Andhra HC (Pre-Telangana)
Kuppili Venkata Rao vs Kuppili Suryakanthamma And Ors. on 29 August, 2006
Equivalent citations: 2007(1)ALD123
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Defendant No. 1 in O.S. No. 185 of 74 on the file of Principal District Munsif, Parvatipuram, filed this second appeal, aggrieved by the judgment and decree, dated 21-7-1994, passed in A.S. No. 19 of 1990 on the file of Subordinate Judge, Parvatipuram.
2. The suit was originally filed by one Kuppili Narayana Rao. During the pendency of the suit, he died and his legal representatives, i.e., respondents 1 to 8 herein were brought on record and respondents 9 and 10 herein, who were impleaded as defendants 2 and 3, died.
3. For the sake of convenience, the parties herein are referred to as arrayed in the suit.
4. The plaintiff pleaded that himself and defendants 1 and 2 are the sons of late Bangarayya. It was stated that the property, that has fallen to the share of Bangarayya in the partition with his brother, was divided into four shares and one share each was allotted to Bangarayya and his sons i.e., the plaintiff and defendants 1 and 2. It was further pleaded that in relation to the property that has fallen to the share of Bangarayya, he executed a Will, dated 16-8-1968, which inter alia provided for devolution of the suit schedule property, a residential house, to the plaintiff. Bangarayya was said to have died on 16-11-1972 and thereby, the plaintiff became the absolute owner of the suit schedule property. It was alleged that taking advantage of his absence, on account of his employment as a Ticket Collector at Khurda road in Orissa, the 1st defendant occupied the suit schedule property and leased out in favour of the 3rd defendant.
5. The 1st defendant resisted the suit. He pleaded that his mother by name Narayanamma purchased a vacant land in the year 1940, through a sale deed and over the said land, three houses were constructed, one house each was said to have been allotted to the plaintiff and defendant Nos. 1 and 2 and that the suit schedule house is a separate one, which was settled by Narayanamma in favour of the wife of the 1st defendant; who incidentally happens to be the daughter's daughter of Narayanamma. Certain other facts, touching upon the validity of the alleged Will, were also pleaded. The trial Court dismissed the suit, through judgment, dated 27-3-1986. Aggrieved thereby, the legal representatives of the plaintiff filed A.S. No. 19 of 1990 in the Court of Subordinate Judge, Parvatipuram. The appeal was allowed on 21-7-1994.
6. The learned Counsel for the 1st defendant-appellant submits that the case of the plaintiff, as presented in his plaint, was totally different from the one spoken to during the course of deposition. He contends that the plaint was totally silent as to the settlement, or devolution of any property from Narayanamma, in favour of Bangarayya or his sons, whereas PW. 1 has totally based his claim upon settlement deed, dated 4-6-1963. He contends that there was total inconsistency in the case presented by the plaintiff and that there was no justification for the lower appellate Court in reversing the well-considered judgment of the trial Court. The learned Counsel points out that even, otherwise, the plaintiff failed to prove Ex. A-2, inasmuch as the two attestors, who were examined as PWs. 3 and 4, categorically stated that they have not seen Bangarayya subscribing his signature on the document.
7. The learned Counsel for the plaintiff's respondents, on the other hand, submits that there is no inconsistency between the version presented in the plaint and the evidence and that even according to the 1st defendant, Narayanamma executed a deed of settlement, in which her property was settled in favour of various individuals. He contends that though the suit schedule property was part of property held by Narayanamma, as a result of settlement and consequential partition, it has fallen to the share of Bangarayya and that it was bequeathed upon the plaintiff, through Ex. A-2.
8. The trial Court framed four issues touching upon the validity of Will, dated 16-8-1968, marked as Ex. A-2, and the title of Narayanamma over the suit schedule property. Further, an additional issue related to the validity of deed of settlement, dated 29-7-1959.
9. On behalf of the plaintiffs, PWs. 1 to 5 were examined and Exs. A-1 to A-53 were marked. On behalf of the 1st defendant, DWs. 1 to 3 were examined and Exs.B-1 to B-22 were marked.
10. The trial Court dismissed the suit and the lower appellate Court reversed it.
11. The relationship, between the parties, is not in dispute. In the plaint, it was pleaded that the properties that have fallen to the share of Bangarayya, the father of plaintiff and defendants 1 and 2, in the partition between himself and his brothers, were further divided among Bangarayya and his three sons i.e., the plaintiff and defendant Nos. 1 and 2 in the year 1966, and that ever since they were in enjoyment of the respective shares. Bangarayya, in turn, was said to have executed a Will, dated 16-8-1968, bequeathing the property that has fallen to his share, in favour of various individuals. In Para 3 (a) of the plaint, the subject-matter of the partition in the year 1966 is clearly stated to be the property that has fallen to the share of Bangarayya in a partition between himself and his brothers.
12. The 1st defendant categorically pleaded that the suit schedule property had never fallen to the share of Bangarayya in the partition with his brothers and, on the other hand, it is exclusively held by the mother of himself, plaintiff and the 2nd defendant i.e., Narayanamma. The sale deed, dated 14-3-1940, through which the said property was purchased, was filed into the Court and it was marked as Ex. B-1. In the evidence, PW. 1 recognized this fact and proceeded as though the suit schedule property is part of the property held by Narayanamma. For the first time, he came forward with the plea that Narayanamma settled the said property in favour of her husband and three sons and the same was later on partitioned in the year 1966. PW. 1 was unable to correlate the partition of the property, that has fallen to the share of Bangarayya in the partition with his brother, on the one hand, and the property that was said to have been settled by Narayanamma, on the other hand. He was not clear as to whether there were separate partitions among Bangarayya and his sons in relation to the said two items of properties or whether it was a common partition. When so much of controversy and uncertainty persisted, there was no justification for the lower appellate Court in reversing the judgment of the trial Court, particularly, when the plaintiff did not choose to amend his plaint or explain the inconsistency.
13. Even assuming that the suit schedule property is part of the one, settled by Narayanamma, it has fallen to the share of Bangarayya in the partition between himself and his sons, and that he executed Ex. A-2 in favour of the plaintiff; it needs to be seen as to whether Ex. A-2 was proved, as required in law. The Will is required to be attested and the attesters are supposed to have witnessed the executant subscribing his signature on that document. PWs. 3 and 4 are said to be the two attesting witnesses of Ex.A-2. They have categorically stated that they did not see Bangarayya putting his signature or thumb impression on Ex. A-2. This single fact is sufficient to ignore Ex. A-2. With that, the whole edifice of the case of the plaintiff falls to ground. Therefore, viewed from any angle, there does not exist any justification in the judgment and decree of the lower appellate Court.
14. Accordingly, the second appeal is allowed and the judgment and decree passed by the lower appellate Court in A.S. No. 19 of 1990, dated 21-7-1994, is set aside and consequently the judgment and decree of the trial Court in O.S. No. 185 of 1974, dated 27-3-1986, shall stand revived. There shall be no order as to costs.