Velanki Anasuya Devi vs Muppani Ramachudamma Died Per Lrs
2023 Latest Caselaw 205 Tel

        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.

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

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

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

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

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

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

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

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,

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

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

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.

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

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

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

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

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

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-

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

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

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

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

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.

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)

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

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.

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

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.

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.

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

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

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

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

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

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

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.