HONOURABLE SMT. JUSTICE P.SREE SUDHA
A.S.No. 152 of 2007
JUDGMENT:
This appeal, under Section 96 of C.P.C., is filed by the unsuccessful defendants assailing the judgment and decree passed in O.S.No.6 of 2002, dated 31.01.2007, on the file of the IV-Additional District Judge, Warangal.
Appellants herein are defendants and respondents herein are plaintiffs in the suit. The parties shall hereinafter be referred to as plaintiffs and defendants as arrayed in the suit.
The averments made in the plaint, succinctly, are as follows:
The 1st plaintiff M.Ramachudamma (since deceased) filed the suit against the defendants for partition, separate possession and half share in the suit property and future mesne profits at the rate of Rs.60,000/- per annum from the date of filing of the suit till its realization. 2
The 1st plaintiff and the 1st defendant are daughters of one Parkala Ramachandraiah and Parkala Buchamma. Defendants 2 and 3 are sons and defendants 4 to 7 are daughters of 1st defendant. The said Ramachandraiah during his life time had acquired movable and immovable properties including a house at Mahabubabad along with his brother. The said Ramachandraiah died intestate about 60 years ago leaving behind his wife Parkala Buchamma, 1st plaintiff and 1st defendant as his legal heirs. There were no male issues to the parents of the 1st plaintiff and `1st defendant. After the death of said Ramachandraiah, the joint family properties were managed by his wife Buchamma till her death on behalf of the 1st plaintiff and the 1st defendant. The plaintiff was married to one M.Narsimha Reddy of Neredvai village of Nalgonda District and was residing in her husband's house from the date of her marriage, but has been regularly visiting Mahabubabad. It is stated that after the death of Ramachandraiah, Buchamma 3 had limited interest over the joint family properties and she had no power to alienate the joint family properties as per the Hindu Law. During the life time of said Buchamma, the 1st plaintiff and 1st defendant and their mother sold about Ac.5.00 in Sy.Nos.137/A, 138/1, 251/D of Mahabubabad village to various persons under registered sale deeds. The said Buchamma died in the year 1987 at the age of 95 years and two years prior to her death, she was confined to the bed and she was not in a sound disposing state of mind and her eyesight and hearing capacity was virtually lost and she was not in a position to identify her near and dear. After the death of said Buchamma, the 1st defendant being the sister of plaintiff No.1 has been managing the joint family properties on behalf of the 1st plaintiff and defendant No.1 and as such the 1st plaintiff was collecting usufruct of the suit schedule properties and that the 1st plaintiff and 1st defendant were in joint possession and enjoyment of the suit schedule properties. It is further stated that the 4 cultivation over the suit schedule properties was given up in view of the houses being constructed around the suit properties and hence the suit properties remained fallow. Defendant No.1 changed her attitude towards plaintiff No.1 at the instance of defendant Nos.2 to 7 and was neither rendering the accounts nor furnishing the details of cultivation and other particulars of the suit property to the 1st plaintiff. Hence, in the first week of December 2001, plaintiff No.1 demanded partition of the suit schedule properties and also for rendition of accounts, but defendant No.1 did not choose to respond to the said demand while the other defendants informed the 1st plaintiff that she has no right to claim a share in the suit schedule properties and that their mother has exclusive right over the suit schedule properties. It is further stated that the 1st plaintiff found that the suit properties have been mutated in the name of the 1st defendant without her knowledge and consent by fabricating the Will deed alleged to have been executed by 5 their mother without any right. Since the suit properties are not the exclusive properties of defendant No.1, she initiated necessary steps for rectification of the wrong entries in the revenue records so as to see that the half of the suit properties bear the name of the 1st plaintiff in the revenue records. It is further contended that the defendants were negotiating clandestinely with the prospective purchasers for disposing the suit schedule properties and that the 1st defendant had alienated properties in favour of the defendants and hence she has impleaded defendants 2 to 7 as parties to the suit. It is further stated that since the 1st defendant is refusing to partition the suit properties and is enjoying the same, she filed the present suit for partition to protect her right over the half share in the joint family properties along with mesne profits. Hence, prayed that the suit be decreed.
