Andhra HC (Pre-Telangana)
Yellapu Veerraju (Died) Per L.Rs. vs Beesetti Peda Appalaraju (Died) Per ... on 25 October, 2005
Equivalent citations: 2006(1)ALT402
JUDGMENT P.S. Narayana, J.
1. Introductory episode: It is not in serious controversy that if the status of the deceased original plaintiff in both the suits as daughter of Vegi Veeramma and Kondamma to be disbelieved and if Ex.A-3 and Ex.B-2, the Wills said to have been executed by the said Vegi Veeramma under which the deceased plaintiff and the deceased 1st defendant claimed properties to be disbelieved, then the position would be that neither the deceased plaintiff nor the defendants would be the heirs to succeed to the estate of the deceased Vegi Veeramma by intestate succession. It is peculiar that the defendants in these suits deny the very relationship of Veerraju, the plaintiff in these suits with Vegi Veeramma. In view of the death of the 1st defendant the legal representatives were brought on record. Equally the appellant/ plaintiff being no more, appellants 2 to 9 were brought on record as the legal representatives of the deceased appellant/plaintiff in both the Appeals. In view of the fact that findings had been recorded disbelieving Ex.B-2 also, the defendants filed the Cross-Objections.
2. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants and also the legal representatives of the plaintiff inasmuch as the legal representatives were brought on record in view of the death of the plaintiff as aforesaid.
3. The plaintiff instituted the suit O.S. No. 85/84 on the file of Subordinate Judge, Peddapuram for the relief of partition of the plaint schedule properties into two equal shares and allot one such share to her and for possession, rendition of accounts and for future profits. Likewise, O.S. 86/84 was filed for declaration of her title over the plaint schedule house and for possession and damages for use and occupation. By virtue of a joint memo, both the suits were tried together and Common Judgment was pronounced. The evidence of P. W. 1 to P. W.6, D.W.1 to D.W.3 had been recorded. The learned Judge disbelieved the status of the plaintiff as daughter of the deceased Vegi Veeramma and also disbelieved both Ex.A-3 and Ex.B-2, the respective Wills and ultimately inasmuch as the plaintiff was not successful in establishing her case, the suits were dismissed. As against that, as aforesaid, the Appeals and Cross objections had been preferred.
4. Contentions of Sri Rudra Prasad: Sri Rudra Prasad, the learned Counsel representing the appellants/legal representatives of the original plaintiff made the following submissions. The learned Counsel initially pointed out that the evidence of P.W.6 who is an independent witness is very crucial and this witness is a sufficiently good old man of 85 years who categorically deposed about the relationship and the learned Judge had not touched the evidence of P.W.6 at all. The learned Counsel also had made elaborate submissions that in the light of the clear evidence of P.W.1, P.W.4 and P.W.5 and also Ex.A-10 and Exs.X-1 and X-2 the status of the plaintiff as the daughter of the deceased Vegi Veeramma and Kondamma had been clearly established and the way in which the learned Judge decided this question definitely cannot be sustained. The learned Counsel also would further comment that the mere confusion in between the evidence of P.W.2 and P.W.3 in relation to the thumb mark or thumb impression obtained on Ex.A-3 cannot be taken as a serious suspicious circumstance so as to disbelieve Ex.A-3. The learned Counsel also would comment that the mere fact that P.W.2 was convicted or fined in the criminal case cannot be taken as a ground to disbelieve his evidence which is otherwise clear and hence the reasons recorded relating to the suspicious circumstances in relation to Ex.A-3 cannot be sustained. The learned Counsel also pointed out that as far as Ex.A-2 is concerned, clear finding had been recorded by the learned Judge. The learned Counsel would conclude that the very conduct of the defendants in denying the relationship would clearly go to show that they are interested in grabbing the property and depriving the plaintiff of her legitimate rights over the respective plaint schedule properties in both the suits. The learned Counsel also pointed out to the relevant portions of the evidence of P.W.1, D.W.1 and D.W.2 also which would definitely suggest the close relationship between the parties and the stand taken in this regard that she is the daughter of yet another person and not that of Vegi Veeramma definitely cannot be sustained in view of the clear evidence of P.W.4 and P.W.5.
