Andhra Pradesh High Court - Amravati
D.Rukminamma And 4 Others, Rajampet ... vs D.Achamma, Chinna Chowak V Post, Kadapa ... on 26 May, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
APPEAL SUIT No. 530 of 2009
JUDGMENT :
This appeal is preferred against the decree and judgment in O.S.No.5 of 2001 dated 09.04.2009 of the Court of the learned I Additional District Judge, Kadapa, under Section 96 CPC.
2. The plaintiffs are the appellants. The 2nd plaintiff died during pendency of the suit.
3. The defendants are the respondents. The 1st respondent died during pendency of this appeal. A memo was filed on behalf of the appellants informing this fact to this Court on 09.12.2013 that the parties already on record have been the L.Rs. However, on behalf of the respondents 1 to 4, a memo was filed contra to the version in the memo filed on behalf of the appellants stating that the 1st respondent executed a Will dated 05.08.2001 that was deposited before the Joint Sub Registrar, Kadapa, which was registered on 24.03.2011 bequeathing all her properties in favour of the respondents 2 to 4 excluding the appellants and the 5th respondent. However, the fact remains that L.Rs. of the deceased 1st respondent have already been on record and it is not necessary to go now, into the question as to execution of the Will by the 1st respondent referred to above.
4. The parties are closely related. Sri Doddapuneni Seshaiah Naidu was the husband of the deceased 1st respondent. They have four sons and a daughter. Sri Doddapuneni Ramachandraiah, husband of the 1st appellant and father of the appellants 2 to 5, is their eldest son, followed by the respondents 2 to 4. The 5th respondent is their daughter. Sri MVR,J A.S.No. 530 of 2009 2 Ravindra Naidu, husband of the 5th respondent, is one of the brothers of the 1st appellant.
5. Sri Doddapuneni Seshaiah Naidu died during September, 1996. Sri Ramachandraiah, his eldest son, was working as a Forest Guard, who was later on promoted as Forest Section Officer in Kadapa Dsitrict. He was employed in Forest Department by the date of his marriage and of the 1st appellant in the year 1969. He died in harness.
6. The appellants laid the suit for partition of plaint 'A' to 'D' schedule properties and to allot 5/18th share in plaint 'A' schedule property as well as to allot one share out of three shares in plaint 'B' to 'D' schedule properties having regard to the good and bad quality of the property, the convenience of enjoyment, for delivery of possession of their share in this property and also for mesne profits, against the respondents. Their claim was partly decreed while rejecting rest. The decree of the trial Court reads as under:-
"(1) That the suit is partly decreed with proportionate costs; (2) That the plaintiffs are entitled for partition and not entitled for mesne profits;
(3) That the defendants be and are hereby directed to divide items Nos.
2 and 3 of plaint "A" schedule into 18 shares and to allot five such shares to the plaintiff;
(4) That the defendants be and are hereby directed to divide the remaining plaint "B" and "D" schedule properties viz., item No.2; sub-items 2 and 4 of item No.3; sub-items 1 and 2 in item No.4, sub-item No.1 in item No.5 and sub-item No.1 in item No.7 of plaint "B" schedule and items 1,3 and 4 of plaint "D" schedule properties which are available for partition and do allot 1/30th share to the plaintiffs having regard to the good and bad qualities of the properties as well as the convenience and enjoyment; (5) That all the defendants do pay to the plaintiffs a sum of Rs.10,000/-
being the proportionate costs of this suit; and (6) That the defendants do also bear their own costs of Rs. Nil (Costs memo not filed) being the costs of this suit."
MVR,J A.S.No. 530 of 2009 3
7. It is desirable to consider the pleadings set out by the parties before evaluating the material on record and analyzing the evidence adduced by the parties.
8. (i)The case of the appellants as seen from the plaint was that the husband of the 1st appellant Sri D. Ramachandraiah, his father Sri Doddapuneni Seshaiah Naidu and respondents 2 to 4 constituted a joint Hindu family and that Sri Doddapuneni Seshaiah Naidu was the head of this family as manager. They were predominantly living by agriculture and that Sri Doddapuneni Seshaiah Naidu died leaving behind him, Sri Ramachandraiah apart from the respondents as his only legal heirs.
(ii) It was further the case of the appellants in the plaint that one Sri Kolli Gurappa was the maternal uncle of Sri Doddapuneni Seshaiah Naidu and that Sri Kolli Gurappa executed a gift settlement deed giving away plaint 'A' schedule properties to Sri Ramachandraiah as well as the respondents 2 and 3 on 16.06.1965 along with a hut and a vacant site at Chinna Chowk village of Kadapa District. Sri Kolli Gurappa as per the averments in the plaint reserved life estate for him and conveyed vested remainder to the donees, which they should enjoy after his lifetime. Sri Doddapuneni Seshaiah Naidu, as per the averments in the plaint, took over possession of the properties covered by the above gift deed since the respondents 2 and 3 were minors and was looking after these properties, which was also convenient for Sri Ramachandraiah, since he was in Government service by then moving about different places on account of his employment. Sri Kolli Gurappa died in or about the year 1967 of 1968 and whereupon the properties under the above gift deed became absolute property of the donees thereunder.
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(iii) Sri Doddapuneni Seshaiah Naidu had laid out item No.1 of the plaint 'A' schedule along with the properties mentioned in item No.1 of the plaint B-schedule, into house plots. It was so done since the plaint 'A' schedule property was convenient for house sites and as real-estate business starting soaring as per the averments in the plaint and for such purpose, Sri Ramachandriah had executed a power of attorney in favour of his father on 02.08.1976, authorizing to sell these plots and to receive the consideration upon such sales.
(iv) It was also the case of the appellants in the plaint that Sri Doddapuneni Seshaiah Naidu, as GPA of Sri Ramachandraiah, along with the respondents 2 and 3 sold several house sites out of the lay- out so formed, in all to an extent of Ac.1-37 cents, executing several sale deeds during the years 1976 to 1978, delivering possession of the respective plots to the purchasers, upon receiving sale consideration and that there was about Ac.0-80 cents left over out of the entire layout, which remained unsold, shown in 'A' schedule of the plaint.
(v) It was also the case of the appellants that Sri Doddapuneni Seshaiah Naidu and his sons purchased Item No.1 of the plaint 'B' schedule in an extent of Ac.5-51 cents out of their joint efforts and common funds and out of the same, only Ac.1-00 was left out, since the remaining extent was sold by Sri Doddapuneni Seshaiah Naidu along with the respondents 2 and 3 forming layout as stated above along with Ac.1-37 cents in item No.1 of plaint 'A' schedule property.