Defendant No.1 filed a written statement, which was adopted by defendant Nos.2 to 7. They admitted that the 6 suit properties along with other properties were acquired by one Parkala Ramachandraiah and that the said Ramachandraiah was the father of plaintiff No.1 and defendant No.1. He also admitted that after the demise of Ramachandraiah, his wife Parkala Buchamma was managing the properties of her husband on behalf of herself and on behalf of her two daughters, but not till her demise in the year 1987. It is also admitted that the said Ramachandraiah had no male issues. It is contended that the suit properties were partitioned orally amongst the 1st plaintiff and the 1st defendant during the life time of her mother and that the 1st plaintiff was married to one M.Narsimha Reddy of Nalgonda District during the life time of her father Ramachandraiah, when the 1st defendant was minor. The marriage of the 1st defendant was performed by their mother Buchamma in the year 1946 with one Vellanki Narsimha Reddy. She denied that their mother had limited right over the suit schedule properties 7 acquired by their father. It is admitted that the said Buchamma, the 1st plaintiff and the 1st defendant had sold certain lands of Mahabubabad village through registered sale deeds. It is stated that the suit schedule properties are not the joint family properties owned and possessed by the 1st plaintiff and defendant No.1. It is further stated that in pursuance of their oral partition, a panch faisla was held on 14.07.1974 in the presence of village elders and the properties were partitioned between the 1st plaintiff and defendant No.1 in accordance with the oral partition that took place decades ago. She denied that their mother was ill, unsound prior to her death for a period of two years. She stated that in view of rise in the price of the landed properties, plaintiff No.1 has come up with the present suit with a mala fide intention. She also claimed that her mother Buchamma had executed a Will in her favour during her life time and that she would trace out and produce the same as and when required. She denied that the 1st plaintiff has 8 demanded for any partition and that she avoided to respond the same. She contended that when the partition has already taken place, the question of the 1st plaintiff demanding for partition at this stage does not arise and as such the question of her rendition of accounts does not arise. She claimed that she has filed different documents to show that the property that fell to the share of plaintiff No.1, which was given to her daughters towards Pasupukumkuma, was sold to the husband of defendant No.1 and the sale proceeds were given to the daughters of plaintiff No.1. She pointed out that plaintiff No.1 failed to explain to the Court as to why her children were brought on record as defendants and that she has not transposed her children as co-plaintiffs and claimed that the suit is bad for mis-joinder and non-joinder of parties. She pointed out that she has been looking after her mother after the death her father in view of the fact that plaintiff No.1 was married much earlier to her i.e., when she was a small child and that 9 her mother died under the care and service of defendant No.1. It is further stated that since the properties have already partitioned, the question of further partition does not arise and that the 1st plaintiff was neither entitled for compensation, separate possession or mesne profits on the suit properties. Hence, it is prayed that the suit be dismissed.
During trial, on behalf of the plaintiffs, P.Ws.1 to 3 were examined and got marked Exs.A-1 to A-7, which are copy of the pahani for the year 1980-81, certified copy of registered copy of Will Deed dated 10.02.1986 alleged to be executed by the mother of the 1st plaintiff and the 1st defendant, certified copy of the pahanies for different years from 1995 to 2001 and extract of the sale deed dated 05.06.1984. On behalf of the defendants, D.Ws.1 to 6 were examined and got marked Exs.B-1 to B-27, which are receipts with different dates, letters of different dates, 10 agreements of different dates, panch faisla dated 14.07.1974 and list of properties dated 14.07.1974.
The trial Court, after considering the entire evidence placed on record and also the submissions made by the learned Counsel appearing on either side, decreed the suit preliminarily awarding half share in the suit property in favour of the plaintiffs along with costs.