5. Contentions of Sri V.L.N.G.K. Mutiny:
Sri V.L.N.G.K. Murthy, the learned Counsel on the other hand would contend that it is not in controversy that the defendants are in actual possession of the plaint schedule properties and the plaintiff who had approached the Court may have to establish her case and on failure in establishing her case she is bound to fail. The learned Counsel also commented that in the light of the clear findings recorded relating to suspicious circumstances surrounding Ex.A-3, the said findings need not be disturbed by the appellate Court. The learned Counsel also would comment that the principal question to be considered is the status of the plaintiff whether she is the daughter of the deceased Vegi Veeramma or not. Except the evidence of P. W.4 and P. W.5 there is no other acceptable evidence and even if the evidence of P.W.6 is taken into consideration it is totally contradictory to the evidence of P.W.1 and it is clear that the way in which P.W.6 deposed would go to show that he has no knowledge about the affairs of the family. The learned Counsel also would contend that the crucial document Ex.B-13, affidavit of one of the deceased members of the family had not been taken into consideration and the non-appreciation of the said affidavit Ex.B-13 also is definitely fatal. The Counsel also would contend that when clear evidence of D.W.3 is available, the attestor of Ex.B-2, disbelieving Ex.B-2 on certain grounds definitely cannot be sustained. Hence in the light of the same the Cross-Objections may have to be allowed upholding the validity of Ex.B-2. The learned Counsel in all fairness would submit that if the status of the plaintiff as daughter of Vegi Veeramma to be disbelieved and both Ex.A-3 and Ex.B-2 to be disbelieved, none of the parties contesting the litigation would be the heirs of the deceased Vegi Veeramma to succeed to the estate by intestate succession.
6. The learned Judge while deciding Issue Nos. 3 and 6 and Issue No. 9 in O.S. No. 85/84 and O.S. No. 86/84 respectively in the concluding portion of the Judgment at paras-29 and 30 held as here under:
To sum up, the plaintiff failed to prove Ex.A-3 will, propounded by her, which was said to have been executed by late Veeramma. Likewise, the defendants also failed to prove that Ex.B-2 Will was executed by late Veeramma, which was propounded by them. As per decision reported in 1992 (2) APLJ at page-3 (SC) (Guro v. Atma Singh) it is the duty of the propounder to adduce satisfactory evidence to remove the suspicion. In the discussion supra, I have expressed my opinion that suspicion circumstances are not removed by both parties regarding the genuineness of the wills propounded by them. The plaintiff's contention is that she became entitled to the landed properties mentioned in the schedule appended to the plaint in O.S. No. 85/84 in pursuance of Ex.A-3 Will executed by her mother Vegi Veeramma but the contention of the defendant is that the plaintiff is not Vegi Veeraju but her name is Suramma and she is not the daughter of Vegi Veeramma but she is daughter of Goddi Veeranna. In view of the discussion above it is held that the defendants failed to prove that the name of the plaintiff is Suramma and she is the daughter of Doddi Veeranna. It is also held that the plaintiff failed to prove that she is the daughter of late Vegi Veeramma. It is pertinent to note that though the plaintiff's claim is that subsequent to the death of her mother Veeramma, the 1st defendant paid her share of income till 1982-83 and thereafter failed to pay the same and therefore she got issued Ex.A-4 notice and then filed the suit for partition, and she has not filed even a scrap of paper for the said payment of her share of income to her. The contention of the defendants is that the 1st defendant never paid any income to the plaintiff towards her alleged half share in the suit property. Under these circumstances, reasonable doubt arises that the contention of the plaintiff that payment of income by the 1st defendant to her for her half share till 1982-83 is to get over the delay of 7 years in filing the suit after the death of late Veeramma. The notices transpired between the parties under Exs. A-4 to A-8 go to show that the contention of the defendants is that Ex.A-3 Will was fabricated by the plaintiff. Since the plaintiff failed to prove that she is the daughter of late Vegi Veeramma and since admittedly the property mentioned in schedule in O.S.86/84 belonged to Vegi Veeramma, the plaintiff is not entitled for the declaration of her title and possession and for damages prayed for in O.S. No. 86/84. Therefore, in view of the findings on all the issues discussed above, it is held that the plaintiff is not entitled for any relief prayed for in both the suits.
In the result, both the suits O.S. No. 85/84 and 86/84 are dismissed with costs.
