B. Ramulu vs M. Parmaiah
2023 Latest Caselaw 265 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.278 of 2006

JUDGMENT:

This appeal is filed against the Judgment and Decree of

the trial Court in O.S.No.52 of 1999 dated 31.08.2005.

2. One Banisha Ramulu S/o.Parmaiah along with his son

Banisha Mallesham filed suit in O.S.No.52 of 1999 against one

Manne Parmaiah S/o.Papaiah/Defendant No.1 and defendants

2 to 5 are sons of defendant No.1. The first defendant is the

natural father of first plaintiff and defendants No.2 to 5 are

natural brothers of plaintiff No.1. Initially suit was filed for

perpetual injunction restraining defendants from interfering

with the peaceful possession and enjoyment of the plaintiffs

over the suit schedule property. During pendency of the suit

I.A.No.181 of 1993 was filed for temporary injunction and the

same was allowed by the trial Court. Aggrieved by the same,

defendants preferred C.M.A.No.15 of 1995 and the same was

allowed by Order dated 23.12.1995, setting aside the Order of

the trial Court in I.A.No.181 of 1993. Aggrieved by the same,

Plaintiffs preferred C.R.P.No.467 of 1996 before the High Court

of Andhra Pradesh and the same was disposed of by Order

dated 17.06.1999 with a direction to the lower Court to dispose

of the suit within a specified period. After the disposal of the

said petition, plaintiffs amended their plaint and sought for

declaration of ownership and took back the plaint on the point

of jurisdiction and presented the same before the Senior Civil

Judge, Sangareddy on 08.10.1999.

3. The first Plaintiff stated that he along with his family

jointly owned and they are in peaceful possession and

enjoyment of the agricultural suit lands and also cultivating the

said lands. Presently, Item Nos. 1 to 7 stands in the name of

first plaintiff and Item No.8 stand in the name of second

plaintiff. Plaintiffs No.1 & 2 are in joint possession and

enjoyment of the suit lands as a joint family members. The first

plaintiff purchased Item No.8 in the name of second plaintiff

who was minor in the year 1979 from the original Pattedar

Sharnamma and Manikamma under registered sale deed vide

Doc.No.442 of 1990. When the second plaintiff attained

majority, the said land transferred into his name. Originally,

one B.Yellappa, who is maternal grandfather of the plaintiff

No.1, was the pattedar, possessor and owner of item Nos.1 to 7

of the suit schedule lands. He died issueless in the year 1985.

During his life time, he adopted first plaintiff. Out of love and

affection he executed a registered Will deed dated 07.11.1984

vide document No.13/1984 bequeathing the suit schedule items

1 to 7 in favour of first plaintiff. Plaintiff No.1 lived with him till

his death and served him as his son. Yellappa was suffering

from leprosy and no one served him except plaintiff No.1. After

the death of Yellappa, item Nos.1 to 7 were transferred in the

name of plaintiff No.1 in the year 1985 in all revenue records as

per Orders passed by Revenue authorities after thorough

enquiry. Plaintiff No.1 is paying the land revenue to the

Government regarding the suit lands and he is in possession of

item Nos.1 to 7 from 1985 after the death of its original

Pattedar. The late Yellappa also filed Ceiling declaration in

C.C.No.2276/s/75, in which he clearly mentioned that he

adopted plaintiff No.1 during his life time and thus plaintiffs are

having perfect title and are in peaceful possession and

enjoyment of the suit schedule properties.

4. Plaintiff No.1 filed certified copies of the Pahanies for the

year 1989-90, 1990-91, 1991-92, 1992-93, certified copy of the

mutation Order in the year 1984-85, original Ceiling

declaration, copy of the Will deed, sale deed and land revenue

payment receipts for the year 1989-90, 1990-91, 1991-92 and

1992-93 regarding the suit schedule lands in support of his title

and possession. He stated that though defendant No.1 is his

natural father and defendants No.2 to 5 are his brothers they

are not having any kind of right or interest over the suit

schedule property. The plaintiff No.1 was given in adoption to

late Yellappa when he was 7 years old. Now, defendants out of

jealousy and to cause loss to the plaintiffs bent upon to interfere

with the possession of the suit schedule property. On

11.06.1993, defendants along with his supporters tried to

interfere with his possession. As defendants threatened to

dispossess him, he filed suit for injunction.

