Srinivasan, J. - (1.) The appellant herein is one of the four daughters of Madamanchi Velugondaiah who had no son. He died in 1946 leaving his widow Punnamma and three daughters as his eldest daughter had predeceased him leaving one daughter. Velugondaiah had left several properties some of which were dealt with by Punnamma by execution of settlement deeds. Disputes arose between the parties resulting in three suits O.S. Nos. 186/71, 187/71 and 52/75 on the file of the subordinate Judge, Ongole. The appellant was the first defendant in O. S. 186 and 187/71 and plaintiff in O.S. No. 52/75. The respondent who was the son of the second daughter of Velugondaiah was the second plaintiff in the two suits of 1971 and the only defendant in the suit of 1975. Punnamma who was the first plaintiff in the two suits of 1971 died during the pendency thereof and the respondent was recorded as her legal representative.
(2.) Though several issues were raised in the suits, we are concerned only with one of them which was the pivotal issue. According to the appellant Velugondaiah executed a Will on 2-7-45 bequeathing his properties in a particular manner. The genuineness of the Will was challenged by the respondent and Punnamma. The Subordinate Judge held that the Will was proved by the appellant to be true and valid. On that footing the suits were disposed of by grant of appropriate reliefs. On appeals, the District Judge, Ongole concurred with the Subordinate Judge and dismissed the same. The matter was taken in second appeals to the High Court of Andhra Pradesh.
(3.) At this stage, it is better to advert to the following undisputed facts. The Will purports to have been attested by five persons. Two of them had signed. The other three had not affixed their thumb impressions or made any mark. They have been described as 'Nishanis'. It is also written in the Will as against their names "LTI mark of . . . ." though there is no thumb impression or mark actually. Out of the two attestors who had signed, one was dead and the other was not examined though admittedly alive. One of the three persons described as "Nishanis", namely, Kondaiah son of Madhumanchi Narayya was examined as DW 2. Admittedly he had not affixed his thumb impression or made any mark on the Will. While the Subordinate Judge and the District Judge treated him as an attesting witness and believing him held the will to be proved, the High Court held that he was not an attestor in the eye of law and his evidence could not prove the Will. It is also worthwhile extracting the following passage in the judgment of the High Court: ". . . . .It is no doubt true that both the Courts have accepted the evidence of DW 2 who said that he attested the Will. Beyond that DW 2 does not say anything. He does not mention the person, who has written his name. He stated in the cross-examination that nobody asked him to put his thumb impression and he was asked by one Karanam Venkatappaiah to touch the pen. He does not even say who wrote his name. Karanam Venkatappaiah is not even the scribe. There is no evidence that his name was written at his instance or under his direction or in his presence. The observation of the Courts below that his name was written by the scribe at his instance is an error apparent on the face of the record..........." On the aforesaid reasoning, the High Court held that the Will was not proved as required by law and allowed the second appeals, setting aside the judgments and decrees passed by the Courts below.;