7. Pleadings of the parties in brief: The respective pleadings of the parties in both the suits virtually and substantially are one and the same. Be that as it may, it was pleaded in O.S. No. 85/84 as here under:
The plaintiff is the daughter of Vegi Kondamma and his wife Veeramma. The said Kondamma died about 30 years ago intestate and his wife Veeramma died on 23-8-1977. The said Veeramma executed a Will dated 20-8-1997 in a sound and disposing state of mind bequeathing her entire movable properties to the plaintiff with absolute rights and her immovable properties to the plaintiff with life estate and vested remainder to the sons of the plaintiff with life absolute rights. Plaintiff is the only issue to her parents. The 1st defendant and the mother of the plaintiff i.e., Vegi Veeramma are brother and sister and children of Beesetti Paradeshi. The said Parades had another son by name China Appalaraju who pre-deceased Paradeshi without marriage. The said Veeramma i.e., mother of the plaintiff and the father of the 1st defendant i.e., mother of the plaintiff and the father of the 1st defendant i.e., Parades purchased the landed properties described in the schedule annexed to the plaint under sale deed dated 15-8-1927 executed by Pantham Dorayya and others. The wet land of Ac.6-00 described as items 1 and 2 in the said sale deed was surveyed as S. No. 218/3 and of an extent of Ac.6-46 cents and the dry land described in the sale deed as items 3 and 4 was surveyed as S. No. 214/2 and its extent is Ac.8-92 cents. The said survey made after the abolition of estates. Both the items abutted each other. Plaintiff succeeded to half share of her mother Veeramma and the 1st defendant succeeded to the half share of his father Parades and therefore they respondents co-owners in joint possession of the schedule properties. Late Kondamma i.e., the father of the plaintiff purchased a house site under sale deed dated 3-7-1917 and constructed a house therein and the said Veeramma who succeeded to the properties of late Kondamma made improvements therein. As the said Kondamma died about more than 30 years ago and as the plaintiff was married and living with her husband at Chinnampet and as late Veeramma had no assistance the said Veeramma requested the 1st defendant to live with her and to manage the properties including the scheduled properties. The 1st defendant lay person cultivating the entire scheduled properties and paid the income on the half share of the schedule property to the said Veeramma during her life time and subsequently to the plaintiff till the year 1982-83. As the sons of plaintiff wanted to cultivate the half share in the schedule property the plaintiff has been requesting the 1st defendant to cooperate with her in partitioning the landed property and the 1st defendant is evading to co-operate with the plaintiff. The 1st defendant also failed to account for the income on the landed property for the year 1983-84 and failed to pay the same to the plaintiff. The plaintiff got issued a notice on 8-9-1984 to the 1st defendant calling upon him to cooperate with her in partitioning the schedule property. The 1st| defendant sent a reply thereto on 17-9-84 vaguely denying the Will dated 20-8-1977 executed by Veeramma and setting up another Will dated 19-10-1976 of the said Veeramma. The 1st defendant requested for a copy of the Will dated 20-8-1977 in his notice for which a copy was sent by the plaintiff on 1-10-1984. The 1st defendant failed to comply with the request of the plaintiff to send a copy of the Will dated 19-10-1976. On the other hand the advocate for the 1st defendant issued a notice dated 8-10-1984 stating that the Will set up by the 1st defendant was taken away by the 1st defendant and it will be sent as soon as it was brought by the 1st defendant. As the 1st defendant's Counsel did not send the Will dated 19-10-1976, the plaintiff sent another notice on 26-10-1984 enclosing a Xerox copy of the will dated 20-8-1977 and calling upon the 1st defendant to comply with the demands as per the notice dated 8-9-1984, The 1st defendant neither sent a reply nor complied with the demands. The Will set up by the 1st defendant is obviously a forged one, as can be seen from the contents of the notices of the 1st defendant. It is also significant that the 1st defendant did not even divulge the contents of the alleged imaginary Will set up by him. The plaintiff is therefore entitled to seek partition of the suit schedule properties into two equal and equitable shares and to allot one such share to the plaintiff and for separate possession thereof by converting the joint possession into separate possession and for rendition of account relating to the income realized from the suit schedule property for the year 1983-84 and for future profits from the date of suit till separate possession. Subsequent to the suit, the 1st defendant died and therefore his legal representatives were added as defendants 2 to 6. Out of the said legal representatives, 5th defendant died and therefore her legal representatives are added as defendants 7 to 9.