5. In a written statement filed by the defendant No.1 he

stated that initially suit was filed for injunction and later

converted into suit for declaration. He stated that plaintiffs and

defendants are in joint possession of the suit schedule lands

along with one Anthamma widow of late Yellappa. He also

requested the Court to call for records in O.S.No.182 of 1993 on

the file of learned District Munsif at Sangareddy and to make

them as part of the record. He further stated that Items 1 to 7

are standing in the name of late Yellappa and item No.8 was

purchased by defendant No.1 in the name of second plaintiff

from the family funds. Plaintiff No.1 had no income of his own

as such he has not purchased the property in the name of his

son. Both of them collusively filed the suit. He admitted that

Yellappa was pattedar, possessor and owner of items 1 to 7 of

the plaint schedule property and he was suffering from leprosy

and denied all other factors. He denied adoption of first plaintiff

by Yellappa and also the execution of a registered Will deed by

Yellappa in favour of first plaintiff. He also stated that daughter

of Yellappa namely Rachamma was given in marriage to him

and plaintiff No.1 and defendants No.2 to 5 are their sons. The

first plaintiff mischievously managed to get his name entered in

the revenue records behind the back of the defendants and

Anthamma. He stated that in the land Ceiling case adoption was

not an issue and it was never accepted. He also stated that even

in the present suit also plaintiff No.1 does not claim himself to

be the adopted son of Yellappa, but only to save the land from

surrender under the Ceiling law the plea of adoption might have

been taken by him, by such mere plea plaintiff No.1 does not

become an adopted son. The plaintiff No.1 is claiming himself to

be the son of defendant No.1, but not as adopted son of late

Yellappa. Mutation entries are illegally managed without notice

to the defendants and Anthamma and they will not create any

right in favour of plaintiffs nor take away the rights of the

defendants. Defendants are cultivating lands for themselves and

also on behalf of Anthamma, as such there cannot be any

restrained orders. Plaintiffs are seeking relief of declaration and

injunction on payment of Court fee under Section 24(b) of

A.P.C.F and S.V. Act. The family tree is shown below for the

sake of convenience:

Papaiah (died prior to Police Action)

Yellappa (died in 1985) Papamma (died) Balraj(died) = Anthamma (wife) =Manne Papaiah =Bharatamma

Rachamma(died in1992) Parmaiah(Defendant No.1)

Ramulu Mallesham Rajanna Srinivas Pandurangam (Plf.No.1) (D.2) (D.3) (D.4) (D.5)

Mallikharjun (Plf.No.2)

6. Defendants are also the owners of the suit properties and

they are in possession of the same along with the plaintiffs and

Anthamma, as such no injunction shall be granted against

them. Papaiah was the common ancestor, Yellappa is the son

and Papamma is the daughter of late Papaiah and they are

residing at Sadasivpet. Yellappa was the owner and possessor of

agricultural lands mentioned in Sl.Nos.1 to 7 of the suit

schedule. Item No.8 bearing Sy.No.861 was purchased from the

family funds in the name of plaintiff No.2. At the time of

purchase plaintiff No.2 was still a minor and he had no income

of his own. Papamma is given in marriage to Manne Papaiah of

Peddapur Village and defendant No.1 is their son. He is also

having younger brother namely Ramaswamy. Yellappa married

Anthamma and they had only one daughter namely Rachamma

who was given in marriage to defendant No.1. The plaintiff No.1

and defendants No.2 to 5 are his sons. Yellappa the father-in-

law of the defendant No.1 died in the year 1985 leaving his

widow Anthamma and his daughter Rachamma as his legal

heirs. The defendant No.1 is the native of peddapur village, but

he was brought up by his maternal uncle Yellappa at

Sadasivpet. He stayed hardly for 9 or 10 years at Peddapur.

7. During the life time of Yellappa, he was ailing for long and

he could not lookafter his family and agriculture. Yellappa did

not have any sons. The wife of defendant No.1 was his only

daughter as such defendant No.1 along with his family shifted

to the house of Yellappa at Sadasivpet and looking after his

family affairs and agriculture. The defendant No.1 started a

provision store at Sadasivpet and did business for more than 25

years. The plaintiff No.1 has no separate income. The defendant

No.1 also purchased a shop for family bearing No.4-7-42 from

late Deshetty Baswaraj in the year 1968 and got it registered in

the name of plaintiff No.1 who was minor aged about 15 years

at that time. All the sons are extending help in family,

agriculture and business. Yellappa died in the year 1985. He

never adopted plaintiff No.1 and never executed any registered

Will deed either on 07.01.1984 or any other date. The plaintiff

No.1 who was helping in running shop was managed to brought

into existence some illegal documents to deprive defendants,

Anthamma and Rachamma. He denied adoption of plaintiff

No.1, even in the suit first plaintiff mentioned himself as son of

Manne Parmaiah and he was never treated as son of Yellappa.

