Andhra Pradesh High Court - Amravati
Munipalli Subbarao (Died) And ... vs 8 on 11 July, 2023
* THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
+ APPEAL SUIT No.1265 of 2018
% Dated: 11-07-2023
# Munipalli Subbarao (died) and five others ... Appellants
and
$ M.Siva Sankara Vara Prasadarao @ Prasadarao
and four others ... Respondent
! Counsel for the appellants : Sri Bodduluri Srinivas Rao
^ Counsel for the respondents : Sri N.Subbarao
< GIST :
> HEAD NOTE :
? Cases referred :
1 (2005) 6 ALD 204
2AIR 1963 SC 992
3AIR 1965 SC 271
4AIR 1923 Madras 337
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
APPEAL SUIT No.1265 of 2018
Munipalli Subbarao (died) and five others ... Appellants
and
M.Siva Sankara Vara Prasadarao @ Prasadarao
and four others ... Respondents
DATE OF ORDER PRONOUNCED: 11.07.2023
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wishes Yes/No
to see the fair copy of the Judgment?
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
APPEAL SUIT No.1265 of 2018
JUDGMENT:(per Hon'ble Sri Justice V.Srinivas)
This appeal is directed against the decree and judgment
dated 15.03.2018 in O.S.No.64 of 2014 passed by the learned XI
Additional District and Sessions Judge, Tenali.
2. The appellants herein are the plaintiffs, and the
respondents herein are the defendants. For convenience, the
parties herein are referred to as they are arrayed in the trial
Court.
3. The above appeal suit was filed for partition of the plaint
schedule properties i.e., item Nos.1 to 3 into 12 equal shares
and allot 7/12th share to the 1st appellant and for costs. Since
the 1st appellant died during pendency of the suit, appellant
Nos.2 to 6 are brought on record as his legal representatives.
4. The brief facts of the plaintiffs case are as follows:
(i) Originally the plaint schedule property, which
consists of three items belongs to one Munipalli Venkaiah,
who died intestate in the year, 1950 leaving behind his three
sons viz. Munipalli Kotaiah, Munipalli Subbaiah and Munipalli
Ramaiah and three daughters viz. Ponugupati Basavamma,
Mallampalli Ponchaitramma and Kattavarapu Seetha. All the
daughters of Munipalli Venkaiah died long back.
(ii) The first son of M.Venkaiah by name M.Kotaiah died
issueless in the year, 1967 and his third son by name
M.Ramaiah also died in the year, 2003 leaving behind his
children i.e. 1st plaintiff and defendants 1 to 5.
(iii) The second son by name M.Subbaiah, his wife
Kotilingamma and their daughter by name Venkataratnam
were also died in the years 1939, 2008 and 2006
respectively. Since there are no legal heirs, the share of
M.Subbaiah devolved upon his brothers, M.Kotaiah and
M.Ramaiah equally.
(iv) The first son of M.Ramaiah by name M.Subbarao
(1stplaintiff) was given in adoption to M.Kotaiah, that though
he was given adoption, he is entitled to get 1/12th share
from out of 6/12th share of his natural father, M.Ramaiah,
since there was no partition of the plaint schedule
properties.
(v) Initially, M.Ramaiah and later M.Prasada Rao being
the elder of the family, used to manage the properties. The
1st plaintiff, in total, got 7/12th share i.e. as adopted son of
M.Kotaiah succeeded to 6/12th share and 1/12th share from
out of 6/12th share of M.Ramaiah. The defendant Nos.1 to 5
succeeded to 5/12th share and each of them got 1/12th share
of the schedule property.
(vi) The 1st plaintiff got issued legal notice on
08-04-2013 for partition of item Nos.1 and 2 of the schedule
property, for which the 1st respondent sent reply with false
allegations. They pray for a decree.
5. The 1st defendant filed a written statement with adoption
memo of defendant Nos.2 to 5, denying the various averments
made in the plaint, stating as follows:
(i) Item Nos.1 and 2 of the schedule property are the
self-acquired properties of their paternal grandfather,
M.Venkaiah. M.Venkaiah along with his elder son M.Kotaiah
executed a registered gift deed dated 26.06.1929 in favour
of his second son Subbaiah and third son by name Ramaiah,
who is minor, said to be represented by his brother
Subbaiah.