8. The original defendant in the written statement pleaded as hereunder:
The suit is neither just nor maintainable in law. The allegations that the plaintiff is the daughter of Vegi Kondamma and by his wife Peda Veeramma is absolutely false. The plaintiff is put to strict proof that Vegi Kondamma died intestate about 30 years back and his wife Veeramma died on 23-8-1977 in a sound and disposing state of mind bequeathing her properties to the plaintiff with a life estate and vested remainder to the sons of the plaintiff with absolute rights. A1 the allegations in para-4 of the plaint are absolutely false as late Veeramma who said to have been executed the alleged Will was laid up with paralysis and unable to move from the bed nearly 3 months prior to the death. She was in unconscious state, unable to recognise the people. Her food, dressing and calls of nature were mainly attended to by Beesetti Appalaraju's daughter-in-law Nookaratnam. A local doctor used to visit now and then who was attached to Vimukthi. The plaintiff for the last time came to see Veeramma around about Telugu new year's day in 1977 and did not come later during the life time of late Veeramma when Veeramma's condition was very serious and when a word was sent plaintiff did not turn up. She came only after the death of Veeramma and after the cremation she left and attended Chinna Dinam and Pedda Dinam days only. The obsequies were attended to by the brother Appalaraju who was also called as Peda Appalaraju and all the expenses were met by Peda Appalaraju. It is true that Veeramma was the sister of Appalaraju and Appalaraju had another brother China Appalaraju. The allegation that he died unmarried is false. The said China Appalaraju was married but Appalaraju and his wife died issueless. The allegation that the plaintiff was only daughter of Kondamma and Veeramma is false. Veeramma never gave birth to any daughter by Kondamma. Plaintiff's name is not Veeraraju but was Suramma, daughter of Doddi Veeramma. She was also being called as Bullemma. The plaintiff does not disclose the date of birth etc. it is incorrect the allege that Veeramma had no male assistance and therefore requested the defendant to live with her and to manage the properties. If really the plaintiff was the daughter and was married, Veeramma would have preferred to live with her daughter only. Appalaraju is the rightful owner of the property and a Ryotwari Patta was issued in his name while no Ryotwari Patta was issued in the name of the plaintiff. This Court has no jurisdiction to entertain the suit as to whom the lawful ryot is as patta was granted only to the defendant under holding No. 83 for S. No. 214/2 and 218/3 for a total extent of Ac. 15-38 cents, subject to an annual assessment of Rs. 53-75 ps. Further the defendant was issued Ryotwari pass book under the Record of Ryots Act recognizing the right of the defendant which became final and cannot be agitated in a Civil Court. Thus the question to be decided as to who the lawful ryot is not within the purview of the jurisdiction of the civil Court. The Will said to have been executed by late Veeramma on 20-8-1977, about 3 days prior to her death is not true for all the reasons referred to above. The plaintiff is not the daughter of Veeramma and Veeramma never stayed with the plaintiff and she was always staying with Appalaraju. The income from the property was always enjoyed by late Veeramma by being given away to and expended for the benefit of the composite family of Veeramma and Appalaraju. Veeramma never gave birth to the plaintiff and the plaintiff is not the daughter of Veeramma or Kondamma. The allegation interpolated i.e., and paid the income in the half share of the schedule property' to the Veeramma is false. The allegation in the plaint that the plaintiff was receiving till the year 1982/83 any share of income from the property is also absolutely false. Since the plaintiff never had any right and never enjoyed the income, the allegation that the plaintiff requested the defendant to cooperate in partitioning the property and that the defendant evaded to cooperate is also false. The question of accounting by the defendant for any period either for the year 1983-84 or for any subsequent period does not arise. The reply notices issued for and on behalf of the defendant may be read as part of this written statement. It had been sufficiently explained why the Will copy could not be supplied. The properties had been over valued and the cause of action mentioned in the plaint is incorrect and the Court fee paid is incorrect. Since the plaintiff never had possession the relief of partition of the properties or rendition of account to the plaintiff and the liability for future profits does notarise. The Will executed by late Veeramma dated 19-10-1976 is the only Will executed by Veeramma during her life time in a sound and disposing state of mind and no Will was subsequently executed either on 20-8-1977 or any other date as alleged in the plaint. The Will set up by the plaintiff is a forged one and does not confer any title on the plaintiff. The fact remains that since the death of Veeramma in 1977 the plaintiff kept quite till the Will is forged to set up a claim after a long lapse of 7 years. After the death ceremonies of Veeramma were over the plaintiff never visited the house of the defendant and the defendant alone was enjoying the income from the property.
9. Subsequently defendants 2 to 6 who were added as legal representatives adopted the written statement of the 1st defendant. Likewise, defendants 7 to 9 were added as legal representatives of the 5th defendant and an additional written statement of 3rd defendant was filed along with a memo of adoption by defendants 2 and 4 to 9 adopting the written statement of the 3rd defendant. It was pleaded that the written statement filed in the suit may be read as part of the additional written statement. The suit is barred by limitation. The plaintiff is not the daughter of Veeramma and the suit is filed to make illegal gain from the defendants. The 3rd party affidavit filed by the sister Budda Nookamma w/o. Veeranna and S. Venkayamma may be read as part of the additional written statement. Parades was having three sons and four daughters. Sons are Tatabbai, 1st defendant and Chinna Appalaraju, whereas the daughters are Nayudamma, w/o. Veeramma, Peda Veeramma, w/o. Kondamma, China Veeramma w/o. Veeranna and Budda Nookamma w/o. Appanna. Admittedly the plaintiff is not the daughter of Veeramma and Kondamma. Para 6A of the plaint is vague in all material particulars. Court fee paid is not correct as the plaintiff is not admittedly in possession of the property as the suit is filed for accounting also. The suit is bad for non-joinder and mis-joinder of parties.