In view of the relationship of the parties, mere entry in the

village record will not give any right to plaintiffs.

8. The defendant No.1 was managing the affairs of the family

and paying the land revenue on behalf of family. The first

plaintiff was only assisting him. He cannot setup any exclusive

right over the suit properties. The defendants are still

continuing to reside in the family house at Sadasivpet along

with Anthamma, but the plaintiffs only withdrawn from their

company. One year prior to filing of the suit before learned

Munsif Magistrate the parties settled before town elders by

name Agamaiah, Satyanarayana, B.Eashwaraiah,

S.Eashwaraiah and others under which plaintiff No.1 agreed to

take Sy.No.806 and open space and the rest of the lands, house

and shop are to be held as absolute owners by defendant No.1

and his other children. Persons figuring as attestors to the Will

deed are henchmen of the plaintiff No.1. In view of the

injunction order, defendants are not cultivating the suit lands

and later defendants are asserting their title and possession

over the suit properties.

9. After framing of issues, plaintiff No.1 was examined as

P.W.1, he examined attesting witness as P.W.2 and he also

examined P.W.3 to prove the registered adoption deed and Will

deed in his favour. The defendant No.5 was examined as D.W.1.

D.W.Nos.2 & 3 are elders and they supported the version of

defendants. P.W.1 marked Exs.A1 to A24 on his behalf and

stated that he has shown the addresses of defendants No.1 to 4

at H.No.4-2-74 of Pathakeri. He also stated that defendants 1 to

5 are residing in Sadasivpet but not in Peddapuram. Yellappa

died in the year 1985, his mother Rachamma died in the year

1992 and his grand-mother Anthamma died about 3 years back

i.e, in the year 2001. He also admitted that Yellappa had no

male issues and defendant No.1 stayed along with Yellappa.

Prakasham and Chandramouli are the attesting witnesses of

Ex.A13 and they are juniors to him in school and they are

residents of the said area. The defendant No.1 came to the

house of Yellappa when he was 5 or 6 years old and stayed

along with him and also helped him in cultivating all the lands.

He studied up to 10th class in 1969 and his marriage was

performed in the year 1970. In the school records his father

name was shown as Parmaiah/defendant No.1. It was suggested

to him that even in the wedding card his father name is shown

as Parmaiah and marriage was performed by paternal grand-

father, but he stated that he did not know the same. He stated

that shop bearing No.4-7-42 was purchased in the 1968.

10. He further stated that he know Sy.No.861 was purchased

in the name of second plaintiff, but he did not know who

purchased it and when it was purchased. He also stated that

Rachamma and Anthamma died in the house bearing No.4-2-

74. He admitted that on the date of execution of Ex.A13, wife

and daughter of Yellappa are alive and no reasons were

mentioned in it for bequeathing the property in his name. He

admitted that in the year 1992 there was a Panchayat in the

presence of elders by name Agamaiah, Satyanarayana,

D.Eashwaraiah & S. Eashwaraiah for settlement of properties,

but he did not agree for the same. He filed the certified copy of

Judgment in O.S.No.34 of 1974 and certified copy of the

adoption deed dated 07.08.1965 under Ex.A23 & A24

respectively. He further admitted that Ex.A10 did not contain

that mutation was effected on the basis of Will deed, but not on

the basis of adoption deed. He stated that he was not in

possession of the adoption deed as on the date of Ex.A10.

11. P.W.2 stated that Yellappa executed a registered Will deed

in favour of first plaintiff on 07.11.1984 vide Doc.No.13 of 1984

bequeathing the suit schedule item No.1 to 7 in his favour as he

served him though he was suffering from leprosy and after his

death the said properties were transferred in the name of first

plaintiff. He along with Chandramouli and Krishna attested the

Will deed as witnesses. In the cross-examination he admitted

that P.W.1 is residing at Sadasivpet in a rented house for past 5

or 6 years. Defendent No.1 was residing with Yellappa in his

house along with his wife and mother-in-law Anthamma. He

stated that he was running a printing press and the shop of

P.W.1 was adjacent to his printing press. P.W.1 is his senior in

the school he also stated that wife of Yellappa, his daughter and

defendant No.1 served Yellappa. He further stated that the

Sub-Registrar obtained thumb impression of Yellappa in their

presence, but the thumb impression was not fixed on the

reverse of 1st page of Ex.A13 he identified signatures of Yellappa

on Ex.A13.