(vi) Out of the sale consideration so realized, Sri Doddapuneni Seshaiah Naidu purchased various lands either in his name or in the name of the 1st respondent viz., his wife, as per the averments in the MVR,J A.S.No. 530 of 2009 5 plaint described in plaint 'B' and 'C' schedules, which was allowed by Sri Ramachandraiah and the respondents 2 and 3, since it was for the benefit of the joint family. These lands were all treated as joint family properties and sale deeds obtained in the name of Sri Doddapuneni Seshaiah Naidu and the 1st respondent were only nominal in nature, in which the appellants have also right, share and interest, since they have been in joint possession of the same along with the respondents.
(vii) It was also the case of the appellants in the plaint that Item No.1 of plaint 'D' schedule property was the ancestral property belonged to the family, which is a residential house, and items 2 to 4 of plaint 'D' schedule belonged to Sri Doddapuneni Seshaiah Naidu and his sons which were constructed out of the joint family income as well as their earnings forming part and parcel of the joint family property.
(viii) When the appellants demanded their share in the above joint family properties upon death of Sri Ramchandraiah including upon issuance of legal notice dated 08.03.2001, since there was no response , they were constrained to file a suit for their shares in the plaint schedule properties, seeking the reliefs as stated above.
9. The claim of the appellants in the plaint was resisted in the written statement on behalf of the 1st respondent adopted by the respondents 1 to 4. However, the 5th respondent remained ex parte in the suit.
10. The broad contention of the respondents 1 to 4 in the written statement was denial of existence of joint family as claimed by the MVR,J A.S.No. 530 of 2009 6 appellants and to hold such properties. While admitting that Sri Ramachandraiah along with the respondents 2 to 4 were beneficiaries under the gift settlement deed executed by Sri Kolli Gurappa on 16.06.1965, laying out plots in plaint 'A' schedule properties, amalgamating it along with a part of item No.1 of plaint 'B' schedule as well as the land of one Sri Eragamreddi Gangi Reddy, a neighbouring land owner, it was the case of the respondents that on account of employment of Sri Ramachandraiah, who was staying away from their place, he executed a registered power of attorney in favour of his father Sri Doddapuneni Seshaiah Naidu on 02.08.1976, to transact sales of these layout plots. They further contended in the written statement that the entire extent of Ac.2-17 cents out of item No.1 of plaint 'A' schedule property was sold away during lifetime of Sri Doddapuneni Seshaiah Naidu upon executing registered sale deeds for a major part of it, while executing agreements in respect of smaller extents upon receiving sale consideration. They also contended that Sri Ramachandraiah received large sums of money from Sri Doddapuneni Seshaiah Naidu at the time of executing GPA and later also, whenever sale transactions went on.
(ii) The respondents further contended in the written statement that Sri Doddapuneni Seshaiah Naidu acquired other properties on his own and did not get a large extent of property, which can be claimed as ancestral. They further contended that Sri Doddapuneni Seshaiah Naidu and his brother Sri Nagaiah owned only an extent of Ac.1-93 cents together as ancestral property, out of which Sri Doddapuneni Seshaiah Naidu was allotted only Ac.1-00. They further contended that Sri Doddapuneni Seshaiah Naidu, during his lifetime, executed an unregistered Will on 23.06.1996 MVR,J A.S.No. 530 of 2009 7 bequeathing the properties in favour of the respondents 2 to 4, which bequest was made in a sound and disposing state of mind as a last Will and testament. Plots left over, on account of this Will, according to the respondents, became the property of the respondents 2 to 4 to which the appellants cannot have any right or claim. Similarly, they contended that the plaint 'B' and 'C' schedule properties were purchased by Sri Doddapuneni Seshaiah Naidu out of his own funds and the properties stood in the name of the 1st respondent absolutely belonged to her, since she purchased them. Similarly, they contended that item No.1 of plaint 'D' schedule was reconstructed after demolishing an old hut, during the lifetime of Sri Doddapuneni Seshaiah Naidu and his brother Sri Nagaiah with the assistance of Sri Kolli Gurappa and their mother. Item No.2 of plaint 'D' schedule, according to the respondents, did not belong to their family and an old house was given away under an unregistered gift deed to the wife of the 2nd respondent viz., Smt. D.Sulochana by its original owner Smt. Thotakura Chinna Veeramma on 12.06.1986 wherein the existing structure was demolished raising a haveli. The respondents also contended that item No.2, sub-items 3 and 5 in Item No.3, sub item No.4 in item No.6 of plaint 'B' schedule shown in the plaint did not belong to the family and that there is no such property for the family described in item No.5 of 'B' schedule, according to the respondents.
(iii) The respondents 1 to 4 further stated in the written statement that at the time of the marriage of the 5th respondent, she was given away a large quantity of gold and cash by their father Sri Doddapuneni Seshaiah Naidu and was also giving her money time to MVR,J A.S.No. 530 of 2009 8 time liberally, at her request. They further contended that Ac.0-03 cents of valuable land in S.No.675/1 of Chinna Chowk village was also given away by Sri Doddapuneni Seshaiah Naidu to the 5th respondent under a registered deed, on a specific understanding that she would not make any claim in future in respect of any of the properties of Sri Doddapuneni Seshaiah Naidu. They further contended that this site was sold away by the 5th respondent to third parties and on account of the close relationship of her husband and that of the 1st appellant, all of them have been colluding in making this claim against the respondents 1 to 4. They further contended that the terms between Sri Ramachandraiah on one hand and Sri Doddapuneni Seshaiah Naidu and 1st respondent on the other, during their lifetime were not cordial and upon the death of Sri Ramachandraiah, they were not even informed nor asked to take part in the connected rituals while his dead body was buried at Rajampet itself without bringing it to Chinnachowk village, their native place.
(iv) The respondents further contended in the written statement denying the contents of the legal notice and claimed that by virtue of the Will executed by Sri Doddapuneni Seshaiah Naidu in favour of the respondents 2 to 4, to the knowledge of the appellants, the appellants are not entitled for any share in the plaint schedule properties nor for any of the reliefs.
11. Basing on the above pleadings, the trial court settled the following issues for trial:
"1. Whether the plaintiffs are entitled for partition?
2. Whether the plaintiffs are entitled for mesne profits?
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3. Whether D. Seshaiah Naidu executed a will dated 23.06.1996?
4. To what relief?"
12. At the trial, the 1st appellant examined herself as P.W.1 while relying on Ex.A1 to Ex.A6. The 2nd respondent examined himself as D.W.1 while the 1st respondent examined herself as D.W.2, who also relied on the testimony of D.W.3 to D.W.5 to prove Ex.B12-Will attributed to Sri Doddapuneni Seshaiah Naidu, while relying on Ex.B1 to Ex.B19 as well as Ex.C1 to Ex.C9 in support of their claim.