10. Though substantially the pleadings in O.S. No. 86/84 also are on the same lines, certain of the additional facts which had been pleaded are as hereunder. The plaintiff's father Kondamma purchased a site under the sale deed on 31-7-1917 executed by Kolla Subbarayudu and others. Subsequent to the purchase the said Kondamma constructed a house therein and later died intestate and as already submitted consequently the suit schedule property devolved on his wife Veeramma as per Hindu Law. Subsequently Veeramma made improvements in the suit schedule property by constructing out-house therein and enjoyed the suit schedule property in her own right till her death. The plaintiff who was the only daughter of the said Kondamma and Veeramma was married during the life time of Kondamma and was living with her husband at Chinnampeta. As Veeramma had no male assistance, she requested the 1st defendant to live with her and to manage the properties and since then the 1st defendant has been living with Veeramma in the said house on condition of vacating the same whenever demanded. Subsequent to the death of Veeramma also the 1st defendant continued to live in the schedule house and managing the properties. As the sons of plaintiff wanted to live in the schedule house and cultivate the share of plaintiff in the landed property the plaintiff terminated the permission and requested the 1st defendant to vacate the suit schedule property and also got a notice issued to the 1st defendant on 8-9-1984. The 1st defendant having received the notice sent a reply on 17-9-1984 vaguely denying the Will dated 20-8-1977 executed by Veeramma and setting up another Will dt. 19-10-1976 of the said Veeramma. The 1st defendant did not mention or reply anything about the suit schedule house. Though there were exchange of notices subsequently in between the plaintiff and defendant nothing is stated about the schedule property in the notices of the 1st defendant. The 1st defendant did not comply with the notice dated 8-9-1984 by delivering the possession of the house. The plaintiff is also entitled to claim damages for use and occupation from the date of notice as the 1st defendant as continuing unauthorisedly till delivery of possession at the rate of Rs. 50/- per month. The plaintiff is therefore entitled for declaration of her title over the suit house and for possession together with damages for use and occupation. Subsequent to the suit the 1st defendant died and therefore his legal representatives were added as defendants 2 to 6. Out of them the 5th defendant also died. Therefore her legal representatives wee added as defendants 7 to 9. Hence the suit for declaration of title of the plaintiff and for declaration of title of the plaintiff and for possession and damages.
11. A written statement was filed resisting the same wherein it was pleaded as hereunder:
It is true that Kondamma purchased a site on 31-7-1917 from Kollu family and subsequently two houses bearing Nos. 3-71 and 3-72 were constructed by late Veeramma and her brother Appalaraju with their monies. The allegations that Kondamma constructed the house therein and it devolved on his wife Veeramma are absolutely false. Veeramma never made any improvements to the house constructing out-house etc. It is only Appalaraju that was attending to the construction and spending money and Veeramma never enjoyed the house in her own right. It is false that the plaintiff is the only daughter of Kondamma and Veeramma since Veeramma never gave birth to any daughter at all by Kondamma. The plaintiff's name is not Veeraraju but was Suramma and she is the only daughter of Doddi Veeramma. She was also being called as Bulletnma. The plaint does not disclose the date of birth of the plaintiff. It is incorrect to allege that Veeramma had no male assistance and therefore she requested the defendant to live with her and to manage the properties. The further allegations in the plaint that the defendant was living in the said house under a licence or condition of vacating the schedule house whenever demanded is absolutely false and incorrect. Neither the plaintiff nor her sons have a title to the property and the house properties always continued to be in the possession of the defendant and his family members in their own right. It is not true that the sons of plaintiff wanted to live in the suit house and wanted to cultivate the share of the plaintiff in the landed property and therefore the plaintiff terminated the permission and requested the defendant to vacate. To the notice dated 8-9-1984 the defendant sent a reply on 17-9-1984 with absolutely correct facts and denying the false allegations set up. On 20-8-1977 or few months prior to her death. Veeramma never executed and could not have executed any Will in a sound and disposing state of mind as Veeramma executed and could not have executed any Will in a sound and disposing state of mind as Veeramma executed a Will earlier more than a year prior to her death on 19-10-1976 bequeathing the properties to Appalaraju and his sons. Under the Will the entire properties were bequeathed. The plaintiff filed the suit in haste before the defendant could be communicated and copy of the Will supplied. The plaintiff is not entitled to claim damages at Rs. 50/- per month either from the date of notice or for the subsequent period as the defendant and his family members are continuing in possession of the property in their own right. Plaintiff is not entitled to seek declaration of title over the schedule property or for possession with damages. The cause of action mentioned in the plaint is not correct. The suit is bad for mis-joinder of cause of action and non-joinder of persons who are lawfully in possession. The Will set up by the plaintiff purported to have been executed by late Veeramma about three days prior to her death shall be declared as forged upholding the Will dt. 19-10-1976 and dismiss the suit with costs.
