Telangana High Court
P. Mallikarjuna Rao And 2 Others vs Smt. Ranga Padmavathi on 6 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL Nos.142 & 179 of 2023
COMMON JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 19.10.2022, passed in A.S.No.18 of 2016 & Cross
Objections, on the file of the Court of V Additional District Judge,
Miryalaguda, Nalgonda District, whereby the said appeal filed by
the plaintiff was allowed and the Cross-Objections filed by the
defendants in the said appeal were dismissed, the present Second
Appeals are filed.
2. By the impugned judgment, the first Appellate court set
aside the judgment and decree dated 30.08.2016 passed by the
Senior Civil Judge, Miryalaguda, dismissing the suit vide
O.S.No.51 of 2007.
3. The appellants are the defendants and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
4. The facts of the case in brief, which led to filing of the
present Second Appeal, are that the plaintiff is the daughter and
defendants No.1 to 3 are the sons of one Sri P.Basava Punna Rao
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and late Seetharamamma (hereinafter referred as "testatrix").
Smt. Seetharamamma purchased the suit schedule property under
registered sale deed, dated 04-07-2003 vide document No.
1463/2003, out of her own money and her husband and her sons
are no way concerned with said transaction. She enjoyed said
property during her life time. Defendant Nos.1 to 3 settled at
various places for their livelihood, but Smt. Seetharamamma and
her husband resided at Miryalaguda and took shelter in the house
of plaintiff who attended their needs and served them. The
defendants did not look after their parents. While so, on
01-01-2007, Smt. Seetharamamma expired. After completion of
obsequies, when her suit case was opened in the presence of
relatives and common friends, an unregistered Will deed, dated
18-11-2004 executed by Seetharamamma was brought into light, as
per which, she bequeathed the suit schedule property to the
plaintiff. Defendants are aware of the contents of the said Will
deed. Thus, the plaintiff became owner and possessor of schedule
mentioned property after death of her mother. But, the defendants
conspired together and started denying the title of plaintiff. They
attempted to dispossess plaintiff from schedule mentioned
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S.A.Nos.142 & 179 of 2023
property. On 17-03-2007, upon casual visit by plaintiff to suit
schedule property, she noticed movement of some third parties
thereon. Upon enquiry, she came to know that defendants offered
to sell the same and they are intending purchasers. Despite
plaintiff's protest, defendants are trying to alienate schedule
mentioned property by suppressing the fact that Will deed was
executed in favour of plaintiff. Hence, the suit for declaration of
title over the suit schedule property basing on the Will deed.
5. Defendant No.2 filed written statement. Defendant Nos.1 to
3 filed a memo adopting the same. The defendants denied the
allegations made in the plaint. They submitted that they always
cared and maintained their parents. They denied that plaintiff gave
shelter to Smt. Seetharamamma and Basava Punna Rao. They
submitted that plaintiff shifted her family to Hyderabad in
connection with job of her husband and started residing there.
However, defendants submitted that said Will deed dated
18-11-2004 is not in operation. That after execution of Will deed
propounded by plaintiff, she left to Hyderabad and she did not care
her parents.
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5.1. The defendants further submitted that about nine years
prior to filing of the suit, their father, plaintiff and defendants
effected partition of joint family properties, in which plaintiff was
given Rs.5,00,000/- cash towards her share in the family properties
as per the family arrangement. Lastly, defendants submitted that
the testatrix-Smt. Seetharamamma cancelled the Will deed, dated
18-11-2004 and executed her last Will, dated 31-12-2006 under
which the schedule mentioned property was bequeathed to the
defendants excluding plaintiff.
6. The plaintiff filed rejoinder denying all the contentions
made by defendants regarding giving of dowry and gold at the time
of her marriage and other monetary assistance given by her parents
for purchasing plot and house at Miryalaguda. She specifically
stated that they are all false allegations. She strongly denied the
Will deed, dated 31-12-2006 propounded by defendants. She
denied cancellation of Will deed execution in her favour and also
the alleged partition between herself, her father and the defendants.
6.1. The plaintiff further averred that their mother was brought
to Miryalaguda on 26-12-2006 and she died on 01-01-2007, while
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she was in coma. Thus, the execution of Will deed, dated 31-12-
2006 by testatrix- Smt. Seetharamamma was improbable as she
was not sound by then. She further submitted that Will deed
propounded by defendants is a forged one and was brought into
existence after filing of this suit with active collusion of their
father, who signed the same as attestor.
7. Basing on the pleadings above, the trial Court framed the
following issues for trial:
"(1) Whether Pasumarthi Seetharamamma executed the
Will deed, dated 31-12-2006 in favour of defendants or
not?
(2) To what reliefs?"
8. The trial Court discussed the aforesaid issues under the
following four points:-
"1. Whether the Will dt: 18-11-2004 propounded by
plaintiff is true, valid and binds the defendants?