12. P.W.3 stated regarding execution of sale deed in favour of

first plaintiff. In the cross-examination he stated that he was

present at the time of execution of Will by Yellappa, but he did

not attend the same. He further stated that about 30 or 40

years back Yellappa adopted first plaintiff and executed

adoption deed 2 or 3 years after adoption. He stated that

defendant No.1 was residing at Sadasivapet since last 40 years

along with his wife, children and Yellappa. Defendent No.1

used to look after his lands and household affairs.

13. Defendent No.5 in the suit was examined as D.W.1 and

stated that his father/Defendent No.1 is suffering from

ill-health, his eye sight and hearing is badly effected and he is

also suffering from breathing trouble. He also became very

week and not in a position to leave the house and give evidence.

Defendent No.2 is deaf and dumb. Defendent Nos.3 and 4 are

looking after household affairs. As he was assisting his father

in cultivating the suit lands he deposed on his behalf. He

disputed Will deed executed by Yellappa in favour of first

plaintiff and also stated that his father performed last rites of

Yellappa and also to his wife Anthamma. He stated that they

are not aware of the Will till few days prior to the filing of the

suit. Defendant No.1 looked after Anthamma till her death, but

she was not made as party to the suit. He filed Voters

Enumeration List, land revenue passbook, land revenue receipts

and certified copy of the order passed in C.M.A.No.15 of 1995

and affidavit filed by late Anthamma in the Court of learned

District Munisiff, Sangareddy. He stated that in 1993 first

plaintiff came to Sadashivapet and partitioned the properties

among all our brothers and sisters and father. At that time he

came to know about the mutation proceedings in favour of first

plaintiff. He further stated that they are not cultivating suit

schedule lands after injunction and plaintiffs are also not

cultivating the same. It was suggested that thumb impression

of Anthamma is obtained on Ex.B6 without reading the contents

to her, but he denied the same.

14. Defendent No.2 stated that first defendant was cultivating

the suit lands of Yellappa since he came to Sadashivapet.

Parmaiah and his wife looked after Yellappa and his wife

Anthamma. Plaintiffs left company of defendants and

Anthamma more than 13 years back and are residing at

Edlabazar of Sadasivapet. He stated that first plaintiff was

brought up by his grandfather from childhood along with other

children of defendant No.1. He also stated that properties at

Sadasivpet were partitioned by Yellappa and Balraj. Yellappa got

half share and one Bharathamma got the other half share in the

properties. When there was a dispute in the year 1979 between

plaintiffs and said Bharathamma regarding the properties, he

along with Baswaraj, Begari Balaiah and others settled their

dispute and prepared a partition list of properties, fell to the

share of each shareholder and he also signed on it. He further

stated that Yellappa provided amount for education of first

plaintiff and also performed his marriage. He also stated that

Yellappa brought up first plaintiff and adopted him and also

executed Will bequeathing the properties to him. He stated that

he did not know whether Yellappa executed Will bequeathing

properties to the first plaintiff or not.

15. One Cheela Baswaraj was examined as D.W.3 and stated

that he knows Yellappa as he was also resident of Sadasivpet

town. He stated that defendant No.1 is the son-in-law of

Yellappa and staying with his wife in the house of Yellappa from

the past 45 years and looked after the welfare of Yellappa and

his wife and his agricultural lands. The defendant No.1

cultivated the suit lands and his sons assisted him. The

defendant No.1 performed the last rites of Yellappa and his wife

Anthamma. He stated that plaintiff No.1 was never adopted by

Yellappa and never treated him as adopted son. The lands were

left fallow without cultivation from the past 12 years and he also

stated that eye sight of defendant No.1 was badly affected and

also developed hearing and breathing problems and confined to

house. He also stated that there was dispute between

Bharathamma and first plaintiff. He along with D.W.2 and other

conducted Panchayat and a partition list was prepared and the

same was attested by him, DW.2, defendant No.1 and Bharathi.