12. Subsequent thereto inasmuch as the legal representatives of the 1st defendant were brought on record a memo of adoption was filed. After the death of the 5th defendant additional written statement was filed on behalf of the 3rd defendant and a memo adopting the same was filed by defendants 2, 4 to 9 and the contents of the said additional written statement also virtually are on similar lines.
13. Issues and additional issues framed in O.S. No. 85/84: Issues:
1. Whether the Will dated 20-8-1977 executed by late Veeramma is true, valid and binding on defendant?
2. Whether Will dated 18-10-1976 executed by late Veeramma is true, valid and binding on plaintiff?
3. Whether this Court has no jurisdiction to try this suit?
4. Whether the defendant is entitled to partition and separate possession of her half share in the plaint schedule properties?
5. Whether the plaintiff is entitled to any profits?
6. To what relief?
Additional Issues:
1. Whether the suit is barred by limitation?
2. Whether the Court fee paid is not correct?
3. Whether the suit is bad for nonjoinder and mis-joinder of parties?
Issues and additional issues framed in O.S. No. 86/84: Issues:
1. Whether the Will dated 20-8-1977 executed by Vegi Veeramma is true, valid and binding on the defendant?
2. Whether the Will defendant 19-10-1976 executed by Vegi Veeramma is true, valid and binding on the plaintiff?
3. Whether the defendant constructed the house as alleged?
4. Whether the defendant is enjoying the suit schedule property as of right as contended by him?
5. Whether the plaintiff is entitled to profits if so at what rate?
6. Whether the plaintiff is the daughter of late Vegi Kondamma and Peda Veeramma?
7. Whether the name of plaintiff is Veeraraju or Suramma?
8. Whether the plaintiff is entitled to declaration and possession?
9. To what relief?
Additional Issues:
1. Whether the suit is barred by limitation?
2. Whether the Court fee paid is not correct?
3. Whether the suit is bad for nonjoinder and mis-joinder of parties?
14. Findings recorded by the learned Judge in nutshell:
The learned Judge on appreciation of evidence recorded findings and disbelieved the relationship of plaintiff with the deceased Vegi Veeramma and also disbelieved Ex.A-3 on the following grounds:
(1) The discrepancy relating to thumb impression of Vegi Veeramma, (2) Inconsistent evidence of P.W.2 and P.W.3, (3) Evidence of P.W.2 - former Village Munsif who was convicted for misappropriation of funds and (4) No satisfactory evidence to establish Ex.A-3.
However, a finding had been recorded that there is no positive proof regarding the paralysis of Veeramma. Likewise, about the suspicious circumstances about Ex.B-2 the learned Judge recorded the following findings:
1. The very propounders of the said Will, D.Ws.1 and 2, have categorically stated that they were not present at the time of execution of the said will and they did not know as to who were present at the time of its execution and that Veeramma was in a sound and disposing state of mind at that time.
2. As seen from the testimony of D.W.3 he noted the numbers of the lands on a paper and went to the house of Veeramma and with that help he stated the numbers at the time of writing of Ex.B-2. The case of both parties is that Veeramma was a resident of Yerravaram village. Therefore, writing of Ex.B-2 Will, according to the defendants, was at Yerravaram. But, at the end of Ex.B-2 after the signature of the scribe it is written as 'Prathipadu'. The contention of the learned Counsel for the defendants is that the scribe is a resident of Prathipadu but the Will was written at Yerravaram only. If really Ex.B-2 Will was written in Yerravaram, though the scribe is a resident of Prathipadu, he should have stated as 'camp at Yerravaram' or 'Makam Yerravaram' which indicates that he went to Yerravaram and scribed Ex,B-2 Will. In the absence of such writing in Ex.B-2 and especially when it is written after the signature of the Prathipadu, it must be deemed that the execution was in Prathipadu only but not in Yerravaram, and therefore to that extent the version of the defendants that it was executed at Yerravaram cannot be believed.
3. The learned Counsel for the plaintiff argued that when Ex.B-2 Will was sent to Expert, the Expert gave an opinion that the finger prints therein are not tallied with the admitted thumb impressions of late Vegi Veeramma. The learned Counsel for the defendants had admitted the same to be correct. Therefore, for this reason also it has to be said that the genuineness of Ex.B-2 Will is at stake.
Relating to non-joinder of parties and the other Issues, a finding had been recorded that no particulars in relation thereto had been furnished.
15. Oral and documentary evidence available on record:
Oral evidence;
For plaintiff: For defendants: P.W.1 Yellapu Veeraraju D.W.1 Beesetti Apparao P.W.2 Thota Satyanarayana D.W.2 Beesetti Paradeshi @ Baburao P.W.3 Megham Suryarao D.W.3 Oleti Bhaskararao P.W.4 B. Thammarao P.W.5 U. Yoseph P.W.6 Sagi Narasingarao Documentary evidence For plaintiff:
Ex.A-1/15-3-1927 Certified copy of sale deed executed by Pantham Dorayya and others in favour of Beesetti Paradesi and Vegi Veeramma.