(ii) One of the donee's under the above said gift deed
by name, M.Subbaiah died in the year 1939 leaving behind
his wife, Kotilingamma and daughter, Venkatarattamma as
legal heirs.
(iii) The father of the 1stdefendant, M.Ramaiah and
legal heirs of M.Subbaiah by names Venkatarattamma and
Kotilingamma executed two gift deeds to an extent of 300
sq.yards each in item No.1 of the plaint schedule property to
Rajeswari and Gadapa Apparao and Neelikonda Venkayamma
on 25.04.1977 and 29.12.1977 respectively, which were duly
executed, attested, accepted and acted upon by the donees.
(iv) Again, same donors executed another registered gift
deed dated 30.12.1977, the remaining extent in item No.1 of
the schedule property to the 1st defendant. Same was also
duly executed, attested, and registered and acted upon.
(v) The 1st defendant, Kotilingamma and her daughter
Venkatarattamma sold two bits of site to an extent of 235 sq
yards of site each on 11.12.95 under two deeds of sale on
the western side of the plaint to one Gaddipati Guru
Prasadarao and Kavuri Sarath Raju for consideration and
they constructed two storied building therein and have been
in exclusive possession.
vi. The donees under the document dated 25.04.1977
and 29.12.1977 sold the property covered by those
documents to one Patibandla Narendranath through
registered sale deeds dated 31-12-2001 and 05-12-2001 for
consideration and they delivered possession of the property
to the vendee, who in turn sold the said property to one
Sajja Sambasivarao's sons through a registered sale deed
dated 06-06-2011. Since then, they are in exclusive
possession and enjoyment of 600 sq yards covered by those
deeds and the same is part and parcel of the schedule
property.
vii) In item No.2 of the schedule property, the 1st
defendant's father and his brother, M.Subbaiah got an extent
of 5 1/2 cents. Late M.Subbaiah's share devolved upon his
wife and daughter. The daughter of M.Subbaiah predeceased
her mother without any issues and his wife only got rights
and title in his share. During the lifetime of his wife, she
executed a registered Will, dated 05.01.2007 in a sound and
disposing state of mind bequeathing her share of property in
item No.2 to the 1st defendant and after her death, the 1st
defendant succeeded the property.
viii) The father of the 1stdefendant, during his lifetime
executed a Will dated 31.07.2003 in a sound and disposing
state of mind, bequeathing his share in item No.2 of the
schedule property, and building therein and item No.3 of the
schedule property, which he purchased through a registered
sale deed dated 02.10.1940 to the 1stdefendant.
ix) After the death of his father on 05.08.2003, he
became absolute owner of the said properties as per the
terms of the Will and since then he is in exclusive possession
and enjoyment of the said property. He constructed a
shopping complex on the Southern side of 1100 sq. yards of
site, which is a part of schedule property in the year, 1997
and the said complex was assessed for house tax from the
year 2003-04 by the Municipality and he was paying house
tax. The 1stdefendant, with an intention of constructing a
mega shopping complex, demolished the old shopping
complex and obtained an approved plan from the U.D.A.
Having eye sour to the plaintiffs regarding the same, the 1st
plaintiff, with the instigation of his family members, filed
the suit forcibly.
x) Item No.3 of the plaint schedule property is the
self-acquired property of the father of the 1st defendant,
and it is abutting to the houses. The further averments in
the written statement show the existing structures at the
time of execution of gift deeds and alienations that were
taken place. It was also stated that the suit is barred by
time and that the suit is bad for non-joinder of necessary
parties and that the subject property is not the joint family
property.
6. Basing on the above pleadings, the trial Court settled the
following issues and additional issues:
1. Whether the schedule properties are the joint family
properties of the plaintiff and defendants and available
for partition?
2. Whether the plaintiff is entitled to partition and
separate possession as prayed for?
3. To what relief?
Additional issues:
1.Whether the Will deed, dated 05.01.2007 executed by
Munipalli Kotilingamma in respect of her share in item
No.2 bequeathing to D.1 is true, valid, and binding on
the plaintiffs?
2.Whether the Will deed, dated 31.07.2003 by father of D.1
bequeathing his share in item No.2 and item No.3 to D.1
is true, valid, and binding on plaintiffs?"
7. At the trial, on behalf of the plaintiffs, P.Ws.1 to 3 were
examined and Exs.A.1 to A.10 were marked. On behalf of the
defendants, D.Ws.1 and 2 were examined and Exs.B.1 to B.23
were marked.