Aggrieved by the aforesaid judgment and decree of the trial Court, the present appeal has been preferred by defendants, inter alia, contending that late Parkal Buchamma by her last registered Will Deed dated 10.02.1986 vide document No.1/1986 bequeathed all the plaint schedule properties in favour of the 1st defendant Anasuyamma by giving an extent of Ac.5.17 Guntas of land in Sy.Nos.137/A, 138/B and 251/D only to the 1st plaintiff. It is an admitted case of the 1st plaintiff that all the suit properties were absolutely belongs to late Buchamma and that after the death of Buchamma, all the properties were 11 devolved upon the 1st plaintiff and the 1st defendant only, according to Ex.A2- Will Deed dated 10.02.1986. It is also an admitted case of the plaintiff that her mother Buchamma had succeeded to the properties from her husband 60 years back on the death of her husband Ramachandraiah and that such succession to the suit properties including the aforesaid three items have become the absolute properties of Buchamma by operation of Section 14 of the Hindu Succession Act, 1956. The trial Court failed to appreciate the fact that late Parkal Buchamma had earlier executed a registered Will on 19.10.1973 registered as document No.7/1973 bequeathing all the suit properties including the three items bequeathed to the 1st plaintiff under Ex.A2-Will Deed, in favour of the 1st defendant and that it was only in the year 1986 Parkal Buchamma changed her intention and executed Ex.A2-Will Deed bequeathing three items of properties comprising of Ac.5.17 Guntas of land in favour of the 1st plaintiff and all the plaint schedule properties in 12 favour of the 1st defendant. Therefore, it is evident that on the date of death of late Buchamma, the suit schedule properties stood vested on the 1st defendant by virtue of the said Will Deed. It is contended that after the death of Parkal Buchamma in 1987, all the suit schedule properties were in exclusive possession and enjoyment of the 1st defendant and as such the suit for partition after expiry of 15 years after the date of death of late Parkal Buchamma, is wholly barred by limitation. It is further contended that the trial Court having disbelieved all the transactions of partitions set up by the parties on the ground that they being unregistered documents ought to have decided the suit only on the basis of EX.A2-Will Deed and ought to have held that all the suit properties stood vested on the 1st defendant. Therefore, the defendants requested the Court to allow the appeal by setting aside the judgment and decree under appeal.
Heard the learned Counsel appearing on either side and perused the entire material placed on record. 13
It seems that the 1st plaintiff died before commencement of trial and as such her legal heirs were impleaded as plaintiffs 2 to 7. Plaintiff No.3, who was examined as P.W1, filed her chief-examination-affidavit reiterating the contents raised in the plaint. She stated that the 1st defendant, without consent of the 1st plaintiff, mutated her name in the concerned revenue records basing on the registered Will Deed dated 10.02.1986 executed by her maternal grandmother Buchamma, which includes lands in Sy.Nos.76/B, 96/C, 96/D/1, 134/D, 135/1, 136/1. 195, 196, 197 and 343. She further stated that no oral partition took place between her mother and the 1st defendant and that the alleged panch faisla dated 14.07.1974 held in the presence of village elders is a forged and created document to usurp the joint family properties. She denied that the 1st plaintiff addressed a letter on 15.12.2001 to the husband of the 1st defendant that some of the properties were not partitioned and that she has not received full sale 14 consideration for some of the properties that fell to her share. She also denied that the 1st plaintiff had sold all the properties that fell to her share to the defendants and third parties. She stated that the 1st defendant got her name mutated in the revenue records basing on the Will Deed executed by her mother dated 10.02.1986. She further stated that the mother of the 1st plaintiff and 1st defendant i.e., Buchamma executed a registered sale deed dated 05.06.1984, wherein she sold Ac.3.37 Guntas in Sy.Nos.137/A and 138/B. She further stated that if at all there was a partition took place on 14.07.1974, there was no occasion for the mother of the 1st plaintiff and 1st defendant to execute the registered Will Deed. In the cross- examination, P.W.1 admitted that her father suffered from Paralysis for four years before he died in the year 1973. Her mother as well as her brother Kesava Reddy were managing the affairs of her father's family after the death of her father. P.W.1 stated in her evidence that she had three daughters 15 and a son and her youngest daughter by name Sujatha was given in marriage to the son of the 2nd plaintiff.. Her father did not give any land either to her or to her sisters towards Pasupukumkuma. She does not know the total extent of the lands for which the suit was