Once the Will Is Proved, Claim for Partition Fails — Andhra Pradesh High Court Dismisses Appeal, Upholds Testamentary Title Over Ancestral Property

“No Joint Title, No Partition” — Andhra Pradesh High Court upheld the validity of a Will executed in 1985 and dismissed a second appeal seeking partition of alleged ancestral property. Justice Venuthurumalli Gopala Krishna Rao concluded that the plaintiff failed to prove joint title or undivided status of the property, and that the Will was proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.

The Court emphasized that “unless the findings of both Courts below are manifestly perverse or contrary to law, there is no scope for interference under Section 100 CPC”, thereby reinforcing the limited jurisdiction of the High Court in second appeals.

Partition Claim Versus Testamentary Title

The dispute revolved around a suit for partition and separate possession of a 5/16th share in properties allegedly retained jointly after a family partition in 1994. The plaintiff (Bandlamudi Sambasiva Rao) asserted that while other ancestral properties had been divided, the properties in suit were to remain joint during their mother’s lifetime and be divided after her death in 2004.

In response, the 1st defendant (Bandlamudi Krishna Murthy) relied on an oral partition in 1985 and a Will executed by their father Ramaiah on 02.02.1985, which bequeathed the properties exclusively to him. Importantly, the plaintiff was an attesting witness to the Will, a fact he admitted during the trial.

Both the Trial Court and First Appellate Court rejected the plaintiff’s claim, holding the Will to be valid and the suit property not proven to be joint. The plaintiff then approached the High Court in second appeal, challenging the concurrent findings.

Joint Title Not Established, Will Stands Proven

Justice V.G.K. Rao made it clear that the burden of proving joint ownership rested solely on the plaintiff, who “approached the Court with a specific plea that the plaint schedule property is undivided ancestral property.” However, the plaintiff produced no convincing documentary proof to establish this assertion.

The Court noted: “The evidence of P.W.1 and P.W.2 does not support the plea of joint possession. Documentary evidence Exs.A.1 to A.8 are insufficient to show that the property is undivided family property.” [Para 16]

In contrast, the 1st defendant produced Ex.B.1 – the Will, and corroborative documents including sale deeds and evidence of independent alienation by family members since 1985. Most crucially, the Will had been attested by the plaintiff and another brother, both of whom had knowledge of its contents.

“The plaintiff admitted that he is one of the attestors in Ex.B.1 Will… D.W.2, the son of another attesting witness, identified his father's signature… thereby the Will stands proved in accordance with law.” [Para 22]

On Proof of Will: Statutory Compliance Satisfied

The Court reiterated that under Section 68 of the Evidence Act, proof of a Will requires at least one attesting witness to testify, provided such witness is alive and competent. Here, although the primary attesting witness Venkateswarlu had passed away, his son testified as D.W.2, identifying his father’s signature. Additionally, the plaintiff himself admitted to being an attestor, and never denied the existence of the Will in the plaint or through a rejoinder.

“The Will is notarized, attested by the plaintiff, and supported by circumstantial and documentary evidence. There is no suspicious circumstance surrounding its execution.” [Para 22]

The Court also relied on the principle laid down in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, stating:

“Execution of Will must be proved not only by satisfying statutory requirements, but also by showing that the Will is free from suspicious circumstances.” [Para 20]

No Grounds for Interference Under Section 100 CPC

The High Court reaffirmed the limited scope of Section 100 CPC, holding that interference is permissible only when the findings are perverse, contrary to law, or based on inadmissible evidence.

Citing Bhagwan Sharma v. Bani Ghosh and Kondira Dagadu Kadam v. Savitribai Sopan Gujar, the Court observed:

“This Court cannot substitute its own opinion unless the findings of the Courts below are manifestly perverse.” [Para 24]

The Court noted that both the Trial and Appellate Courts had assessed the evidence judiciously, dismissed the partition claim, and upheld the testamentary disposition through the Will.

Appeal Dismissed, Partition Suit Rightly Rejected

Holding that the Will dated 02.02.1985 was validly proved, and that the plaintiff failed to discharge the burden of proving joint ownership, the Andhra Pradesh High Court dismissed the second appeal.

“I am of the considered view that Ex.B.1 Will is proved by the 1st defendant in accordance with law… There are no merits in the second appeal.” [Paras 23–25]

The decision reinforces the principle that “in the presence of a proven Will, claims of joint possession cannot override testamentary title”.

Date of Decision: 2 July 2025