8. Based on the material placed on record and evidence and
after due appreciation of oral and documentary evidence, the
trial Court dismissed the suit.
9. It is against the decree and judgment; the plaintiffs
preferred this appeal.
10. Heard Sri Bodduluri Srinivas Rao, learned counsel for the
appellants/plaintiffs and Sri N.Subbarao, learned counsel for the
respondents/defendants.
11. Learned counsel for the appellants/plaintiffs submits that
the defendants acquired the subject property from their
grandfather Munipalli Kotaiah. Thereby, the 1st appellant/
plaintiff and the respondents/defendants equally entitled the
share. He further submits that mere admission by the 1 st
plaintiff does not throw away the rights of the plaintiffs in
claiming his right as the properties are not at all partitioned at
any point of time rather before or after the death of late
Munipalli Venkaiah and admittedly, he died intestate in the year
1950.
12. He further submits that simply because PW.1 admits that
the gift deed dated 26.06.1929 under Ex.B1, the trial Court
erred in coming to the conclusion that the 1stplaintiff had no
right to question Ex.B1. Moreover, there is no relinquishment of
the rights of M.Kotaiah under Ex.B1, thereby the said gift deed
is not valid and binding on the plaintiffs.
13. Learned counsel for the appellants further submits that as
there is no partition, the sales made under Exs.B5 to B8 are not
valid and binding on the plaintiffs. He further submits that
'will' dated 31.07.2003 covered under Ex.B11 is a forged and
fabricated document, which will not create any right in favour
of the plaintiffs and it cannot deny the right of the plaintiffs.
14. Learned counsel for the appellants further submits that
the wife of M.Subbaiah by name Kotilingamma had no right to
bequeath the properties to the 1st defendant and the alleged
Will dated 5.01.2007 covered under Ex.B10 is not valid and
binding on the 1stplaintiff. Exs.B2 to B4 i.e. gift deeds, dated
25.04.1977, 29.12.1977 and 30.12.1977 are fabricated by the
respondents colluding among themselves in order to deny the
rights of the plaintiffs. The trial Court failed to consider that
the defendants, without having any legal right are enjoying item
No.1 of the schedule property.
15. Per contra, learned counsel for the respondents/
defendants submits that the 4th plaintiff, the second son of the
1st plaintiff, who was examined as PW.1, in his evidence stated
that his father was born on 01.01.1943 and Ex.B1-registered gift
deed dated 26.06.1929 was executed by M.Venkaiah and
M.Kotaiah. Based on the said evidence, it is the submission of
learned counsel that long prior to birth of the 1st plaintiff by
name M.Subba Rao, Ex.B1-gift deed was executed and now the
plaintiffs cannot question the said gift deed covered under
Ex.B1. Besides, PW.1 admits the contents of the documents
filed by the defendants are correct, the contention of the
defendants that they got knowledge about Ex.B1 only after
filing of written statement only, is absolutely false and in the
third para of Ex.A7-reply notice itself also, the 1st defendant
mentioned about Ex.B1-registered gift deed by M.Venkaiah and
M.Kotaiah. He also submits that except for a self-serving
statement, no evidence was placed by the plaintiffs showing
that the 1st plaintiff was given adoption to M.Kotaiah.
16. Learned counsel for the defendants further submits that
there are many alienations of the suit schedule property, for
better reasons known to the plaintiffs, they did not add the
purchasers and the suit is bad for non-joinder of necessary
parties, who are essential and having substantial interest over
the suit schedule property. There are gift deeds, wills and sale
deeds and none of them were questioned by the plaintiffs at any
point of time though stated in the written statement itself
about gift deeds dated 25.04.1977, 29.12.1977 and donees
under those wills sold properties to the Patibandla Narendranath
and two sale deeds on 05.12.2001 and 31.12.2001 for
consideration and delivered possession also and vendee under
the above documents sold to one S.SambasivaRao on 06.06.2011
and they have been in possession and enjoyment. He further
submits that gift deeds are of the year 1977 and sale deeds are
of the year 2001, the plaintiffs filed the suit more than 12 years
i.e.17.07.2013, which is clearly barred by limitation and even on
that score also, the suit itself is not maintainable.