He stated that Yellappa brought up first plaintiff and performed

marriage, but he did not know whether Yellappa adopted first

plaintiff during his life time and executed Will in his favour or

not. During life time of Yellappa, he did not enquire him

whether he adopted first plaintiff or not. The trial Court

disbelieved the adoption deed and Will deed in favour of the first

plaintiff and it relied upon the documents filed by the first

defendant and held that defendant No.1 along with his family

members are residing in the house of Yellappa and looked after

his welfare and also doing cultivation of his lands. As on the

date of execution of Will the daughter and wife of Yellappa are

alive, as such Will executed in favour of the first plaintiff is also

not believed. It was observed that plaintiff could not dispel the

suspicious circumstances surrounding the execution of Ex.B13,

merely because it was of 30 years old document, presumption

cannot be raised under Section 90 of the Indian Evidence Act. It

was also observed that defendant No.1 himself admitted that in

O.S.No.34 of 1974, he gave his son in adoption to his father-in-

law Yellappa and produced Ex.A1 adoption deed therein, but

the trial Court held that there was no proof of giving and taking

of child in adoption by his natural parents, as such it cannot be

relied upon the adoption deed and accordingly dismissed the

suit with costs. Aggrieved by the said Order, plaintiffs in the suit

filed the present appeal.

16. Plaintiffs mainly contended that item Nos.1 to 7 of the

suit schedule property stands in the name of first plaintiff and

item No.8 stands in the name of second plaintiff and both of

them are joint family members. Yellappa is the original pattedar

and possessor of item Nos.1 to 7 and he is the paternal grand-

father of the first plaintiff. During his life time, he adopted first

plaintiff and out of love and affection he also executed a

registered Will dated 07.11.1984 vide Doc.No.13 of 1984,

bequeathing suit schedule property in his favour and he also

declared first plaintiff as his adopted son in ceiling declaration

C.C.No.2276 of 1975, but the trial Court not considered Ex.A13

in proper perspective. Ex.A14 is the verification report of the

verifying officer under Land Ceiling Act. In the said verification

it was mentioned that Yellappa was in possession of the suit

properties, as he had no sons he adopted the son of his

daughter namely Ramulu i.e, first plaintiff, but it was not

considered by the trial Court.

17. The certified copy of the registered adoption deed was filed

under Ex.A24, it is the public document as per the provisions of

Sections 74 and 90 of the Indian Evidence Act. Ex.A10 is the

mutation order in which first plaintiff was shown as pattedar

and possessor of item Nos.1 to 7 as per Section 6 of A.P. Right

in Land and Pattedar Pass Books Act, 1971, every entry in

Record of Rights shall be presumed to be true, until contrary is

proved. Ex.A23 is the certified copy of the Judgment in

O.S.No.34/1974. D.W.1 in the suit deposed that first plaintiff

was adopted by Yellappa and also filed Ex.A1, as such he is

estopped from contending that first plaintiff is not the adopted

son of Yellappa. The first defendant who did not choose to enter

into witness box or subjected to examination before the Court

though he filed the written statement and it was adopted by

defendants No.2 to 5, as such adverse inference is to be drawn

against him. Appellants further stated that trail Court failed to

consider the distinction between burden of proof and onus of

proof as laid down in AIR 1964 SC 136. Plaintiffs discharged

their burden by way of adducing both oral and documentary

evidence, but the defendants failed to disprove the same. The

trial Court gave much credence to the oral evidence ignoring

documentary evidence and it is contrary to the scope of Section

91 of Indian Evidence Act. Therefore, requested the Court to set

aside the Judgment of the trial Court.

18. Heard arguments of both sides and the Counsel for the

appellants also filed written arguments and citations in support

of their contention and perused the entire record.

19. Now it is for this Court to see whether the Judgment of

the trial Court is on proper appreciation of facts or not, if so to

what extent.

20. The first plaintiff, defendants No.2 to 5 are children of the

first defendant and second plaintiff is the son of first plaintiff.

The first plaintiff contended that his grand-father Yellappa had

no male issues and he was having only one daughter

Rachamma. The Yellappa along with his wife Anthamma

performed the marriage of their daughter Rachamma with first

defendant. The first plaintiff also stated that his grand-father

Yellappa adopted him when he was aged about 7 years, but

deed of adoption was executed when he was 15 years old and he

took care of him, incurred his educational expenses and also

performed his marriage in the year 1970. Surprisingly,

defendant No.1 natural father of the first plaintiff denied the

adoption and stated that as Yellappa was suffering from ill

health, he along with his wife shifted to Sadasivpet and residing

in the house of Yellappa and looked after his in-laws and also

cultivated his lands and his children defendants No.2 to 5 were

born at Sadasivpet and he also performed last rites of Yellappa

and Anthamma. Even after the death of his wife Rachamma, he

took care of his mother-in-law till her death.