Ex. A-2/31 -7-1917 Certified copy of sale deed executed by Kotha Subbarayudu and others in favour of Vegi Kondamma.
Ex.A-3/20-8-1977 Will executed by Vegi Veeramma.
Ex.A-4/- Office copy of notice issued on behalf of plaintiff to 1st defendant.
Ex.A-5/17-9-84 Reply notice issued on behalf of 1st defendant to the plaintiff's Advocate.
Ex.A-6/1 -10-84 Office copy of rejoinder notice issued on behalf of plaintiff to the defendant's advocate.
Ex.A-7/8-10-84 Office copy of rejoinder notice issued on behalf of defendant to the plaintiff's advocate.
Ex.A-8/26-10-84 Office copy of rejoinder notice issued on behalf of plaintiff to the defendant's advocate.
Ex.A-9/30-10-84 Postal acknowledgement in token of Ex.A-8 notice.
Ex.A-10/- Study certificate of the plaintiff issued by the Head Master, Samithi Elementary School, Yerravaram.
For Defendants:
Ex.B-1/23-8-77 Certified copy of death extract of Vegi Veeramma. Ex.B-2/19-10-76 Will executed by Vegi Veeramma. Ex.B-3/- Routh patta issued for S. Nos. 214/2 & 218/3 of Yerravaram in favour of defendants. Ex.B-4/- Ryot Pass book issued for S. Nos. 214/2 & 218/3 of Yerravaram in favour of defendants. Ex.B-5/23-12-83 Cash bill relating to 10 HP Motor issued in favour of Beesetti Paradesi. Ex.B-6/28-12-83 Two cash bills relating to 100 pipe and sockets for motor pump sets issued in favour of Beesetti Paradesi. Ex.B-7/21-12-83 Cash bill relating to sockets, tubes terms and conditions, in favour of Beesetti Paradesi. Ex.B-8/20-3/27 Mortgage deed executed by Appanna and Vegi Veeramma in favour of Adiraju Somam. Ex.B-9/9-2-88 Certified copy of Birth extract of Suramma D/o. Doddi Veeranna. Ex.B-10/- Certified copy of No. 2 Adangal of Yerravaram village relating to S. Nos. 218 and 214 for Fasli 1387. Ex.B-11/- -do- for Fasli 1388 and 1389 Ex.B-121- -do- for Fasli 1390 Ex.B-13/22-7-89 Affidavit of Budda Nookamma Ex.B-14/- Pass Book No. 88 of the Prathipadu Co-op. Agrl. Development Bank Ltd., issued in the name of Beesetti Appalaraju. Marked through IIIrd party: Ex.X-1/1-8-45 Admission Register of Sri Uma Maheswara Aided School Ex.X-2/18-6-84 Application of Yellapu Adinarayana
16. Points for consideration: Though several submissions had been made the Points which emerge for consideration in this Appeal are as hereunder:
1. Whether the findings recorded relating to the status of the plaintiff as daughter of deceased Veeramma to be confirmed by this Court or to be disturbed in any way in the light of the evidence available on record?
2. Whether the findings recorded in relation to the validity of Ex. A-3 to be confirmed or to be disturbed in any way?
3. Whether the findings recorded in relation to the truth, validity and binding nature of Ex.B-2 to be disturbed or to be confirmed in this Appeal?
4. If so, to what relief the parties are entitled to?
17. Points 1 to 3: All these Points can be answered together. It is not in serious controversy that the evidence of P.W.6 was not appreciated at all. It may be oral evidence. But the witness is said to be aged 85 years, a good old man who had specifically deposed about the relationship. Apart from this aspect of the matter, much comment had been made in relation to the non-consideration of Ex.B-13, dated 22-7-1989, the affidavit of Budda Nookamma. Strong reliance was placed on the contents of this affidavit to show that a close relative of the self-same family had sworn to the affidavit that the status as claimed by the plaintiff cannot be believed. Be that as it may, apart from the evidence of P.W.6, the evidence of P.W.4 and P.W.5 also is available on record apart from the evidence of P.W.1. P.W.1 specifically deposed in detail about the relationship. P.W.4, the Head Master of Mandal Parishad Upper Primary School, Yerravaram specifically deposed about the admission register of admission of students in the school and he received summons from the Court to bring the admission register of students and he brought the admission register and as seen from the said register on 1-8-1945 the plaintiff was admitted in their school in the first class and left the school while studying 4th class on 1-1-1949 and the admission number is not available in the register because the register was damaged in 1983 floods. The father's name of the plaintiff entered in the register is Kondamma. The date of birth of the plaintiff entered in the register is 2-4-1940. The entry in the original register containing the particulars of the plaintiff's admission is Ex.X-1. This witness also deposed that he does not know whether the admission register was maintained in the usual course of business or not. All admissions of students in classes will be entered in the admission register and the admission register contains a requisition for issue of true extract of the admission register relating to the plaintiff's admission in school and the said requisition of Yellapu Adinarayana dated 18-6-1984 which is pasted in the admission register is Ex.X-2. Ex.A-10 shows that it was issued by the then Head Master of his school. This witness was cross-examined at length and he deposed that it is true that he was not connected with the school during the year 1945 and he joined the school as a teacher for the first time in August 1977 and he also deposed that he simply brought Exs.X-1 and X-2 because he was asked to get admission register relating to the person by name Vegi Veerraju. Except Ex.X-1 no other registers relating to the year 1945 are now available as they were washed away in floods. Though he is not having personal knowledge the other suggestions had been denied.