17. He further submits that in the written statement they
have mentioned in detail about the flow of title to the
defendants to their succeeding purchasers and they have been
in peaceful possession and enjoyment of the said property and
now without questioning of the same, seeking a decree is
misconceived and plaintiffs are not entitled for any relief in the
suit and appeal is liable to be dismissed with costs throughout.
18. Against this backdrop, the following points arise for
determination:
1. Whether the Will deed dated 31.07.2003 executed by
father of the 1st defendant bequeathing his share in item
Nos.2 and 3 to the 1st defendant true, valid, and binding
on the plaintiffs?
2. Whether the schedule property is joint family property, if
so, whether the plaintiffs are entitled for partition?
3. Whether the Will deed dated 05.01.2007 executed by
Munipalli Kotilingamma in respect of her share in item
No.2 bequeathing to the 1st defendant is true, valid, and
binding on the plaintiffs?
4. To what relief ?
19. POINT Nos.1 and 2:
It is evident from the pleadings of the plaint and
documentary evidence that M.Venkaiah during his life time
acquired item Nos.1 and 2 of the subject property and the same
was also culled out from the pleadings and evidence of PW.1.
So the original owner of the property is M.Venkaiah. Admittedly,
said M.Venkaiah died in the year 1950 and by that date, the
Hindu Succession Act is not in force. Even then, if he died
intestate, his successors may get equal shares. It is also an
undisputed fact that even long prior to the birth of the
1stplaintiff, M.Venkaiah executed a registered gift deed on
26.06.1929in favour of his sons, Subbaiah and Ramaiah and by
that time Ramaiah is a minor represented by Subbaiah.
20. So M.Venkaiah alienated his right over item Nos.1. and 2
of the schedule property in favour of Subbaiah and Ramaiah and
thereby Kotaiah had no share. In much detail, through said gift
deed, he gifted item No.1 of the plaint schedule land and Ac.0.5
¼ cents in item No.2 and joint galli (rasta to an extent of 14
sq.yards) in favour of Subbaiah and Ramaiah with absolute
rights. So by virtue of Ex.B1, Subbaiah and Ramaiah became
absolute owners.
21. It is settled law that the presumption about the existence
of a joint Hindu family does not extend to drawing inference of
existence of joint Hindu family properties. The burden is always
on the person, who alleges that a particular item is a joint
Hindu family property, to prove the same.
22. At this juncture, it is relevant to discuss the nature of
property that existed in the schedule property. Item No.1 is an
extent of Ac.0.49 cents of house along with house site; item
No.2 is an extent of Ac.0.09 cents of house site with R.C.C.
building; and item No.3 is Ac.0.36 cents of vacant land in
Gandhinagar, Tenali.
23. It is evident from the evidence of PW.1 that his father
constructed a building on the northern side of item No.2, which
is in their occupation. His elder brother is in occupation of
western side portion of the building and he is in possession of
eastern side portion.
24. PW.1 further admits that the 1st defendant constructed
back side of southern portion, which is in his occupation and
they have got constructed a building long back and got
electricity connection separately to their respective buildings
since 25 to 30 years which shows that there is a separation of
status of joint family property, though plaintiffs did not admit
gift covered under Ex.B1. But the fact remains that they are
living separately.
25. Coming to item No.1 of the schedule property as is
mentioned above, it is Ac.0.49 cents. Admittedly, there are two
buildings and a vacant site. PW.1 admits that out of Ac.0.49
cents equivalent to 2400 sq.yards, out of which, 235 sq.yards
was purchased by one G.Guru Prasada Rao through a registered
sale deed dated 11.12.1995 and another 235 Sq.yards was
purchased by K.Sarath Raju through a registered sale deed
dated 11.12.1995. From the said admission, it is clear that even
in the year 1995 itself, 470 Sq.yards was already sold.
26. In this connection, it is useful to refer Chapter 15 of the
Mayne's Hindu Law and usage, reads thus:
"486: All must be parties to suit: In a partition suit, all the
coparceners must be before the court either as plaintiffs or as
defendants. Any coparcener or co-sharer who sues for
partition of property must the other coparceners or co-sharers
defendants because the partition which is made in his favour
is a partition against his coparceners or co-sharers. Any decree
which gives him a portion of the property takes away all rights
which they would otherwise have to that portion, and
therefore it is decree against them and in his favour. A decree
for partition made in a suit instituted by a member of a joint
Hindu family is therefore res judicata as between all who are
parties to the suit. Besides the coparceners, the wife, mother,
or grandmother, when entitled to shares on partition are
necessary parties to the suit as well as the purchaser of a
coparcener's interest.