21. The first defendant/Manne Parmaiah filed suit in

O.S.No.34 of 1974 against his father Manne Papaiah, brother

Manne Ramaswamy and sons of Ramaswamy claiming 1/3rd

share to him. In the said suit initially he stated that he himself

went in adoption to Yellappa but again during the pendency of

the proceedings, he admitted that as Yellappa was not having

male issues, he gave his son Ramulu in adoption to Yellappa.

Even in issue No.5, the Court held that son of plaintiff went in

adoption to Yellappa but not the plaintiff in that suit. The first

defendant deposed that he gave first plaintiff in adoption to

Yellappa and also filed adoption deed, but for the reasons best

known to him in this suit he denied the adoption. Defendants

also filed third party affidavit of Anthamma in I.A.No.181 of

1993 in which she stated that she never treated first plaintiff as

their adopted son and his marriage was also performed by his

father. The subject affidavit was filed on 05.08.1994 with the

thumb impression of Anthamma, but she was not made as

party to the present suit. In view of the admission of first

defendant who is none other than the father of the first plaintiff,

the Court cannot rely upon the third party affidavit of

Anthamma. Adoption deed was executed in Urdu on 07.08.1965

vide Document No.39 of 1965 and its translation is also filed

before the Court. In the said document Anthamma was shown

as one witness and Eshwaraiah was shown as another witness

and it was executed by Yellappa.

22. The counsel for the defendants contended that the name

of father of the first plaintiff is shown as the first defendant in

all the records and also in the wedding card, if at all he was

adopted by his grand-father his name should be reflected in all

the records. The peculiarity of this case is that the grand-father

of the first plaintiff adopted his daughter's son as he has no

male issues for performing his last rites. Though he has taken

care of first plaintiff from his childhood, the adoption deed was

executed in the year 1965 and he studied 10th class in the year

1969 and marriage was performed in the year 1970 and even in

the suit the father name of the first plaintiff is shown as the first

defendant only, merely because father's name of the first

plaintiff was not shown as Yellappa, the registered adoption

deed executed way back in the year 1965 cannot be disbelieved.

In the said adoption deed it was specifically mentioned that he

performed all religious and Shastric ceremonies of adoption. The

first defendant clearly admitted that he gave his first son in

adoption to Yellappa, therefore it can be presumed that there

was giving and taking of the child in adoption and the religious

and Shastric ceremonies were also performed at the time of

adoption and he took care of Ramulu from childhood, as

Yellappa had no male issues, he adopted his grand-son as his

son for all purposes therefore, I do not find any reason to

disbelieve the adoption of first plaintiff by Yellappa. Therefore,

this Court finds that first plaintiff is the adopted son of

Yellappa. Moreover, Yellappa himself declared first plaintiff as

his adopted son in Land Ceiling Case in C.C.No.2276 of 1975.

23. Admittedly, the adopted deed was executed in the year

1965 and declaration was given in the year 1975. Moreover,

under Ex.A14 verification report given by the verifying officer

under Land Ceiling Act, after due enquiry it was observed that

Yellappa was in possession of the land, he has no sons and he

adopted his daughter's son Ramulu, as such the declaration

was also verified and confirmed by the concerned authorities.

Moreover, the adoption deed was registered and it is a public

document, adoption was done to the knowledge of the first

defendant and his children, but they never disputed the same

till the filing of the suit in the year 1999. Moreover, the first

defendant who filed written statement and disputed the

adoption deed did not entered into the witness box, as such the

learned Counsel for the appellants relied upon the decision of

the Hon'ble Supreme Court in the case of Basant Singh Vs.

Janki Singh and others in which it was held as follows:

"Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits."

In view of the above discussion, this Court finds that first

plaintiff is able to establish that he is the adopted son of

Yellappa.

24. The first plaintiff contended that item Nos.1 to 7

properties are pertaining to his grand-father Yellappa and he

executed Will in favour of him on 07.11.1984. In the said Will

he stated that he was suffering from leprosy from the past 25

years, as he has no male children he adopted his daughter's son

first plaintiff and bequeathed his properties in favour of his

adopted son by executing a Will in a sound and disposing state

of mind voluntarily. Plaintiffs also examined the attestor of the

Will as P.W.2 and he stated that Yellappa affixed his thumb

impression before the Sub-Registrar in their presence and he

along with Chandramouli and Krishna acted as witness to the

Will.