18. P.W.5 is yet another witness who specifically deposed that he issued Ex.A-10 on the strength of the admission register and he issued Ex.A-10 in view of the application made Ex.X-2. Ex.X-1 relates to Yerravaram MPP Elementary School for the period from 1945 to 1957. This witness was cross-examined at length. This witness deposed that in Ex.X-1 in second column the name of "VEERRAJU" in Telugu is written and in third column the surname Vegi in Telugu is written. He had denied the suggestion that the name Veerraju in column No. 2 in Ex.X-1 is not seen. He had denied several other suggestions. He also denied the suggestion that the entries in Ex.X-1 and Ex.A-10 are both false. In the light of the evidence of P.W.4 and P.W.5 coupled with the evidence of P.W.6, this Court is of the considered opinion that the approach adopted by the learned Judge in appreciating the status of the plaintiff is definitely not in accordance with law. It is no doubt true that Ex. B-13 also was not considered by the learned Judge for reasons best known. The evidence of P.W.1 also is available on record. Hence in the light of the clear evidence available, this Court is of the considered opinion that the findings recorded in relation to the relationship prima facie cannot be sustained. But however, the learned Judge had not recorded findings after taking into consideration Ex.B-13 and the evidence of P.W.6 in this regard and inasmuch as this is a material omission in appreciation of crucial evidence available on record both documentary and oral, this Court is of the considered opinion that it would not be just and proper for the appellate Court for the first time to record findings in this regard. Be that as it may, no doubt a finding had been recorded by the learned Judge that if the stand of the plaintiff is to be taken into consideration that she is the only daughter of the deceased Veeramma, then there is no necessity at all on the part of Vegi Veeramma to execute Ex. A-3. This cannot be taken to be a suspicious circumstance inasmuch as for the reason that in the light of the recitals in Ex.A-3, she might have thought of executing a will in favour of her own daughter anticipating the problems from her with and kin. On that ground alone disbelieving Ex.A-3 cannot be sustained. The evidence of the expert also had been taken into consideration and positive findings had been recorded in relation to both Ex.A-3 and Ex.B-2. The suspicious circumstances surrounding both Ex.A-3 and Ex.B-2 had been narrated at length.
19. The evidence available on record is that of P.W.1, the plaintiff, P.W.2, the attestor and P.W.3 the scribe of Ex.A-3 and D.W.1, the 2nd defendant, D.W.2 the 3rd defendant and D.W.3 the attestor of Ex.A-2. In view of the fact that the findings recorded in relation to the status of the plaintiff being not in accordance with law this question may fall into insignificance, especially the validity or otherwise of Ex.A-3. Hence, de hors Ex.A-3 if the relationship is established automatically as the sole legal heir the deceased plaintiff alone would be entitled to all the properties left by her deceased mother. Even otherwise, the findings recorded by the learned Judge definitely are totally unsatisfactory and this Court as appellate Court is not inclined to re-appreciate the whole evidence and record findings especially in the light of the material omissions pointed out, the omission to consider the evidence of P.W.6 and also the total exclusion of the affidavit of the deceased relative marked as Ex.B-13. Hence in the fitness of things, this Court is of the considered opinion that the matters are to be remanded.
20. In the light of the findings recorded above, the Judgments and decrees in O.S. No. 85/84 and O.S. No. 86/84 on the file of Subordinate Judge, Peddapuram are hereby set aside and the matters are remanded to the original Court for the purpose of affording opportunity to both the parties to let in further evidence if any relating to all the aspects and decide the matters afresh. The Appeals are allowed to the extent indicated above. The Cross Objections also are disposed of accordingly. Inasmuch as an order of remand is being made in these matters, the parties to bear their own costs. It is needless to say that inasmuch as these suits are old suits, top priority to be given to these suits to dispose of the same in accordance with law.