27. This Court in Vemuganti Venkata Kalyani Versus
Nyayapathi Padmavathamma1, at para-20 it was held that
"......that much before the suit came to be filed, half of the suit
schedule property was sold, under Ex.B-11, and deed of
settlement executed on the next day, through Ex.B-12.
Substantial rights had accrued to the parties to the said
1 (2005) 6 ALD 204
document. Whatever may have been the justification for the
plaintiff, in not impleading the purchaser under Ex.B-11, and
beneficiary under Ex.B-12, when she filed the suit, she ought to
have taken necessary steps, at least, when she came to know
about the same, through the written statement filed by the first
defendant. Grant of any relief in favour of the plaintiff, would
certainly have its impact on the said persons, and they are
necessary parties to the suit. Therefore, the suit is defective,
for non-joinder of necessary parties also".
28. PW.1 also admits that even at the time of filing of the
suit, the buildings are in existence and as per the defendants,
soon after purchase of site, Guru Prasada Rao and K.Sarath Raj,
constructed buildings therein. The said Guru Prasada Rao and
K.Sarath Raj are not parties to the suit.
29. PW.1 further admits in his evidence that in item No.1, 600
sq.yards were again sold to different persons long prior to the
suit and admittedly, those vendors are not as parties to the suit.
30. In this case, it is vividly clear that all the necessary
parties were not impleaded and the question arises in the suit
maintainable? The Apex Court in Venkata Reddy v. Pethi
Reddy2, held that a preliminary decree in a partition suit is not
a tentative decree but must, insofar as the matters dealt with
by it are concerned, be regarded as conclusive and final, the
shares determined in the preliminary decree cannot be altered
or modified so as to reduce them during the final decree
proceedings. No doubt the shares allotted in a preliminary
decree can be altered by granting a higher share to the parties
consequent on the death of some of the sharers who are parties
to the suit, to avoid multiplicity of proceedings. The decision of
the Hon'ble Apex Court in Kanakarathanammal v. V.S.
Loganatha Mudaliar3, in which at para 15, it was held is also
very relevant. It was held that "It is unfortunate that the
appellant's claim has to be rejected on the ground that she
failed to implead her two brothers to her suit, though on the
merits we have found that the property claimed by her in her
present suit belonged to her mother and she is one of the three
heirs on whom the said property devolves by succession under
Section 12 of the Act. That, in fact, is the conclusion which the
trial Court had reached and yet no action was taken by the
appellant to bring the necessary parties on the record. It is true
AIR 1963 SC 992
AIR 1965 SC 271
that under Order 1 Rule 9 of the Code of Civil Procedure no suit
shall be defeated by reason of the mis-joinder or non-joinder of
the parties, but there can be no doubt that if the parties who
are not joined are not only proper but also necessary parties to
it, the infirmity in the suit is bound to be fatal. Even in such
cases, the Court can under Order 1 Rule 10, sub-rule 2 direct
the necessary parties to be joined, but all this can and should
be done at the stage of trial and that too without prejudice to
the said parties' plea of limitation. Once it is held that the
appellant's two brothers are co-heirs with her in respect of the
properties left intestate by their mother, the present suit filed
by the appellant partakes of the character of a suit for partition
and in such a suit clearly the appellant alone would not be
entitled to claim any relief against the respondents...."
31. In Mohana Velu Mudaliar v. Annamalai Mudaliar4, it was
held that if the defendant takes the objection at a proper
time, it is his right to have all the proper persons joined as
plaintiffs and if after the objection has been raised, the
plaintiff proceeds with the suit without taking steps to add
the person or persons whose non-joinder has been objected
AIR 1923 Madras 337
and the Court finds that the objection is well founded, the
suit must be dismissed.
32. Thus, under the settled law, which leaves no option to
the Court except to dismiss the suit for non-impleading of a
necessary party. It is also settled law that "Suit for Partition-
Necessary parties, Thumb rule in a suit for partition that all the
necessary parties are to be impleaded and all the properties
liable for partition are to be included."
33. But surprisingly, for the first time in the cross
examination, they mentioned that they came to know about
alienations only in the year 2012. Even if they got knowledge
in the year 2012, the same should be questioned in the plaint.
But the same was not done, that is against the law. Any relief
granted in favour of the plaintiff would certainly have its
impact on the said persons.