laid. She admitted that the suit schedule properties were acquired by her maternal grandmother. She admitted that the 2nd plaintiff got constructed a house at Khammam during the years 1971- 1972. She denied her signature on Ex.B18-Letter dated 15.12.2001. P.W.1 stated in her further cross-examination that "I learnt personally in the year 1986 about execution of a Will and consequent entries in the revenue records and that Smt.Buchamma had executed such Will Deed under Ex.A2. I enquired my mother in respect of the original of Ex.A2 and its consequences and she told me that I would be given away whatever to be given." She further stated that she can identify the signature of her mother, however, she denied the signature of her mother in Ex.B14-agreement 16 dated 20.07.1979. She stated that after the death of her father, the landed property at Nereduvai village was divided among her brothers and that the 2nd plaintiff and the 6th plaintiff got equal shares. The 2nd plaintiff was allotted houses at Khammam and Nereduvai, whereas the 6th plaintiff was not allotted any house, however, he was compensated by way of money. She further stated that her mother (1st plaintiff) died in the house of the 6th plaintiff and that the 6th plaintiff and the 2nd plaintiff performed obsequies of their mother separately. She further stated that she does not know whether item No.3 of the plaint schedule was acquired by the Government for the purpose of road- cum-railway bridge and that 18 ½ Guntas of land was lost out of it. She admitted that the 1st plaintiff and the 1st defendant attested Ex.A3-sale deed executed by P.Buchamma in favour of one Puvvala Nageshwar Rao and another. She also admitted that the contents of Ex.A2 refer the property covered by Ex.A3. She further admitted that 17 her mother filed an application before Revenue Divisional Officer, Mahabubabad for rectification of entries in revenue records in respect of recording the name of the 1st defendant and other defendants. She stated that she does not know whether her mother paid any land revenue in respect of suit schedule lands over 30 years and she never paid any land revenue to the said lands. She further stated that her mother used to pay cist in respect of the lands which were partitioned; again she stated that the lands were not partitioned, but the produce used to be shared. She further stated that the 1st defendant was paying land revenue in respect of the said lands after sharing the produce of the lands. She stated that she does not know whether Mandal Revenue Officer, Mahabubabad, issued ROR pass books in favour of the 1st defendant in respect of the said lands. She further stated that she does not know whether prior to the year 1986, ryotwari passbooks were issued in respect of the 18 suit lands in the name of the 1st defendant as well as defendants 2 and 3.
One M.Thirupathi Reddy, who is a third party to the suit, was examined as P.W.2 and he stated that plaintiff No.7 is married to his elder brother Madavapeddi Ram Reddy. Plaintiff No.3 informed him about filing of the suit by her mother for partition of joint family properties and requested him to identify the writings and signatures of her father and his elder brother Madavapeddi Ram Reddy and that he informed her that he can identify their signatures. He further stated that the writings and signatures appearing on Exs.B26, B27, B6, B3, B21 and B25 does not belong to his father. The signatures appearing on Exs.B5, B16, B23, B10 does not belong to his brother M.Ram Reddy. He further stated that there are disputes between his elder brother M.Ram Rededy and his another brother M.Somi Reddy, who was examined as D.W.4 in the case. Even in the cross- 19 examination, he denied the signatures appearing on the said documents as that of his father or brother.
One P.Nageshwar Rao, purchaser, was examined as P.W.3 and he stated that he along with one Narla Aruna Devi jointly purchased an extent of Ac.3.37 Guntas at Mahabubabad village from Parakala Buchamma in the year 1984 for a consideration of Rs.45,000/-under Ex.A3- registered sale deed and the said document was attested by the 1st plaintiff and 1st defendant.
Defendant No.1 was examined as D.W.1 and she reiterated the contentions raised in her written statement. She stated that even after her marriage with one Vellanki Narasimha Reddy, she was staying with her mother and served her mother till her death. She stated in her cross- examination that by the date of her birth, the marriage of plaintiff No.1 was performed and that she has no personal knowledge about the marriage of plaintiff No.1, but she was 20 informed by her mother. She further stated that there was a oral partition between her and plaintiff No.1 prior to 1974, but it was not reduced into writing and the said oral partition took place 1 ½ year prior to 1974. There was no mention about earlier oral partition in her written statement. She admitted that prior to 1974, she along with her mother jointly executed documents in favour of third parties.