25. The main contention of the first defendant is that on the

date of execution of the Will, wife and daughter of Yellappa were

alive, but Yellappa executed Will ignoring his family members in

favour of adopted son, as such it is not valid. But, the learned

Counsel for the appellants relied upon the decision of the

Hon'ble Supreme Court in the case of Bharpur Singh and

Ors.Vs. Shamsher Singh in which it was held as follows:

"Deprivation of due share to the natural heirs by itself may not be a suspicious circumstance, it is one of the

factors which is taken into consideration by the Courts before granting probate of Will."

The learned Counsel for the appellants further relied upon the

decision of the Hon'ble Supreme Court in the case of S.Amarjit

Singh Vs. State and others, in which it was held as follows:

"That suspicious circumstance ought to have been pleaded and urged. Those cannot be pleaded or urged for the first time before the appellate Court specially when foundation of such a suspicious was not laid before the Probate Court not pleaded otherwise."

He also relied upon the decision of the Hon'ble Supreme Court

in the case of Madhukar D.Shende Vs. Tarabai Aba Shedage,

in which it was held as follows:

"It is also a settled proposition of law, fraud, coercion or undue influence is alleged in execution of a Will, the burden of proving the same would be on the person by whom such a plea is set up."

26. As per the evidence of defendant No.1, he along with his

wife stayed in the house of Yellappa and he took care of

Yellappa during his life time and also he was doing cultivation of

his agricultural lands. Even after the death of his wife

Rachamma, he looked after his mother-in-law Anthamma till

her death and he also performed her last rites. Whereas, the

first plaintiff contended that he alone took care of his grand-

father, as such he executed properties in his name. No doubt,

Will was executed in the year 1984 and Yellappa died in the

year 1985. Even plaintiff witness stated that defendant No.1

was took care of Yellappa but not the first plaintiff, when first

plaintiff was given in adoption by the first defendant to

Yellappa, the first plaintiff will lose all his rights on properties of

his natural family and he is entitled for rights on properties of

adopted family. Admittedly, Yellappa adopted first plaintiff as he

has no male issues and stated that he is his adopted son for all

purposes, as such he might have executed sale deed in favour of

his adopted son and bequeathed all the properties in his favour.

Merely because he has not provided any share to his wife and

daughter and not even provided any maintenance to them

cannot be considered as a suspicious circumstance. As

defendant No.1 contended that Will deed was brought up by the

first plaintiff, it is for him to disprove the Will. As he failed to

enter into the witness box, he failed to disprove the Will.

Plaintiffs filed registered Will deed and deposed orally and also

examined attesting witness in support of their contention. As

per the provisions of Indian Evidence Act, he has to examine

atleast one attesting witness to prove the Will and thus Plaintiffs

were able to prove the Will deed executed in his favour as P.W.2

stated that Yellappa affixed his thumb impression in their

presence and he along with Chandramouli and Krishna acted as

attestors for the Will and the Will deed was also registered in the

Sub-Registrar Office, the contents of it cannot be disproved.

Yellappa is the father-in-law of defendant No.1. Defendant No.1

himself gave his elder son in adoption to Yellappa. When

Yellappa executed all the properties in the name of his own son,

why he disputed the adoption deed and also the Will deed is not

explained anywhere. The defendant No.1 along with his sons

contended that after the death of Yellappa, properties devolve on

his wife and daughter. When both of them expired, as they are

joint family properties defendants No.1 to 5 and 1st plaintiff are

equally entitled for the properties of Yellappa, as such

defendants disputed the Will deed in which all the properties

were executed in favour of first plaintiff by his adopted father.

27. The learned Counsel for the appellants relied upon the

decision of the Hon'ble Supreme Court in the case of Ramabai

Padmakar Patil Vs. Rukminibai Vishnu Vekhande and

others,1 in which it was held as follows:

"A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs,

(2003) 8 SCC 537

there is no necessity at all of executing a Will. It is true that a propounder if the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstance especially in a case where the request has been made in favour of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and Ors., AIR (1995) SC 1852 it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavati and Ors. v. Chandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and Ors., [1950] 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession in and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed."