34. It is the case of the defendant that in the year 1997 itself,
800 sq.yards in the front side of the property in item No.1, the
1st defendant constructed a shopping complex and for such
shopping complex he has been paying house tax till 2003-04.
Thus, in support of these assertions made by the 1st defendant,
he filed house tax, demand notices covered under Exs.B15 to
B23. No contra evidence is placed against those developments
by the plaintiffs to deny the case of the defendants.
35. It is contended by the defendants that the 1st defendant
demolished the old shopping complex with intent to construct a
new building and obtained approved plan from the concerned
authorities. For the said contention also, there is no positive or
negative reply from the 1stplaintiff to deny the case of the
defendants. At this juncture, it is relevant to state that the 1 st
plaintiff who has approached the court has to prove and
establish his case. In the present case, except the self-serving
evidence of the plaintiffs, no material evidence is placed for the
defense made by the defendants and confronted to PW.1 also.
36. In that scenario, even the fact that the plaintiffs were
aware of alienations and constructions made in item No.1 and to
avoid the court fee, they pleaded a false plea of joint
possession, is not clearly or categorically denied.
37. Interestingly, PW.1 admits in the cross examination that
M.Venkaiah and M.Kotaiah jointly executed registered gift deed
under Ex.B1 in favour of M.Subbaiah and M.Ramaiah and gift
deed was acted upon in respect of item Nos.1 and 2 of the
schedule property. If is the fact admitted by PW.1, the plea of
the 1st plaintiff that he was adopted son of M.Kotaiah and
M.Kotaiah also got some share cannot be claimed, when there is
a registered gift deed dated 26.06.1929, even long prior to birth
of the 1st plaintiff by name M.Subba Rao. The same is admitted
by PW.1, who is the 4th plaintiff and now they cannot turn
around and say it will not bind them or that is not valid under
law.
38. Item No.2 consists of Ac.0.09 cents of house site, there is
a building on the western side and in that building they are
staying on the northern side and the 1st defendant staying on
the southern side. PW.1 further admits in the evidence that his
father constructed a building on the back side of the northern
portion of item No.2, which is in their occupation. It clearly
goes to show that the 1st plaintiff had taken his share and
enjoyed the property but approached this court by filing a
partition suit claiming that they are in joint possession of the
property. PW.1 further admits that in the building constructed
by his father, his elder brother was in occupation of the western
portion and he is in possession of eastern portion and the 1st
defendant constructed back side of southern portion which is in
his occupation and they got electricity connection of respect
buildings since 25 to 30 years, which clearly established that the
schedule property is not in joint possession of plaintiffs and
defendants. Hence, the contention of the plaintiffs that
M.Ramaiah i.e. father of the 1st plaintiff and the 1st defendant
alone managed the property on their behalf, is a baseless
argument.
39. Coming to item No.3, which is Ac.0.36 cents of land
equivalent to 1800 Sq.yards the case is that it is acquired by
M.Ramaiah i.e., the father of 1st defendant, during his life time
and he executed a will on 31.07.2003 bequeathing the said item
No.3 in favour of the 1st defendant.
40. In this context, plaintiff has examined one V.Venkateswara
Rao as PW.2, who said to be father-in-law of PW.1. Though in
his chief examination consistently stated about the plaintiffs'
case but in cross examination, he categorically stated that he
has no personal knowledge about adoption of the 1st plaintiff
and he did not know the date of birth of the 1st plaintiff and he
had only knowledge about property through the father of PW.1
by name M.SubbaRao. Except this hearsay evidence, he has no
personal knowledge of this matter. Further perusal of testimony
of PW.2 nothing relevant is found to determine the facts in issue
in this case.
41. So far as PW.3 by name B.Edukondalu is concerned, he is a
photographer by profession and admittedly, PW.1 was running
video mixing unit and PW.1 started video mixing unit in the year
2001 and he used to approach video mixing unit for getting the
final product through PW.1 by availing his services. He
categorically admits that he had no personal knowledge about
the events that took place in the family of PW.1 prior to the
year 2001 and further admits that he came to know about the
particulars of schedule property on information furnished by the
1st plaintiff and he did not know what the constructions in the
schedule properties are and who are in possession of the
properties. Thus, his evidence is also in no way helpful for
determination of the facts in issue.
