the plaintiff is not entitled to seek partition of the properties of Vallabhdas B.Shah and claim a 1/5th share in his properties. The plaintiff in her rejoinder had denied the said Will, which was said to have been executed by Vallabhdas B.Shah and had inter alia contended that the defendants had fabricated and brought up the said Will to usurp her share of property. 9.2 Before proceeding further, it is necessary to refer to the broad principles, which are relevant for appreciation of evidence in regard to proof or otherwise of a Will. In the decision in Pinnaka Hanumantha Rao (died per L.R) and two Ors. V. Garlapati Dhanalakshmi @ Andallu , this Court having considered the ratios in various precedents on the subject had formulated the principles that emerged from the precedents as under:
(vii) Mahesh Kumar (dead) by L.Rs v. Vinod Kumar . This precedent was relied upon in support of the proposition that the signatures of two attesting witnesses to a Will are not required to be appended simultaneously.

9.3 There is no dispute with the legal propositions in the decisions relied upon by the learned counsel for the appellants. Insofar as execution of the Will by Vallabhdas B.Shah, the initial onus of proof as well as the legal burden are on the defendants who are relying upon the said Will. Exhibit B1 is the unregistered Will dated 07.01.1987 being relied upon by the defendants. The said Will deals with the personal properties of Vallabhdas B.Shah, namely, one house at Hanuman Tekdi and his movable properties besides 1/5th share of Vallabhdas B.Shah in the HUF of Raja Bahadur Chaturbhuj Dass and sons. According to the recitals in the said Will, the house property situated at Hanuman Tekdi was bequeathed to his four sons in equal shares by Vallabhdas B.Shah and the 1/5th share in the HUF of Raja Bahadur Chaturbhuj Dass was also similarly bequeathed in equal shares to his four sons by Vallabhdas B.Shah. In regard to movable properties, Vallabhdas B.Shah had bequeathed his 1/5th share by specifying as to how much amount should go to which beneficiary. Now, it is not in dispute that if this Will is to be upheld, the plaintiff would not be entitled to a decree in the instant suit and on the other hand, if the Will is held to be not true, then the question of plaintiffs right to seek partition falls for consideration. Therefore, it is now necessary to examine the facts, circumstances and the evidence on record as regards the truthfulness/ genuineness and binding nature of the Will under exhibit B1. A Will is a document required by law to be attested. Under Section 68 of the Indian Evidence Act, exhibit B1 shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In the case on hand, the defendants had examined DW4, who is said to be a doctor and who was said to have attested exhibit B1 Will and had also further examined the son of the other attestor by name Ramdev as the said attestor was not alive by the time of the trial.

9.4 We have gone through exhibit B1 Will and also the evidence of the witnesses-DW2, who is the son of the attestor by name Ramdevi and also the evidence of DW4, the other witness, namely, Dr.N.D.Menon, who was said to have attested exhibit B1 Will. Before we advert to the evidence, it is important to note that before filing the suit, the plaintiff had got issued a legal notice dated 10.04.1999 under the original of exhibit A1 seeking partition of the plaint schedule properties into five shares and allotment of one such separated share to her. In the said notice, she had got stated categorically that Vallabhdas B.Shah had expired on 10.06.1990 leaving behind the plaintiff and the defendants 1 to 4 as his only legal heirs and successors and that he had not executed any Will. In the reply notice under exhibit A2, dated 19.04.1999 the defendants have pleaded that as per the Will dated 07.01.1987, Vallabhdas B.Shah had bequeathed the residential house in the name of the defendants and that they held the same equally and that the defendants are entitled to 1/4th share each in the properties of Vallabhdas B.Shah and there is nothing to be partitioned as Vallabhdas B.Shah had bequeathed all his interest in the properties to his four sons, namely, the defendants. Along with the reply notice, the defendants did not supply a copy of the Will to the plaintiff. The defendants did not file the original Will being relied upon by them into Court along with their written statement. It appears that they had only filed a copy of the said Will during the course of hearing of an interlocutory application during the pendency of the suit. When the defendants had filed their written statement referring to exhibit B1-Will, the plaintiff had filed a rejoinder denying the Will. Even during the course of evidence of PW1, the Will was not filed into Court. However, during the cross-examination of PW1, it appears that some questions were put to her regarding exhibit B1 Will. The relevant cross-examination of PW1 on this aspect of exhibit B1 Will runs as follows:

