Andhra Pradesh High Court - Amravati

Kaparapu Abbai, vs Erigula Vijaya Lakshmi, on 18 August, 2022

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 SECOND APPEAL No.150 of 2021

JUDGMENT:

Defendants 1 and 4 in O.S.No.129 of 2005 on the file of

the Senior Civil Judge, Pithapuram, filed the present second

appeal.

2. For the sake of convenience and brevity, the parties to this

judgment are referred to as per their status in plaint.

3. Plaintiffs filed the suit O.S.No.129 of 2005 seeking

partition of plaint schedule properties into five equal shares and

to allot 1/5th share to each of the plaintiff according to good and

bad qualities.

4. The case of the plaintiffs, in brief, is that the plaint A and

B schedule properties originally belonged to their grandmother

Boda Gangadevi; that mother of plaintiffs and defendants 1 and

2, acquired the plaint A schedule property from her mother as

Sridhana properties; that after her death, plaintiffs and

defendants 1 and 2 are in possession and enjoyment of the

same; that father of plaintiffs and defendants 1 and 2 died in

the year 1977 and their mother died in 1984; that 3rd plaintiff is

living in item No.1 of plaint A schedule property and defendants

1 and 2 are living in item No.2 of plaint A schedule property;

that defendants 1 and 2 used to share the profits out of plaint B

schedule property; that however, they are not sharing the profits

since the year 2003-04; that defendants are not coming forward

to effect partition of properties; that the plaintiffs got issued a

legal notice to defendants, however, they refused to receive the

notices. Hence, the plaintiffs filed the suit for partition.

5. After filing of written statement of 1st defendant, in view of

defense raised by him, plaintiffs amended the plaint and denied

the execution of Will dated 16.08.1976 by their father late

Nookaraju and, also pleaded that Gift deed dated 14.12.2004

said to have been executed by 1st defendant in favour of 4th

defendant does not bind them.

6. 1st Defendant filed written statement, denied the

averments in the plaint, and contended interalia that the plaint

A schedule properties are self acquired properties of their father

Nookaraju. Father Nookaraju executed a Will dated 16.08.1976

in a sound and disposing state of mind and bequeathed the

plaint A schedule property in his favour reserving life interest to

his mother; that after their death, he became the absolute owner

of plaint A schedule property and later he executed a Gift deed

dated 14.12.2004 in favour of his wife. He also pleaded that

plaint B schedule property is exclusively belonged to

Government, which was assigned to the elders of defendants, as

such the Government is also necessary party and eventually,

prayed to dismiss the suit.

7. 2nd Defendant filed written statement supporting the case

of the plaintiffs.

8. 3rd Defendant alleged tenant of plaint B schedule property

and the 4th defendant filed separate written statements

supporting the case of 1st defendant.

9. Basing on the above pleadings, the trial Court framed the

following issues:

(1) Whether the plaint A schedule properties are the stridhana properties of late Ganga Devi, the maternal grandmother of the parties and if so, whether they were devolved upon the mother of the parties?

(2) Whether the plaint schedule properties are the joint family properties of both parties?

(3) Whether plaint B schedule property was leased out to 3rd defendant and if so, whether he is entitled to continue as co-owner?

(4) Whether the plaintiffs are entitled for partition of plaint A and B schedule properties into five equal and equitable shares and for allotment of 1/5th share each to the plaintiff?

(5) To what relief?

10. On behalf of plaintiffs, 2nd plaintiff examined herself as

P.W.1 and got marked Exs.A-1 to A-4. On behalf of defendants,

1st defendant examined himself as D.W.1 and got examined

D.Ws.2 to 8. Exs.B-1 to B-15 were marked.

11. Trial Court on consideration of both oral and documentary

evidence, came to conclusion that Ex.B-7 Will propounded by 1st

defendant is not duly proved. Trial Court also observed that

neither the attestors nor the scribe of the Will were examined to

prove Ex.B-7, eventually, the trial Court came to conclusion that

Ex.B-7 is not proved and consequently, held that Ex.B-8

executed by 1st defendant in favour of 4th defendant with regard

to plaint A schedule property is not valid. Eventually, trial

Court decreed the suit and passed preliminary decree vide

judgment dated 19.10.2010.

12. Aggrieved by the same, defendants 1 and 4 filed appeal

A.S.No.89 of 2014 on the file of XII Additional District Judge,

Pithapuram. The lower Appellate Court being the final fact

finding Court, on consideration of oral and documentary

evidence, dismissed the appeal vide judgment dated 11.06.2019.

Assailing the same, defendants 1 and 4 filed the second appeal.

13. Heard Sri Mangena Sree Rama Rao, learned counsel for

the appellants.