13. On the material and the evidence, the learned trial Judge accepted Ex.B12-Will as the last Will and testament of Sri Doddapuneni Seshaiah Naidu creating a bequest in favour of the respondents 2 to 4 and accepting the claim of the appellants in part decreed the suit in part as described above.
14. Heard Sri G. Ramachandra Reddy for the appellants and Sri Satya Prasad, learned Senior Counsel representing Sri Balaji Medamalli, learned counsel for the respondents 2 to 4.
15. Now the following points arise for determination:
1. Whether Sri Doddapuneni Seshaiah Naidu and his sons constituted a Hindu Joint family and if it had properties that were available for partition?
2. Whether Ex.B12-unregistered Will is true, valid and binding on the appellants and if it was executed by Sri Doddapuneni Seshaiah Naidu in favour of the respondents 2 to 4 creating a bequest in respect of the plaint schedule properties in a sound disposing state of mind, voluntarily?
3. Whether the decree and judgment of the trial Court are proper?
4. To what relief?
MVR,J A.S.No. 530 of 2009 10 Point No.1:-
16. The burden is on the plaintiffs (appellants) to establish that there was a joint family constituted by Sri Doddapuneni Seshaiah Naidu, Sri Ramachandraiah and the defendants 2 to 4 (respondents 2 to 4) and that Sri Doddapuneni Seshaiah Naidu was its Kartha, managing all affairs of this joint family and its properties. Merely because there existed a joint Hindu family, there is no presumption that the joint family held certain properties, which can be described as the property of the joint Hindu family itself. Acquisition of any property by an individual member of a joint Hindu family cannot by itself partake the character and nature of the property belonging to joint Hindu family. A member of coparcenary can bring his individual or self acquired properties into the common hotchpot by process of blending along with other properties of the joint Hindu family. If there is nucleus of the joint Hindu family sufficient enough to purchase and acquire properties, all such acquisitions later on as long as the status of the family, be it coparcenery or otherwise continues, belong to the joint Hindu family.
17. In para-4 of the plaint it is specifically averred that Sri Doddapuneni Seshaiah Naidu as the kartha or manager and their sons including the deceased eldest son Sri Ramachandraiah constituted a Hindu joint family, owning agricultural lands and living by agriculture. There are many averments in the plaint describing the plaint schedule properties as the properties of joint Hindu family so constituted though in para-10 of the plaint it is stated that the properties settled in favour of Sri Ramachandriaah and the respondents 2 and 3 under the gift deed dated 16.09.1965 (Ex.A1) are their exclusive properties.
MVR,J A.S.No. 530 of 2009 11
18. As seen from the averments in the written statement, there is neither specific nor general denial of such averments in the plaint. Particularly with reference to constitution of joint Hindu family referred to in para-4 of the plaint, there is no specific denial. A general denial is seen in para-3 of the written statement, while admitting the relationship among these parties to the effect that other allegations as to how they acquired the properties and their rights therein are not true. This denial if at all considered, stricto stensu cannot fall within the scope of order VIII, Rule-5 CPC, which requires that every allegation of the fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. In fact, the mandate under Rule-3 of Order-VIII CPC that the denial shall be specific, is violated by the averments in the written statement. Order- VIII, Rule-3 CPC requires that it is not sufficient for defendant in his written statement to deny generally the grounds alleged by the plaintiff and that the defendant must deal specifically with each and every allegation of the fact of which he does not admit the truth.
19. The version of the respondents in the written statement, is apparently evasive, within the meaning of Rule-4 of Order-VIII CPC. Thus, the nature of written statement presented by the respondents, leads to infer that the averments so made in para-4 of the plaint are true and correct. This inference stands fortified by the material and evidence on record and upon considering how the properties, either stood in the name of Sri Doddapuneni Seshaiah Naidu and which stood in the name of either his wife or his sons were treated, making out a corpus of the family.
20. As seen from para-5 of the written statement, Sri Doddapuneni Seshaiah Naidu and his brother Sri Nagaiah had only Ac.1-93 cents of MVR,J A.S.No. 530 of 2009 12 ancestral property and out of it Sri Doddapuneni Seshaiah Naidu had only Ac.1-00. Thus, the case sought to be projected by the respondents in the written statement is that there was no ancestral property worth the name held by Sri Doddapuneni Seshaiah Naidu and in order to acquire any properties later on.
21. However, at the trial through the 2nd respondent examined as D.W.1, the respondents produced Ex.B1 to Ex.B3-registration extracts of sale deeds, to prove that there were certain properties held by Sri Doddapuneni Seshaiah Naidu and which were his self acquisitions. In respect of nature of the ancestral extent held by him of Ac.1-00, there is no material placed by the respondents at the trial. D.W.1 could not state in cross-examination, the S.No. of the land which Sri Doddapuneni Seshaiah Naidu acquired of Ac.1-00 in the family partition and which was the coparcenary property. There is no proof as to extent of property this coparcener had, by the date of partition in between them. Introduction of Ex.B1 to Ex.B3 for the first time during trial is without any basis in the pleadings viz., the written statement.
22. Ex.B1-registration extract of the sale deed dated 18.07.1917 is to the effect that an extent of Ac.0-85 cents in S.No.240/3 of Chinna Chowk village (Sub item No.1 of item No.3 of plaint B-schedule) was purchased by Sri Doddapuneni Seshaiah Naidu from Sri Kolli Subbaiah, Son of Lakshmanna for Rs.190/-. Ex.B2 is registration extract of the sale deed dated 22.06.1957 under which Sri Doddapuneni Seshaiah Naidu purchased sub item-A of item No.1 of plaint B-schedule from Sri Darapuneni Muneyya, Son of Muneyya for Rs.1,000/-. Similarly, under Ex.B3-registration extract of the same dated 22.06.1957, he purchased sub items (B) and (C) of item No.1 of plaint B-schedule for Rs.500/- from MVR,J A.S.No. 530 of 2009 13 Sri Damanacherla Subbaiah, Son of Subbaiah. Item (1) of plaint 'B' schedule could not have been acquired with the joint exertion of Sri Ramachandraiah and the respondents 2 to 4, having regard to the period, when they were purchased under Ex.B2 and Ex.B3.
23. It is not in dispute that under a gift deed dated 16.06.1965 (Ex.A1 is its registration extract) from Sri Kolli Gurappa, item No.1 of plaint 'A' schedule in S.No. 675/2 of Ac.2-17 cents, Ac.0-33 cents in S.No.240/2 (items 1 and 3 of the plaint 'A' schedule) apart from a small hut near these lands, of Chinna Chowk village was acquired by Sri Ramachandraiah, husband of the 1st appellant, as well as the respondents 2 and 3. Sri Kolli Gurappa retained life estate therein and upon his death, it was to vest in favour of these donees. It is also not in dispute that Sri Kolli Gurappa died somewhere around the years 1967 or 1968 and thus the properties covered by Ex.A1 stood vested in these beneficiaries.