Defendant No.3, who is the son of the 1st defendant, was examined as D.W.2 and he stated that one Muppani Keshava Redy, the eldest son of the 1st plaintiff has addressed a Post Card dated 13.04.1972 to his father informing him to get the implementation of partition in the revenue records before Jamabandi and also advised him to retain half share of his mother in the name of P.Buchamma in view of oncoming agricultural ceiling law. He further stated that on 14.07.1974 the elders have decided to give 21 Ac.1.20 Guntas of Wet land called 'Bandham' to one Gopal Reddy and his two brothers in lieu of performing the last rites of Parkala Ramachandra Reddy and that there is a reference to past partition of the family property among the 1st plaintiff and the 1st defendant. The said document was signed by the 1st plaintiff, her two sons and the 1st defendant apart from the elders as witnesses. He also stated that the 1st plaintiff has written a letter to his father on 15.12.2001 before filing the suit stating that some items of the family properties are not partitioned and that she has not received the full sale consideration for some of the items of the property that fell to her share and as such by the said letter, the 1st plaintiff has admitted the partition of the family properties. In the cross-examination, D.W.2 stated that he was working as Assistant Director of Animal Husbandary and his brother was working as Development Officer in LIC for the past 14 years. He stated that oral partition took place in the year 1971 or 1972 in the presence of their community 22 elders and relatives and in that oral partition, his mother and her sister were allotted about Ac.7.00 of Wet land each and Ac.8.00 of dry land each approximately and that a house at Mahabubabad was allotted to his mother exclusively. He has also given the details of the properties allotted in the name of the 1st plaintiff in Paragraph No.6 and also the properties allotted in the name of his mother in Paragraph No.7 of his deposition. He further stated that 6 items of property were allotted to the 1st plaintiff and 9 items of property were allotted to his mother in the oral partition. He further stated that prior to the oral partition, Ac.1.12 Guntas in Sy.No.250 and Ac.2.03 Guntas in Sy.No.265 were sold by the members of the joint family. He further stated that Ex.B-26 does not bear the signature of the 1st plaintiff and it was prepared in the absence of the 1st plaintiff, but in the presence of plaintiffs 2 and 6. He also stated that mutations were carried out in respect of the extents allotted in oral partition in favour of his mother, but 23 mutations were not carried out in respect of the properties allotted to the 1st plaintiff and that his grandmother Buchamma was not allotted any lands in any of the partition. D.W.2 further stated in his cross-examination that he was 14 years old when the oral partition took place. He further stated that the 1st plaintiff did not give in writing to the elders to divide the property through mediation and his mother has not divided her property amongst any of her children. He further stated that patta was issued in the name of his mother in respect of the said lands, but he cannot say in which year it was issued to her. He stated that he does not know whether the sales of the lands from the 1st plaintiff in their favour were got regularized by the revenue authorities by paying necessary stamp duty and penalty. But, his father was aware of all the transactions relating to regularization of sales through revenue authorities.
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One Lingala Aga Reddy, who is a third party to the proceedings, was examined as D.W.3 stated in his evidence that he knew the 1st plaintiff, 1st defendant and their parents and also legal heirs of both the parties and that he is having acquaintance with the family of plaintiffs and defendants for more than five decades. He stated about the oral partition of the properties of the 1st plaintiff and 1st defendant that took place prior to 1974 and also regarding Memorandum of Understanding and panch faisla held on 14.07.1974 in the presence of elders namely D.W.3, M.Venkatareddy, P.Laxminarasimha Reddy, Bandi Narasimha Reddty, P.Gopal Reddy, who were acted as panchas. He further stated that the said settlement was reduced into writing by one M.Venkata Reddy. He further stated that the said Memorandum of Understanding was reduced into writing on 14.07.1974 with regard to allotment of land to one P.Gopal Reddy and others and that plaintiffs 2 and 6 were acted on behalf of their mother (1st plaintiff) 25 and participated in the said panch faisla and Memorandum of Understanding on 14.07.1974. In the cross-examination, D.W.3 stated that the elders for the both panchayats were one and the same and there was no prior partition between the 1st plaintiff and the 1st defendant and the issue of partition came up for the first time before them on the date of Ex.B26.
One M.Somi Reddy, who is a third party to the proceedings, was examined as D.W.4 and he stated in his evidence that he verified the documents dated 14.07.1974 and its writings shown to him by the defendants and on verification he found that his father late M.Venkat Reddy scribed the said documents i.e., Ex.B26-Panch faisla and Ex.B27-Settlement Deed. In the cross-examination, he stated that he does not have any personal knowledge in respect of the transactions covered by Exs.B6, B-26 and B-27 and his father figured as an attestor to Exs.B6, B-26 and B-27 and 26 they do not bear any certification to the effect that his father scribed the said documents.
One Nalla Aruna Devi, who is also a third party to the suit proceedings, was examined as D.W.5 and she stated in her evidence that she along with one P.Nageswar Rao jointly purchased an extent of Ac.3.37 Guntas of agricultural land in Sy.No.137/A and 138/B from P.Buchamma under a registered sale deed dated 05.06.1984, W/o late Ramachandraiah with the signatures of her daughters i.e., 1st plaintiff and 1st defendant along with other family members as witnesses.