And also argued that in this case, first plaintiff examined the

attestor and proved execution of Will and as per the document

Will was executed by Yellappa when he was in sound and

disposing state of mind with free Will and he was in a position

to understand the consequences of his act. As per the evidence

on record, defendant No.1 along with his wife and children and

first plaintiff were residing in the house of Yellappa. Will was

executed in the year 1984 and Yellappa died in the year 1985.

They have not raised any objection regarding execution of the

Will in favour of the first plaintiff. Defendants contended that

they came to know about execution of Will in favour of first

plaintiff only few days prior to the filing of O.S.No.52 of 1999,

even if it presumed, why they have not filed any suit for

cancellation of the Will deed prior to the filing of this suit was

not explained. Initially plaintiff filed suit for injunction in

O.S.No.182 of 1993 and obtained an interim injunction in

I.A.No.181 of 1993. Aggrieved by the interim injunction

respondents preferred C.M.A.No.15 of 1995 and the same was

allowed by setting aside the Judgment and Decree of the trial

Court in I.A.No.181 of 1993. Against the Judgment of the

appellate Court in C.M.A.No.15 of 1995, appellants preferred

C.R.P.No.467 of 1996 before High Court of Andhra Pradesh and

the same was disposed by Order dated 17.06.1999 directing the

trial Court to dispose of the said suit within a specific period.

After the disposal, plaintiffs have amended their plaint and filed

suit for declaration on 08.10.1999. When defendant No.1 and

his sons came to know about the execution of the Will deed in

favour of the first plaintiff in the year 1993, they disputed

Ex.A13 Will deed in the said suit. They have not initiated any

proceedings either before the judicial authorities or before the

Revenue authorities. The first Plaintiff stated that in pursuance

of the Will deed, his name was mutated in the revenue records

after the death of Yellappa in the year 1985, from then onwards

he was paying land revenue to the Government regarding the

suit schedule properties. As the defendant No.1 and his sons

and plaintiff No.1 were residing in the same village it cannot be

said that they have no knowledge about the mutation of plaintiff

No.1 in the revenue records from 1985-1993.

28. Defendants further contended that mutation of entries in

the revenue records is basing on the Will deed but not on

adoption deed. In fact, Yellappa adopted first plaintiff under

adoption deed, as he was adopted son, he executed Will deed in

favour of first plaintiff at the fag end of his life. It was stated in

the Will deed that Yellappa was suffering from leprosy, as such

his thumb impression was affixed. Admittedly, by the above

discussion it cannot be said that there is suspicious

circumstance in the execution of the Will deed by Yellappa in

favour of his adopted son and first defendant proved the Will by

presenting oral and documentary evidence. Therefore, this

Court finds that the Judgment of the trial Court is not on

proper appreciation of facts and is liable to be set aside. As the

suit is filed for declaration and to declare plaintiffs as Pattedars

and for perpetual injunction in respect of the suit schedule

properties this Court finds it just and reasonable to declare the

first plaintiff as owner and Pattedar of the suit schedule

property, as second plaintiff is the son of first plaintiff both of

them are declared as owners of item Nos.1 to 7 of the suit

schedule properties.

29. The first plaintiff contended that he purchased item No.8

in the name of his son vide registered sale deed bearing

Doc.No.442 of 2019, it was contended that defendant No.1

purchased item No.8 in the name of second plaintiff as the first

plaintiff has no source of income to purchase the item No.8 in

the name of his son. As per Ex.A12 dated 04.04.1979, the

property was purchased by first plaintiff in favour of his minor

son aged about 5 years for an amount of Rs.4,000/- vide

Doc.No.447 of 1979. As it was also purchased in the year 1979

and the title was not disputed till filing of the suit in the year

1993 and the first plaintiff stated that when the second plaintiff

attained the age of majority, it was transferred in the name of

second plaintiff, this Court finds it just and reasonable to

declare the second plaintiff as owner and possessor of the item

No.8 of the suit schedule property.

In the result, the appeal is allowed by setting aside the

Judgment and Decree passed by the trial Court in O.S.No.52 of

1999 dated 31.08.2005. The first plaintiff is declared as the

owner and possessor of item Nos.1 to 7 and second plaintiff is

declared as owner and possessor of item No.8 of the suit

schedule property. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________

JUSTICE P.SREE SUDHA

DATED: 20.01.2023

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.278 of 2006

DATED: 20 .01.2023

TRI