24. The admitted case of the parties is that item No.1 of plaint 'A' schedule in S.No.675/2 of Ac.2-17 cents, Ac.5-51 cents of item No.1 of the plaint B-schedule covered by Ex.B2 and Ex.B3, because of their nature and since there was spurt in real-estate activity in Chinna Chowk village along with the land belonging to one Sri Eragamreddi Gangi Reddy, which was interspersing these two lands, were pooled together, forming a layout of house plots of Ac.0-10 cents each and providing for certain civic amenities like roads etc. It is also an admitted case of the parties that a major part of this layout was sold by Sri Doddapuneni Seshaiah Naidu along with the respondents 2 and 3, during his lifetime.
25. To facilitate sale of these plots, it is also not in dispute that Si Ramachandraiah, husband of the 1st appellant, appointed his father as his power of attorney under a registered instrument viz., GPA dated MVR,J A.S.No. 530 of 2009 14 02.08.1976. Thus, by virtue of this registered GPA (Ex.A2 is its registration extract), Sri Doddapuneni Seshaiah Naidu was authorized and empowered to sell these plots, receive the sale consideration thereupon and to attend all such activities necessary for such purpose. Upon sale of a major part of these house plots, it is also an admitted situation in this case that Sri Doddapuneni Seshaiah Naidu received the sale consideration.
26. To prove such activity, the appellants produced Ex.A4 and Ex.A5-Registraton extracts of sale deeds dated 14.03.1977 and 02.02.1977 respectively, whereunder plots of Ac.0-10 cents each were sold. There was also a reference to road laid out in these lands for the purpose of these plots, in Ex.A4 and Ex.A5.
27. The version of the respondents in this context is that apart from executing regular registered sale deeds in favour of the purchasers during the lifetime of Sri Doddapuneni Seshaiah Naidu, certain small extents were also sold under agreements for sale, which were yet to be registered.
28. As rightly contended for the appellants, no details of sales under agreements for sale so effected during the lifetime of Sri Doddapuneni Seshaiah Naidu were furnished in the written statement nor in the evidence by the respondents 1 to 4. Statements elicited from D.W.1 on behalf of the appellants in the cross-examination clearly point out this situation. According to D.W.1, his father sold entire land in S.No.675/2 except Ac.0-05 or Ac.0-06 cents out of Ac.2-17 cents. He could not give the names of the persons to whom his father executed unregistered agreements with reference to the sales of small parcels of land. He denied the suggestion that there was Ac.0-80 cents out of S.No.675/2, which was not sold by his father. He also stated that the purchasers did not issue any MVR,J A.S.No. 530 of 2009 15 notice demanding the registration of such extents out of Ac.0-80 cents in S.No.675/2.
29. Thus, the version of the respondents at the trial did not specifically bring out exact extent available after certain sales covered by registered sale deeds in S.No.675/2.
30. The learned trial Judge observed in para-11 of the impugned judgment that the appellants failed to prove that Ac.0-80 cents is still available out of this extent and therefore they are not entitled for share out of it.
31. On behalf of the appellants in this appeal as if to meet the finding so recorded by the trial Court, additional evidence is sought to be adduced filing I.A.No. 1 of 2019 under Order-41, Rule-27 CPC, producing registration extracts of sale deeds dated 20.10.2012, 19.10.1977, 17.07.1977, 17.07.1977, 14.05.1977, 02.02.1977, 02.02.1977, 02.02.1977, 02.02.1977, 17.09.1977 and 17.06.1978. Reception of these documents is formally opposed on behalf of the respondents, though no specific counter is filed.
32. The reason assigned for production of these documents in additional evidence in the affidavit of the 1st appellant is that in the layout formed during the lifetime of Sri Doddapuneni Seshaiah Naidu, apart from the land covered by S.No.675/2, lands in S.Nos.763/3, 673/4, 675/1, 676/1, 676/2, 676/3 and 677 were included and that S.No.675/2 is concerned to plot Nos. 42 to 62 out of which 14 plots were sold through registered sale deeds, while plot Nos. 42, 49, 55, 57 and 60 to 62 were not sold till now. Thus, it is stated that out of the extent covered by S.No.675/2 of Ac.2-07 cents , there is a vacant land of Ac.0-29 ½ cents MVR,J A.S.No. 530 of 2009 16 while 60.2 cents out of it is set apart for roads in the entire layout. Thus, it is stated in this affidavit that Ac.0-39.05 cents in S.No.675/2 is available for partition, in which the appellants are entitled for 5/18th share. It is further stated in this affidavit that since Sri Ramachandraiah died on 09.07.1999, if any sale deeds were executed or created subsequent to his death, they are not binding on the appellants, being null and void and that Ex.B12 Will of Sri Doddapuneni Seshaiah Naidu is not binding on them.
33. As seen from the documents so produced, except for the sale deed dated 20.10.2012, remaining documents were very much available for the applicants to produce during the course of trial. It is not as though they were not aware that they should adduce evidence in this context to establish their claim that there was Ac.0-80 cents of land left over in the nature of house plots in S.No.675/2. In order to prove the manner by which these plots were sold, they already produced Ex.A4 and Ex.A5 as discussed supra. In such circumstances, their version in making this attempt to produce additional evidence is not proper. Neither can it be treated as fresh material which came into existence later on and of which the appellants were not aware of inspite of exercise of due diligence nor can this plea be accepted on the premise of interests of justice warranting reception of such evidence, for a substantial cause. The appellants did not specifically plead or make out at the trial that sale deeds if any executed subsequent to 09.07.1999 are not binding on them being null and void. On the other hand, it is manifest from registration extract of the sale deed dated 20.10.2012 that the appellants themselves executed a sale deed in favour of the purchasers with reference to plot No.49 of Ac.0-10 cents and without involvement of any of the respondents and others , who were owners of the land forming part of this layout. A clear attempt to MVR,J A.S.No. 530 of 2009 17 create evidence was made by the appellants at this stage in the year 2012 by bringing out such document.
34. In the above circumstances, neither for a substantial cause nor for the purpose of better adjudication of the matter in this appeal these documents are required to be received in additional evidence in terms of Order-41, Rule-27 CPC. Therefore, finding no justification in filing I.A.No.1 of 2019, it has to be dismissed refusing to receive the documents filed along with this petition, in additional evidence.
35. It is for the respondents to establish by cogent evidence and not for the appellants to prove this fact as to availability of any extent out of S.No.675/2. The reason is that the admitted situation itself makes out that this entire extent was dealt with along with item No.1 of plaint 'B' schedule and other lands of the neighbours forming a layout during the lifetime of Sri Doddapuneni Seshaiah Naidu and respondents 2 to 4. The admitted fact situation also makes out that Sri D.Ramachandraiah did not himself participate in these transactions except through his father under Ex.A2-GPA. The finding so recorded by the learned trial Judge in this context is not proper and accordingly, it has to be set aside.