.It is not true to suggest that the 1/5th share allotted to my father in a partition with his sons that in his life time he bequeathed his share by executing a Will in favour of his four sons. I know one B.Ramdev, who was the manager of our family. It is true that B.Ramdev used to manage the accounts of the joint family such as collection of rents and other income of the joint family. I know one Dr.Damodar Menon, who treated my father. B.Ramdev is no more and might have died 4 or 5 years ago or more or less, but I do not know the exact date and year of his death. The witness were shown signatures on the Will Deed dated 7.1.1987 executed by Vallabhdas Bhagwan Das Shah were not identified by the witness. It is not true to suggest that the Will shown to me is the Will executed by my father and purposely I have denied. I do not know the signatures of the witnesses, i.e., Dr.Damodar Menon and B.Ramdev on the Will Deed as witnesses. I know the initial signature of my father. The initials of late Wallabhdas V.Shah was put to witness to identify, the witness denied the signature, as that of her father. (reproduced verbatim ) Thus, for the first time, the plaintiff had an opportunity to see a Will allegedly executed by her father only during her cross-examination. She had denied the execution of any Will by her father and also the signatures shown to her on the said Will dated 07.01.1987 by saying that they are not the signatures of her father. She had also stated that she does not know the signatures of Damodar Menon who had treated her father and that of B.Ramdev, who had worked as a Manager under Vallabhdas B.Shahs family. Even on the day the Will was confronted to PW1, the same was not filed into Court either with a memo or with a petition to receive documents and no request was made to the trial Court to mark the Will for identification (and subject to proof) as the Will was confronted to PW1 and the same was denied by her. In this context, the learned Senior Counsel for the plaintiff/respondent had contended that as the alleged Will was not filed into Court on the date it was confronted to PW1, there is no clarity or certainty that what was confronted to her during her cross-examination is the very same exhibit B1 Will that was subsequently filed into Court. There was no cross examination of PW1 on the other aspects of the Will. It is not even suggested to her that exhibit B1 Will is the last testament of Vallabhdas B.Shah, her father, and that he had executed the said Will in a sound and disposing state of mind and with free will and volition. Thus, the Will was filed into court during the examination-in-chief of DW1, the 1st defendant, i.e., on 07.10.2002 and was exhibited as exhibit B1. Further, no reasons are forthcoming for filing the original Will into Court belatedly in the year 2002. This Will was admittedly not produced before any public authority at any time prior to the suit. Even DW1 in his examination-in-chief did not state that Vallabhdas B.Shah had executed exhibit B1 Will in a sound and disposing state of mind. He had only stated that Vallabhdas B.Shah during his life time had executed Will dated 07.01.1987 in the presence of witnesses mentioned therein, i.e., Dr. N.D.Menon and B.Ramdev and that he had bequeathed the properties that had fallen to his exclusive share in the partition suit in O.S.No.7 of 1963 in favour of his four sons, i.e., defendants to 4 herein and that under the said will, he (DW1) was the executor and that after the death of Vallabhdas B.Shah, he had disbursed the amounts mentioned in the Will and that the plaintiff is aware of the execution of the Will and that the Will was acted upon as the plaintiff had accepted the jewellery during the life time of her mother and the cash given as per the Will as part of the amount bequeathed by her father. Vallabhdas B.Shah was unwell for quite some time before his death is borne out by the evidence on record. DW1 I his cross examination had admitted that the right side of his fathers body was paralysed and that he used to help him in wearing clothes, giving meals and medicines and also in other domestic needs and that some times, his sister (the plaintiff) also used to serve small needs of the father and that in the beginning of the paralysis attack, Vallabhdas B.Shah was in the bed for a week and that thereafter, he (DW1) used to help him in walking and that after physiotherapy, Vallabhdas B.Shah had started walking by himself after three months. In the light of the ill-health that was admittedly suffered by Vallabhdas B.Shah, DW1 ought to have stated in his evidence that his father Vallabhdas had executed exhibit B1 Will in a sound and disposing state of mind. But, he did not do so. When it was suggested to him that as on the date of execution of the Will exhibit B1, his father was attacked with paralysis stroke and that he was unable to read and write, he had denied the said suggestion. He had denied the further suggestion that they had prepared exhibit B1 and that is the reason why the same was not registered. He had also denied the suggestion that the Will Deed is created and brought up for the purpose of avoiding the share of the plaintiff and that the signatures of the Will Deed do not belong to the father. DW3 is the third defendant. He had also referred to exhibit B1 Will dated 07.01.1987 in his filed affidavit filed in lieu of examination-in-chief and had stated that Vallabhdas B.Shah had executed the said Will and had appointed the 1st defendant herein as the executor and that under the said Will, Vallabhdas B.Shah had bequeathed his 1/5th share in favour of his sons and grandchildren and that the said Will is the last testament of Vallabhdas B.Shah. He also did not state that Vallabhdas B.Shah was in a sound and disposing state of mind and that he had executed the Will with free will and on his own volition. In his cross-examination also, he had admitted that his father was attacked with paralysis somewhere in the year 1981 and that he does not remember as to which part of his fathers body was effected with paralysis; but, he had denied the suggestion that his father was unable to see properly, sign and hear and attend to routine works in the year 1981. Thus, the evidence of DWs 1 and 3 does not inspire confidence prima facie about the genuineness of the Will and the sound and disposing state of mind of the testator.