Telangana High Court
Sri P.R. Raju vs Sri P.R. Yadagiri on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
C.C.C.A. No. 60 OF 2016
JUDGMENT:
Appellant herein is the 1st defendant in O.S.No. 440
of 2008 filed by the 1st respondent / plaintiff on the file of the
XXV Additional Chief Judge, City Civil Courts at Hyderabad, to
pass preliminary decree for partition of suit schedule property
into two equal shares and for allotment of one such share to
both of them.
2. Parties herein are referred to as they are arrayed in
the suit, for convenience.
3. Plaintiff is the elder brother of the 1st defendant and
Sri P. Ram Gopal Rao was their father who pre-deceased leaving
his wife Smt. P. Laxmamma, as such, she was the sole and
absolute owner of the three residential houses i.e. 1) H.No. 1-7-
1002/34/a, Ramnagar, Hyderabad; 2) H.No. 1-7-1022/29/A/1,
Ramnagar, Hyderabad; and 3) H.No. 1-7-629/93 and 93/A,
Harinagar, Ramnagar. Their mother executed will dated
05.03.2007 bequeathing the 1st property in favour of plaintiff;
the 2nd in favour of the 1st defendant and now the subject
property is the third house bearing No. 1-7-629/93 and 93/A,
Harinagar, Ramnagar, Hyderabad (suit schedule property)
which was stated to be bequeathed in favour of plaintiff and the
1st defendant jointly. After her death on 25.02.2008, the Will
came into force and from then, plaintiff claims to be pressing
the 1st defendant to give effect to the same but the latter had
been dodging the matter. The 1st defendant having received
legal notice got issued in that regard on 20.06.2008, had not
responded.
4. Whereas the case of the 1st defendant in the suit
was that he purchased the suit property out of hard earned
money on 04.03.1974 for R.4,000/- from Smt. Ganda Bharathi
Bai under the registered sale deed in the name of his mother
Smt. P. Laxmamma; subsequently he constructed ground and
first floor and also purchased another house bearing No. 1-7-
1002/34/A at Ramnagar on 27.031985 from Sri G.S. Srinivasa
Rao for Rs.5,000/- in the name of his father Sri P. Ram Gopal
Rao and thereafrer, he construed ground and first floors in the
said plot with his own funds and permitted plaintiff to stay
therein. It is his claim that on 30.10.1985, he had purchased
another property bearing No. 1-7-1022/29/A/1, Ramnagar for
Rs.6,000/- from Ch. Kantamma through registered sale deed in
the name of his father, subsequently, developed the said
property, construed a shed and carrying on his furniture
business; thus he is the sole and absolute owner of the three
house properties including the suit property. It is his further
case that he used to maintain the whole family as plaintiff used
to work in a private organisation at Azambad till 1987 on a
meagre salary of Rs.1,000/- and their father worked at M/s
Lado Bar and Restaurant at Secunderabad on a monthly salary
of Rs.350/- from 1975 to 1986; Plaintiff had taken away his
mother from his custody on 03.02.2007 with a mala fide
intention to get the Will Deed executed as per his choice and
taking advantage of the illiteracy and old age of their mother,
got executed the alleged Will deed; the said Deed is not
enforceable under the law as his mother is not having legal right
to bequeath the properties.
5. Thereafter, plaintiff by way of order dated
22.02.2011 in I.A. No. 23 of 2010, filed rejoinder to the written
statement. It is stated therein that the 1st defendant was
admittedly 39 years of age as on 2009; he was four years in
1974 and it is impossible to imagine that a four year boy would
do business and earn thousand of rupees; the 1st defendant had
not filed sales tax returns and bank account to prove the
existence of cash flow. Subsequently, plaintiff had taken out
I.A.No. 1091 of 2012 to implead their sisters
Smt. M. Chandrakala and Smt. H. Bharathi as defendants 2
and 3 and the said Application was ordered on 11.06.2013
despite the opposition stating that the same was taken out with
an intention to drag the matter.
6. On behalf of plaintiff, P.Ws.1 and 2 were examined
and Exs.A1 to A6 were marked. On behalf of the 1st defendant,
D.Ws.1 and 2 were examined but no documents were marked.
After hearing the arguments and on considering the evidence,
the Court below, by the judgment under Appeal, passed the
preliminary decree with costs granting the relief of partition of
suit schedule property into two equal shares and allotting one
such share each to plaintiff and the 1st defendant. The plaintiff
would be entitled for partition of suit property into two equal
shares by metes and bounds and for delivery of his share in
final decree proceedings. Assailing the said judgment, the 1st
defendant is before this Court.