36. The specific case of the appellants is that out of the funds so realized upon sale of these plots, Sri Doddapuneni Seshaiah Naidu purchased other properties described in 'B' and 'C' schedule of the plaint except item No.1 of plaint 'B' schedule, either in his name or in the name of the 1st respondent, who is his wife. However, the respondents contended that they were all self-acquisitions of Sri Doddapuneni Seshaiah Naidu and the 1st respondent.
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37. When the defence of the respondents is specific that Sri Doddapuneni Seshaiah Naidu and the 1st respondent acquired these properties on their own, it is their burden to discharge the same. The appellant cannot be called upon to prove such facts in negative nor can burden be placed on them to prove such facts.
38. On behalf of the respondents, Ex.B4 to Ex.B10 were produced in order to show that different extents among the plaint schedule were acquired by Sri Doddapuneni Seshaiah Naidu on his own.
39. The respondents further relied on Ex.B14 to Ex.B18 to prove that the properties covered by these documents were self acquisitions of the 1st respondent.
40. During the lifetime of Sri Doddapuneni Seshaiah Naidu, the respondents 1 to 4 were living together, enjoying the properties of this family. It is not their case that they were living separately, enjoying any of these properties exclusively and separately or by any one of them, during his lifetime.
41. Indeed in this context the finding recorded by the learned trial Judge and passing a decree in part in favour of the appellants with reference to the plaint schedule properties, is a supporting factor to the appellants to prove that this joint family has certain properties and which are amenable for partition. This factor is taken into consideration now in as much as the respondents did not choose to question the findings of the learned trial Judge so recorded in the judgment under appeal either by filing cross-objections or by separate cross-appeal. Thus, these findings of the learned trial Judge have become final.
MVR,J A.S.No. 530 of 2009 19
42. The statements elicited from D.W.1 in cross-examination in this context should also be taken into consideration. He came out clean in his statements in cross-examination and it is extracted hereunder:
"My father sold some other properties which stand in his name along with the property mentioned in Ex.A2 and that my father purchased some properties after 1976 out of the above said money."
43. According to the contention of the learned counsel for the appellants, this statement refers to acquisition of other lands in the plaint 'B' schedule as well as 'C' schedule and that it is a clear admission that the property was acquired after the years 1976 did not stand as self acquisitions of Sri Doddapuneni Seshaiah Naidu. There is sufficient force in this contention. Ex.B4 is the sale deed dated 17.09.1981 under which sub item 1 of Item No.5 of plaint 'B' schedule i.e. an extent of Ac.0-29 cents in S.No.88/1-A1 at Kondayapalli was purchased by Sri Doddapuneni Seshaiah Naidu. It is liable for partition as per decree of trial Court. Ex.B5 is another sale deed dated 18.08.1983 under which he purchased item No.2 of 'C' schedule.
44. Ex.B6 is the sale deed dated 18.07.1985 under which he purchased Ac.0-17 ½ cents in S.No.94/1, Ac.1-01 cents in S.No.94/2, Ac.1-11 cents in S.No.95 and Ac.0-47 cents in S.No.96/1 of Lingampalli village for consideration. They are covered by item No.6 of plaint 'B' schedule reflecting that Sri Doddapuneni Seshaiah Naidu had purchased half of such extents, except S.No.96/1. Under Ex.B18 sale deed dated 19.07.1985, in the name of the 1st respondent, remaining extents out of the same S.Nos. covered by Ex.B6 were purchased. Sri Karumanchi Venkatadri Naidu, Son of China Venkata Subba Naidu of Mangalavandla MVR,J A.S.No. 530 of 2009 20 Palle, H/o. Kadapayapalle, Siddavatam Mandal of Kadapa District, was the executant of Exs.B4 and Ex.B18.
45. Ex.B7 is the sale deed dated 22.07.1985 under which Sri Doddapuneni Seshaiah Naidu had purchased from Sri Karumanchi Venkatadri Naidu, Son of Sri China Venkata Subba Naidu of Mangalavandla palle, H/o. Kadapayapalle, Siddavatam Mandal of Kadapa District, an extent of Ac.0-40 cents in S.No.96/1 of Lingamapalli Village, which is part of sub-item No.4 of item No.6 of plaint B-schedule. Ex.B8 is the sale deed dated 15.10.1990 under which he purchased Ac.0-64 cents in S.No.13/3 and Ac.0-39 cents in S.No.13/2 of Lingampalli village, referable to sub items 2 and 3 of item No.7 of plaint 'B' schedule from Sri Pathipati Peda Narasimha, son of Sri Narasaiah of Kadavayapalle village, H/o. Lingampalli. Sub item (1) of Item No.7 in S.No.13/1 of Ac.0-35 cents at Lingampalli is liable for partition as per decree of trial Court.
46. Ex.B9 and Ex.B10 are the pattadar passbooks issued to Sri Doddapuneni Seshaiah Naidu in respect of S.Nos.8-4 and 11-4 covering item No.8 of plaint B-schedule and S.No.626, which is sub item No.1 of item No.4 of plaint B-schedule of Putlampalli and Ukkayapalli villages respectively. Both the lands in Item 4 of the plaint 'B' schedule are available for partition as per the decree of the trial Court.
47. Ex.B14 is the registration extract of the sale deed dated 21.12.1959 under the original of which out of S.Nos.234/1 and S.No.235/5, Ac.0-87 cents was purchased by the 1st respondent from Smt. Nagamma, w/o. Nandyala Subbaiah for Rs.100/-. S.No.234/1 of Ac.0-37 cents is sub item No.3 of item No.3 of plaint 'B' schedule.
MVR,J A.S.No. 530 of 2009 21
48. Ex.B15 is the sale deed dated 08.04.1973 referrable to sub item No.5 of item No.3 of plaint 'B' schedule in S.No.220/A1 of Ac.0-90 cents which the 1st respondent had purchased from Sri M. Chandra Sekhar Naidu. Items covered by Ex.B14 and Ex.B15 are at Chinna Chowk village. Sub items 2 and 4 of item 3 of plaint 'B' schedule are liable for partition as per the decree of the trial Court.
49. Ex.B16 is the sale deed dated 02.03.1978 under which the 1st respondent purchased from Sri Pasala Yellareddy (item No.2 of plaint 'C' schedule) according to D.W.2. However, it is not correct. It is covered by Ex.B5 in favour of her husband.
50. Ex.B17 is the sale deed dated 22.05.1978 under which the 1st respondent purchased item No.1 of plaint 'C' schedule from Smt. Rupaneni Nagaratnamma, Wife of Sri Pedda Subbarayudu.