One Byreddy Narasimha Reddy, who is a third party to the suit proceedings, was examined as D.W.6 and he stated that the 1st plaintiff had executed a simple sale deed under Ex.B14 on 20.07.1979 in favour of the 1st defendant in respect of the lands in Sy.Nos.193, 195, 196, 197, 303, 304 and 306 known as Bandamkindi Polam along with her sons. 27 He further stated that as per the instructions of the 1st plaintiff and her sons, he scribed the said simple sale deed on a stamp paper worth Rs.5/-.
The Point that arises for consideration is whether there is any infirmity or illegality in the judgment of the trial Court warranting interference of this Court with the findings recorded by it ?
Admittedly, one Parkala Ramachandraiah and one Parkala Buchamma are parents of plaintiff No.1 (since died) and defendant No.1 and they had no male issues. The said Parkala Ramachandraiah acquired suit properties along with other properties and after the demise of said P.Ramachandraiah, his wife Parkala Buchamma was managing the properties of her husband on behalf of herself and on behalf of her two daughters viz., plaintiff No.1 and defendant No.1. The plaintiffs contended that since their grandfather, Parkala Ramachandraiah died intestate leaving 28 behind plaintiff No.1 and defendant No.1 as his only legal heirs, the plaintiffs are entitled for half share in the suit schedule properties, whereas the defendants are entitled for remaining half share in the suit schedule properties. The contention of the 1st defendant is that the said P.Buchamma, the mother of the 1st plaintiff and 1st defendant, executed Ex.A2-registered Will Deed dated 10.02.1986, the original of which is filed before this Court, bequeathing three items of properties comprising of Ac.5.17 guntas of land in favour of the 1st plaintiff and all the suit schedule properties in favour of the 1st defendant and, therefore, the plaintiffs are not entitled for partition. It is further contended that though admittedly the suit properties were acquired by P.Ramachandraiah, the same were orally partitioned during the life time of their mother viz., P.Buchamma and later the said partition was reduced into writing by a panch faisla under Exs.B26 and B27 and as such the question of further partition does not arise.
29
The aforesaid contentions of both parties would go to show that P.Buchamma, who inherited the property of her husband P.Ramachandraiah became absolute owner by virtue of Section 14 of the Hindu Succession Act. She enjoyed the estate absolutely till her death in the year 1987 and that she had conveyed so many conveyance deeds exhibiting her absolute ownership, which were marked as exhibits.
From a perusal of the oral and documentary evidence placed on record, it is evident that late Parkal Buchamma had earlier executed a registered Will Deed on 19.10.1973, wherein she had bequeathed all the suit properties in favour of the 1st defendant and her heirs. Subsequently, she changed her mind and executed Ex.A2-Will Deed dated 10.02.1986 wherein she has bequeathed three items of properties comprising of Ac.5.17 guntas of land in favour of the 1st plaintiff in Sy.Nos.137/A, 138/B and 251/D and all the suit schedule properties in favour of the 1st defendant. 30 The said Will Deed is admitted by both the parties. Therefore, it is evident that on the date of death of late P.Buchamma, the suit schedule properties stood vested on the 1st defendant by virtue of the said Will Deed.
The trial Court disbelieved the contention of the defendants that the suit properties were orally partitioned long back and later the said oral partition was reduced into writing by a panch faisla under Exs.B26 and B27. The trial Court observed that though P.Buchamma was alive at the time of execution of Exs.B26 and B27, she did not participate in the proceedings under Exs.B26 and B27. Further, the trial Court pointed out the evidence of P.W.2 and D.W.4, who are the sons of M.Venkat Reddy, who is the scribe of Exs.B26 and B27. The evidence of D.W.4 shows that he identified the writings on EXs.B26 and B27 as that of his father, whereas the evidence of P.W.2 shows that he denied Exs.B26 and B27 bear the signature or handwriting of his father. Thus, the trial Court disbelieved the oral partition 31 between the parties, however, there was no discussion regarding Ex.A2-Will Deed.
Ex.B26 is the panch faisla dated 14.07.1974 and the list of properties mentioned by the panchas i.e., elders of the village was shown under Exs.B27. A perusal of the evidence of D.Ws.3 and 4 shows that D.W.3 stated that he was present when the panch faisla took place with regard to partition of the properties between plaintiff No.1 and defendant No.1 as shown under Ex.B26 and the list of properties were prepared as shown under Ex.B27 and that he signed EXs.B26 and B27 as a witness. The evidence of D.W.4 shows that he claimed that the contents of Exs.B26 and B27 are in the handwriting of his father viz., M.Venkat Reddy and that he claimed that he can identify the writings of his father on the said documents.