7. This Court while admitting the Appeal, granted
interim stay pursuant to the preliminary decree passed in
O.S.No. 440 of 2008 on the fie of the XXV Additional Chief
Judge, City Civil Courts at Hyderabad to the effect that except
passing final decree all other proceedings can be continued.
8. Sri Shyam S. Agarwal, learned counsel for the
Appellant/1st defendant submits that no justifiable reasons
much less legal grounds have been given by the Court below in
the impugned judgment. The Court below failed to take into
consideration the financial capacity of father and brother of the
1st defendant to purchase the properties. According to learned
counsel, plaintiff failed to prove the Will Deed as required by law
more particularly under the provisions of the Indian Succession
Act, 1925; in fact, P.W.2 admitted that there is difference in his
signature on his chief affidavit when compared with that of the
second witness in Ex.A2. It is submitted that the Court below
ought to have appreciated the fact that plaintiff added his
sisters as parties after four years of filing the suit on the defence
taken by the 1st defendant that suit is liable to be dismissed for
non-joinder of parties.
9. Sri G. Anil Kiran Kumar, learned counsel for
plaintiff, based on the counter filed in this Appeal, submits that
as per the judgment under Appeal, property has to be
partitioned either in four or two equal shares and in the final
decree proceedings in the suit, the Advocate-Commissioner filed
a report opining that the suit schedule property is not divisible
ad therefore, the same has to be sold and the sale proceeds
shall be shared inter se plaintiff and the 1st defendant.
According to learned counsel, his client apprehends that the 1st
defendant is a notorious and he filed the Appeal without even
depositing the costs ordered to be paid by the Court below; after
his demise, his wife and children will not be able to withstand
his pressure for giving up all the claims qua the suit property,
hence, seeks to dims the Appeal
10. Having heard learned counsel on either side and
having perused the material filed on behalf of both the parties, it
is evident that plaintiff's case is that suit schedule property
belongs to his mother who executed Ex.A2 will deed
bequeathing the said property in favour of himself and the 1st
defendant in equal shares, whereas the case of the 1st defendant
is that he purchased the said property as open plot and later,
raised two-storied building, hence, his mother has no right to
bequeath the same. To prove the said contention, the 1st
defendant / appellant filed the Will deed.
11. In this factual matrix, it is apt to see the evidence
adduced by both the parties. Plaintiff, who was examined as
P.W.1, in his evidence, reiterated his case. P.W.2 stated that at
the request of plaintiff, he had gone to the registration office and
attested Ex.A2 Will deed and he notified the photo of the
executant of the said Deed. He denied the suggestion that
signature of second witness on the Deed is not his signature
though he admitted that there is difference in his signature on
his chief affidavit and that of the Will deed and clarified that
there is a gap of 6 to 7 years between the two dates. The 1st
defendant except stating that suit property is self-acquired
property and plaintiff failed to establish that his mother
executed Ex.A2 Will deed in a sound and disposing state of
mind, did not led any evidence to prove the same. In that view of
the matter, the contention of the 1st defendant cannot be
accepted.
12. Coming to the evidence of the 1st defendant as
D.W.1, he stated that in 1972, he started business of
manufacturing steel furniture, he purchased vacant site relating
to suit property by paying sale consideration in 1974 in the
name of his mother and subsequently, constructed two-storied
building therein with his own funds. The oral evidence of D.W.2
also is to the same effect, but in the cross-examination, he
admitted that by 1974, the 1st defendant was a small boy and
the said version corroborated the evidence of P.W.1, who
deposed that his brother i.e. the 1st defendant was four years in
1974. Further, the 1st defendant has not made any attempt to
establish the factum of his doing business from 1972 onwards
by filing tax returns, etcetera. Moreover, as is evident from the
cause title of this Appeal which was of 2016, the 1st defendant
was shown to be aged 57, so, he could be 13 years by 1972. It is
quite unnatural, as observed by the Court below that by the age
of 13, he did business and purchased the properties stated
supra, from out of his earnings. He has not also filed any
evidence to prove his age. In the absence of the same, this
Court is of the considered view that the 1st defendant failed to
establish his case. This Court does not find any error
warranting interference in the order under Appeal. The Appeal
therefore, fails and the same is liable to be dismissed.
13. The Appeal is accordingly, dismissed. No costs.
14. Consequently, Miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
28th May 2025
ksld