51. Acquisition of the above extents subsequent to execution of original of Ex.A2-GPA by Sri Ramachandraiah, when considered in consonance with the statement elicited from D.W.1 referred to above, proves and establishes that they were purchased in the name of Sri Doddapuneni Seshaiah Naidu out of the proceeds realized from the sale of these house plots. There is no other inference possible in this respect.
52. There is no evidence on record from the respondents to prove that the 1st respondent had funds of her own or any income to acquire properties in her name. It is in the evidence of P.W.1 viz., the 1st appellant that the parents of the 1st respondent were affluent and so also the version of the 1st respondent as D.W.2. The contention of the respondents is also that the parents of the 1st respondent had given away Ac.1-00 of land to her. Except assertion in the written statement and oral testimony MVR,J A.S.No. 530 of 2009 22 of D.W.2, no documentary proof was adduced at the trial, to prove the same.
53. D.W.2 also deposed purchase of lands as her self acquisitions referring to different items in the plaint schedule. However, in cross- examination for the appellants she stated that the properties covered by Ex.B14 to Ex.B18 were purchased out of the income derived from their lands. She further stated that except the lands covered by Ex.B14 to Ex.B18 there were no prior sale transactions in her name. She further stated that her husband and her own brother were looking after these aspects relating to sales and their negotiations. She denied suggestion on behalf of the appellants that the lands covered by Ex.B14 to Ex.B18 were purchased by her husband in her name and out of the proceeds realised from the sale of lands in the name of her deceased son Sri Ramachandraiah as well as the respondents 2 and 3. The denial by her in this context is interested, particularly when it is considered from her earlier statement that these lands were purchased out of the income derived from the lands. It leaves no manner of doubt that it is clearly referrable to sale of the lands converted into house plots by her late husband and by her other sons than Sri Ramachandraiah.
54. The respondents did not adduce any evidence at the trial proving and establishing that Sri Doddapuneni Seshaiah Naidu was giving away the money so realized upon sale of the plots to Sri Ramachandraiah towards his share. D.W.1 also admitted categorically in this context that he did not file any document showing that his father had paid sale proceeds to his deceased brother Sri Ramchandraiah towards his share. Mere assertion either in the written statement or Ex.B12-Will of Sri Doddapuneni Seshaiah Naidu, without any proof from the respondents, is MVR,J A.S.No. 530 of 2009 23 not sufficient to establish such fact. Neither the circumstance as sought to be pointed out by the learned senior counsel appearing for the respondents that during the lifetime of Sri Ramachandraiah he never raised any objection or questioned any of the respondents including his father in this respect, has any significant bearing.
55. The defence is not even suggesting the extent of amount or sale proceeds paid to Sri Ramachandraiah by Sri Doddapuneni Seshaiah Naidu towards his share. Neither D.W.1 deposed as to how much he had received towards his share or retained by his late father out of the sale proceeds payable to him and his other two brothers. It is undeniable that they are entitled for their share, out of sale proceeds so realized. It should have been more so, since according to them Sri Ramachandraiah was collecting such proceeds from their father. If the purchase of the lands and acquisitions of properties by Sri Doddapuneni Seshaiah Naidu and in the name of the 1st respondent is considered, it is obvious that all these brothers remained quiet and certainly on account of the fact that these acquisitions were for the purpose of joint family, as rightly contended for the appellants. Their conduct clearly proves and demonstrates this fact.
56. The learned trial Judge was carried away by the fact that these sale deeds stood in the name of Sri Doddapuneni Seshaiah Naidu or in the name of the 1st respondent, in recoding a finding that the properties covered by these sale deeds partake the character of their self- acquisitions. However, the source of acquisition of these properties by them nor the impact the sales of plots covered of item No.1 of plaint B- schedule along with item No.1 of plaint 'A' schedule was considered. Further, want of pleadings as well as evidence from the respondents in MVR,J A.S.No. 530 of 2009 24 explaining away the sources by which they purchased these properties was not considered by the learned trial Judge in recording such findings.
57. In the written statement, it is not specially averred as to pooling up of these properties in a common hotchpot of the joint family, either of late Sri Ramachandraiah, the respondents 2 and 3 on one hand and Sri Doddapuneni Seshaiah Naidu on the other. However, the averments in the written statement explaining all the events particularly relating to sale of plots covering item No.1 of plaint 'A' schedule and item No.1 of plaint 'B' schedule, did indicate such process and acquisition of further properties on account of such corpus created by this joint family.
58. Thus, as rightly contended for the appellants, this process of treating the properties together for common benefit and enjoyment, bringing out an admixture, in the nature of joint family properties is the key factor, that should be taken into consideration in this case. Then, even the version of the appellants that item No.1 of plaint schedule remained an exclusive and separate property of Sri Ramachandraiah and his two brothers cannot stand. All the eligible sharers right from Sri Doddapuneni Seshaiah Naidu in terms of Section 6 of Hindu Succession Act, 1956, prior to the amendment of the year 2005, stood entitled for respective shares out of these joint family properties.
59. Thus, it has to be held that there existed a Hindu joint family of which Sri Doddapuneni Seshaiah Naidu was the Kartha and constituted by Sri Ramachandraiah, husband of the 1st appellant and father of other appellants, as well as the respondents 2 to 4. It has to be held further that this Hindu joint family had properties set out in the plaint schedule which are available for partition. In this context, the fact that there is certain amount of variation in the extents of the properties covered by MVR,J A.S.No. 530 of 2009 25 various S.Nos.in different villages set out in the plaint schedule and actually available as per the sale deeds produced by the parties, cannot be a factor to reject the claim of the appellant. When there is proof that these properties are available for partition of whatever extent available, there shall be division of such properties among these parties to eligible extents.
60. Items 1, 3 and 4 are held to be joint family properties by the learned trial Judge. As already stated, the findings so recorded are not subject matter of challenge nor have the respondents chosen to question them.
61. In respect of Item No.2 of plaint 'D' schedule, the contention of the respondents is that it did not belong to their joint family. According to their version, it belonged to Smt. Thotakura China Veeramma, who gifted it away under Ex.B11-an unregistered gift deed on 12.06.1996, in favour of Smt. D. Sulochana, wife of the 2nd respondent. It is also their contention that she renovated this property constructing a Haveli. Ex.B11 as such, could not have been admitted in evidence at the trial. A gift deed is a compulsorily registerable document in terms of Section 123 of Transfer of Property Act and squarely falls within the Scope of Section 17(1) of Indian Registration Act. When document is per se inadmissible, its nature as such can be considered at any stage including in appeal.
(vide R.V.E.Venkatachala Gounder Vs. Arulmigu Visweswaraswami and V.P Temple and another1.)