Admittedly, plaintiff No.1 and defendant No.1 are none other than the daughters of P.Buchamma and after the demise of her husband Ramachandraiah, she was managing 32 the properties of her husband till her death in the year 1987. The evidence on record shows that the family properties of plaintiff No.1 and defendant No.1 were partitioned orally prior to 1974 by determining the extents in between the 1st plaintiff and 1st defendant. The argument of the learned Counsel for the appellants/defendants that as per the Will Deed dated 10.02.1986 executed by late Parkal Buchamma, an extent of Ac.5.17 guntas of land was bequeathed to the 1st plaintiff and she had taken possession of the property and as such the plaintiffs cannot dispute the rest of the suit schedule properties bequeathed in favour of the 1st defendant in the same Will Deed, holds good.
A perusal of the original registered Will Deed dated 19.10.1973 filed before this Court shows that Parkala Buchamma executed the said Will Deed when she was 75 years old, wherein she stated that her husband had expired 35 years back and she had two daughters and she had performed the marriages of both the daughters. As she 33 became old and she was not doing well, her younger daughter Vellanki Anasuyamma (1st defendant) was residing with her to look after her, she bequeathed all the suit properties in favour of her younger daughter and her heirs. She further stated that she had already given vast properties to her elder daughter Ramachudamma (1st plaintiff) at the time of her marriage and also at a later point of time. Thereafter, the said P.Buchamma changed her mind and executed another registered Will Deed (Ex.A2) on 10.02.1986 as a last Will when she was 86 years old, wherein she bequeathed three items of properties comprising of Ac.5.17 guntas of land in Sy.Nos.137/A, 138/B and 251/D in favour of her eldest daughter Ramachudamma (1st plaintiff) and all the suit schedule properties in favour of her younger daughter Vellanki Anasuyamma (1st defendant) including the house situated at Mahabubabad village as she was residing with her and taking care of her during her old age. The said Will Deed was admitted by the 34 1st plaintiff as she herself set up the said Will Deed and got it exhibited as Ex.A2 and as such it cannot be said that the 1st plaintiff was not aware of the execution of the said Will Deed. Admittedly, P.Buchamma executed two Will Deeds one is on 19.10.1973 and another is on 10.02.1986. But, the last Will Deed prevails over the earlier Will Deed and as such the Will Deed dated 10.02.1986 is taken into consideration. The trial Court failed to appreciate the three items of properties bequeathed by late P.Buchamma in favour of the 1st plaintiff in Ex.A2-Will Deed were claimed, taken possession and enjoyed by the 1st plaintiff. Having acted upon such Will Deed, the 1st plaintiff cannot dispute the other suit schedule properties bequeathed to the 1st defendant by virtue of the said Will and claim for further partition of the properties.
Admittedly, P.Buchamma died in the year 1987. P.W.1, who is the daughter of the 1st plaintiff, stated in her cross-examination that she learnt personally in the year 1986 35 about execution of Ex.A2-Will Deed by her grandmother Buchamma and consequent entries in the revenue records and she enquired with her mother in respect of the original of Ex.A2 and its consequences and she told her that she would be given away whatever to be given. The plaintiffs kept quite till 2002 and filed the suit for partition claiming half share in the suit schedule properties and it shows that the suit is barred by limitation as they have not disputed and not challenged the said Will Deed within the prescribed period of time. But, the plea of limitation was not raised before the trial Court. As it is a pure question of law and appeal is continuation of suit, the appellants/defendants raised the plea at the appellate stage.
For the foregoing reasons, this Court finds that the trial Court erred in appreciating the evidence on record in right perspective and granted preliminary decree awarding half share in the suit schedule properties in favour of the plaintiffs erroneously and that the judgment of the trial 36 Court suffers from infirmities and material irregularities and as such it is liable to be set aside.
In the result, the Appeal Suit is allowed, and the judgment and decree, dated 31.01.2007, passed in O.S.No.6 of 2002 on the file of the IV-Additional District Judge, Warangal, are hereby set aside. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
________________________ JUSTICE P.SREE SUDHA 11.01.2023 Gsn.