42. From the above, it is very clear that the plaintiffs are
unable to establish the schedule properties are joint family
properties and available for partition. They are unable to
establish that they are entitled for partition and separate
possession.
43. On the other hand, the defense of defendants is that, the
'will' dated 05.01.2007 is executed by Kotilingamma in respect
of her share in item No.2 in favour of the 1st defendant. Hence,
the right of Kotilingamma is to be looked into.
44. To trace the right of Kotilingamma, admittedly,
M.Venkaiah, who is the original owner had three sons by names
M.Kotaiah, M.Subbaiah and M.Ramaiah. M.Kotaiah died in the
year 1967 issueless. M.Subbaiah died in the year 1939 leaving
behind his wife Kotilingamma and daughter by name
Venkataratnam. It is an admitted fact that Kotilingamma died
in the year 2008 and her daughter Venkataratnam predeceased
her in the year 2006. From the beginning, it is the case of the
1st defendant that when M.Venkaiah executed a registered gift
deed on 26.06.1929 in favour of M.Subbaiah and Ramaiah and by
the date of gift deed as Ramaiah was minor, he was said to be
represented by M.Subbaiah because he is elder brother of
M.Ramaiah. By virtue of said gift deed, M.Subbaiah and
M.Ramaiah got right over the said property, since it is a
registered gift deed. By the death of Subbaiah and
Venkataratnam, the share fell to Subbaiah devolved upon
Kotilingamma.
45. Said Kotilingamma along with her daughter gifted 300
sq.yards in item No.1 of the schedule property to the second
daughter of the 1st defendant by name Rajeswari and her
husband G.Apparao through registered gift deed dated
24.05.1977. The said gift deed was marked as Ex.B2 and it is
duly executed, attested, accepted and acted upon by the donee
and donor. Delivery of possession of the property to the done is
also there.
46. Likewise, further, Ramaiah and the 1st defendant,
Kotilingamma, wife of Subbaiah, Venkataratnam D/o Subbaiah
jointly executed another registered gift deed to an extent of
300 sq.yards on 29.12.1977 in favour of the first daughter of
Ramaiah by name Venkayamma. According to the defendants
that gift was also accepted, and acted upon by the donees and
donor i.e. the above referred persons have delivered the said
extent of 300 sq.yards in item No.1 in favour of Venkayamma
i.e. 2nd defendant. In order to prove the same, the certified
copy of registered gift deed was marked as Ex.B3.
47. When gift deed dated 26.06.1929 is accepted,
automatically Kotilingamma as well Venkataratnam had right
over the said property because M.Subbaiah died in the year 1939
and his share devolved upon his wife Kotilingamma and
daughter-Venkataratnam. Thereby the right of Kotilingamma is
traced and source of title is established by virtue of Ex.B1.
48. With regard to the 'will' dated 05.01.2007 executed by
Kotilingamma in respect of her share in favour of the
1stdefendant is concerned, the 1st defendant not only examined
himself as DW.1 but also examined one S.Kondala Rao said to be
attestor of ExB10 as DW.2.
49. In para-3 of his affidavit, he stated that on 05.01.2007, on
the instructions of Kotilingamma, the document writer prepared
the will and put her thumb impression on it and at that time
himself and one M.Chandra Sekhar Rao were there and
witnessed the same. Later himself and M.Chandra Sekhar Rao
signed as attestors, Kotlingamma witnessed their attestation on
that will and said will was registered before the Sub-Registrar
office on 06.01.2007. He and M.Chandra Sekhar Rao signed on
the photograph and finger print form.
50. From the above evidence of DW.2, it is clearly established
that on 05.01.2007, the Will was executed and it was registered
on 06.01.2007 before the Sub-Registrar, Tenali and he was an
attestor of the said document and Kotilingamma signed as
identification witness before the Sub-Registrar. DW.2 was
examined at length, but nothing is elicited to doubt his
testimony nor trustworthiness in evidence before the Court.
The evidence of DW.2 coupled with the evidence of DW.1
establishes the source of right title of Kotilingamma and
execution of the Will in favour of the 1st defendant. Hence, this
Court is of the view that the Will dated 05.01.2007 is true, valid
and binding on the plaintiffs.