62. The respondents should have established this fact affirmatively. They failed. Even otherwise, there is no proof laid by the respondents how 1 . AIR 2003 SUPREME COURT 4548 MVR,J A.S.No. 530 of 2009 26 a Haveli came to be constructed and source of funds for such purpose. Her husband (respondent no.2) remained a member of the joint family having access to its resources, points out that it is a part of joint family acquisition. In cross-examination D.W.1 stated that they did not file any document to show that Sri China Veeramma had title to confer upon his wife.
63. Thus, this point is answered in favour of the appellants and against the respondents.
POINT No.2:-
64. Ex.B12 is the unregistered Will alleged to have had been executed by Sri Doddapuneni Seshaiah Naidu dated 23.06.1996 in disposing of the properties. Its contents referred to Ex.A1, under which item No.1 of plaint 'A' schedule was acquired, the execution of Ex.A2-GPA by Sri Ramachandraiah in his favour, laying out plots out of this land and another land and alleged giving away the sale proceeds to Sri Ramachandraiah. They explained the reason for keeping Sri Ramachandraiah away from the benefits of this bequest and favouring the respondents 2 to 4. There is also reference to the reason assigned to not to give away any properties to the 5th respondent.
65. Ex.B12 purportedly contains left thumb impressions of Sri Doddapuneni Seshaiah Naidu and also his signature. Sri D.Salmon (D.W.3) and Sri M.Rama Mohan Naidu signed in it as the attestors. D.W.4-Sri Y. Gnanappa scribed this document.
66. The appellants have denied Ex.B12 calling it a forgery.
67. Therefore, the burden is on the respondents to prove Ex.B12 dispelling all circumstances, which cast a suspicion of its nature and also MVR,J A.S.No. 530 of 2009 27 its due execution by Sri Doddapuneni Seshaiah Naidu. The proof required in this context is in terms of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. Active role of the close relations of the testator who receive substantial benefit thereunder is also generally treated as a suspicious circumstance, which is observed in this case, as per the evidence on record. (vide H.Venkatachala Iyengar vs. B.N.Thimmajamma & others2 and Smt. Guro v. Atma singh & Ors.3).
68. D.W.1 and D.W.2 have deposed in respect of execution of Ex.B12 by Sri Doddapuneni Seshaiah Naidu. D.W.1 being one of the beneficiaries under it was present as per the version of D.W.2, when it was executed by Sri Doddapuneni Seshaiah Naidu. There is also evidence of D.W.3 and D.W.4 to the effect that it was Sri Doddapuneni Seshaiah Naidu who executed it. They further deposed that at his instance they went to his house on the date of execution and as per his instructions it was scribed by D.W.4. Upon the testator subscribing the signatures as well as thumb impression to it, their evidence is to the effect that both the attestors signed in it, signifying the fact of attestation and that D.W.4 also signed in it as its scribe.
69. On behalf of the appellants, presence of beneficiaries when Ex.B12 was executed is pointed out as one of the circumstances to suspect its nature. D.W.2 clearly stated in cross-examination for the appellants that she was present at the time of execution of Ex.B12. D.W.1 also gave out the circumstances under which it came to be executed. In 2 . AIR 1959 SC 443 3 . (1992) 2 SCR 30 = 1992(2) SCC 507 MVR,J A.S.No. 530 of 2009 28 cross-examination for the appellants, his statements that it was executed in their house at 10.00 a.m., that attestors were called by his father, that it was attested and scribed by D.W.4, are strongly relied on for the appellants to question its nature as well as veracity of the evidence adduced in proof of it.
70. D.W.3 stated in cross-examination for the appellants that at the time of execution of this Will, Sri Doddapuneni Seshaiah Naidu, he and the respondents 1 to 4 were present. Thus, this statement is supporting the contention of the appellants.
71. Sri Doddapuneni Seshaiah Naidu admittedly passed away during September, 1996 i.e. within three months of alleged execution of Ex.B12. The contents of Ex.B12 as well as the evidence on record are to the effect that his hands were shaky and shivering by then. It is the reason explained by the respondents through their evidence, for the signatures attributed to Sri Doddapuneni Seshaiah Naidu and his alleged thumb impressions, appearing on all the sheets of Ex.B12. According to D.W.1, his father was sick by then and for about an year prior to date of Ex.B12. He further stated that his father suffered from Asthma initially and thereafter due to failure of kidneys. However, wife of Sri Doddapuneni Seshaiah Naidu viz., D.W.2 gave a different account in respect of his illness. It is to the effect that her husband was in a sound and disposing state of mind except for suffering from fever occasionally.
72. The kind of illness from which Sri Doddapuneni Seshaiah Naidu was suffering as seen from the testimony of D.W.1 cannot be overlooked. It did indicate his infirm nature by then and to suspect whether he was in such a state of mind to make such a disposition, with several details suggestive of the entire defence set up by the respondents in this case MVR,J A.S.No. 530 of 2009 29 particularly as against Sri Ramachandraiah, his eldest son. The manner by which such contents of Ex.B12 were brought out themselves suggest and indicate a strong suspicious circumstance and when it is considered with the infirm nature of Sri Doddapuneni Seshaiah Naidu by then, a serious doubt is cast of its contents as well as authenticity.
73. Added to it, if it was a disposition of Sri Doddapuneni Seshaiah Naidu, as is sought to be contended by the respondents, omission to refer to the amounts alleged to have had been paid to Sri Ramachandraiah either periodically or in lumpsum would not have occurred. The contents of Ex.B12 are so certain that Sri Doddapuneni Seshaiah Naidu was intending to disinherit Sri Ramachanaiah and to keep him away from the properties claimed by him as of his own. However, the facts in this case proved and established that whatever properties held by the date of his death belonged to the joint family.
74. Another significant omission in Ex.B12 is want of details of the properties held by the testator by its date. There is no reference except Item No.1 of plaint A-schedule in Ex.B12, of other properties which according to the respondents, he himself had acquired out of his funds (self acquisitions). Any testament in the nature of Will contains details of the properties which are subject matter of the bequest. Lack of such details is another serious infirmity affecting Ex.B12.
75. Further, evidence of D.W.1 makes out that for the first time a copy of Ex.B12 was enclosed to their written statement. Till then it did not see the light of the day. From the testimony of D.W.1 itself it is manifest that execution of Ex.B12 by Sri Doddapuneni Seshaiah Naidu was not brought to the notice of Sri Ramachandraiah, who was alive by then. Nor there is any evidence to make out Sri Ramachandraiah was aware of MVR,J A.S.No. 530 of 2009 30 execution of this Will by his father. When Sri Ramachandraiah died on 09.07.1999, if at all this Will was available by then, immediately upon the death of Sri Doddapuneni Seshaiah Naidu in September, 1996, the respondents 1 to 4 could have brought it out and made it known to Sri Ramachandraiah.