2. Whether the Will dt:31-12-2006 propounded by
defendants is true, valid and binding the parties?
3. Whether the plaintiff is entitled to declaration of title
to the Schedule property as prayed for?
4. Whether the plaintiff is entitled to perpetual injunction
restraining the defendants 1 to 3 from interfering with
the possession and enjoyment in the suit site?"
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9. To substantiate the case, on behalf of plaintiff, P.Ws-1 to 5
were examined and Exs.A-1 to A-3 were marked. On behalf of the
defendants, D.Ws.1 to 5 were examined and Ex.B-1 was marked.
10. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, dismissed the suit
vide judgment dated 30.08.2016.
10.1. The trial Court observed that earlier on 30.01.2023,
judgment was passed in the suit. Later, on an appeal preferred by
the plaintiff being A.S.No.77 of 2013 (Old AS.No.13 of 2013), the
Appellate Court set aside the judgment and remanded the matter to
the court directing the court to give opportunity to both sides to
adduce further evidence, if any, and consider the evidence already
on record and also further evidence, if any, adduced and give clear
findings on Ex.A-2-Last Will or Ex.B-1 is the last Will of
Seetharamamma and dispose of the matter. However, no further
evidence was adduced by either of the parties.
10.2. The trial Court on appreciating the evidence which was
already on record observed that Ex.B-1-Will was executed on
31.12.2006 i.e., just a day before her death. The defendants' case is
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that the testatrix along with her husband went to the office of
document writer by name Syed Vajid Hussain (D.W-4) not
produced a witness by the defendants) and gave all instructions
personally to him. But, the said Vaijid Hussain was not examined
as witness to prove the same. Therefore, this suspicion was not
explained by the defendant.
13. In light of the above discussion, the trial Court dismissed
the suit, vide its judgment dated 30.08.2016, by holding that Ex.B-
1 is not believed because of various suspicious circumstances and
Ex.A-2-Will deed cannot be considered in the eye of law because it
lacked valid attestation.
14. The plaintiff preferred appeal before the first Appellate
Court and the defendants filed their Cross-Objections in the said
Appeal. The first Appellate Court by judgment dated 19.10.2022,
allowed the appeal filed by the plaintiff and dismissed the Cross-
Objections filed by the defendants. Challenging the said decision,
the defendants filed the present Second Appeals.
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S.A.Nos.142 & 179 of 2023
15. Heard Sri Hari Kishan Kudikala, learned counsel for the
appellants, and Sri Srininvas Velagapudi, learned counsel for the
respondent. Perused the record.
16. Learned counsel for appellant argued that the trial Court
decreed the suit on proper appreciation of the evidence and the first
Appellate Court also committed an error in setting aside the
judgment and decree passed by the trial Court.
17. Learned counsel for the appellants contended that the first
Appellate Court failed to appreciate that when Ex.B-1 is not
believed, part of its contents cannot be taken and considered and
that merely because Ex.A-2-Will deed was referred to in Ex.B-1-
Will deed, the same cannot be treated as admission. He further
contended that Ex.A-2-Will deed, propounded by the plaintiff,
lacks valid attestation in the eye of law and further, the plaintiff
failed to prove the execution of Ex.A-2-Will deed in accordance
with the provisions of Section 63 of the Indian Succession Act and
Section 68 of the Evidence Act and hence, the same cannot be
acted upon. Learned counsel further contended that the attestor of
Ex.B-1-Will deed was examined as DW-2 who deposed the
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contents of the said Will and nothing contrary was elicited in his
cross-examination and hence, the defendants have proved Ex.B-1,
but the first Appellate Court has failed to appreciate the same.
Ultimately, the learned counsel prayed to allow both the Second
Appeals.
18. Per contra, learned counsel for the respondent contended that
the first Appellate Court had rightly appreciated the evidence
adduced by both the parties and gave a clear finding that the Will
deed-Ex.B-1 propounded by the defendants cannot be held to be
true and valid and on the other hand, in view of the principle
contained in Section 58 of the Indian Evidence Act, Ex.A-1-Will
deed propounded by the plaintiff was held to be proved, valid and
binding on the parties and hence, the impugned judgment of the
first Appellate Court does not warrant any interference by this
Court.
19. A perusal of the record discloses that the first Appellate
Court set aside the judgment of the trial Court and allowed the
appeal filed by the plaintiff and dismissed the cross-Objections
filed by the defendants.
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20. It is well settled principle, by a catena of decisions of the
Apex Court, that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
21. Learned counsel for appellant failed to raise any
substantial question of law to be decided by this Court in this
Second Appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial questions of
law in terms of Section 100 C.P.C.
22. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fall for
consideration.
23. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
(2007) 1 Supreme Court Cases 546
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Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual in
nature and no question of law much less substantial question of law
arises for consideration in this Second Appeal.
24. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
25. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:06.03.2024
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