14. Learned counsel for appellants would submit that the 1st

appellant proved Ex.B-7 Will and hence, the Courts below ought

not to have decreed the suit in respect of plaint A schedule

property. He would submit that the plaintiffs failed to prove

that plaint A schedule property is Stridhana property of late

Gangadevi. He also would submit that the plaintiffs 2 and 3

were never in possession of plaint schedule property.

15. The appeal is filed under Sec 100 of Code of Civil

Procedure. Appellants must satisfy Court regarding existence of

Substantial Questions of Law involved in the appeal. To

entertain or admit second appeal, substantial questions of law

are sine qua non.

16. Further, the Hon'ble Apex Court in Hero Vinoth Vs.

Seshammal1, held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper

AIR 2009 SC 1481

decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

17. Going by the pleadings and evidence, there are two houses

in the plaint A schedule property i.e. thatched house bearing

Door No.11-4-137, which is shown as item No.1 and tiled house

bearing Door No.11-4-138, which is shown as item No.2. Plaint

B schedule property is an extent of Ac.0.16 cents of dry land in

S.No.542 of Pithapuram.

18. 2nd plaintiff who was examined as P.W.1 deposed that

Kaparapu Bullemma, who is the mother of plaintiffs and

defendants 1 and 2 got the plaint A and B schedule properties

from her mother Boda Gangadevi. She further deposed that

Bullemma is the only daughter of Gangadevi and that the plaint

A and B schedule properties are Stridhana properties of their

mother having acquired the same from her mother Gangadevi.

She also deposed that after death of Bullemma, plaintiffs and

defendants 1 and 2 are jointly enjoyed the schedule properties.

She further deposed that 3rd plaintiff is residing in item No.1 of

plaint A schedule and defendants 1 and 2 are residing in item

No.2 of plaint B schedule and since the defendants are not

cooperating and not sharing the income in respect of plaint B

schedule property, legal notice dated 29.01.2005 was issued to

defendants.

19. The case of contesting defendant, who was examined as

D.W.1 is that plaint A schedule property is the self acquired

property of his father Nookaraju and he purchased the same

from his own income from Kattu Apparao of Pithapuram and his

father executed a Will dated 16.08.1976 and created life interest

to his mother and vested remainder to him. He also deposed

that plaint B schedule property is Government property and

hence, it is not available for partition.

20. During the cross examination of P.W.1, 3rd defendant got

marked the orders issued by the Tahsildar, Pithapuram dated

02.09.1980 and 10.09.1980 regarding plaint B schedule

property and tax receipt paid on behalf of Bullemma by 1st

defendant as Exs.B-1 to B-3 respectively.

21. The evidence of P.W.1 and cross examination by 1st

defendant, prima facie, proves that the schedule properties

belonged to maternal grandmother of Gangadevi and the mother

of plaintiffs and defendants 1 and 2 got the properties. In the

absence of any material placed before the Court to prove that

the said finding recorded by Courts below is in correct, this

Court normally will not interfere with such a finding. Though

the 1st defendant pleaded that his father purchased the plaint A

schedule property, no document was filed by him to prove the

same. In the absence of any document, the finding recorded by

the trial Court as confirmed by the first appellate Court that the

plaint schedule properties belonged to Boda Gangadevi and

later, the mother of plaintiffs and defendants 1 and 2 got the

same being question of fact, does not warrant interference of

this Court under Section 100 of CPC. In fact, the Courts below

evaluated the entire evidence thoroughly.

22. 1st Defendant pleaded execution of Ex.B-7 Will by his

father. However, neither the attestors nor the scribe of Ex.B-7

was examined to prove its execution. In fact, D.W.1 deposed

that he could not examine the son of scribe, though he is alive.

He also did not take any steps to examine any person related to

the attestors, to identify the signatures of attestors, to prove the

genuineness of Ex.B-7 Will. The Courts below rightly held that

in the absence of any evidence, the 1st defendant having

propounded Ex.B-7 Will, failed to prove the same.

23. In Apoline D'Souza Vs. John D'Souza2, the Hon'ble Apex

Court held that

"Proof of attestation of the will is a mandatory requirement and it is for the propounder of the will to remove the suspicious circumstances surrounding its execution."

24. In the present case, for the reasons best known to 1st

defendant, even though the son of scribe of Ex.B-7 Will is alive,

failed to examine him to prove its execution. He also did not

take any steps to examine any person related to the attestors of

Ex.B-7 Will to prove its genuineness. In view of the same, the

findings of fact recorded by the Courts below with regard to

Ex.B-7 Will, does not warrant interference of this Court.

25. The findings of the fact recorded by the Courts below are

based on appreciation of both oral and documentary evidence.

Unless, the defendants satisfies that substantial question of law

involved in the second appeal, interference of this Court with the

judgments rendered by the Courts below in exercise of