76. The contents of Ex.B12 and evidence of D.W.2 including averments in the written statement are to the effect that Sri Ramachandraiah and his family members did not attend on Sri Doddapuneni Seshaiah Naidu or D.W.2. Upon death of Sri Ramachandraiah, according to the respondents, they were not even informed or called to attend to the required rituals in the family and whose dead body was buried at Rajampet in stead of Chinna Chowk, which is their native village at the grave of Sri Doddapuneni Seshaiah Naidu. Nonetheless, they cannot be the factors to maintain such unwarranted secrecy regarding execution of Ex.B12 Will.
77. If at all this Will was available, the respondents could have got the family lands mutated in their name in revenue records. Evidence of D.W.1 makes out that they did not make such an attempt. The issue relating to partition was subject matter of mediation by the elders in a panchayat and went to the police station also. It is clear from the statement elicited from D.W.1 in this context, who stated that they did not agree to give any share to the 1st appellant though such attempts were made by her, soon after death of her husband. It is also clear that they did not issue any notice basing Ex.B12 Will to the 1st appellant informing that she did not have any share in the properties. When legal notice was issued on behalf of the appellants under Ex.A3 dated 08.03.2001, the respondents did not issue a reply immediately and it was sent in Ex.B19 MVR,J A.S.No. 530 of 2009 31 on 16.04.2001. By that date, the suit was already laid on behalf the respondents (As seen from the copy of the plaint, the suit was filed in the trial court on 13.04.2001).
78. Another significant factor is that the second attestor to Ex.B12, who was not chosen to be examined at the trial, is none other than the brother-in-law of D.W.1 viz., brother of his wife.
79. When all these factors are taken into consideration cumulatively, they did present and offer serious circumstances, of suspicious nature surrounding the execution of Ex.B12-Will.
80. The learned trial Judge did not consider all these vital facts and circumstances affecting reliability and acceptability of Ex.B12 Will and was merely carried away by the nature of the testimony adduced by the respondents without proper appreciation. When it is the bounden duty of the propounder of Ex.B12 Will to dispel all such suspicious circumstances affecting the nature of Ex.B12 Will. When they did not discharge such burden, the inference to draw is that Ex.B12 cannot be implicitly relied on and to hold that it remained the last Will and testament of Sri Doddapuneni Seshaiah Naidu.
81. There is evidence of D.W.5, Finger print expert, in this context coupled with Ex.C1 to Ex.C9. His testimony along with report makes out that the finger print impression appearing in the second sheet of Ex.B12 is similar to the finger print impression appearing on the admitted document secured from the office of the Sub Registrar. Other thumb impressions appearing on Ex.B12 were found unfit for comparison on account of their smudged nature according to D.W.5 and his report. It is true that the science relating to finger print is an exact science and offers any amount MVR,J A.S.No. 530 of 2009 32 of reliability. It is one of the factors to be taken into consideration in evaluating the nature of a Will. However, in the context of circumstances surrounding Ex.B12 questioning its very nature, the testimony of D.W.5 or his opinion, cannot be conclusive by themselves, to accept its nature. Opinion evidence cannot be substantive in nature, particularly in the context of proof required of a Will.
82. Therefore, differing with the findings recorded by the learned trial Judge on issue No.3, it has been held that the respondents failed to prove Ex.B12 as the last Will and testament executed by Sri Doddapuneni Seshaiah Naidu voluntarily, in a sound and disposing state of mind, conscious of its contents and on his own. Possibility of bringing out this Will at a later stage, as contended for the appellants, to suit the defence of the respondents, cannot be ruled out, in the presence of the material available on record in this case. This, this point is held to the effect that Ex.B12 Will is not proved to be true and valid nor is binding on the appellants.
POINT No.3:-
83. Findings on points 1 and 2 clearly lead to the inference that the learned trial Judge mis-applied himself to the material on record and did not proceed with the case of the appellant in right perspective. On account of lopsided reasoning adopted by the learned trial Judge failing to appreciate the material on record properly the appellants did suffer, resulting in miscarriage of justice. Thus, this point is answered. POINT No.4:-
84. In view of the findings on points 1 to 3, this appeal has to be allowed setting aside the decree and judgment of the trial Court. However, MVR,J A.S.No. 530 of 2009 33 with reference to mesne profits, since the plaint schedule properties are held to be joint family properties, it cannot as such be stated in the absence of the any material that the appellants are entitled for such relief, nor any arguments are advanced in this respect on their behalf in this appeal.
85. Since the plaint schedule properties are held to be the joint family properties of these parties, there shall be rearrangement or disbursement in the shares allotted to the eligible sharers. It cannot remain as directed by the decree, including in respect of such properties which are held to be amenable for partition. In terms of Section 6 of the Hindu Succession Act then applicable to these parties. The plaint schedule properties shall be divided in 5 (five) equal shares. Out of it, Sri Doddapuneni Seshaiah Naidu, Sri late Ramachandriah and the respondents 2 to 4 are entitled for one such share each on notional partition. Sri late Ramachanaiah and the respondents 1 to 5 stood entitled to apportion equally the share allottable to Sri Doddapuneni Seshaiah Naidu i.e. 7/30 share to the appellants together and 7/30 share each to the respondents 2 to 4, while the respondents 1 and 5 are entitled for 1/30th share each. This course is permissible to adopt in this appeal under Order-41, Rule-33 CPC in the interest of justice to set right the situation by re-determination of the shares.
86. Therefore, this appeal is allowed setting aside the decree and judgment of the trial Court in O.S.No. 5 of 2001 dated 09.04.2009. Accordingly, the suit is decreed and a preliminary decree is passed directing division of the plaint schedule properties into 30 equal shares. The appellants are entitled for 7 shares out of 30 shares, while respondents 2 to 4 are similarly entitled to 7 shares out of 30 shares each MVR,J A.S.No. 530 of 2009 34 and the deceased 1st respondent stood entitled to one share out of such 30 shares. The 5th respondent stood entitled to one share out of 30 shares. The parties are directed to bear their own costs throughout. It is made clear that the properties to be divided among these sharers shall be with reference to the actual extents available on ground and the extents as stated in the plaint schedule need not be taken into consideration for this purpose. The appellants are not entitled for mesne profits.
As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 26.05.2020 Note: Note: Judgment pronounced through Bluejeans (virtual) mode, since this mode is adopted on account of the prevalence of Covid-19 pandemic, from the 15th Court.
RR MVR,J A.S.No. 530 of 2009 35 HON'BLE SRI JUSTICE M.VENKATA RAMANA APPEAL SUIT No. 530 of 2009 Dt: 26.05.2020 RR