Ponnada Venkata Hari Babu vs Rambha Swarajya Lakshmi
2021 Latest Caselaw 4096 AP

          HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

                    MAIN CASE No.A.S.No.226 of 2021
                                   PROCEEDING SHEET

Sl.                                                                           Office
                                         ORDER

No       DATE                                                                 Note
6.    20.10.2021 RRR, J
                                     I.A.No.1 of 2021

The present appeal has been filed against the Judgment and decree dated 27.01.2021 in F.D I.A.No.170 of 2017 in O.S.No.44 of 2006 on the file of Principal District & Sessions Judge, (FAC) I Additional Sessions Judge, Rajahmahendravarm.

For the ease of convenience, the parties in the present application are being referred to as they were arrayed in the suit. Late Ponnada Bhaskaram, Late Gopala Swamy, late Venkatadri were brothers and had constituted a Hindu joint family. These brothers had executed two registered deeds of partition as well as two exchange deeds by the year 1964 and had been in possession and enjoyment of their separate shares of property. The branch of late Sri Gopala Swamy consisted of himself and his two sons Sri Ponnada Venkateswara Rao and Sri P.Anjaneya Swamy, who is the 3rd defendant in the suit. Sri P.Venkateswara Rao pre-deceased his father Sri Gopala Swamy. The 3rd respondent was the kartha of the joint family after the demise of his elder brother and father.

Sri Venakteswara Rao had left behind his wife, who is the 1st defendant, his son who is the 2nd defendant and his daughter, who is the plaintiff in O.S.No.44 of 2006. Late Sri Venkateswara Rao also had another daughter by name Leela Krishna, who passed away issueless in the year 1994.

The plaintiff claiming a share in the joint family property and being aggrieved by the actions of defendants 1 to 3 in not giving her share in the

property, had filed O.S.No.44 of 2006 for partition of the joint family properties before the V Additional District Judge, (FTC) East Godavari. Rajahmundry. A preliminary decree dated 25.01.2012 was passed in this suit, granting certain shares to the plaintiff. Aggrieved by the said preliminary decree, A.S.No.371 of 2012 was filed before this Court. During the pendency of that appeal, all the parties in the suit had arrived at compromise which was reduced to writing and recorded by this Court by an order dated 07.08.2015 in A.S.M.P.No.1670 of 2015 in A.S.No.371 of 2012 and cross objection S.R.No.10579 of 2012.

After the disposal of the appeal in terms of the said compromise, the matter was taken up for passing a final decree. It appears that at that stage, the 1st defendant had passed away on 09.07.2016. It is the case of the 2nd defendant (appellant herein) that the 1st defendant had executed a Will bequeathing her share in the joint family to the 2nd defendant/appellant. This contention of the 2nd defendant/appellant was denied by the plaintiff and the said issue came up for consideration before the trial Court while passing the final decree.

After considering all the material before the Court, the Will said to have been executed by the 1st defendant was not accepted and final decree was passed dividing the share of the 1 st defendant equally between the plaintiff and the 2 nd defendant. The said final decree passed by the trial Court on 27.01.2021 is assailed by the 2nd defendant, who is the present appellant on the ground that the Will executed by his mother could not have been disbelieved and the entire share falling to the mother, who is the 1st defendant in the suit should have been allotted to the 2nd defendant/appellant.

Sri Ghanta Rama Rao, learned senior counsel appearing for Sri Ghanta Sridhar learned counsel for the appellant submits that, the Will has been properly proved by the appellant by examining one of the attestors and the registrar before whom the Will was registered and the finding of the trial Court, to the contrary, is not based on any cogent material before the Court.

Sri B.Nageswara Rao, learned counsel appearing for the plaintiff/1st respondent in the appeal contends that the inordinate delay in producing the Will clearly would show that the said Will was not in a valid Will and the trial Court had come to the right conclusion in the matter and as such, no further orders would be necessary in the present case.

A perusal of the final decree proceedings dated 27.01.2021 along with the plan annexed to the said proceedings would show that property which is the subject matter of the final decree was divided in to separate shares and allocated to the plaintiff, deceased 1st defendant and the 2nd defendant/appellant. Thereafter, the property allocated to the 1st defendant was again divided equally between the plaintiff and the 2nd defendant/appellant herein.

The principal issue of whether the Will executed by the 1st defendant in favour of the 2nd defendant/appellant is a valid Will or not is a matter for final hearing in the appeal. With a view to protect the interest of both sides, till the disposal of the appeal, it would be appropriate to allow the final decree proceedings to be completed with the plaintiff and the 2nd defendant/appellant being put in possession and enjoyment of the shares allotted to them personally. However, the share allotted to the 1st defendant, which is sought to be divided between the plaintiff and the

2nd defendant/appellant in the present appeal shall be kept aside shall not be allotted to either the plaintiff or the 2nd defendant/appellant. The said property falling to the share of the 1st defendant shall await the result of the present appeal and neither party shall take any steps to disturb the status quo in relation to the property falling to the share of the 1st defendant either by way of alienation, or change of the nature of the property pending disposal of the appeal.

Sri B.Nageswara Rao learned counsel would also point out that even according to the compromise recorded before this Court, the 2nd defendant/appellant before this Court had agreed to pay the mesne profits set out in the said compromise agreement and there is no valid reason for the 2nd defendant/appellant not to pay out the said amounts to the plaintiff.

Accordingly, there shall also be a direction to the 2nd defendant/appellant to remit the said mesne profits to the plaintiff within eight weeks from the date of receipt of this order.

_________ RRR, J RJS