51. POINT NO.3:
Another issue raised before the trial Court is that the will
dated 31.07.2003 executed by M.Ramaiah bequeathing his share
in item No.3 of the plaint schedule (which he purchased through
registered sale deed dated 02.10.1940 in favour of the
1st defendant) is being questioned by the plaintiffs stating that
the said Will is not binding on them. Admittedly, item No.3 was
purchased by M.Ramaiah in his own capacity on 02.10.1940 from
one Kadapa Basavaiah and his sons and wife Mutamma, which is
a registered sale deed and it is not disputed. It is not denied or
questioned by the plaintiffs that Ex.B1-gift deed nor Ex.B12-sale
deed stands in the name of M.Ramaiah.
52. Thus, M.Ramaiah got share in item No.2 and item No.3
was bequeathed by way of will in favour of the 1stdefendant on
31.07.2003. Admittedly, in the year 2003, M.Ramaiah died. It is
also admitted by PW.1 that M.Venkata Subbamma executed a
registered will during her life time on 06.06.1988.
53. It is not in dispute that M.Ramaiah got item No.2 by way
of Ex.B1-Will and purchased item No.3 by way of sale deed
covered under Ex.B12 and same is bequeathed through a Will in
favour of the 1st defendant on 31.07.2003 in the presence of
S.Kondala Rao and Koteswara Rao.
54. DW.1 in his evidence categorically stated about execution
of will of his father in respect of item Nos.1 and 3 in his favour
by way of Ex.B1. The evidence of S.Kondala Rao said to be
witness to the said will is supporting this. S.Kondala Rao
examined as DW.2 categorically stated in his evidence that in a
sound and disposing state of mind Ramaiah instructed the writer
K.Madhusudhana Rao. Later himself and Koteswara Rao
witnessed the will and signed on it. He categorically stated
himself and Koteswara Rao, at the direction of Ramaiah signed
on the will as attestors and Ramaiah also witnessed their
attestation on that will. As already stated above nothing is
found to disbelieve the testimony of DW.2 about his presence
and attesting the document covered under Ex.B11. Thus, this
Court is of the view that the defendants, who produced the will
dated 31.07.2003 covered under Ex.B11 have proved the same.
55. To sum up the case, it is now established that the
defendants, who pleaded and proved their case that on
26.06.1929, M.Venkaiah executed a gift deed in favour of
Subbaiah and Ramaiah in respect of item Nos.1 and 2. It is also
established that Subbaiah died in the year 1939 leaving behind
him, his wife Kotilingamma and daughter Venkataratnam. Late
M.Subbaiah's share devolved upon his wife and daughter. The
daughter of M.Subbaiah (Venkataratnam) predeceased her
mother (Kotilingamma) without any issues and his wife only got
rights and title in his share. It is also found from the evidence
placed on record that Kotilingamma after death of Subbaiah
executed the 'will' for the property, which was devolved on her
through Subbaiah and Ramaiah in favour of the 1st defendant.
56. It is also on record that the father of the 1st defendant,
executed a Will dated 31.07.2003 bequeathing his share in item
No.2 of the schedule property and building therein and item
No.3 of the schedule property (he purchased through a
registered sale deed dated 02.10.1940) to the 1st defendant.
57. It is found that the plaintiffs are unable to establish their
right to question gift deed executed by M.Venkaiah in the year
1929. Long after, in the year 1943, the 1st plaintiff was born
and so he cannot question the same. Likewise, the evidence of
DW.1 completely established their right and title over the
properties. It is thus clearly established that the plaintiffs have
no right to seek partition.
58. POINT NO.4:
In view of the foregoing reasons, the plaintiffs could not
establish that they are in joint possession of the subject
property. The suit is also barred by limitation and is bad for
non-joinder of necessary parties. The trial Court, after
appreciating the evidence on record in a proper perspective,
passed the impugned judgment. Hence, this Court is not
inclined to interfere with the impugned judgment and the
appeal is liable to be dismissed.
59. Accordingly, the Appeal Suit is dismissed confirming the
decree and judgment dated 15.03.2018 in O.S.No.64 of 2014
passed by the learned XI Additional District and Sessions Judge,
Tenali. There shall be no order as to costs.
60. Interim orders granted earlier if any, stand vacated.
61. Miscellaneous petitions pending if any, stand closed.
__________________________
JUSTICE D.V.S.S.SOMAYAJULU
__________________
JUSTICE V.SRINIVAS
Date: 11.07.2023
Pab
L.R.Copy to be marked.
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
APPEAL SUIT No.1265 of 2018
DATE: 11.07.2023
Pab
